THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW AN ELEMENTARY DIGEST OF THE LAW OF PROPERTY IN LAND BY THE LATE STEPHEN MARTIN LEAKE BABKISTER-AT-LAW pf J SECOND EDITION A. E. RANDALL BARR1STER-AT-LAW LONDON STEVENS AND SONS, LIMITED 119 & 120, CHANCERY LANE 1900 BRADBURY, AGNEW, & CO. LP., PRINTERS, LONDON AND TONBRIDGE. PREFACE Thirty-five years have elapsed since this volume was originally published, and the task of revision has not been a light one. Although I have limited my alterations to matters of substance, I think I may claim that one-third of the present text is original matter. In the preparation of this edition I have pursued the course which has been followed by a fair measure of success in the case of my editions of the same author's work on Contracts, namely, of attempting to present the same view as would the learned author if he had undertaken the burden. What he attempted to do is best expressed in his own language : " The present work makes no pretence of competing with or improving upon the existing treatises upon the various matters here included by a more complete or more accurate statement or discussion of the matter of law ; in this respect it aims merely at giving the law, as it exists, with such accuracy and completeness as is reasonably to be expected in an elementary and compendious work. The reader is referred to the numerous well-approved treatises on the various branches of real property law for further details, and for the discussion of special points of doubt and difficulty. But for the advantageous perusal of those treatises it is for the most part requisite that the reader should be prepared with a clear conception of the subject in general ; and the present work may, it is hoped, be found useful in contributing some means towards the attainment of such a conception. ... As the chief object in view has been to enforce the conclusion that the essential virtue of a digest is to be found in the order of arrangement, it has not been thought worth while to continue or adhere to any strict formality of style." I have attempted to give a decided case as authority for each proposition. The chief exceptions are, first, where I have failed to find or remember a reported case; secondly, where the . 5773 IV PREFACE. proposition is a deduction from a number of previous decisions, when I have vouched a text-book of recognised authority. The present edition contains a reference to some 2,500 decided cases, and I think I am correct in stating that no case has been retained or inserted unless I have perused the report at large. The references to English text-books are to the last edition, except in the case of Blackstone's Commentaries, where the reference is to the original edition. A. E. RANDALL. Lincoln's Inn, March. 1909. TABLE OF CONTEXTS. Introduction page 1 PART I. Sources of the Law. Chap. I.— Law of Freehold Tenure, as Subsisting at Common Law. Sect. 1. Tenure . 2. Estates of freehold tenure . 3. Seisin and conveyance of freehold estates . 4. Descent, and disposition by will— 1. Descent . 2. Disposition by will . Chap. II.— The Law of Customary Tenure. Sect. 1. Origin and form of customary tenure ,, ' 2. Limitation and transfer of customary estates 3. Eights and remedies incident to customary tenure 4] Extinguishment, regrant and enfranchisement . Chap. III.— The Law of Uses. Sect. 1. Uses before the Statute of Uses 2. Uses since the Statute of Uses 3. Operation of the Statute of Uses . Chap. IV.— Law of Trusts and Equitable Estates. Sect. 1. Nature and origin of trusts . 2. Creation of trusts . 3. Equitable estates and estate and office of trustee— 1. Equitable estates . 2. Estate and office of trustee . 11 22 32 43 is 52 60 (it; 73 78 82 90 97 101 107 110 Yl CONTENTS. PART II. Estates in Land. Chap. I.— Limitation op Estates as to Quantity. Sect. 1 . Fee simple — 1. Limitation of a fee simple in conveyances . 2. Limitation of a fee simple in wills . „ 2. Fee tail— 1 . Limitation of a fee tail in conveyances 2. Limitation of a fee tail in wills — (1) Limitations to " heirs of the hody," &c. (2) Limitations to '• issue," "children," &c. ,, 3. Estates for life ..... , , 4. Estates for years ..... ,, 5. Tenancy at will . ,, 6. Conditional limitations and conditions — 1. Conditional limitations 2. Conditions . 3. Construction and application of conditions ,, 7. Equitable estates and interests in land — 1. Equitable estates corresponding to legal estates 2. Trusts for conversion 3. Charges of money upon land 4. Mortgages . 5. Equitable estates and interests arising out contracts of sale .... PAGE 119 123 129 134 137 144 149 156 163 168 176 181 185 190 202 of 220 Chap. II.— Limitation of Future Estates. Sect. 1. Limitation of future estates at common law — 1. Reversions . 2. Remainders . 3. Contingent remainders 4. Rule in Shelley's Case ,, 2. Future uses . ,, 3. Future devises ,, 4. Powers — 1. Powers distinguished — (1) As to their source and operation (2) Li connection with estates . (3) As to objects .... 2. Construction of powers as to the estates to be appointed and priority of operation 3. Execution of powers — (1) Time of execution .... (2) Forms and conditions of execution (3) Construction and operation of instrument of execution . ... (4) Execution in excess of power 227 230 233 247 2.?2 2.37 269 275 280 283 287 290 294 300 CONTEXTS. Vll Sect. 4. Powers (continued) — tage 4. Equitable jurisdiction over powers — (1) Jurisdiction in aid of execution . . 304 (2) Jurisdiction to set aside or control execu- tion . . . . .311 ,, 5. Perpetuities and accumulations — 1. Pi ule against perpetuities . . . .310 2. Accumulation of rents and profits . . 335 ,, 6. Future equitable estates and interests in land — 1. The limitation of future equitable estates and interests ..... 340 2. Priority of estates and interests in equity . 346 3. Protection of the legal estate . . . 350 4. The doctrines of notice .... 355 5. Tacking and consolidating mortgages: marshalling . 364 TABLE OF CASES. at-1, at PAGE Abb— Ale. Abbiss v. Burney, 17 Ch. D. 211 ; 50 L. J Ch. 348; 44 L. T. 267; 29 W. R. 449 ,H ' ai ° Abbott, Re (189:3), 1 Ch. 54; 62 L. J. Ch. 46; 67 L. T. 794; 41 W. E. 154 . . . • • • • ' ,i,i - Aberaman Iron Works v. Wickens, L. E. 4 Ch. 101 ; 20 L. T. 89 ; 17 W. E, 211 — • ~' J Abergavenny (Earl) v. Brace, L. E. 7 Ex. 145 ; 41 L. J. Ex. 120 ; 26 L. T. 154 ; 20 W. R. 462 . . ~'_ Abraham v. Twigg, Cro. El. 478 ; 78 E. E. . Ackers v. Phipps, 3 CI. & F. 665 ; 6 E. B. ; 9 Bligh (N.S. 130; 5 E. E " . Ackland v. Luteley, 9 A. & E. 879 ; 8 L. J. Q. B. 164 . • loo v. Pring, 2 Man. & G. 937 ; 10 L. J. C. P. 297 . ■ loo Ackroyd v. Sinitbson, 1 Bro. C. C. 503 ; 1 Wh. & T. L. C. Eg.. 372 ; 28 E. E. . • • • ■ • l ' Acton v. Woodgate, 2 M. & K. 495 ; 39 E. E. . • ■ 191 Adam's Trustees and Frost's Contract (1907), 1 Ch. 695 ; 76 L. J. Ch. 408 ; 96 L. T. 833 . . • • • • y9 > " l Adams v. Adams, Cowp. 651 . 298,299,301,302 v. Adams (1892), 1 Ch. 396 ; (51 L. J. Ch. 237 ; 06 L. T. 98 ; 40 W. E. 261 1,s v. Bush, 6 Bing. (N.C.) 164 ; 9 L. J. C. P. Ill; 8 Scott, 405 240 r. Claxton, 6 Ves. 226; 31 E. E. . • • 36 ' . v. Savage, 2 Salk. 679; 91 E. E, . . 84, 87, 252, 256 Affleck v. Affleck, 3 Sim. & Giff. 394 ; 65 E. E. ; 26 L. J. Ch. 715 ; 3 Jur. (N.S.) 326; 5 W. E. 425 . »* Agra Bank v. Barry, L. R. 7 H. L. 135 . ''•" Ailesburv (Marquis) & Iveagh (Lord). Re (1893), 2 Ch. 345 ; 62 L. J. Ch. 71*3; 69 L. T. 101 ; 41 W. E. 644; 3 E. 440 . . ■ 286 Ainsworth v. Wilding (1905), 1 Ch. 435; 74 L. J. Ch. 256; is W. E. 539 . . • • • • • • '__ Aislabie v. Eice, 3 Madd. 256 ; 56 E. R. ; 1 Taunt. 459 . ,' l " Akeroyd's Settlement, Re (1893), 3 Ch. 363 ; 63 L. J. C. 32 ; 69 L. T. _ 474 ; 7 E. 405 ■ ~™ Albany's Case, 1 Co. 110 b ; 76 E. E. . • • • ^' J Alcock, Re, 23 Ch. D. 372 ; 9 L. T. 240 . - 1 ' 1 Aldborough (Lord) v. Tiye, 7 01. & F. 436; 7 E. R. ; West, 221 ; 9E. e. • *rL Alden's Case, 5 Co. 105 a ; 77 E. E. . Aldrich r. Cooper, 8 Yes. 382 ; 1 Wh. & T. L. C. 36 ; 32 E. E. 194, 369, Aldridge v. Forbes, 9 L. J. Ch. 37 . • • • 3 '° Alexander v. Alexander, 16 C. B. 59; 24 L. J. 0. P. 130; 1 Jux. (N.S.) 598 ; 3 C. L. E, 801 ; 3 W. R. 450 . . • • - i0 X TABLE OF CASES. Ale— Arc. PAGE Alexander v. Mills, L. B. 6 Ch. 124 ; 40 L. J. Ch. 7:) ; 24L.T. 200 19 W. K. 310 ..... v. Young, 6 Ha. 393 ; 67 E. R. ; 12 Jur. 996 . Aleyn v. Belehier, 1 Eden, 132 ; 2 AVh. & T. L. < '. Eq. 308 ; 28 E. B _ i i 288 311, 314 251 196 Alger v. Parrot, L. B. 3 Eq. 328 .... Alison, Exp., L. E. 15 Eq. 394; 28 L. T. 263 ; 21 W. li. 399 Re, 11 Ch. D. 284; 40 L. T. 234 ; 27 W. R. 5.i7 116, 208, 216 Allan v. Backhouse, 2 Ves. & B. 65 ; 35 E. E. ; Jac. 631 ; 37 E. E. 199 v. Gott, L. E. 7 Ch. 439 ; 41 L. J. Ch. 571 ; 26 L. T. 412 ; 20 W. E. 427 . . . . . . . 194, 195 Allen v. Aldridge, 5 Beav. 401 ; 49 E. R. ; 13 L. J. Ch. 155 ; 8 Jur. 435 70 v. Allen, 2 Dr. & War. 307 ; 1 Con. & L. 427 . . . 250 v. Anthony, 1 Mer. 282; 35 E. E. . . . 359 — v. Flood (1898), A. C. 1 ; (57 L. J. Q. B. 119; 77 L. T. 717; 40 W. R. 25S . . . . . 70 v. Jackson, 1 Ch. D. 399 ; 45 L. J. Ch. 310 ; 33 L. T. 713 ; 24 W. E. 306 . . . . . . . 165 v. Knight, 5 Ha. 272; 67 E. E. ; 10 L. J. Ch. 370; 11 Jur. 572 ....... 351, 356 Allgood v. Blake, L. E. 7 Ex. 339 ; 41 L. J. Ex. 217 ; 21 W. P.. 58 ; affirmed L. E. Ex. 160; 42 L. J. Ex. 107 ; 29 L. T. 331 ..... 137,141,319 v. Merry hen t and Darlington Railway, 33 Ch. D. 571 ; 55 L. J. Ch. 743; 56 L. T. 835; 35 W. E. 180 " . . .222 Allum v. Eryer, 3 Q. B. 442 ; 11 L. J. Q. B. 313 ; 7 Jur. 13 .198 Ames, Re (1893), 2 Ch. 479; 62 L s J. Ch. 685; 68 L. T. 787; 41 W. E. 505 ; 3 E. 558. . . . . . .165 Amesbury v. Brown, 1 Yes. Sen. 482; 37 E. E. . . . 195 Amos, Re (1891), 3 Ch. 159 ; 60 L. J. Ch. 570 ; 65 L. T. 69 . . 144 Ancaster (Duke) v. Mayer, 1 Bro. C. C. 454; 1 AVh. & T. L. C. 1 ; 28 E. E. . . . . . . . 193, 209 Anderson v. Dawson, 15 Yes. 532; 33 E. E. . . . . 252 v. Martindale, 1 East, 497 . . . . .154 v. Midland Railway, 3 E. & E. 614; 30 L. J. Q. B. 94 ; 7 Jur. (N.S.) 411 ; 3 L. T. 809. . . . 153, 157, 161 Andrews v. Hulse, 4 K. & J. 392; 70 E. E. ; 27 L. J. Ch. 655; 4 Jur. (N.S.) 581 ; 6 W. E. 508 . . . .68 Angier v. Stannard, 3 M. & K. 566 ; 40 E. E. ; 3 L. J. Ch. 216 . 99 Anglesey (Marquis), Be, L. E. 17 Eq. 283; 43 L. J. Ch. 437; 29 L. T. 721 ; 22 W. R. 507 . . . 212 v. Hatherton (Lord), 10 M. & W. 218 ; 12 L. J. Ex. 57 ........ 58 Anthony, Be (1892), 1 Ch. 450 ; 61 L. J. Ch. 434 ; 66 L. T. 181 ; 40 AV. E. 316 ...... 210 — Be (1893), 3 Ch. 498 ; 62 L. J. Ch. 1004 ; 69 L. T. 300; 41 W. E. 667 ; 3 E. 671 . . . . . 209 Antrobus v. Smith, 12 Yes. 39 ; 33 E. E. . . . . 106 Appleby, Re (1903), 1 Ch. 565 ; 72 L. J. Ch. 332 ; 88 L. T. 219 ; 51 W. E. 455 . . . . . . . . 334 Appleton v. Eowley, L. E. 8 Eq. 139 ; 38 L. J. Ch. 689 ; 20 L. T. 600 . 151 Archbold v. Scully, 9 H. L. C. 360; 11 E. E. ; 7 Jur. (N.S.) 1169 ; 5 L. T. 160 . . . . . . . 160 Archer's Case, 1 Co. 66 b ; 76 E. E, 41, 42, 122, 124, 136, 173, 235, 237, 238, 249, 259, 318 TABLE OF CASES. XI Arc-Aub. PAGE Archer v. Smith, 2 Strange, 1107 .... 367 Arden v. Arden, 29 Ch. D. 702 ; 54 L. J. Ch. 655 ; 52 L. T. 610 ; 33 W. R. 593 220, 349 Arlett v. Ellis, 7 B. & C. 346; 9 B. & C. 071 ; 9 D. & R. 897 ; 5 L. J. (O.S.) K. B. 391 56 Armstrong v. Wolsey, 2 Wils. 19 . . . 83 Arnold, Be, 14 Ch. D. 270 ; 42 L. T. 705 ; 28 W. R. 635 . . 196 ■ v. Hardwick, 7 Sim. 343 ; 58 E. R. . . . .312 Asher v. Whitlock, L. E. 1 Q. B. 1 ; 35 L. J. Q. B. 17; 11 Jur. (N.S.) 925 ; 13 L. T. 254 ; 11 W. R. 26 . . . . 4, 40 Ashforth, Re (1905), 1 Ch. .335 ; 74 L. J. Ch. 361 ; 92 L. T. 534 : 53 W. R. 328 . 34, 50, 235, 241, 1242, 263, 317, 318, 319, 321, 326 Ashton v. Dalton, 2 Coll. 565 ; 63 E. R. ; 10 Jur. 451 . . 216 Ashworth v. Lord, 36 Ch. D. 545; 57 L. J. Ch. 238; 58 L. T. 18; 36AV. R. 446 215 Askew v. Rooth, L. R, 17 Eq. 426 ; 4:3 L. J. Ch. 368 ; 30 L. T. 155 ; 22 W. R. 524 . • • • • 118 v. Thompson, 4 K. & J. 620 ; 70 E. R. . . .197 Askham v. Barker, 17 Beav. 37 ; 57 E. R. ; 22 L. J. Ch. 769 ; 1 W. R. 279 313 Asten v. Asten (1894), 3 Ch. 260; 63 L. J. Ch. 834; 71 L. T. 228; 8 R. 496 ........ 50 Astley v. Micklethwait, 15 Ch. D. 59 ; 49 L. J. Ch. 672 ; 43 L. T. 58; 28 W. R. 811 . . . . ■ • 246, 342 Athill, Re, 16 Ch. D. 211 ; 50 L. J. Ch. 123 ; 43 L. T. 581 ; 29 W. R. 309 ........ 370 Atkinson, Re, 31 Ch. D. 577; do L. J. Ch. 49; 54 L. T. 403; 34 W.E.445 288 Be (1908), 2 Ch. 307 ; 77 L. J. Ch. 76s ; 99 L. T. 174 . 192 v. Baker, 4 T. R. 229 . . . . .147 Atterbury v. Wallis, 8 De G. M. & G. 454 ; 44 E. R. ; 25 L. J. Ch. 792 ; 2 Jur. (N.S.) 117 ; 4 W. E. 734 .... 360 Att.-Gen. v. Barker, L. R. 7 Ex. 177 ; 41 L. J. Ex. 57; 26 L. T. 34 ; 20 W. R. 509 . . . 1*! 55 v. Brunning, 8 H. L. C. 243 ; 11 E. R. ; 30 L. J. Ch. 379 ; 6 Jur. (N.S.) 1083 ; 3 L. T. 36 ; 8 W. R. 362 193, 22:; v. Catherine Hall, Jac. 381 ; 37 E. R. . . 178 v. Cox, 3H. L. C. 240; 10 E. R 175 v. Dodd (1894), 2 Q. B. 150 ; 63 L. J. Ch. 319 ; 70 L. T. 660; 42 \V. R. 524 . . . . 186, L88 v. Hubbuck, 13 Q. B. D. 275; 53 L. J. Q. B. 146; 50 L.T.374 1S9 „. Malkin, 2 Ph. 64 ; 41 E. R. ; 10 Jur. \)dd . . 251 v. Poulden, 3 Hare, 555 ; 67 E. R. ; S Jur. 611 . . 337 . „. Sandover (1904), 1 K. B. 689 ; 73 L. J. K B. 478 ; 90 L. T. 480; 52 W. R. 573. . . . 69, 70 y . Sands, Hard. 488; Tud. L. C. Conv. 211 . .20 v. Tomline, 5 Ch. D. 750 ; 46 L. J. Ch. 654 ; 36 L. T. 68 I : 25 W. E. 802 . . . . • (i ' v. Tomline, 15 Ch. D. 150; 43 L. T. 486 . . . 67 295 r. Wilkinson, L. R. 2 Eq. 816; 12 Jur. (N.S.) 593; 11 L. T. 725; 14 W. R. 910 Attree v. Attree, L. R. 11 Eq. 280 ; 40 L. J. Ch. 192 ; 24 L. T. 121 ; 19 W. R. 464 . • • • • o0 v. Seutt, 6 East, 476 . . . . • .69 Aubin v. Daly, 4 B. & Aid. 59 6 xii TABLE OF CASES. Ave— Bar. PAGE Aveling v. Knipe, 19 Ves. 441 ; 34 E. E. . . . .99 Ayerst v. Jenkins, L. E, 16 Eq. 275 ; 42 L. J. Ch. 690; 29 L. T. 126; 21 W. E. 878 ...... 204 Aylesford (Earl) v. Morris, L. B. 8 Ch. 4S4 ; 42 L. J. Ch. 548; 28 L. T. 541 ; 21 W. E. 424 196 Ayhvin's Trusts, Re, L. E. 16 Eq. 585 ; 42 L. J. Ch. 745 ; 28 L. T. 065; 21 W. E. 864 271, 287 Aynsley v. Glover, L. E. 10 Ch. 2S3 ; 41 L. J. Ch. 523; 32 L. T. 345 ; 23 W. E. 459 . 57 Backhouse v. Charlton, 8 Ch. D. 444 ; 2 TV. E. 504 . . . 217 Badeley v. Consolidated Bank, 38 Ch. D. 238; 57 L. J. Ch. 468; 59 L. T. 419 ; 36 W. E. 745 362 Badger v. Ford, 3 B. & Aid. 153 . . . . oG, 75 Bagnall v. Yillar, 12 Ch. D. 812; 48 L. J. Ch. 695; 28 W. E. 242 . . . . . . • -212 Bailer, Re, 12 Ch. D. 268 ; 48 L. J. Ch. 628 ; 41 L. T. 157 ; 27 W. E, 909 192 v. Barnes (1S94). 1 Ch. 43 ; 63 L. J. Ch. 73 ; 69 L. T. 542; 42 W. B. 66 ; 7 B. 9 . 111,112, 351, 355, 356, 357 ■ — v. Ekins, 7 Ves. 319 ; 32 E. E, . . . 192, 193 . v. Eichardson, 9 Ha. 734 ; 68 E. E. . . . . 359 . „. Stevens, 12 C. B. (N.S.) 91 ; 31 L. J. C. P. 226 ; 8 Jur. (N.S.) 1063 ; 6 L. T. 356 ; 10 W. E. 868 . . . .67 Bailis v. Gale, 2 Yes. Sen. 48 ; 28 E. E 126, 127 Bain v. Sadler, L. E. 12 Eq. 570 ; 40 L. J. Ch. 791 ; 25 L. T. 202 ; 19 W. E. 1077 193 Bainbrigge v. Browne, 18 Ch. D. 188; 50 L. J. Ch. 522 ; 44 L. T. 705; 29 W. E. 782 312, 313 Baker v. Gray, 1 Ch. D. 491 ; 45 L. J. Ch. 165 ; 33 L. T. 721 ; 24 W. E. 171 . . . . • • -369 w.Harris, 11 Ves. 397; 32 E.E. . . . .364 v. Tucker, 3 H. L. C. 106 ; 10 E. E. ; 14 Jur. 771 . .141 v. White, L. E. 20 Eq 166 ; 44 L. J. Ch. 651 ; 33 L. T. 347 ; 23 W. E. 670 .... 51, 95, 96, 100, 129 Baldwin v. Eodgers, 3 De G. M. & G. 649 ; 43 E. E. ; 22 L. J. Ch. 665; 17 Jur. 267 . . . • • • -267 Balfour v. WeUaud, 16 Ves. 151 ; 33 E. E 201 Ball, Re, 40 Ch. D. 11 ; 58 L. J. Ch. 232 ; 59 L. T. 800 ; 37 W. E. 37 266 v. Cullimore, 2 Cr. M. & E. 120 ; 1 Gale, 96 ; 3 Tyr. 753 . 156 ■ v. Harris, 4 My. & Cr. 264 ; 41 E. E. ; 8 L. J. Ch. 114 ; 3 Jur. 140 ...... 191, 198, 199 Bankes v. Holme, 1 Euss. 394 n. ; 38 E. E. . . . . 325 Banks, Re (1905), 1 Ch. 547 ; 74 L. J. Ch. 336 ; 92 L. T. 225 . 193 . v. Small, 36 Ch. D. 716 ; 06 L. J. Ch. 832 ; 57 L. T. 292 ; 35 W. E. 765 2S ,.. Sutton, 2 P. Wins. 700 ; 24 E. E. . . . .110 Banner v. Benidge, 18 Ch. D. 254; 50 L. J. Ch. 630: 44 L. T. 680; 29 W. B. 844 204, 216 Barber v. Settled Estate, 18 Ch. D. 624 ; 50 L. J. Ch. 769 ; 45 L. T. 433 ; 29 W. E. 909 . . . . . ■ • 250 Barker v. Greenwood, 4 M. & W. 421 ; 8 L. J. Ex. 5 . . .96 v. Heat, 2 Vent. 35 ; 86 E. E. . . . . 85, 92 Barlow's Contract, Re (1903), 1 Ch. 382 ; 72 L. J. Ch. 214 ; 88 L. T. 84 ; 51 W. E. 399 277, 2S7 TAIJLK OF CASKS. Xlll Bar— Bea. PAGE Barlow «. Salter, 17 Yes. 479 ; 34 E. B. .... 329 v. Teal, 15 Q. 13. D. .301 ; 54 L. J. Q. B. 564 : 54 L. T. 63 : 34 W. E. 54 1 52 Barnes v. Mawson, 1 M. & S. 77 . . • • .5* v. Bacster, 1 Y. & 0. C. 0. 401 ; 62 E. I!. ; 11 L. J. Ch. 228 ; 6 Jur. 595 . . . . • • • 369 r. Wood, L. B. 8 Eq. 424; 38 L. J. Ch. 683 ; 17 W. R. 1080 ......... 221 Barnett, Re (1908), 1 Ch. 402 ; 77 L. J. Ch. 267 ; 98 L.T. 346 . 305, 336 v. Guildford (Earl), 11 Ex. 1!); 24 L. J. Ex. 281 ; 1 Jur. (N.S.) 1142 ; 3 W. R. 406 42,66 Bartholomew Trust, 1 Mac. & G. 354 ; 41 E. E. ; 1!) L. J. Ch. 237 ; 1 H. & Tw. 565 ; 14 Jur. 181 . . . . . ■ 344 Barwick's Case, 5 Co. 94 b ; 77 E. B. . . . ■ • 35 Basingstoke (Corporation) v. Bolton (Lord), 1 Drew. 270 ; 61 E. R. ; 22 L. J. Ch. 305 ; 17 Jur. 57 ; 1 W. R. 76; 3 Drew. 50 ; 61 E. R. : 3 W. B. 142 19 Basset v. Basset, 3 Atk. 203 ; 26 E. R. .... 238 Bassett v. Clapham, 1 P. Wins. 358 ; 24 E. E. . . . 240 v. Noseworthy, Bep. t, Einch, 102 ; 2 Wh. & T. L. C. Eq. 150; 23 E. B. HI. 354 Bassil v. Foster, 9 Hare, 177 ; 68 E. E. ; 20 L. J. Ch. 641 ; 15 Jur. 964 ....■••• ■ 338 Bastin v. Bidwell, 18 Ch. D. 238 ; H L. T. 742 . . . 155 Bateinan v. Bateman, 1 Atk. 421 ; 26 E. E. . . . .199 v. Hotchkin, 10 Beav. 420; 50 E. B. ; 16 L. J. Ch. 514 ; 14 Jur. 809 .... 264, 339, 340 . v. Hunt (1904), 2 K. B. 530 ; 73 L. J. K. B. 7*2 ; 91 L. T. 331 ; 52 W. E. 609 . . . 349, 360 v. Margerison, 16 Beav. 477 ; 51 E. B. . • • 197 Bates v. Johnson, John. 304 ; 70 E. B. ; 29 L. J. Ch. 509 ; 5 Jur. (N.S.) 842 ; 7 W. E. 572 352, 366 Bath's (Bishop) Case, 6 Co. 34 b. ; 77 E. E. . . • 151, 106 Bath (Earl) v. Abney, 1 Burr. 206 . . . • < ;() , ,; l Batmore v. Graves, 1 Vent. 260 ; 86 E. B. . . . 61, 69 Batsford v. Kebbell, 3 Yes. 363 ; 30 E. B. . 344 Batstone v. Salter, L. B. 10 Ch. 431 ; 44 E. J. Ch. 760 ; 33 L. T. 4 ; 23 W. E. 816 103 Batten-Booll v. Kennedy (1907), 1 Ch. 256; 70 L. J. Ch. 102 . 153 Bayden v. Watson, 12 L. J. Ch. 277 ; 7 Jur. 245 . . ■ 1"85 Bayley's Settlement, lie, L. B. 6 Ch. 590; 25 L. T. 249 ; 19 W. E. 300 ......-• ' 9S Baylies v. Baylies, 1 Coll. 537 ; 63 E. E. . . . • 98 Beale v. Beale, 1 P. Wms. 244 ; 24 E. B, . . • • 262 Beard v. Westcott, 5 Taunt. 393 ; 5 B. & Aid. 801 . . 243, 328 Beardman u. Wilson, L. B. 4 C. P. 57 ; 38 L. J. C. P. 91 ; 19 L. T 282; 17 W. B. 54 . Bearpark v. Hutchinson, 7 Bing. 178 ; 9 L. J. (O.S.) C. P. 1 : 1 Moo. & P. 848 Beauclerk v. Mead, 2 Atk. 167 ; 26 E. R. Beaulieu (Lord) v. Cardigan (Lord), Ambl. 533 ; 27 E. R. Beaumont v. Salisbury (Marquis), 19 Beav. 198; 52 E. R. Ch. 94 ; 1 Jur. (N.S.) 45S ; 3 Eq. Bep. 369 . Beavan r. Oxford (Earl), 6 De G. M. & G. 507 ; 43 E. R. Ch. 299 j 2 Jur. (N.S.) 121 ; 4 W. R. 275 . 362 299 147 L85 125 24 L. J. 147 25 L. J. XIV TABLE OF CASES. Bee— Bin. PAGE Beckett v. Leeds (Corporation), L. E. 7 Ch. 421 ; 26 L. T. 375 ; 20 W. E. 454 17 Eeckwith's Case, 2 Co. 58 a; 76 E. E. . . . 83, 87 Bective (Countess) v. Hodgson, 10 H. L. C. 656; 11 E. E. ; 33 L.J. 601 ; 10 Jur. (N.S.) 373 ; 10 L. T. 202 ; 12 W. E. 625 . . 340 Beddington v. Baumann (1903), A. C. 13 ; 72 L. J. Ch. 155 ; 87 L. T. 658 ; 51 W. E. 383 . . . . . . . 297 Bedells Case, 7 Co. 43 a; 77 E. E. . . . . .86 BedingfVld and Herring's Contract, Re (1893), 2 Ch. 332; 62 L. J. Ch. 430 ; 68 L. T. 634 ; 41 W. E. 413 ; 3 E. 483 . . .277 Beere v. Hoffmeister, 23 Beav. 101 ; 53 E. E. ; 26 L. J. Ch. 177; 3 Jur. (N.S.) 78 312 Beeson v. Burton, 12 C. B. 647 ; 22 L. J. C. P. 33 . . .157 Beighton v. Beighton, 64 L. J. Ch. 796 ; 73 L. T. 86 ; 43 W. E. 685 ; 13 E. 743 . . . . . . .68 Bell v. Cade, 2 J. & H. 122 ; 70 E. E. ; 37 L. J. Ch. 383 . . 344 v. Carter, 17 Beav. 11 ; 51 E. E. ; 22 L. J. Ch. 933 ; 17 Jur. 478 ; 1 W. B. 270 . . . . . . . 208 Bellairs v. BeUairs,L. E. 18 Eq. 510 ; 43 L. J. Ch. 669 ; 22 W. E. 942 . . . . . . . . .176 Bellamy v. Brickenden, 2 J. & H. 137 ; 70 E. E. . . .216 v. Sabine, 1 De G. & J. 566 ; 44 E. E. ; 26 L. J. Ch. 797 . 361 Bellinger, Re (1898), 2 Ch. 534 ; 67 L. J. Ch. 580 ; 79 L. T. 54 . 199 Bence, Re (1891), 3 Ch. 342 ; 60 L. J. Ch. 633 ; 65 L. T. 530 . 266 Benison v. Strode, Pollexf. 614 ; 86 E. E, . . . 72, 73 Benjamin, Re (1902), 1 Ch. 723 ; 71 L. J. Ch. 319 ; 86 L. T. 387 . 149 Bennet v. Bennet, 10 Ch. D. 474 ; 40 L. T. 378 ; 27 W. E. 573 . 103 v. Davis, 2 P. Wins. 315 ; 24 B. E. . . . 111,113 Benson v. Benson, 1 P. Wms. 130 ; 24 E. E. . . . . 188 v. Scot, 3 Lev. 385 ; 83 E. E. . . . . . 61 Bentinck v. Portland (Duke), 7 Ch. D. 693 ; 47 L. J. Ch. 235 . 326 Beresford's Case, 7 Co. 4 a; 77 E. E. . . . . 130 Berkeley v. Hardy, 5 B. & C. 355; 8 D. & E. 102 ; 4 L. J. (O.S.) KB.* 184 . . . . . . . 293 Berry v. Gibbons, L. E. 8 Ch. 747 ; 42 L. J. Ch. S97 ; 29 L. T. 88 ; 21 W. E. 754. . . . . . . 202, 361 Berwick & Co. v. Price (1905), 1 Ch. 632 ; 74 L. J. Ch. 249 . 357, 360 Best v. Donmall, 40 L. J. Ch. 160 . . . . . 342 Best's Settlement, Re, L. E. 18 Eq. 686 ; 43 L. J. Ch. 545 ; 22 W. E. 599 . . . . . . . . .251 Betham v. Wiltshire, 4 Madd. 44 ; 56 E. E. . . . . 198 Betts v. Thompson, L. E. 6 Ch. 716; 25 L. T. 363; 19 W. E. 1100 . . . . . . . . 14, 56, 58 Bevan v. Webb (1905), 1 Ch. 620; 74 L. J. Ch. 300 ; 93 L. T. 298; 53 W. E. 651 . . . . . . . . 116 Beversham's Case, 2 Vent. 345 ; 86 E. E. . . . . 73 Beyfus v. Lawley (1903), A. C. 411 ; 72 L. J. Ch. 781 ; 89 L. T. 309 309 Bickerton r. Walker, 31 Ch. D. 151 ; oo L. J. Ch. 227 . 349, 352 Bickley v. Bickley, L. E. 4 Eq. 216; 36 L. J. Ch. 817 . . 124 Bigge, Re (1907), 1 Ch. 714 ; 76 L. J. Ch. 413 ; 96 L. T. 903 . . 199 Biggott v. Smyth, Cro. Car. 102 ; 79 E. E. . . . . 238 Bingham's Case, 2 Co. 91 ; 76 E. E. . . . . 37, 22S Bingham v. Woodgate, 1 E. & M. 32, 750 ; 39 E. E. ; Taml. 183 ; 48 E. E. ; 8 L. J. (O.S.) Ch. 46 . . . 54, 59, 73 TABLE OF CASKS. XV Bin — Bol. PAGE Binna v. Nichols, L. E. 2 Eq. 2-3(3; 35 L. J. Ch. 635 ; 14 W. \\. 727 . 369 Birch v. Wright, 1 T. E. 378 . . . . . .211 Bird v. Wenn, 33 Ch. D. 215 ; 55 L. J. Ch. 722 ; 51 L. T. 933 ; 34 W. E. 652 . . . . . . . . 368 Birley v. Birley, 25 Beav. 308 ; 25 E. E. ; 27 L. J. Ch. 569 . . 313 Biscoe v. Berkins, 1 V. & B. 485 ; 35 E. E. . . . . 210 Bishop v. Howard. 2 B. & C. 100 ; 1 L. J. (O.S.) K. B. 243 ; 3 D. & E. 293 . . . . • • • 153, 160 Biss, Re (1903), 2 Ch. 40; 72 L. J. Ch. 473; 88 L. T. 403; 51 W. E. 504 . . . . . . . .116 Bixley v. Eley, 2 Bro. C. C. 325 ; 29 E. E. . . . .65 Blackburn, Re, 43 Ch. D. 75 ; 59 L. J. ( 'h. 208 ; 3s W. E. 140 . 289 v. Stables, 2 V. & B. 367 ; 35 E. E. . . 123, 321 Blackburne v. Hope Edwards (1901); 1 Ch. 419; 70 E. J. Ch.99 ; 83 E. T. 370; 48 W. B. 701 .200 Blackett v. Lowes, 2 M. & S. 494 . . . . . 67 Blackford v. Davis, L. E. 4 I h. 304 ; 20 L. T. 199 ; 17 W. E. 336 . 215 Blackwood '•. Burrowes, 4 Dr. & War. 441 .... 2s7 v. London Chartered Bank of Australia, L. E. 5 C. E. 92 ; 43 L. J. E. C. 25 ; 30 L. T. 45 ; 22 W. E. 410 . . . 352 Blagrave v. Blagrave, 4 Ex. 550; 19 L. J. Ex. 414 . . . 129 v. Bradshaw,- 4 Drew. 230 ; 62 E. E. ; 27 L. J. Ch. 440; 4 Jur. (N.S.) 107 ; 6 W. E. 266 . . . . .261 Blake v. Bunbury, 1 Yes. Jim. 514 ; 30 E. E. . . . 98 v. Luxton, G. Coop. 178 ; 35 E. E, . . . 250 Blandv v. Widmore, 1 E. Wins. 324; 2 Wh. & T. L. C. Eq. 407 ; 24 E. E 30S Blann v. Bell, 2 De Ch M. & G. 775 ; 42 E. E. ; 22 L. J. Ch. 236 ; 16 Jur. 1103 . . . . . . . • 100 Blease v. Burgh, 2 Beav. 221 ; 48 E. E, ; 9 L. J. Ch. 226 . . 344 Blernmerhasset v. Humberstone, Hutt. Go . . .73 Blight v. Hartnoll, 19 Ch. D. 294 ; 51 L. J. Ch. 162 ; 45 L. T. 524 ; 30 W. E, 513 . . . . . . 289, 320 Blinston v. Warburton, 2 K. & J. 400; 69 E. E. ; 25 L. J. Ch. 466 ; 2 Jur. (N.S.) 858 139 Blore v. Guilini (1903), 1 K. B. 357 ; 72 L. J. K. B. 114 ; 88 L. T. 235; 51 W. E, 336 . . . . . . .175 Blount v. Hipkius, 7 Sim. 43 ; 58 E. E. ; 4 L. J. Ch. 13 . . 103 r. Sutton, 3 Mer. 237 ; 36 E. E. . . . .307 Blundell, Re, 40 Ch. D. 370; 57 L. J. Ch. 730; M L. T. 033; 36 W. E. 779 . . . . . • . .115 Blunden v. Baugh, Cro. Car. 302 ; 79 E. E. . . . . 158 Blyth v. Dennett, 13 C. B. 178 ; 22 L. J. C. F. 79 . . . 172 v. Flad-ate (1891), 1 Ch. 337 ; 60 L. J. Ch. 66; 63 L. T. 546 ; 39 W. E. 422. . . . . . . .114 Boards, Re (1895), 1 Ch. 499; 64 L. J. Ch. 305; 72 L. T. 220; 43 W. E, 472; 13 R. 278 . . . . • 195 Bobbett v. S. E. Eailway, 9 Q. B. D. 424 ; 51 L. J. Q. B. 161 ; 46 L. T. 32 . . . . . . . • 1J9 Boddington v. Abernethy, 5 B. & C. 776; 8 D. & E. 626 ; 4 L. J. (O.S.) K. B. 181 • 63 Boles v. British Land Co.'s Contract (1902), 1 Ch. 244; 71 L. J. Ch. 130; S5L. T. 607 ; 50 W. E. 185 . . . . -Ill Bolingbroke v. Hmd, 25 Ch. D. 795 ; 53 L. J. Ch. 704 ; 32 W. E. 427 215 XY1 TABLE OF CASES. Bol— Bri. page Bolton r. 11, .Hon, L. R. 5 Ex. 152 ; 39 L. J. Ex. 92 ; 21 L. T. 793 ; 18 W. R. 460 . . . • • • -127 Bond v. Watford, 32 Ch. D. 238 ; 55 I,. J. Ch. G67 ; 54 E. T. 072 . 99 Bonney v. Ridgard, 1 Cox, 145 ; 29 E. R. .... 202 Booth, Re (1900), 1 Ch. 70S ; 69 L. J. Ch. 474 ; 48 W. R. 566 . 318 Bootle r. Blundell, 1 Mer. 193 ; 35 E. R. . . . 193,199 Boraston's Case, 3 Co. 19 a ; 76 E. B. . 166, 235, 237, 244, 264, 322 Boughton v. Boughton, 1 H. L. C. 406 ; 9 E. R. . . 195, 320, 326 Bourne v. Bourne, 2 11a. 35; 67 E. B. ; 11 E. J. Ch. 416; 6 Jur. 775 186, 209 v. Taylor, 10 East, 189 . . . • -67 Bovey v. Smith, 1 Vera. 60, 84, 144 ; 23 E. R. . . Ill, 35:; Bowen v. Lewis, 9 App. Cas. 890 ; 51 L. J. Q. B. 55 ; 52 L. T. 189 . 139 ,.. Scowcroft, 2 Y. & C. Ex. 640 ; 7 L. J. Ex. Eq. 25 . .126 Bower v. Cooper, 2 Hare, 40S ; 67 E. B. ; 11 L. J. Ch. 287 ; 6 Jur. 681 . • • • • 109, 182, 221 Bowes, lie, 33 Ch. D. 586 ; 55 L. J. Ch. 143 ; 55 L. T. 260 ; co W. B. 166. . . . . • • o67 v. E. London Waterworks, 3 Madd. 375 ; 56 E. B. ; affirmed Jac. 324 ; 37 E. B. . . . . . ■ 296, 302 Bowles' (Lewis) Case, 11 Co. 79 b; Tud. L. C. Conv. 86 . 145, 2.J9, 244, 24s Bowles, Re (1905), 1 Ch. 371; 74 L. J. Ch. 338; 92 L. T. 556 . 244, 320, 321, 328 Bowser v. MacLean, 2 De G. F. & J. 415 ; 45 E. B. ; 30 L. J. Ch. 273 ; 6 Jur. (N.S.) 1220 ; 3 L. T. 456 ; 9 W. R. 112 . . 158 Boyd, Re (1897), 2 Ch. 232 ; m L. J. Ch. 614 ; 77 L. T. 76 ; 45 W. E. 648 292,295 v. Petrie, L. B. 7 Ch. 385 ; 41 L. J. Ch. 378 ; 25 L. T. 460 ; 20 W. B. 513 308 Bozon v. Williams, 3 Y. & J. 150 . . - • .358 Brace v. Marlborough (Duchess), 2 P. Wms. 491 ; 24 E. B, . 364, 368 Bradley v. Cartwright, L. B. 2 C. P. 511 ; 36 L. J. C. P. 218 ; 16 L. T. 587 ; 15 W. B. 922 .... 140 r. Peixoto, 3 Yes. 324 ; Tud. L. C. Conv. 514 ; 30 E. R. . 164 v . Eiches, 9 Ch. D. 189 ; 47 L. J. Ch. 811 ; 38 L. T. 810; 26 W. B. 910 . . . . • • • -360 Bradshaw, Re (1902), 1 Ch. 436 ; 71 L. J. Ch. 230 ; 86 L. T. 253 . 308 v . Lawson, 4 T. B. 443 .... 12,14,76 v. Melling, 19 Beav. 417 ; 52 E. B. ; 23 L. J. Ch. 603 . 141 v. Skilbeck, 2 Bing. (N.C.) 182 ; 2 Scott, 294 . . 232 Bramhall v. Hall, 2 Eden, 220; 28 E. R 305 Brandon v. Robinson, 18 Yes. 429 ; 34 E. B. . . . . 165 Bray v. Bree, 2 CI. & E. 453 ; 6 E. B, ; 8 Bli. (N.S.) 568 ; 5 E. 11. . 294 v. Stevens, 12 Ch. D. 162 . . . ■ • 196 Bravbroke (Lord) v. Inskip, 8 Yes. 417 ; Tud. I,. C. Conv. 322 ; 32 KB. . . . . . • • «6, 214 Braytliwavte r. Hitchcock, 10 M. & W. 492; 12 L. J. Ex. 38 ; 2 liowl. (N.S.) 444 ; 6 Jur. 976 . . . • .153 Brecon (Corporation) v. Seymour, 26 Beav. 54.S ; 53 E. B. ; 28 L. J. Ch. 606 ' . . . • • • • .366 Brendon's Case, 1 Co. 76 a . . • • • 38 Brent's Case, 2 Leon. 17 ..... 81,82,84 Brewer v. Hill, 2 Anstr. 41:; ..... 152,166 Brice v. Stokes, 11 Yes. 319 ; 2 Wh. & T. L. C. 633 ; 32 E. B. . 115 TABLE <>F CASKS. XYll Bri— Bru. PAGE Bridges v. Hinxman, 16 Sim. 71 ; 60 E. B. . . . . 198 c Hitchcock, 5 Bro. P. I '. 6 : 2 B. B. 330 Brigga v. Jones, L. B. 10 Eq. 92; 22 L. T. 212 . . .348 ,.. Oxford (Karl), 1 De G. M. & G. 3(3:3 ; 42 E. B. ; 21 L. J. Ch. 829 : 16 Jut. 558 ..... 839 v. Upton. L. B. 7 Ch. 376 ; 41 L. J. Ch. 519 ; 27 I.. T. 62 : 21 W. B. 20 251 Brighton (Corporation) v. Brighton Guardians, 5 C. P. D. 368; 49 L. J. C. P. 648 ....... 159 Fringlee v. Goodsou, 4 Bing. (N.C.) 726 ; 8 L. J. C. P. 116; 6 Scott, 502; 1 Am. 322 ...... 277, 285 Bristol (Earl) v. Hungerford, 2 Vern. 524 ; 2:5 E. B. . . 365 Bristow v. Boothby, 2 Sim. & St. 465 : 57 E. B, ; 4 L. J. (O.S.) Ch. 88 331 y . Wardo, 2 Ves. Jun. 336 ; 30 E. E. 333 Brittle v. Dade, 1 Salk. 185 ; 91 E. B. . . . .17 Britton v. Stables, 3 Mer. 176 ; 36 E. B. .... 123 Broad, Re (1901), 2 Ch. 86 ; 70 L. J. Ch. 001 ; 84 L. T. 577 . 305, 300 Broadhurst v. Munis, 2 B. & Ad. 1 ; 9 L. J. (O.S.) K. B. 27 .142 Brocklesby v. Temperance Permanent Building Societv [1895 . A. 0. 173 ; 64L. J. Ch. 433 ; 72 L. T. 477 ; 43 W. B. 606 ; 11 B. 159 . 348 Broderick, Exp., 18 Q. B. D. 700 ; 50 L. J. Q. B. 035 ; 35 W. B. 013 217,21s Bromfield v. Crowder, 1 Bos. & P. X. E. 313 . . .17s. :)22 Brooke, Be (1*94), 1 Ch. 43 ; 03 L. J. Ch. 159 ; 70 L. T. 71 ; 42 W. E. 186; 8E. 24 . . . . 90. 192, 312 v . Pearson, 27 Beav. 181 ; 54 E. E. ; 5 Jur. (X.S.) 781 ; 7 W. E. 03S 1G5 r. Stone, 34 E. J. Ch. 251 ; 12 L. T. 114 ; 13 W. B. 401 . 210 Brookman v. Smith, E. E. 6 Ex. 291 ; 40 E. J. Ex. 101 ; affirmed E. E. 7 Ex. 271 ; 41 L. J. Ex. 114; 20 E. T. 974 ; 20 W. 1:. 906 .... 23, 125, 127, 259, 202. 207. 285, 323 Brooks v. Brooks, Cro. Jac. 434 ; 79 E. E. . . . . 04 Broome r. Monck, 10 Yes. 597 ; 32 E. E. . . . . 225 Brown's Case, 4 Co. 21 a. ; 70 E. E. . . 53, 60, 05, (10, 71, 75 Settlement, Re, L. E. 10 Eq. 349; 39 L. J. Ch. 845; 18 W. B. 945 . . . . • • 276, 334 Trusts, Re, L. E. 1 Eq. 74 ; 39 E. J. Ch. 845 ; 18 W. B. 945 . . . . . • • 301 Ee, L. E. 16 Eq. 239 ; 42 E. J. Ch. 84 ; 28 L. T. 745; 21 W.B.721 266 Brown v. Higgs, 8 Yes. 561 ; 32 E E. . 113, 281, 2s2. 308, 309 v. Metropolitan Counties and General Life Assurance, 1 Ell. &E. 834; 28 L. J. Q. B. 230; 7 AY. E. 477 . . 212 r . Peto (1900), 2 Q. B. 653 ; 69 E. J. Q_. B. 869 ; 83 L. T. 303; 49 AY. E. 324 . . . . . . 211 v. Eawlins, 7 East, 409 ; 3 Smith, 405 . . .59 Browne v. Browne, 3 Sm. & G. 568 ; 65 E. E. ; 26 E. J. Ch. 635 ; 3 Jur. (X.S.) 728; 5 W. B. 777 .... 245 v. Savage, 4 Drew. 635 ; 62 E. E. ; 5 Jur. (X.S.) 1020; 7 AY. E. 571 ...... 350 v. Stoughton, 14 Sim. 369; 60 E. B. ; 15 L. J. Ch. 391 ; 10 Jur. 7 17 339 Bruce r. Bruce, L. E. 11 Eq. 371; 40 L. J. Ch. 141; 41 L. T. 212 . . . . . . . . 301,306 Brudnel's Case, 5 Co. 9 a ; 77 E. E. . . . 144, 146, 106 L.P.L. l> XV111 TABLE OF CASES. Bru— Cab. PAGE 13rudenell v. Elwes, 1 East, 442 ; 7 Ves. 390 ; 32 E. E. . 243, 281, 299, 301, 302, 328, 333 Bruerton v. Bainsford, Cro. El. 15 ; 78 E. E. . . . . 150 Bryant v. Busk, 4 Euss. 1 ; 38 E. B. . . . . 221 _J „. Foot, L. B. 2 Q. B. 1G1 ; 36 L. J. Q. B. 45 ; affirmed L. B. 3 Q. B. 497 ; 9 B. & S. 444 ; 37 L. J. Q. B. 217 ; 18 L. T. 587 ; 16 W. E. 808 56 Brydgesi'. Brydges, 3 Yes. 120; 30 E. B. . . . .99 Buchanan v. Harrison, 1 J. & H. 662 ; 70 E. B, ; 31 L. J. Ch. 74 ; 8 Jur. (N.S.)965; 10 W. B. 118 . . . . .45 Bucklers Case, 2 Co. 55 a ; 76 E. E, . . . . 33, 227 Buckton, Be (1907), 2 Ch. 406 ; 76 L. J. Ch. 584 ; 97 E. T. 332 . 142 Bull v. Cullimore, 2 Or. M. & B. 120 . . . . 157, 158 v. Hutchins, 32 Beav. 615; 55 E. E. ; 9 Jur. (N.S.) 954; 8 L. T. 716 ; 11 W. B. 866; 2 N. E, 306 .... 361 Bullen v. Grant, Cro. El. 148 ; 78 E. B, . . . . 61 Bullock v. Dibley, 4 Co. 23 a ; 76 E. E. . . . 54, 61 v. Eladgate, 1 Yes. & B. 471 ; 35 E. E. . . . 284 Bulteel, Exp., 2 Cox, 243 ; 30 E. B. . . . . . 217 ,.. Plummer, L. E. 6 Ch. 160 ; 39 L. J. Ch. 805; 23 L. T. 753 316 Bunce, Re, 16 Ch. D. 47 ; 29 W. B. 348 . . . .344 Bunting v. Lepingwell, 4 Co. 29 a ; 76 E. E, . . 61, 62, 64, 120 Burchett v. Durdant, 2 Vent. 211 ; 86 E. E. . . 125, 137, 249 Burdick v. Garrick, L. E. 5 Ch. 233 ; 29 L. J. Ch. 369; 18 W. E. 387 . . . . . . . . .115 Burgess v. Booth (1908), 2 Ch. 648 ; 77 L. J. Ch. 32 ; 99 L. T. 677 . 188 . v. "Wheate, 1 Eden, 177 ; 28 E. E. ; 1 W. Bl. 123 20, 21, 79, 97, 107 Burke v. Jones, 2 Yes. & B. 275 ; 35 E. E. . . . . 192 Burnsall v. Davy, 1 Bos. & P. 215 . . . . 239 "Burrell v. Dodd, 3 Bos. & P. 378 . . . . . 59 v. Egremont (Earl), 7 Beav. 205; 49 E. E. ; 13 L. J. Ch. 309 ; 7 Jur. 587 ...... . 195 Burrows v. Greenwood, 4 Y. & C. Ex. 251 ; 5 Jur. 384 . . 106 Burt v. Hellyar, L. E. 14 Eq. 160 ; 41 L. J. Ch. 430 ; 26 L. T. S33 . 143 v. Truman, 29 L. J. Ch. 902 ; 6 Jur. (N.S.) 721 ; 8 W. E. 635 352, 366 Burton's Will, Be (1892), 2 Ch. 38 ; 61 L. J. Ch. 702 ; 67 L. T. 221 . 261 Burton v. Gray, L. B. 8 Ch. 932 ; 43 L. J. Ch. 229 . . .217 v. Powers, 3K& J. 170 ; 69 E. E. ; 26 L. J. Ch. 330 ; 5 W. B. 242 128 Butler's Will, Be, L. E. 16 Eq. 479 . . . . . 188 Butler v. Gray, L. B. 5 Ch. 26 ; 39 L. J. Ch. 291 ; 18 W. E. 193 282, 296 Bushby v. Dixon, 3 B. & C. 298; 5 D. & B. 126 ; 3 L. J. (O.S.) K. B. 22 40 Busher v. Thompson, 4 C. B. 48 ; 16 L. J. C. P. 57 ; 11 Jur. 45 .17 Butt's Case, 7 Co. 23 a ; 77 E. E. . . . . . 229 Byam v. Munton, 1 Buss. & M. 503 ; 39 E. E. . . .187 Byng v. Byng, 10 H. L. C. 171 ; 11 E. E. ; 31 L. J. Ch. 470 ; 8 Jur. (N.S.) 1135 ; 7 L. T. 1 ; 10 W. E. 663 . . . . 142 Caballero v. Henty, L. E. 9 Ch. 447 ; 43 L. J. Ch. 635 ; 30 L. T. 314 ; 22 W. E. 446 . . . . . . . 356 TABLE OF (ASKS. XIX Cad— Cav. PAGE Cadell r. Palmer, 7 Bli. (N.S.) 202 ; Tud. L. C. Conv. 578 : 5 E. II. : 1 01. & F. 372 ; (J E. R. .... 317, 320, 321, 330 Camberwell and South London Building Society v. Holloway, 13 Ch. I). 7.34 ; 49 L. J. Ch. 361 ; 41 L. T. 752 ; 2s \V. B. 222 . 99 Cambridge v. Rous, 8 Ves. 12 ; 32 E. B. .... 328 Campbell, Be (1893), 2 Ch. 206; 62 L. ,1. < h. 594 ; 68 L. T. 851 : 3 R. 331 ...... 209, 2Ki — v. Gillespie (1900), 1 Ch. 22.3 ; 69 L. J. ( 'h. 223 : 81 L. T. 514; 48 W. R. 151 . . . . .114 v. Holvland, 7 Ch. I). 166; 47 L. J. Ch. 145 : 38 L. T. 128; 26 W. R. 160 ..... 20.3 v. Home, 1 Y. & C. C. C. 064; 62 E. R. ; 7 Jur. 365 312, 313 v. Leach, Ambl. 740 ; 27 E. R. . . . . 302 v. Walker, 5 Ves. 678 ; 31 E. R. . . . .116 Cane, Re, 60 L. J. Ch. 36 ; 63 L. T. 746 . . . .245 Capell v. Aprice, F. Moo. 1 ; stated 4 Co. 88 a; 70 E. R. . .1(5 ( lapital and Counties Bank v. Rhodes (1903), 1 < 'h. 631 ; 72 L. J. Ch. 336 ; 88 L. T. 255 ; 51 W. R. 470 . . . . .37 Capon's Trusts, Re, 10 Ch. D. 484 ; 48 L. J. Ch. 355 ; 27 W. R. 376 . 315 Cardigan (Earl) v. Armitage, 2 B. & C. 197 ; 3 D. & R. 414. . 2.3 Carlyon v. Truscott, L. R. 20 Eq. :}4S ; 44 L. J. Ch. 186; :i2 L. T. 50 ........ . 201 Carmichael v. Gee, 5 App. Cas. 588 ; 49 L. J. Ch. 770 ; 4:] L. T. 227 : 29 W. R. 293 . . . . . . . . 199 Carne v. Roche, 7 Bing. 220 ; 4 Moo. & P. 66 ; 6 L. J. (O.S.) C. P. 27 12.3 Carpenter v. Carpenter, 1 Vera. 440 ; 23 E. R. . . . 109 Carr v. Errol (Earl), 6 East, 58 ; 2 Smith, .37.3 . . . 330 Carritt v. Real and Personal Advance Co.-, 42 Ch. D. 203 ; 58 L. J. Ch. 088 ; 61 L. T. 163 ; 37 \V. R. 077 . . 348, 354, 3.3.3, 3.39 Carter, Re (1900), 1 Ch. 801 ; 09 L. J. Ch. 420 ; 82 L. T. -320 ; 48 W. R. .3.3.3 . . . . . . .214 v. Barnardiston, 1 P. Wms. .30.3 ; 24 E. R, . . 1.3.3, 264 v. Haswell, 2(3 L. J. Ch. 576 ; 3 Jur. (N.S.) 788 ; 5 W. R. 388 ........ 187 „. Wake, 4 Ch. D. 00.3 ; 46 L. J. Ch. 841 . . 20.3, 217 v. Williams, L. R. 9 Eq. 078 ; 39 L. J. Ch. 239 ; 23 L. T. 183 ; 18 W. R. .393 . . . . . . .359 Cartwright v. Cartwright, 3 De G. M. & G. 982 ; 43 E. R. ; 22 L. J. Ch. 841 ; 17 Jur. 584 ; 1 W. R. 24,3 . . . . .169 Carver v. Richards, 1 Do G. F. & J. .348 ; 45 E. R. ; 2!) L. J. ( 'h. 357 ; 6 Jur. (N.S.) 410 ; 2 L. T. 101 ; 8 W. R. 349 . . . 315 Carwardine v. Carwardine, 1 Eden, 27 ; 28 E. R. . . . 2.3.3 Casborne v. Scarfe, 1 Atk. 603 ; 2 Wh. & T. L. C. 6 ; 26 E. R. 203 . 208 Case v. Drosier, 2 Keen, 764 ; 48 E. R. ; 5 M. & Cr. 2 10 ; 41 E. II. . 332 Casperd v. Attorney- General, 6 Price, 411 .... 362 Castell v. Brown, Ld., Re (1898), 1 Ch. 315 ; 67 L. J. ( li. 047 . 348 Catt's Trust, Re, 2 II. & M. 46 ; 71 E. R. ; 33 L. J. Ch. 49.3 ; 10 Jur. (N.S.) 536; 10 L. T. 409 ; 12 W. R. 739 . . .177, 201 CatteU, Re (1907), 1 Ch. 567 ; 70 L. J. Ch. 567 ; 90 L. T. 612 . 337 Cattley v. Arnold, 4 K. & J. ,395 ; 70 E. R. . . . .74 Cattlin v. Brown, 11 Ha. 372 ; 08 E. R. ; 1 Eq. R. .3.30; 1 W. E. 533 ....... 320, 327 Cavander v. Bulteel, L. R. 9 Ch. 79 ; 43 L. J. Ch. 370 : 29 L. T. 710; 22 W. R. 177 360 b 2 XX TABLE OF CASKS. Cav— Cla. page Cave v. Cave, 15 Ch. D. 639 ; 49 L. J. Ch. 505 ; 42 L. T. T.'JO ; 25 W. R. 793 . . . . . .347, 34S, 354, 360 Cecil v. Butcher, 2 J. & W. 565 ; 37 E. B. . . . . 104 Chadwick v. Doleman, 2 Tern. 528; 23 E.R. "... 30O Challen v. Shippaui, 4 Ha. 555 ; (57 E. B. . . . -115 Challenger r. Shepherd, 8 T. E. 597 . . . . .129 Challoner and Bowyer's Case, 2 Leon. 70 ; 74 E. E. . . 122, 235 v. Murhall, 2 Yes. Jun. 524 ; 30 E. E. . . .76 Chaniberlayne v. Chainberlayne, 6 E. & B. 625 ; 25 L. J. Q. B. 187, 357; 4 W. E. 403 . . , . . . 13(3, 259 Chambers v. Taylor, 2 M. & Cr. 370 ; 40 E. E. ; (3 L. J. Ch. 193 . 121 r 122 Chandless v. Price, 3 Ves. 99 ; 30 E. E. . . .250 Chandos (Duke) v. Talbot, 2 P. Wms. 601 ; 24 E. E. . 343, 345 Chapman v. Blisset, Cas. t. Talb. 145 ; 25 E. E. . . 2(37, 242 v. Bradley, 4 De G. J. & S. 71 ; 4(5 E. E. ; 33 L. J. Ch. 139 ; 3 N. E. 10 ; 10 Jur. (N.S.) 5:91, T. 495 ; 12 W. E. 140 . . . . . .254 '•. Brown, 9 Jur. (N.S.) 995 ; 9 L. T. (5 . . 50 v. Chapman, 13 Beav. 308 ; 51 E. E. ; 20 L. J. Ch. 465 ; 15 Jur. 265 ..... . 216 ■ v. Cowlan, 13 East, 10 . . . .57 v. Perkins (1905), A. C. 106; 74 L. J. Ch. 331 ; 92 L. T. 372 ; 513 W. E, 485 . . . . .165 v. Towner, 6 M. & W. 100 ; 9 L. J. Ex. c4 . . . 153 Charitable Donations (Commissioners) v. De Clifford, 1 Dr. & "War. 245 ........ . 126 Charlton v. Charlton (1906), 2 Ch. 523 ; 75 L. J. Ch. 715 ; 95 L. T. 714 ........ . 30S Charrington v. Camp (1902), 1 Ch. 386 ; 71 L. J. Ch. 196 ; 8(3 L. T. 15 . . . . . . . .181 Chatfield v. Berchtoldt, L. E. 7 Ch. 192 ; 41 L. J. Ch. 255 ; 26 L. T. 267 ; 20 W. E. 401 . . . . . . 145, 148 Chawner's Will, L. E, 8 Eq. 569 ; 38 L. J. Ch. 72(5 ; 22 L. T. 262 . 205 Chester v. Willan, 2 Wms. Saund. 283 ; 85 E. E. . 36, 37, 86, 87 Chetewood v. Crew, Willes, 614 . . . . .14 Chetwynd's Settlement, Be (1902), 1 ( 'h. 692; 71 L. J. Ch. 352 ; 86 L. T. 216 ; 50 W. E. 361 ..... 113,114 Chidgey v. Whitby, 41 L. J. Ch. 699 . . . . . 197 Cholmondeley v. Clinton, 2 J. & W. 182 ; 37 E. E. . . . 21(5 - v. Clinton, 2 Mer. 171 ; 35 E. E. . . . 121 (Marquis) v. Clinton, 3 B. & Aid. 625 . 89, 122 Chudleigh's Case, 1 Co. 122 a; 76 E. E. . . 79, 80, 81, 91, 237, 241, 244, 252, 318 Church v. Munday, 15 Ves. 403; 33 E. E. .... 65 Churchill v. Churchill, L. E. 5 Eq. 44; 37 L. J. Ch. 92; 16 W. E. 182 . . . . . . . . .303 Churchman v. Harvey, Ambl. 1335 ; 27 E. E. . . . . 302 Clark v. Day, Moor, 593 . .... .259 v. Henry, L. E. 6 Ch. 588 ; 40 L. J. Ch. 377 ; 19 W. E. 706 . 266 v. Smith, 9 CI. & P. 126; 8 E. E. ; 6 Jur. 697 . . . 303 Clarke v. Franklin, 4 K. & J. 257 ; 70 E. E. ; 27 L. J. Ch. 567 ; 6 W. E. 836 . . . . . . 185, 186 v. Pennifather, 4 Co. 23 b ; 76 E. E. . . . . 75 v. Bamuz(1891), 2 Q. B. 456; 60 L. J. Q. B. 679 . . 221 TABLE OF (ASKS. XXI Cla— Com. PAGE Clarke v. Wilinot, L. R. 7 Ex. 313 ; 41 E. J. Ex. 197 ; 21 W. Et. 73 . 99 Clarke's Trusts, Re, 22 L. J. Ch. 2:50 ..... 209 Clarkson v. Hanway, 2 P. Wins. 203; 24 E. 1!. . . .86 Clavering v. Ellison, 7 H. L. C. 707 ; 11 E. P. ; 29 L. J. Ch. 701 ; affirming 8 De G. M. & G. 002; 41 E. R. : Drew. 451 ; 61 E. R. 177,170 Clayton v. Blakey, 8 T. R. 3 ; 2 Smith, L. ('. 127 . . . 1.03 . v . Cookes, 2 Atk. 40!) ; 20 E. R. . . . 00 Clements v. Scudamore, 1 P. Wins. 03 ; 24 E. 1!. ; 2 Ld. Paym. 1024; 1 Salk. 243; 91 E. P.; Mod. 120; 87 E. P. . 55 Clere's Case, 6 Co. 17 b; 77 E. P. . . . 48, 87, 88, 27.0, 290 Clifford v. Koe, 5 App. Cas. 447; 43 E. T. 322; 28 W. P. 633 140,142 ■ v. Lewis, 6 Madd. 33; 50 E. 1!. .... 192 Clifton v. Burt, 1 P. Wins. 679 ; 24 E. R. . . . 370, 371 Cloves v. Awdry, 12 Beav. 604 ; 50 E. R. . . • • 290 Clowes, AV(1S93), 1 Ch. 214; 68 L. T. 390; 41 W. P. 09; 2 P. 115 223, 224 • v. Hughes, L. P. 5 Ex. 100 ; 39 L. J. Ex. 02 ; 22 L. T. 103; 18 W. P. 459 . . . . .212 Clutterbuck, Re (1901), 2 Ch. 285; 70 L. J. Ch. 014 ; 84 L. T. 757 ; 49 W. P. 583 . . . • • ■ • 336 Coape v. Arnold, 4 De G. M. & G. 574 ; 43 E. P. ; 24 L. J. Ch. 673 ; 1 Jur. (N.S.) 313; 3 W. P. 187 . . . . -249 Cobb v. Stokes, 8 East, 358 . . . . . .161 Cochrane v. Moore, 25 Q. B. D. 57 ; 59 L. J. Q. B. 377 ; 63 L. T. 153; 38 W.R. 588 . . . . • • .32 Cockbum v. Ankett, 3 W. R. 641 . . . . . 206 Cockcroft, Re, 24 Ch. D. 94 ; 52 L. J. Ch. 811 ; 49 L. T. 497; 32 W. P. 223 . . . • • • 22.3 v. Sutcliffe, 25 L. J. Ch. 313 . . . 313, 314 Cockell v. Taylor, 15 Beav. 103 ; 51 E. P. ; 21 L. J. Ch. 545 . 355 Colby v. Gibson, 3 Smith, 516 . . ' 207 Cole v. Coles, Ha. 517 ; 67 E. P, ; affirmed 12 L. T. (O.S.) 237 55, 351 v. Rawlinson, 3 Bio. P. C. 7 ; 1 E. R. . . . • 126 • v. Sewell, 2 H. L. C. 186; 12 Jur. 927; 9 E. P.; affirming 2 Dr. & War. 1 ; 2 Con. & L. 344; 6 Ir. Eq. P. 66 . . 236, 240 Coleman v. St. Albans (Duke), 3 Ves. 25 ; 30 E. P. . . . 213 „. Winch, 1 P. Wms. 775; 24 E. R. . . . 367 Collier v. Jenkins, Young, 295 ..... 225 v. Walters, L. R. 17 Eq. 252; 43 L. J. Ch. 210: 29 L. T. 868 ; 22 W. R. 209 ..... 25,147,103,210 Collinge's Settlement, Re, 26 Ch. D. 510 ; 57 L. J. Ch. 219 ; 57 L. T. 221 ; 30 W. R. 204 288 Collins v. Archer,- 1 Puss. & M. 284 ; 39 E. P. . • • 354 Collinson v. Patrick, 2 Keen, 123 ; 48 E. P. ; 7 L. J. Ch. 83 . . 105 Colquhoun v. Courtenay, 43 L. J. Ch. 338; 29 L. T. 877 J 22 W. E. 435 . 104 Coltsmann r. Coltsmaun, L. P. 3 H. L. 121 ; 16 W. P. 943 . 126, 138, 139, 235, 245 Colyer v. Einch, 5 II. L. C. 905 ; 10 E. P. ; 20 L. J. Ch. 05 ; 3 Jur. (N.S.) 25 ....-•• 348; 354 Combe's Case, 9 Co. 75 a ; 77 E. P. . ■ • <^> 55 Combe v. Hughes, 2 De G. J. & S. 657 ; 4(5 E. P. ; 34 L. J. Ch. 344 ; 12 Jur. (N.S.) 380 ; 12 L. T. 43N ; 13 W. P. 777 . . • 339 XXI 1 TABLE OF CASKS. Com — Cow. PAGE Comiskey v. Bowring Eanbury (1905), A. C. 84 ; 74 L. J. Ch. 263; 92 L. T. 241 ; 53 W. B. 402 . . . . 101,127,178 Connolly*;. Farrell, 8 Do;. v. 347 ; 50 E. B. : 11 L. J. Ch. 189; 9 Jur. 242 ........ 338 Conronv. Conron, 7 H. L. C. 168; HE. B. . . . .196 Cood v. Pollard, 10 Price, 109 . ..... 222 Cook v. Cook, 2 Vein. 549 ; 2:3 E. B. . . . 140, 141, 142 v. Gerrard, 1 Wms. Saund. 172 ; 85 E. B. . . .49 v. Gregson, 3 Drew. 547 : 61 E. B. ; 25 L. J. Ch. 706; 2 Jur. (N.S.)510; 4 W. B. 581 .... 193, 208 r. Guerra, L. E. 7 C. P. 132 ; 41 L. J. C. P. 89 ; 2(3 L. T. 97 ; 20 W. B. 367 38 Cooke v. Cooke, 38 ( !h. I >. 202 ; 59 L. T. 09:3 ; 36 W. B. 750 . 320 v. Stationers' Co., 3 My. & Cr. 202 ; 40 E. B. . . .49 v. Wilton, 29 Beav. 100; 54 E. B. ; 30 L. J. Ch. 467 : 7 Jur. (N.S.) 280 ; 9 W. B. 220 5(36 Coombe, Exp-, 4 Madd. 249; 56 E. B. .... 218 Coombes, Exp., 17 Yes. 369; 34 E. B. . . . .217 Cooper, Re, 20 Ch. D. (311 ; 51 L. J. Ch. 8(34 ; 47 L. T. 89 ; 30 W. B. 048 . . . . . . . . 351 Ex p., 2 Dr. & Sm. 312; 62 E. B. ; 34 L. J. Ch. 373; 11 Jur. (N.S.) 103 ; 11 J,. T. (3(31 ; 13 W. B. 364 . . 310 v. Cooper, L. E. 5 Ch. 203 ; 39 L. J. Ch. 240 ; 22 L. T. 1 ; 18 W. E. 299 .... 304, 312, 345 v. France, 19 L. J. Ch. 313 ; 14 Jur. 214 . . . 47 v. Kvnock, L. B. 7 Ch. 398 ; 41 L. J. Ch. 296 ; 26 L. T. 566 ; 20 W. B. 503 .... 93, 94. 95, 313 v. Martin, L. B. 3 Ch. 47 : 17 L. T. 587 ; 16 W. B. 234 259, 306 Cope v. Delawarr (Earl), L. E. 8 Ch. 982 ; 42 L. J. Ch. 870 ; 29 L. T. 5(35 ; 22 W. E. 8 . . . . . . . 254 Copestake v. Hoper (1908), 1 Ch. 10 ; 77 L. J. Ch. 610 ; 99 L. T. 371. 19, 32 Corbet's Case, 1 Co. 83 b ; 76 E. E. . . 80, 87, 156, 164, 173 Corbett v. Corbett, 14 P. D. 7 ; 58 L. J. P. 17 ; 60 L. T. 74 ; 37 AY. B. 114 176 Cornish v. Stubbs, L. E. 5 C. P. 334 ; 29 L. J. C. P. 202 ; 22 L. T. 21; 18 W. E. 547 . . . . . . 159, 160 Corser v. Cartwright, L. B. 7 II. L. 731 ; 45 L. J. Ch. 005 . 112, 198 Coryton v. Lithebye, 2 Wms. Saund. 361 ; 85 E. E. . . .38 Cottam v. Eastern Counties Eailway, 1 J. & H. 243; 70 E. B. : 30 L. J. Ch. 217 ; 6 Jur. (N.S.) 1367; 3 L. T. 465 ; 9 W. B. 94 . 348 Cottee v. Eichardson, 7 Ex. 143 ; '21 L. J. Ex. 52 . . 150 Cotterel v. Hampson, 2 Vera. 5 ; 23 E. B. . . . .201 Cotterell v. Stratton, L. E. 8 Ch. 295 ; 42 L. J. Ch. 417 ; 28 L. T. 218; 21 W. E, 234 . . . . . . . 218 Cottington v. Fletcher, 2 Atk. 155 ; 26 E. E. ... 104 Cotton's Trustees and School Board for London, 19 Ch. D. 624 ; 51 L. J. Ch. 514 ; 46 L. T. 813 ; 30 W. B. 610. . . 276, 334 Cottrell v. Finney, L. B. 2 Ch. 541 ; 43 L. J. Ch. 562; 30 L. T. 733 . . . . . . . . .213 Coulson v. Coulson, 2 Atk. 245 ; 26 E. B. ; 2 Str. 1125 . 248, 249 Counden v. Clerk, Hob. 29 ; 80 E. E. . . . . 143 Cousins, Re, 31 Ch. D. 671 ; 55 L. J. Ch. 662 ; 54 L. T. 376 ; 34 W. B. 393 ...... . 357, 360 Cowper v. Clerk, 3 P. Wms. 155 ; 24 E. B. . . . . 70 TABLE OF CASES. XXlll Cow— Dai. PAGE Cpwx v. Foster. 1 J. & II. 30; 29 L. J. Ch. 886; 7<> E. R : 6 Jur. (N.S.) 1051 ; 2 L. T. T!»T ...... 303 Cox v. Bent, 5 Bing. 185 : 2 Moo. & P. 281 . . . 153 . Bishop. 8 De G. M. & G. 815 : 44 E. R. ; 26 L. J. Ch. 389 : 3 Jur. (N.S.) 499 ; 5W.E. 437 . . . .218 . v. Chamberlain. 4 Yes. 631 ; 31 E. B. . . . . 275 . v. Day, 13 East, 118 ...... 288 . „. Glue, 5 C. B. 533 ; 17 L. J. 0. P. 162 : 12 Jur. 185 . . 67 „. Leigh, L. B. 9 Q. B. 333 ; 43 L. J. Q. B. 12:5 ; 30 L. T. 494 ; 22 \V. R. 7:50 . . . • ■ • -171 Cox and Neve's Contract, fie (1891), 2 Ch. 109; 64 L. T. 733; 39 AY B 412 • • • • • • 356, ; :">s Cracknell v. Janeou, 11 Ch. D. 1 ; 40 L. T. 640 ; 27 W. B. 851 368, 369 Crane, Re (1908), 1 Ch. 379 ; 77 L. J. Ch. 212 ; 89 L. T. 314 . 197 Cranmer's Case, 3 Leon. 20 ; 74 E. B. ; Dyer, 309 a ; 73 E. B. . 251 Craven v. Brady, L. B. 4 Ch. 296; 38 L. J. Ch. 345; 16 W. R. 505 . l65 > 301 Credland v. Potter, L. B. 10 Ch. 8 ; 44 L. J. Ch. 169 ; 31 L. T. 522 ; 23 W. E. 36 362 Creswell v. Davidson, 56 L. T. 811 . . . • .173 Cristie v. Gosling, L. 11. 1 H. L. 279 ; 35 L. J. Ch. 667 ; 15 L. T. 40 . 154 > :5 -'- > < : >' 2i Croft v. Lumlev, 5 E. & B. 648 ; 24 L. J. Q. B. 78 ; 1 Jur. (N.S.) 424 • 3 W. R. 324 ; affirmed 6 H. L. C. 672 ; 10 E. B. ; 27 L. J. Q B. 321; 4 Jur. (N.S.) 903; 6 W. B. 523 . . .171 Crofts v. Middleton, 8 De G. M. & G. 192 ; 44 E. B. ; 25 L. J. Ch. 513; 2 Jur. (N.S.) 528 ; 4 W. R. 439 . . .241, 248 Crompe v. Barrow, 4 Yes. 481 ; 31 E. B. . . .301, 333 Crompton v. Davies, L. B. 4 C. P. 159; 38 L. J. C. P. 159 ; 20 L. T. 30; 17 W. B. 444 12 ' Cromwell's (Lord) Case, 2 Co. 69 b ; 76 E. B. . . ■ 169 Cross v. Hudson, 3 Bro. C. C. 30 ; 29 E. B, . . .276 Croxon, Re (1904), 1 Ch. 252; 73 L. J. Ch. 170; 89 L. T. 733 ; 52 W. R. 343 . . • • ■ • • ' 1|S Crosier v. Crozier, 3 Dru. & War. 353 ; 5 Ir. Eq. R. 415 . 283, 301 Cruikshank v. Duffin, L. R. 13 Eq. 555 ; 41 L. J. Ch. 317 ; 26 L. T. 121; 20W.R. 354 1JJ Culley v. Tavlerson, 11 A. & E. 1008 ; 3 P. & D. 539 ; 9 L. J. Q. B. 288 • • • • 4 '* Cummins v. Fletcher, 14 Ch. D. 699 ; 49 L. J. Ch. 563 ; 42 L. T. 859 ; 28 W. B. 772 ■ ■ ^ Cunliffe v. Brancker, 3 Ch. D. 393; 46 L. J. Ch. 128; 35 L. T 578 -"•-„ U Cunningham v. Anstruther, L. B. 2 li. L. So. 223 . . . -^ Cupit v. Jackson, 13 Price, 721 2( ™ Curre v. Bowyer, 5 Beav. 6 n. ; 49 E. B. . • • • 223 Curteis Trust, Re, 1, R. 14 Eq. 217 ; 41 I, J. Ch. (531 ; 26 L. T. 863 . 103 Curtis r. Daniel, 10 East, 273 '" r. Lukin, 5 Beav. 147 ; 49 E. B. ; 11 L. J. Ch. 380 . 119, 33o v. Price, 12 Ves. 89 ; 33 E. B. . . • • ■ 24!> Cuthbertson v. Irving, 6 H. & N. 135; 29 L. J. Ex. 485; 6 Jur. (N.S.) 1211; 3 L.T. 335; 8 W. B. 704 . . ■ • - u Dacre v. Doe, 8 T. R. 112 2 ? 3 Dalby r. Hirst, 1 Brod. & B. 224 ; 3 Moo. 356 . • XXIV TABLE OF CASKS. Dal— Deb. page Dalby v. Pullen, 2 Bing. 144 ; 9 Moo. 300 ; 2 L. J. (O.S.) C. P. 121 289 Dale's Case, Cro. Eliz. 182 ; 78 E. R, . . . . .14.3 Dalles, Re (1904), 2 Ch. 385 ; 73 L. J. Ch. 305; 90 L. T. 177; 52 W. E. 567 349, 350 Damerell v. Protheroe, 10 Q. B. 20; 16 L. J. Q. B. 170; 11 Jur. 331 19 Dance v. Goldingham, L. E. 8 Ch. 902; 42 L. J. Ch. 777 ; 29 L. T. 160; 21 W. E. 761 . . . . . . .340 1 ►aniels v. Davison, 16 Yes. 249 ; 33 E. E. ; 17 Ves. 433 ; 34 E. E. . 359 Dann v. Spurrier, 3 B. & P. 399; 7 Yes. 231 ; 32 E. K. . . 152 Dansey r. Dansey, 4 M. & S. 61 . . . .138,254,323 Danson, Be, 13 E. 633 . . . . . . . 336 Darbison v. Beaumont, 1 P. Wms. 229 ; 24 E. E. . . 122, 125 Darcy's (Lord) Case, 6 Co. 70 b; 77 E. E. . . . . 19 Darley v. Martin, 13 C. B. 6S3 ; 22 L. J. C. P. 249 ; 17 Jur. 1125 . 151 Dartnall, Be (1895), 1 Ch. 474 ; 84 L. J. Ch. 3-41 ; 72 L. T. 404 ; 43 W. E. 644 ; 12 E. 237 . . . . . . 114 Daubeny v. Cockburn, 1 Mer. 626 ; 35 E. E. . . 312, 315 Davenport, Be (1895). 1 Ch. 361 ; 64 L. J. Ch. 252 ; 71 L. T. 875 ; 43 W. R. 217 ; 13 E. 631 . . . 251,295 v. Hanbury, 3 Ves. 257 ; 30 E. E. 141 Davies'. Trusts, Be, L. E. 13 Eq. 163 ; 41 L. J. Ch. 97 . 292, 295 Davies v. Ashford, 15 Sim. 2 ; 60 E. E. ; 11 L. J. Ch. 473 ; 9 Jur. 612 ...... 189, 195 v. Bush, 4 Bli. (N.S.) 305 ; 5 E. E 209 v. Fowler, L. E. 16 Eq. 308 ; 43 L. J. Ch. 90 ; 20 L. T. 285. 197 v. Huguenin, 1 H. & M. 730 ; 71 E. B. ; 32 L. J. Ch. 417 ; 8 L. T. 443 ; 11 W. E. 1040 ; 2 N. E. 101 . 308, 344 „. Speed, 2 Salk. 675 ; 91 E. E. ; Shower. P. C. 104 ; 1 E. E. . . . . . . 88, 253, 255 ,.. Stevens, Doug. 324 . . . . . 127, 135 Davis, i?e(1902),2 Ch. 314 ; 71 L. J. Ch. 539 ; 86L.T. 523 ; 51 W.E. 8 116 r. Davis (1894), 1 Ch. 393 ; 63 L. J. Ch. 219 ; 70 L. T. 265 ; 42 W. E. 312 .... . - v. Dendy, 3 Mad J. 170 ; 57 E. E. . v. Waddington, 7 Man. & G. 37 ; 8 Scott, N. E. 80 1 ; 189 155 14 156 196 37 242, 326 L. J. C. P. 45; 8 Jur. 1142 Davy, Be (1908), 1 Ch. 61 ; 77 L. J. Ch. 67 ; 97 L. T. 654 Dawson, Be, 39 Ch. D. 155 ; 57 L. J. Ch. 1061 ; 59 L. T. W. E. 51 v . Small, L. E. 9 Ch. 651 ; 43 L. J. Ch. 406 ; 30 L. T. 252 ; 22 W. E. 514 140, 245 v. Whitehaven Bank, 6 Ch. D. 219 ; 46 L. J. Ch. 884 ; 57 L. T. 64 ; 26 W. E. 34 . . . . .209 Day v. Dav, L. E. 3 P. C. 751 ; 40 L. J. P. C. 35 ; 24 L. T. 856 ; 19 W. E. 1017 159 v. Day, 31 Beav. 270; 54 E. E. . . . . .204 Dayrell, Be (1904), 2 Ch. 496 ; 73 L. J. Ch. 795 ; 91 L. T. 373 . 322 Deakin, Be (1894), 3 Ch. 565; 63 L. J. Ch. 779; 71 L. T. 838; 43 W. E. 70 ; 8 E. 702 281, 282, 316 Dearden v. Evans, 5 M. & W. 1 1 ; 2 Horn. & H. 7 ; 8 L. J. Ex. 171 ; 3 Jur. 703 ..... 53, 67 Dearie v. Hall, 3 Buss. 1 ; 38 E. E. . . . . 220, 349 De Burgh Lawson, Be, 41 Ch. D. 568; 58 L. J. Ch. 561 ; 37 W. B. 797 192, 193 TABLE OF CASES. XXV Deg — Doe. PAGE DeGrey v. Richardson, 3 Atk. 469 ; 26 E. E. . . 31, 236, 249 De Hoghton, lie (1896), 2 Ch. 385 ; 65 L. J. Oh. 667 ; 7 I 1.. T. 613 : 44 W. R. 635 . . • • • • .286 Delacherois v. Delacherois, 11 II. L. C. 62; 11 B. 11. : 10 Jur. N.S. 886 ; 10 L. T. 216 Doe v. Allen, 3 Taunt. 78 . . _• • • • 1T1 v. Amey, 12 A. & E. 470 ; 4 P. & D. 177 . . .153 XXVI TABLE OF CASKS. Doe — Doe. page Doc v. Angell, 9 Q. B. 328 : 15 L. J. Q. B. 193 ; 10 Jur. 70.3 . 137 ■ — — v. Askew, 10 East, 520 . . . . . 57 v. Baker, 8 Taunt. 241 ; 2 Moo. 189 . . . 166, 170 v. Bateman, 2 B. & Aid. 168 .... 171, 174 - — v. Bell, 5 T. E. 471 . . . . . .153 v. Biggs, 2 Taunt. 109 . . . . . 83, 95 - v. Birch, 1 M. & W. 402 ; Tyr. & G. 769 ; 5 L. J. Ex. 185 .171 v. Bottriell, 5 B. & Aid. 131 ; 2 N. & M. 64 ; 2 L. J. K. B. 158 GO v. Bousfield, 6 Q. B. 492 ; 14 L. J. Q. B. 42 ; 8 Jur. 1121 04, 72 r. Brightwen, 10 East, 583 . . . . .66 ■ v. Browne, 8 East, 165 ..... 153, 157 v. Buckner, 6 T. B. 610 . . . . . .126 - v. Burlington (Earl), 5 B. & Ad. 507 ; 2 X. & M. 534; 3 L. J. K. B. 2G . . . . . 67, 71 ■ ■ v. Burnsall, 6 T. B. 30 . . . . . . 23S v. Callaway, 6 B. & C. 484 ; 9 P. & B. 578 ; 5 L. J. (O.S.) K. B. 188 . . . . . . oo v. Calvert, 2 East, 376 . . . . . .302 v. Carew, 2 Q. B. 317 ; 11 L. J. Q. B. 5 ; 1 Gale & D. 640; 6 Jur. 457 . . . . . . .177 v. Carter, 9 Q. B. 863 ; 18 L. J. Q. B. 305 ; 11 Jur. 285 157, 158 v. Chapman, 1 H. Bl. 233 . . . . .126 v. Clare, 2 T. B. 739 . . . . . .71 ■ v. Clark, 1 B. & Aid. 458 ; 1 Dowl. & B. 44 . 20, 60, 133, 261 - v. Clarke, 8 East, 185 . . . . .261, 268 v. Clements, 2 M. & S. 68 . . . 67, 71, 72, 73 v. Cole, 7 B. & C. 243 ; 1 Man. & B. 33 ; L. J. (O.S.) K. B. 20 37 v. Collier, 11 East, 377 . . . . . .97 ■ v. Collis, 4 T. B. 294 . . . . . 130 - v. Colyear, 11 East, 54S . . . . . 134, 258 v. Coombes, 9 C. B. 714 ; 19 L. J. C. P. 300 . . .157 v. , 6 Q. B. 535 ; 14 L. J. Q. B. 37 ; 8 Jur. 1166 . 01, 68, 72 ■ v. Cox, 11 Q. B. 122 ; 17 L. J. Q. 15. 3 ; 11 Jur. 991 . 154, 157 - r. Crago, 6 C. B. 90 ; 17 L. J. C. B. 203 ; 12 Jur. 705 . 153, 160 v. Pacre, 1 Bos. & P. 250 . . . . .263 v. Panvers, 7 East, 299 ; 3 Smith, 291 . . . .54 v. Pauncey, 7 Taunt. 674 . . . . .63 - >■. Pavidson, 2 M. & S. 175 . . . . 58, 59 - v. Pavies, 7 Ex. 89 ; 21 L. J. Ex. 00 . . 156, 157 - — v. , 2 M. & W. 503 ; 1 M. & H. 98 ; S L. J. Ex. 176 . 150 v. Pay, 10 East, 427 ..... 302 v. — -, 2 Q. B. 147 ; 12 L. J. Q. B. 86; 2 Gale & P. 757 ; 6 Jur. 913 . . . . 150, 160, 211, 228 - r. Pixon, 5 A. & E. 834 ; 1 X. & P. 255 ; 2 II. & W. 304 ; 6 L. J. K. B. 61 40 - v. , 9 East, 15 . . . . .152 v. Pobell, 1 Q. B. 806 ; 10 L. J. Q. B. 242 ; 1 Gale & P. 218 . 152, 153 v. Dring, 2 M. & S. 448 . . . . . .127 - v. Easley, 1 Or. M. & E. S23 ; 5 Tyr. 450 ; 4 L. J. Ex. 87 . 134 v. Elvey, 4 East, 313 ; 1 Smith, 94 . . 235, 238, 244, 323 ■ r. Ewart, 7 A. & E. 636; 7 L. J. Q. B. 177 ; 3 Xev. & P. 197 . 245, 265, 329 TABLE OF CASKS. XXVU Doe-Doe. Doe*/.Eyre,5C.B.713; 18 L. J. C. P. 284 . . . 162,262 -v.Fawcett, 3C.B.274; 15 L. J. C. P. 244 ; 10 Jur. 740 . 126 v. Featherstone, 1 B. & Ad. 876 ; 9 L. J. (< >.S.) K. B. 163 . L36 v. Fonnereau, Dougl. 487 . • • 250,263 . r . Ford, 2 Ell. & B. 970 ; 23 L. J. Q. B. 53 ; 18 -Jur. 420; 2 C. L. R. 385 - 14 - :; '- s ». Frost, 3 B. & Aid. 546 . . . • 139,261 v. Garlick, 14 M. & W. 698 ; 15 L. J. Ex. 54 . . . 128 . „. Garrod, 2 B. & Ad. NT ; 9 L. J. (O.S.) K. B. 149 . . 1 13 - v. Gatacre, 5 Bing. (N.O.) 60s ; 7 Scott, 807 ; 8 L. J. 0. P. 338 41, v. Giles, 5 Bing. 421; 7 L. J. (O.S.) 0. P. 134 ; 2 Mop. 749 . . • • • ■ • • - 11 v . Gladwin, 6 Q. B. 953 ; 14 L. J. Q. B. 189 ; 9 Jur. 508 . 172 v. Goddard, 1 B. & C. 522 ; 2 Dr. & R. 77:; ; 1 L. J. (O.S.) K. B. 179 60 > ' |s v. Goldsmith, 7 Taunt. 209 ; 2 Marsh. 517 . 136, 249 v. Goodier, 10 Q. B. 957 ; 16 L. J. Q. B. 4:35 ; 11 Jur. 892 . 212 r. Grafton, 18 Q. B. 490 ; 21 L. J. Q. B. 270 ; 16 Jur. 883 . 152 v . Green, 9 A. & E. 058 ; 1 P. & D. 454 ; 2 W. W. & H. 122 ; 8L. j. a b. 100 . . . ■ • ■ .. v. Hall, 16 East, 208 ...••• 55 v. Hallet, 1 M. & S. 124 130, 26'i . v. Hellier, 3 T. R. 162 ... • 68, 71, <2 .„. Howell, 10 B. & C. 191 ; 8 L. J. (O.S.) K. B. 123 : 5 Man. & R. 24 . 239 > 240 ' -•''■'■ 264 v. Hughes, 6 Ex. 223 ; 20 L. J. Ex. 148 . • • I 98 ■ v. Huntingdon, 4 East, 271 .... :,; >- ' (i u. Hutton, 3 Bos. & P. 643 26 ° v. Jackson, 1 B. & C. 448 ; 2 D. & R. 514 . . • <<> v. Jones, 5 Ex. 49s; 19 L. J. Ex. 405 . . . 172 v. Keen, 7 T. R. 386 io - c. Kennard, 12 Q. B. 244; 12 Jur. 821 . . • -170 v. Kett, 4 T. R, 601 ....•• 121 ■ v. Langlands, 14 East, 370 . . • • .126 . v. Llandafi (Bishop), 3 Bos. & P. N. R. 491 . . • 1 ' . „. Llewellin, 2 Cr. M. & R. 503 ; 1 Gale, 193 ; 5 Tyr. 899 ; 5 L. J. Ex. 84 " 4 - to . v. Lufkin, 4 East, 221 ; 1 Smith, 99 . • • ( > 4 . v. Lvnes, 3 B. & C. 388; 5 I). & R. 160; 3 L. J. (O.S.) K. B. '77 ;,s ' " v . Maisey, 8 B. & C. 767 ; 7 L. J. (O.S.) K. B. 85; 3 Man. & R 107' ..•••••• " U r. Martin, 2 AY. Bl. 1148 14s „. .4T.R.39 .... 112,210.271,323 v. Martyn, 8 B. & C. 497; 2 Man. & R. 485 ; 7 L. J. (O.S.) K. B. 60 ld J . v. Mason, 3 Wils. 63 . . • • • -J* f. Maxey, 12 East, 589 . . . • ■ • -"' v . Mee, 4 B. & Ad. 617 ; 1 Nev. & M. 424 ; 2 L. J. K. B. 104 . v. Milborne, 2 T. R. 719 ,... M'Keag, 10 B. & C. 721 ; 5 Man. & R. 620 ; 8 L. J. (O.S KB. 811 . ■ v. Moore, 14 East, 601 1,S 298 159 XXV111 TABLE OF CASES. Doe — Doe. page Doe v. Morgan, 7 T. B. 103 .... 37, 237, 257, 264 — r. Muscott, 12 M. & W. 832 ; 14 L. J. Ex. 185 . . .68 v. Nicholls, 1 B. & C. 366; 2 D. & B. 480; 1 J,. J. (O.S.) K. B. 124 . . . . . . . .129 v. Nowell, 1 M. & S. 327 ..... 246, 323 v. Oliver, 10 B. & C. 181 ; 2 Smith, L. C. 724; 8 L. J. (O.S.) K. B. 137; 5 Man. & B. 202 .... 242 - v. Ollev, 12 A. & E. 481 ; 4 P. & D. 275 ; 9 L. J. Q. B. 379 ; 4 Jur. 1084 ...... 55, 212 v. Ongley, 10 C. B. 25 ; 20 L. J. C. P. 26 . . .211 v. Ossingbrooke, 7 Bing. 70; 9 Moo. 6S ; 2 L. J. (O.S.) C. P. 105 . . . . . . . .63 v. Owens, 1 B. & Ad. 318 ; 8 L. J. (O.S.) K. B. 404 . 128, 138, 263, 323 ■ v. Passingliam, 6 B. & C. 305 ; 9 I). & B. 416 ; 5 L. J. (O.S.) K. B. 146 . . . . . . . 94 - v. Pearson, 6 East, 173 ; 2 Smith, 295 . . . 46, 69, 170 - v. Peck, 1 B. & Ad. 428 ; 9 L. J. (O.S.) K. B. 60 . 172,175 ■ v. Perryn, 3 T. B. 484 .... 141,235,245,323 v. Phillips, 2 Bing. 13 ; 9 Moo. 46 ; 2 L. J. (O.S.) C. P. 103 . 170 v. Powell, 5 B. & C. 312 ; 8 D. & B. 35; 8 L. J. (O.S.) K. B. 159 . . . . . . . .153 v. Prestwidge, 4 M. & S. 178 . . . .93 v. Price, 9 Bing. 356 ; 2 Moo. & Sc. 464 ... 158 o. Prince, 20 L. J. C. P. 233 ; 15 Jur. 632 36, 37, 87, 88, 91, 253 v. Pyke, 5 M. & S. 146 . . . . . .64 v. Quigley, 2 Camp. 505 . . . . . .160 ■ v. Eedfern, 12 East, 96 . . . . . .8 v . Boach, 5 M. & S. 482 ...... 264 - v. Bock, 4 Man. & G. 30 ; 11 L. J. C. P. 194 ; 6 Jur. 266 157, 158 v. Boe, 2 Burr. 1046 ...... 17 ■ v. ,10 East, 523 . . . . . .17 - v. Boyle, 13 Q. B. 100 ; 18 L. J. Q. B. 145 ; 13 Jur. 745 . 141 - v. Bucastle, 8 C. B. 876 ; 19 L. J. C. P. 100 . . . 258 - v. Scarborough, 3 A. & E. 2, 899 ; 4 Nev. & M. 724 ; 4 L. J. Q..B. 172 . • 164 - v. Scott, 4 B. & C. 706 ; 7 D. & B. 190 ; 4 L. J. (O.S.) K. B. 39 148 v. Scudamore, 3 Bos. & P. 289 .... 234, 235 - v. Shorter, 8 A. & E. 905 ; 8 L. J. K B. 152 ; 1 P. & D. 124 . 272 v. Simpson, 5 East, 162; 1 Smith, 283 .... 155 -v.- — , 3 Man. & G. 929 ; 3 Scott, N. B. 774 ; affirming 4 Bing. (N.C.) 333 ; 5 Scott, 770 ; 7 L. J. 0. P. 156 . 26, 28, 60, 62, 133, 231 • v. Sisson, 12 East, 62 . . . . .47 - v. Smaridge, 7 Q. B. 957 ; 14 L. J. Q. B. 327 ; 9 Jur. 781 . 154 ■ v. Smyth, 6 B. & C. 112; 9 D. & B. 136; 5 L. J. (O.S.) K. B. 13 . . . . . . . .124 - v. Spratt, 5 B. & Ad. 731 ; 3 L. J. K. B. 53 ; 2 Nev. & M. 524 261 v. Steel, 4 Q. B. 663 ; 3 Gale & I). 622 ; 12 L. J. Q. B. 272 . 147 : v. Stenlake, 12 East, 515 ..... 123 - v. Strickland, 2 Q. B. 792; 11 L. J. Q. B. 305 ; 2 Gale & D. 278 75 v. Taylor, 5 B. & Ad. 575; 2 Nev. & M. 50S ; 3 L. J. K. B. 67 32, 35 TABLE OF CASKS. XXIX Doe— Dow. PAGE Doe v. Thomas, 3 Man. & G. 815; 4 Scott, X. R. 149; 11 L. J. 0. P. 124 W, 62 . v. Timins, 1 B. & Aid. 530 ..... 260 v. Tofield, 11 East, 246 ..... 61,127 v. Tom, 4 Q. B. 615; 12 L. J. K. B. 264 : 3 Gale & D. 637 ; 7 Jur. 847 211, 212 v. Tomkins, 11 East, 185 . . . • • 54,61 v. Tomkinson, 2 M. & S. 165 .... 138,289 v. Tresidder, 1 Q. B. 416; 10 L. J. Q. B. 160; 1 G. & D. 70 . 64 v. Truman, 1 B. & Ad. 736 ; 9 L. J. (O.S.) K. B. 119 . 68, 72 v. Turner, 7 M. & W. 22(3; 10 L. J. Ex. 213 . . . 157 v. Yernon, 7 East, 8; ."5 Smith, 6 . . . .61 v. Walker, 5 B. & 0. Ill ; 7 D. & E. 487 ; 4 L. J. (O.S.) K. B. 9,'} ...... 3'.), 150, 228 . v. , 2 Man. & G. 113 ; 2 Scott, N. R. 317 . . 138 v. Ward. 9 A. & E. .382 . . . . . • 328 . v. Watt. 8 B. & C. 308; 1 Man. .t B. 694 ; 6 L. J. (O.S.) K. B. 185 .....-• 169, 17<> v. Watts, 7 T. R. 83 .... 152,153,228 v. Webber, 1 B. & Aid. 713 . . 142,261,324 v . , 3 Bing. (N.O.) 922 ; 5 Sc<>tt. 189 ; 3 Hodges. 203 : 6 L. J. C. P. 319. 54 v. Welford, 12 A. & E. 61 ; 9 L. J. Q. B. 334 ; 4 P. & D. 77 : 5 Jur. 38 . . . . • • - ' 1 v. Weller, 7 T. B. 478 ..... 153 v. Whitaker, 5 B. & Ad. 409 ; 3 Nev. & M. 22.3 . . .75 v. Whitehead, 8 A. & E. 571 ; 7 L. J. K. B. 250 ; 3 Nev. & 1'. 557; 1 W. W. & H. 521 ; 2 Jur. 493 . . . 179 r. Whittingham, 4 Taunt, 20 .... 87, 88, 253 r. Wichelo, 8 T. B. 211 . . . . ■ .45 v. Willan, 2 B. & Aid. 84 . . . . 14,62 v. Wilson, 4 B. & Aid. 303 . . . . 61, 67 v. Wood, 14 M. &W. 682; 15 L. J. Ex. 41 . . . 152 v. Yates, 5 B. & Aid. 544 ; 1 D. & R. 187 . . 164. 254 Dolling v. Evans, 36 L. J. Ch. 474 ; 15 L. T. 604 ; 15 W. E. 394 . 151 Domville v. Wilmington, 26 Ch. 1>. 382 ; 53 L. J. Ch. 782 ; 50 L. T. 519; 32 W. R. 699 . . . • • • 300 Doncaster v. Doncaster, 3 K. & J. 26 ; 69 E. B. ; 2 Jur. (X.S.) 1066 33 1 Doran v. Wiltshire, 3 Swanst. 699 ; 36 E. B. . . • • 201 Dorin v. Dorin, L. B. 7 H. L. 568 ; 45 L. J. Ch. 652 : 33 L. T. 281 ; 23 W. R. 570 268 Dougal r. McCarthy (1893), 1 Q. B. 736; 62 L. J. Q. B. 462; 68 L. T. 699; 41 W. R. 484 1,:i - 16 ° Douglas v. Congreve, 4 Bing. (N.C.) 1 ; 5 Scott, 223 ; 7 L. J. < '. P. 13 ; S. C. in Ch., 11 Beav. 59 ; is E. B. ; 8 L. J. Ch. 53 ; 3 Jur. 120 .... 135,242,248,259 y . Culvenvell, 3 Giff. 251 ; n*> B. R. ; 4 De G. F. & J. 20: 45 E. B. ; 6 L. T. 272 ; 10 W. R. 327 . . .204 v. Dysart (Karl), 10 C. B. (N.S.) 5. 688 : 6 L. T. 327 . 69 Douglas-Menzies v. Um'phelby (1908). A. C. 224 ; 77 L. J. P. C. 64; 98 L. T. 509 ... ... 2o0, 2o8 Dowell v. Dew, 1 Y. & C. Ch. 35 ; 62 E. B. ; 7 Jur. 117; affirmed 1 2 L.J. Ch. 158 303 > •'"' Dowling's Trusts, Be, L. R. 14 Eq. 463 . . • - ,; - XXX TABLE OF CASKS. Dow— Ed g. PAGE Down v. Hopkins, 4 Co. 29 b ; 76 E. E. . . . 61 Drant v. Vause, 1 Y. & C. Ch. 580 ; 62 E. E. ; 11 L. J. Ch. 170 ; 6 Jur. 313 224 Drax, lie (1903), 1 Ch. 781 ; 72 L. J. Ch. 505; 88 L. T. 570; 51 W. E. 612 . . 196 Dring v. Greetham, 23 L. J. Ch. 156 ; 1 W. E. 528 . . . 191 Driver v. Frank, 3 M. & S. 25 ; 8 Taunt. 468 . . . 244, 246 Dryden v. Frost, 3 M. & Or. 670 ; 40 E. E. ; 8 L. J. Ch. 235 . . 222 Dubber v. Trollope, Amb. 453; 27 E. E. . . 120, 134, 135 Dudfield v. Andrews, 1 Salk. 1S4; 91 E. E. . . . .55 Dudson's Contract, Re, 8 Ch. D. 628 ; 47 L. J. Ch. 632; 39 L. T. 182; 27 W. E. 179 90,93 Duffield v. Duffield, 3 Bli. (N.S.) 331 ; 4 E. E. ; 1 Dow. & CI. 311 ; 6 E. E 245 Dugdale, Re, 38 Ch. D. 176 ; 57 L. J. Ch. 634; 58 L. T. 581 ; 36 W. E. 462 . ...... 163, 165 Dumpor's Case, 4 Co. 119; 1 Smith, L. C. 32; 76 E. E. . 171,179 Duncan v. Lawson, 41 Ch. D. 394 ; 58 L. J. Ch. 502 ; 60 L. T. 732 ; 37 W. E. 524 . . . . • • -6 Dungannon (Lord) v. Smith, 12 CI. & F. 546; 8 E. E, ; 10 Jur. 721 321, & 326 Dunn r. Flood, 28 Ch. D. 586 ; 54 L. J. Ch. 370; 52 L. T. 699; 33 W. E. 315 . . . • • • • -H2 Dunne v. Dunne, 7 De G. M. & G. 207 ; 44 E. E, ; 3 W. E. 380; 3 Eq. E, 760 . . . . • • • • 261 Dunraven (Earl) v. Llewellyn, 15 Q. B. 791 ; 19 L. J. Q. B. 388; 14 Jur. 1089 ........ 57 Duppa v. Mayo, 1 Wms. Saund. 380 ; 85 E. E. . 42, 69, 170, 171, 174, 175 Durham Brothers v. Eobertson (1898), 1 Q. B. 772 ; 67 L. J. Q. B. 484 ; 78 L. T. 438 . . . • . • • 203 Durham (Bishop) v. Eipon, 4 L. J. (O.S.) Ch. 32 . . 68 Dyer v. Dyer, 2 Cox, 92 ; 2 Wh. & T. L. C. Eq. 803 ; 30 E. E, . 83, 102, 103 Dvne v. Costabadie, 17 Beav. 140 ; 51 E. E. ; 22 L. J. Ch. (56 ; 1 *W. E. 315; 1 Eq. E. 116 307 Dyson and Fowke's Contract, Re (1896), 2 Ch. 720; 65 L. J. Ch. 791 ; 74 L. T. 759 ; 45 W. E. 28 . . . . . 334 Eales v Conn, 4 Sim. 65 ; 58 E. E, ; affirmed 2 Euss. & M. 751 ; 39 E. E -'332 Eardley v. Knight, 41 Ch. D. 537; 58 L. J. Ch. 622; 60 L. T. 780; 37 W. E. 704 196 : v. Granville (Earl), 3 Ch. D. 826; 45 L. J. Ch. 669; 34 L. T. 609 ; 24 W. E. 528 ...... 67 East v. Harding, Cro. El. 494 ; 78 E. B 64 Eastwood v. Lockwood, L. E. 3 Eq. 487 ; 36 L. J. Ch. 573; 15 W. E. 611 263 Eccles Commissioners v. Parr (1894), 2 Q. B. 420; 63 L. J. Q. B. 784 ; 71 L. T. 05 ; 42 W. E. 561 ; 9 E. 542 . . . 68 Ecroyd v. Coulthard (1898), 2 Ch. 358 ; 67 L. J. Ch. 458 ; 78 L. T. 702 W Eddel's Trusts, Re, L. E. 1 1 Eq. 559 ; 40 L. J. Ch. 316 ; 24 L. T. 223 ; 19 W. E. 815 . 342 Ede v. Knowles, 2 Y. & C. Ch. 172 ; 63 E. E. . . . 217 Edgar v. Plomley (1900), A. C. 431 ; 69 L. J. P. C. 95 ; 82 L. T. 573 ; 49 W. E. 142 . . • • • • • 354 TABLE OF (ASKS. XXXI Edg— Eva. Edge v. Strafford, 1 Cr. & J. 391 ; 9 L. J. (O.S.) Ex. 101 ; 1 Tvr. 295 151 v. Worthington, 1 Cox, 211 ; 29 E. R. . .217 Edmondson's Estate, Re, L. R. 5 Eq. 389; 16 W. B. 810 . 322, 323 Edwards, Re (1894), 3 < 'h. 644; 64 L. J. Ch. 17!); 13 W. EL 169; 8 R. 618 HO — v. Edwards, 15 Beav. 35*7 ; 51 E. R ; 21 L. J. < 'h. 324 : 16 Jur. 259. ..... 265, 266 - r. Jones, 1 M. & Cr. 226 ; 10 E. R. ; 5 L. J. Ch. 194 . 100 if. Martin. L. B. 1 Eq. 121 ; 35 L. J. Ch. 186 ; 13 L. T. 236 : 14 W. B. 25 . . . . . 196 - r. Tuck, 3 De G. M. & G. 40 ; 4:3 E. R. ; 22 L. J. Ch. 523 ; 17 Jur. 921 ....... 336, 337 Egerton v. Brownlow (Earl), 4 IL L. C. 1; 10 E. R.; 23 L. J. Ch. 348; is Jur. 71 . . . . 102, 177, 178, 237 ■ v. Jones, 3 Sim. 409 ; 57 E. B. . . . . 325 v. Massey,3 C. B. (X.S.i 338; 27 L. J. C. B. 10; 3 Jur. (X.S.) 1325 ; 6 W. B. 130 ..... 239, 244 Egmont (Earl) v. Smith, 6 Ch. D. 469; 46 L. J. Ch. 356 . . 221 Ellenborough, Re (1903), 1 Ch. 697 ; 72 E. J. Ch. 218 : ^7 L. T. 714 ; 51 W. B. 315 ....... 122 Ellicombe v. Gonrpertz, 3 M. & Or. 127 ; 40 E. R. . . . 325 Elliot v. Davenport, 1 P. Wms. 83 ; Tud. L. C. Conv. 475; 24 E. B. 121 v. Merriman, Barn. 78; 2 Wh. & T. E. C. Eq. 896; 27 E. B. . 112. 198, 200 Elliott v. Johnson, L. E. 2 Q. B. 120; 3G E. J. Q, B. 41 ; 8 B. & S. 38; 15 W. B. 253 ...... . 153 Ellis v. Maxwell, 3 Beav. 5S7 ; 49 E. B. ; 10 E. J. Ch. 200 . . 339 Ellison v. Ellison, Ves. 056; 2 Wh. & T. L. C. Eq. 835; 31 E. B. 85, 101, 1(15, 106 Else v. Else, E. B. 13 Eq. 196 ; 41 E. J. Ch. 213 ; 25 E. T. 927 ; 20 W. B. 2SG . . . . . . .266 v. Osborn, 1 P. Wms. 387 ; 24 E. E. . . . . 249 Elsey v. Lutyens, 8 Hare, 159 ; 68 E. B. . . . . 362 Elston v. Wood, 2 M. & K. 678 ; 39 E. B. . . . 5 J. 55 Emmerson v. Maddison (1906), A. C. 569; 75 L. J. P. C. 109; 95 L. T. 568 . . . . . . .4 Emuss v. Smith, 2 De G. & S. 722 ; 64 E. B. . . . .124 Eno v. Eno, 6 Hare, 171 ; 67 E. B. ; 16 E. J. Ch. 358 ; 11 Jur. 746 . 325 Esdaile v. Stephenson, 6 Madd. 366 ; 56 E. B. . . . 99 Espin v. Pemberton, 3 De G. & J. 554; 44 E. B. ; 28 E. J. Ch. :;i 1 ; 5 Jur. (N.S.) 157; 7 W. B. 221; affirming 4 Drew. 333; 02 E. B. ...... 358, 360, 361 Essex v. Daniel, E. B. 10 C. P. 53N ; 32 L. T. 476 . . . 222 Ethel and Mitchells and Butler's Contract (1901), 1 Ch. 945; 70 L. J. Ch. 498 ; 84 E. T. 459 . . . . . .120 Evans v. Bicknell, 6 Ves. 174 ; 31 E. B, . . . .349 v. Brown, 5 Beav. 114 ; 49 E. B. ; 11 L. J. Ch. 349 ; 6 Jur. 380 . . . . . . . . 192 v. Elliot, 9 A. & E. 342 ; 8 L. J. Q. B. 51 ; 1 P. & D. 250 . 211 r. Evans, 17 Sim. 86; 60 E. B. ; 14 Jur. 383 . . . 195 ■ >: (1892), 2 Ch. 173 ; 61 E. J. Ch. 456 ; 67 E. T. 152 ; 40 W. B. 465 . . . . . 0!), 121, 249 v. Hellier, 5 CI. & E. 114 ; 7 E. B. . . 336, 337, 338 v. Scott, 1 II. L. C. 43 ; 9 E. B. ; 11 Jur. 291 . . . 342 v. Upsher, 16 M. & W. 675 ; 16 E. J. Ex. 185 . . 58, 69, 70 XXX11 TABLE OF CASES. Eve— Fin. PAGE Everest v. Glvn, 6 Taunt. 425 ; 2 Marsh. 84 ; . . 58, TO Everingham v. Ivatt, L. B. 8 Q. B. 388 ; 42 L. J. Q. B. 203 ; 28 L. T. 672 ; 21 W. R 952 ....... 08 Evers v. Challis, 7 11. L. C. 531 ; 11 E. B. ; 29 L. J. Q. B. 121 ; 5 Jut. (N.S.)825; 7 W. K. 622 . . . 203,200,323,329 Evlyn v. Worsfold, 15 L. T. (O.S.) 4 . . . . 69, 70 Ewart v. Graham, 7 II. L. C. 331 ; 11 E. B. ; 29 L. J. Ex. 88; 5 Jur. (N.S.) 773 ; 7 W. B. 621 59 Ewer v. Corbett, 2 B. Wms. 148 ; 24 E. B 202 Exraouth (Viscount), Be, 23 Ch. D. 158 ; 52 L. J. Ch. 420; 48 L. T. 422 ; 31 W. B. 545 . . . . . . 102, 179 Eyre, Re, 49 L. T. 259 . . . . . . . 279 ■ v. McDowell, 9 II. L. C. 019 ; 11 E. B. 302 Fairclough v. Marshall, 4 Ex. I). 37 ; 48 L. J. Ex. 146 ; 39 L. T. 389; 27 W. B. 145 . . . . . . . 208 Fairfield v. Morgan, 2 Bos. & F. N. B. 38 . . .261, 320 Farebrother v. Wodehouse, 23 Beav. 18 ; 53 E. B. ; 26 L. J. Ch. 81 ; 2 Jur. (N.S.) 1178; 5 W. B. 12 . . . . .308 Farmer v. Francis, 2 Bing. 151 ; 2 Sim. & St. 505 ; 57 E. B. . 328 v. Martin, 2 Sim. 502 ; 57 E. B. . . . . 312 v. Pitt (1902), 1 Ch. 954 ; 71 L. J. Ch. 500 ; 50 W. E. 453 . 308 Farnell, Re, 33 Ch. D. 599 ; 35 W. E. 250 . . 290, 294, 295 Farqnharson v. Floyer, 3 Ch. D. 109 ; 45 L. J. Ch. 750 ; 35 L. T. 355 ....... 195, 371 Farrand v. Yorks Banking Co., 40 Ch. D. 1S2 ; 58 L. J. Ch. 238 ; 00 L. T. 009 ; 37 W. B. 318 348 Farrar v. Winterton (Earl), 5 Beav. 1 ; 49 E. E. ; 6 Jur. 204 223, 224 Farrer v. Lacy, Hartland & Co., 31 Ch. D. 42 ; 55 L. J. Ch. 149 ; 53 L. T. 515; 34 W. B. 22 205,207 Faulkner v. Daniel, 3 Hare, 199 ; 07 E. B. . . . . 331 Fawlkner v. Fawlkner, 1 Vern. 21 ; 23 E. B. . . . . 76 Fector v. Philpott, 12 Brice, 197 .... 217 Fenn v. Smart, 12 East, 444 . . . . . .174 Fenny v. Child, 2 M. & S. 255 71 Fenwick v. Mitford, 1 Leon. 182 ; 74 E. E. . . . .89 . y . Potts, 8 De G. M. & G. 506 ; 44 E. B. . . . 217 Fermor's Case, 3 Co. 77 a ; 76 E. B. . . . . .41 Fernie v. Scott, L. B. 7 C. B. 202 ; 41 L. J. C. P. 20 ; 25 L. T. 836 ; 20 W. B. 230 . . . . . . . . 156 Ferrand v. Wilson, 4 Ha. 344 ; 67 E. E. ; 15 L. J. Ch. 41 ; 9 Jur. 800 . . . . . . . . .332 Ferrars v. Cherry, 2 Vern. 383 ; 23 E. B. . . . . 221 Ferrier v. Jay, L. B. 10 Eq. 550 ; 39 L. J. Ch. 086 ; 23 L. T. 302 ; 18 W. B. 1130 . . . . . . .303 Festing v. Allen, 12 M. & W. 279 ; 13 L. J. Ex. 74 ; 5 Hare, 573 ; 67 E. B. . . . . . . 246, 265 Fetherston v. Fetherston, 3 CI. & F. 07 ; 6 E. B. ; 9 Bli. (N.S.) 237 ; 5 E. B. . . . . . . . 51, 135, 249 Fetherstone v. Fenwick, 1 Bro. C. C. 270 n. ; 28 E. B. . . 216 Field v. Boland, 1 Dr. & Wal. 37 . . . .221 v. Moore, 7 De G. M. & G. 691 ; 44 E. B. . . . 209 Fillingham v. Bromley, Turn. & Buss. 530 ; 37 E. B. .177 Finch's (Sir Moyle) Case, 6 Co. 63 a; 77 E. B. . . 14,74 TABLE OF CASES. XXXlll Fin— Fra. PAGE Finden v. Stephens, 2 Ph. 142 ; 41 E. R. : 17 L. J. I h. 342 . .114 Fish, Re (1893), 12 Ch. 41:5 ; 62 L. J. ( !h. 977 ; 69 I, T. 233 . 114, 115 Fisher v. Fisher, 2 Keen, 610 : 48 E. R. : 7 L. J. < h. 176 . 194 ■ v. Webster, L. E. 14 Eq. 283 ; 42 L. J. Ch. 156 ; 26 L. T. 765 Fitch v. Stuckley, 4 Co. 23 a; 7 Fraunce's Case, 8 Co. 90 b; 77 E. R. . . • • 1 ''•' Frayne r. Taylor, 33 L. J. I !h. 228 ; 10 Jur. (N.S.) 11!) ; 12 W R. 287 224 Frazer r. Jones, 5 Hare, 475 ; 67 E. R. ; 17 L. J. Ch. 353 ; 12 Jur. 443 ..... 340, 348, 351, 360 Freeland v. Pearson, L. B. 7 Eq. 240; 3G L. J. Ch. 374 ; 1-3 W. B. 419 .....•••• 9 l Freeman v. Barnes, 1 Vent. 80 ; 86 E. R. . • • -157 v. Edwards, 2 Ex. 732; 17 L. J. Ex. 258 . . . 212 - v. rhillips, 4 M. & S. 486 58 Freke v. Carbery (Lord), L. R. 16 Eq. 461 : 21 W. R. 835 . . Fremoult v. Dedine, 1 P. Wms. 429; 24 E. E. . . . 106 French's Case. 4 Co. 31 a; 76 E. E. .... 73, 74, 75 Frere v. Moore, 8 Price, 475 ...••• 366 Frogley, Re (1905), P. 137 ; 74 L. J. P. 72 ; 92 L. T. 429 ; 54 W. E. 48 288 . Frogmorton v. Holyday, 3 Burr. 1618 . • .12, Frost, Be, 43 Ch. D. 240 ; 59 L. J. Ch. 118 ; 62 L. T. 25 ; 38 W. E._ 264 ..... 242, 317, 31s Fuller v. Benett, 2 Hare, 394; 07 E. E. ; 12 L. J. Ch. 355; 7 Jur. 1056 36 ° Furber, Exp., 17 Ch. D. 191 ; 44 L. T. 319 ; 29 W. E. 524 . . 196 Gage, Be (1898), 1 Ch. 498; 07 L. J. Ch. 200; 78 L. T. 347; 40 W. R. 509 ...•••• 332 , : > :y -'> Gainsford v. Dunn, L. R. 17 Eq. 405; 43 L. J. Ch. 403; 30 L. T. 283 ; 22 AV. E. 499 ..... 196, 281, 31o Gale v. Gale, Ch. D. 144 ; 40 L. J. Ch. 809 ; 30 L. T. 090 ; 25 AV. E. 772 • 3o1 Gallard v. Hawkins, 27 Ch. I>. 298 ; 53 L. J. Ch. 834 ; 51 L. T. 689 ; 33 AV. E. 31. 100,108 Game, Be (1907), 1 Ch. 270 ; 70 L. J. Ch. 168 ; 96 L. T. 145 . 320, 327 Gardiner. Be (1901), 1 Ch. 697 ; 70 L. J. Ch. 407 . . . 339 v. Sheldon, A r augh. 259 . . • 139,140 v. Williamson, 2 B. & Ad. 336; 9 L. J. (O.S.) K. B. 233 . 38 Gardner, Be, 07 L. T. 552 197 v. Rowe, 5 Rubs. 258 ; 3S E. R. ; 7 L. J. (O.S.) Ch. 2 . 102 Garfitt v. Allen, 37 Ch. D. 48; 57 L. J. Ch. 420 ; 57 L. T. 84S ; 36 AV. E. 413 213 Garland v. Beverley, 9 Ch. D. 213; 47 L. J. Ch. 711 ; 38 L. T. 911 ; 26 W.R. 718 122,124 r. Jakyll, 2 Bing. 273 ; 9 Moo. 502 ; 3 L. J. (O.S.) C. P. 227 19, 151 v. Mead, L. R. Q. B. 441 ; 40 L. J. Q. B. 179 ; 24 L. T. 421 ; 19 AV. E. 1156 ...••• 6o, 68 Garnett v. Acton, 25 Beav. 333; 54 E. E. . . • 225 Garrard v. Lauderdale (Lord). 3 Sim. 1 ; 57 E. R. ; affirmed 2 Russ. & M. 451 ; 3!) E. E. . . • • ■ 191 v. Tuck, 8 C. B. 231 ; 18 L. J. C. P. 338 . . 98, 157 Garth v. Cotton, 1 Dick. 183; 2 Wh. & T. L. C. 970 ; 21 E. R. . 244 v. Townsend, L. E. 7 Eq. 220 294 TABLE OF CASKS. XXXV Gas — Gos. PAGE Gas Light and Coke Co. v. Towse, 35 I !h. D. .319 ; 56 L. J. Ch. S89 ; 56 L. T. 602 ....... 303, 310 Gaskarth v. Lowther (Lord), 12 Ves. LOT; 33 E. R . . . 224 Gatenby v. Morgan, 1 Q. B. D. 685; 45 L. J. Q. B. 597 ; 35 L. T. 21.') . . . . . . . . . 262 Genery v. Fitzgerald, Jac. 468 ; 37 E B. . . . . 261 George v. Milbanke, 9 Ves. 190; 32 E. B. .... 309 Gibbs, Re (1907), 1 Ch. 465 ; 76 L. J. Ch. 238 ; 96 L. T. 423 . 50 Gibson v. Sea-rim. 20 Beav. 01 1 ; .32 E. E. ; 24 L. J. < !h. 782 . 370 Giddings v. Giddings, 3 Euss. 241 ; 38 E. E. . . . .116 Giles v. Grover, 1 01. & F. 72 ; 6 E. B. ; 6 Bli. (N.S.) 277 ; 5 E. R. . 12 Gillies v. Longlands, 1 De G. & Sm. 372; 04 E. R.; 20 L. J. Ch. 441 ; 15 Jui\ 570 . . . . . . .189 Glass v. Eichardson, 2 De G. M. & G. 658; 42 E. E. 1029; 22 L. J. Ch. 105 ; 17 Jur. 926 ..... 01.(15.272 Glenorchy (Lord) v. BosviUe, Cas. t. Talk 3 ; 2 Wh. & T. L. C. 763 ; 25 E. E. . . . . . 182, 183, 274, 343 Glover v. Heelis, 32 L. T. 534 ; 23 W. E. 677 . . . .189 Godfrey v. Boole. 13 App. Cas. 497 ; 57 L. J. F. C. 78 ; 58 L. T. 685 : 37 W. E. 357 . . . . . . .191 Good v. Good, 7 E. & B. 295 ; 3 Jur. : X.S.; 536 ; 29 L. T. 200 . 134 Goodale v. Gawthorne, 2 Sm. & G. .'375; 65 E. E. ; 23 L. J. Ch. ^7^ : 2 W. B. 6S0 . . . . . . . . 238 Goodier v. Edmunds (1893), 3 Ch. 455 ; 62 L. J. Ch. 049 ; 45 L. T. 515 ..... Goodman v. Kine, 8 Beav. 379 ; 50 E. B. Goodright v. Cornish. 1 Salt. 220 ; 91 E. E. v. Davids, Cowp. 803 v. Wells, Dougl. 771 v. Wright. 1 P. Wms. 397 ; 24 E. B. Goodson v. Ellison, 3 Buss. 583; 38 E. B. Goodtitle v. Bilhngton, Dougl. 750. 75s v. Burtenshaw. Fearne, Cont. Bern. App. 570 v. Edmunds. 7 T. B. 035 — v. Gibbs, 5 B. & C. 709; 8 D. & B. 502; 1 L. c K. B. 285 . . v. Jones, 7 T. B. 47 . v. Morse, 2 T. B. 305 - v. Newman, 3 Wils. 516; 2 W. Bl. 938 v. Bugh, Fearne, C. B. App. 57:) ; 3 Bro. P. C. 454 ; - v. White, 15 East, 174 Goodwin v. Waghorn. 4 L. J. Ch. 172 Gordon, Re, G Ch. D. 531 ; 46 L. J. Ch. 794 . r. Atkinson, 1 De G. & S. 478 ; 63 E. B. v. Gordon, 1 Mer. 141 ; 35 E. E. Gore v. Gore, 2 P. Wins. 2s ; 24 E. E. Gorringe v. Irwell India Eubber and Gutta Bereha Works, 04 Ch. D. 128; 50 L. J. Ch. 85 ; 55 L. T. 572 ; 35 W. R. 86 Gorst v. Lowndes, 11 Sim. 434 ; 59 li B. ; 10 L. J. Ch. 161 457 ..... Gosbell v. Archer, 2 A. & E. 500; 4 L 485 ..... Gosling v. Carter, 1 Coll. 644; 03 E. B 324 . 5 Jur. J. K. B. 78 ; 4 Nev. & M. ; 14 L. J. Ch. 218; 9 Jur. :;:!2. 334 . 212 . 236 . 180 9!i 248, 249, 258 99 . 255 133, 2:;7 . 128 .(O s.; 91, 120 . 107 . 01 11. l."> 1 E. B. 125 . 44 . 217 . 189 . 1N7 . 268 . 260 349 337 22:; L98 c 2 Xwvi TABLE OF CASKS. Gou-Gri. rAG >; Gouge v. Woodwin, Eobinson, Gavelkind, 1 t, 5th ed. . .12 Goymour v. Pigge, 7 Beav. 479 ; 19 E. R. ; 13 L. J. Ch. 322 ; 8 Jur. 5*6 • • • • • ' ' Grafton (Duke) v. London and Birmingham Railway, 5 Ling. (N.C.) 27;6Scott, 719; Arn. 363; 8 L. J. 0. P. 47 . . ■ -< Graham v. Drummond (1896), 1 Ch. 968 ; 68 L. J. Ch. 472; 74 L. T. 417; 44 W. E. 596 202 v. Oliver, 3 Beav. 124; 49 B. E 99 v. Simp. 1 East, 632 . . • • • .70 Grainger; Re (1900), 2 Ch. 756; 69 L. J. Ch. 789; 83 L. T. 209; 48 W. E. 673 196 Grange, Re (1907), 2 Ch. 20 ; 70 L. J. Ch. 4.30 ; 96 L. T. 867 . 209 Grange v. Tiving, Bridgm. 114 ..... 279 Grant v. Astle, Dougl. 726 n. . . • • .71 v. Mills, 2 V. & B. 307; 35 E. E 222 Grantham v. Copley, 2 Wins. Saund. 840 ; 85 E. E. . . 55, 63 Grassi, He (1905), 1 Ch. 584 ; 74 L. J. Ch. 341 ; 92 L. T. 455 ; 53 W. E. 396 . • • • • • • • 6 Gratwick's Trusts, 7?*. L. E. 1 Eq. 1 77 ; 35 Beav. 215 ; 1 1 Jur. (N.S.) 919 . • • • • • • • • 29 ° Gravenor v. Eake, Cro. El. 307 ; 78 E. E 60 u. Todd, 4 Co. 23 a ; 76 E. E. . . . • 00,01,02 Graves v. Hicks, 11 Sim. 536; 59 E. E. ; 10 L. J. Ch. 185; 5 Jur. 074 • • • • • ' .183 Gray v. Johnston, L. E, 3 II. L. 1 ; 16 W. E. 482 . . • 202 Great Western Eailwav v. Smith, 2 Ch. D. 235; 45 L. J. Ch. 235; 34 L. T. 207 ; 24 W. E. 443 . . . • ■ -173 Green. Re, 40 Ch. D. 610 ; 58 L. J. Ch. 157 ; 00 L. T. 225 ; 37 W. E. 300 ...-••• lil9 r Marsh (1892), 2 Q. B. 331 ; 01 L. J. Q. B. 442; 66 L. T. 480 ; 40 W. E. 449 . . • ■ -212 v Paterson, 32 Ch. D. 95 ; 56 L. J. Ch. 181 ; 54 L. T. 738 ; 34 W. E. 724 28 v. Pulsford, 2 Beav. 70 ; 48 E. E. . . ■ • 315 v. Smith, 1 Atk. 572 ; 26 E. E. .... 225 Greenaway v. Hart, 14 C. B. 340; 23 L. J. C. P. 115; 18 Jur. 449 ; 2 W. E.' 702 ; 2 C. L. E. 370 . • • 2y,j Greenhalgh v. Brindley (1901), 2 Ch. 324; 70 L. J. Ch. 740; 81 L. T. 763 ; 49 W. E. 597 3oi > Greenwav r. Greenway, 2 De G. E. & J. 128 ; 45 E. E. ; 29 L. J. Ch. 601 ... ... 122, 134 Greenwood, Re (1903), 1 Ch. 749; 72 L. J. Ch. 281 ; 88 L. T 212; 51 W.E. 358 . . 161, 102, 104, 1/6, 178, 2o4 r. Sutcliffe (1892), 1 Ch. 1 ; 01 L. J. Ch. 59 ; 65 L. T. 797 ; 40 W. E. 214 204 _ Greswold's Case, Dyer, 156 a; 73 E. E. Greville v. Browne, 7 H. L. C. 689 ; 11 E. E. ; 5 Jur. (N.S.) 849 ; 7 W. E. 673 19o > 196 Grey v. Jenkins, 26 Beav. 351; 53 E. E 334 r. Pearson, 6 H. L. C. 61 ; 10 E. E. ; 26 L. J. Ch. 473; 5 W.E. 454 236,261,326 Grier v. Grier, L. E. 5 H. L. 6S8 . • • • 183 Griesbach v. Freemantle, 17 Beav. 314 ; 57 E. E. . . 189 Griffith v. Owen (1907), 1 Ch. 195; 76 L. J. Ch. 92; 96 L. T. 5 . 116 v. Pound, 45 Ch. 553 ; 59 L. J. Ch. 522 . . .368 TABLE OF CASES. XXXV11 Gri— Har. PAGE Griffith v. Pownall, 13 Sim. 393; 60 E. R. . . . 332, 333 v. Eickett, 7 Bare, 299 ; 68 E. E. ; 19 L. J. Ch. 100, 399 ; 14 Jur. 1(36, 325 .... • 185, 186, 191 Griffiths v. Vere, 9 Ves. 127 ; Tud. L. C. Conv. 61S ; 32 E. E. 336, 337 Grimson v. Downing, I Drew, 125; 62 E. E. ; 5 AY. B. 767 . 135 Grimthorpe Xord), i:< (1908), 2 Ch. 675; 78 L. J. Ch. 20 . Grimwood v. Moss, L. E. 7 C. P. 360 ; £1 L. J. C. P. 239 : 20S ; 20 W. E. 972 . Grylls, Re, L. E. 6 Eq. 589 . Guest v. Smythe, L. E. 5 Ch. 551 ; 39 L. J. Ch. 530 ; 22 L. 18 W. E. 742 .... Gullan r. Grove, 26 Beav. 64 ; 53 E. E. Gulliver v. Ashby, 4 Burr. 1929 7 L. T. 171. 17-2 . 2-31 T. .311:;; . 116 305, 306 164, 330 6E. E. ; 22 . 361 4 L . J. 11, 93 199 T. i )7 5 : lo: >, 104 199 i. J. Ch. 309 Hadfield's Case, L. E. 8 C. 1'. 300 ; 42 L, J. C. P. 146 : 27 L. T. 652; 21 W. E, 171 . . . . . . • 90 Hadley v. London Lank of Scotland, 3 De G. J. & S. 63 : 40 E. E. ; 11 Jur. (N.S.) 5.54 : 12 L. T. 747 ; 13 W. E. 978 . Haggerston v. Hanbury, 5 B. & C. 101; 7 D. & E. 723; (O.S.) K. B. 269 Haig r. Swiney, 1 Sim. & St. 487 : 57 E. E. . Haigh r. Kaye, L. E. 7 I h. 40!' : 41 L. J. Ch. 507 ; 26 L. 20 W. E. 597 Haldenby v. Spofforth, 1 Beav. 390; 48 E. E. Halifax Joint Stock Bank v. Gledhill (1891), 1 Ch. 31 : 60 I 181 ; 63 L. T. 623; 39 W. E. 104 . Hall, Ex p., 10 Ch. D. 015 ; 48 L. J. Bk. 79 ; 40 L. T. 179 ; 27 W. E. 385 109 v. Bromley, 35 Ch. I). 042 ; 50 L. J. Ch. 722 ; 50 L. T. 683 : 3.3 W. E. 659 ..... 68, 272 v . Hall, L. E. 8 < h. 430 ; 42 L. J. Ch. 444 ; 28 L. T. 383 ; 12 AY. E. 373 1"! v. (1892), 1 Ch. 361 : 61 L. J. Ch. 289 ; 66 L. T. 200 ; 40 W. E. 277 50,127 v. Hurt, 2 J. & II. 70 ; 70 E. E. . . . . 200 v. May, 3 K. & J. 585; 69 E. E.; 26 L. J. Ch. 791 : 5 Jur. (N.S.) 907 : 5 W. E. son ..... v. Montague. 8 L. J. (O.S.) Ch. 167 . Hall-Dare v. Hall-Dare, 31 Ch. D. 251 ; 55 L. J. Ch. 154 ; -34 L. T. 120 ; 34 W. E. 82 ...... ■ Hallet to Martin, 24 Ch. D. 024 ; 52 L. J. ( 'h. 804 ; 48 L. T. 89 I lL.ml.ro v. Harnbro (1894), 2 Ch. .504; 63 L. J. Ch. 027 : 70 L. T. 084 ; 43 W. E. 92 ; 8 It. 413 .... Hamilton v. Kirwan, 2 Jo. & Lat. 293 ; 8 Ir. Eq. E. 27s Hampton v. Holman. 5 I h. D. is:} ; 46 L. J. Ch. 248 : 36 L. T. 2s7 ; 25 W. E. 459. ....... Hancock, Re (1896), 2 Ch. 173 : 65 L. J. Ch. 090 ; 74 L. T. 658 ; 4 1 W. E. .51.5 ..... 286, 298 v. Watson (1902), A. C. 1 1 : 71 L. J. Ch. 149; 85 L. T. 729: ,50 W. E. 321 ...... 326, 328 Ilanmer v. Chance, 4 De G. J. & S. 020: 40 E. E. ; 34 L. J. Ch. 410 ; 11 Jur. (N.S.) 097 ; 12 L. T. 163 ; 10 AY. E. 550 . 57. 07 Hanson v. Graham, 6 Yes. 239 ; 31 E. E, . . -OH Hardaker v. Moorhouse, 26 Ch. D. 417 : 53 L. J. Ch. 710 : 50 L. T. 554 ; 32 AY. E. 038 . . . . . ■ .277 293 012 28 310 20(1 315 240 XXXV111 TABLE OF CASES. Har-Har. PAGE Eardey v. llawkshaw, 12 Beav. 552; 50 E. R. ; 14 Jur. 707 . 223 Harding v. Glyn, 1 Atk. 469; 2 Wh. & T. L. C. Eq. 335 ; 26 E. B. 101, 105 v. Grady, 1 Dr. & War. 430; 4 Ir. Eq. B. 371 . . 192 v. Hardin-. L. R. 13 Eq. 493; 41 L. J. Ch. 523; 20 L. T. 656 . 210 Hardoon v. Belilios (1901), A. C. 118 ; To L. J. P. C. 9; 83 I. T. ,373 ; 49 W. B. 209 . . . . . • .115 Ilargreaves v. Bothwell, 1 Keen, 104 ; 48 E. B. . • 301 and Thompson I ontract, Be, 32 Ch. D. 4.34 ; 50 L. J. Ch. 199; 55 L. T. 239; 34 W. B. 70S .... 190,22:; Harland v. Binks, 15 Q. B. 713; 20 L. J. Q. B. 120; 14 Jur. 979 191 Harlock v. Ashberry, 19 Ch. D. 539; 51 L. J. Ch. 394; 40 I,. T. 356; 30 W. B. 327 . . . . . . • 205 Harinan, lie (1894), 3 Ch. 607 ; 63 L. J. Ch. 822 ; 71 L. T. 822 ; 8 E. 549 . . . . • • • 1 n; ' v. Ainslie (1904), 1 K 13. 093; 73 L. J. K. B. 539; 90 L. T. 624; 52 W. B. 015 . . . . • -175 Harmer v. Priestly, 16 Beav. 509; 51 E. E. ; 22 L. J. Ch. 1041 ; 1 W. B. 343 204 Harpham v. Shacklock, 19 Ch. i). 207 ; 45 L. T. 509 ; 30 W. B. 49 . 352. 300 Harries v. Bryant, 4 Buss. 89 ; 38 E. E. . . . . 155 Harrington v. Harrington, L. E. 5 H. L. 87 ; 40 L. J. Ch. 71(5 ; 20 W. B. 25 322 Harris v. Barnes, 4 Burr. 2157 ; 1 Bl. 043 .... 260 v. Davis, 1 Coll. 410 ; 63 E. B, ; 9 Jur. 209 . . 123. 134 v. Lloyd, Turn. & Buss. 310 ; 37 E. B. . . • 207 Harrison's Estate, Be, L. E, 5 Ch. 408 ; 39 L. J. Ch. 501 ; 23 L. T. 654; 18 W. E. 795 . . . . • • • 12 < Harrison, Exp., 18 Ch. D. 127 ; 53 L. J. Ch. s32 ; 45 L. T. 29 ; 30 W. R.38 12 , Re, 34 Ch. D. 214 ; 56 L. J. Ch. 341 ; 50 L. T. 159 ; 35 W. E. 196 224, 225 1 Be (1894), 1 Ch. 561 ; 03 L. J. Ch. 3*5 ; 70 L. T. 68 . 268 v. Forth, Prec. Ch. 51 ; 24 E. E. . . . 352, 353 v. Kirk (1904), A. C. 1 ; 73 L. J. Ch. 35 ; 89 L. T. 5(50 . 194 «/. Randall, 9 Hare, 397; 68 E. E. ; 21 L. J. Ch. 294; 16 Jur. 72 . . . • 313, 314, 315 v. Bound, 2 De G. M. & G. 190 ; 42 E. R. ; 22 L. J. Ch. 322; 17 Jur. 563; 1 W. R. 26 ...-•■ -01 Harrowby and Paine, Be (1902), W. N. 137 .... 208 Hart, Be, 41 Ch. D. 547 ; 58 L. J. Ch. 752 ; 60 L. T. 817 ; 38 W. E. 61 . . . • • • • • 7G Hart's Trusts, Be, 3 De G. & J. 195 ; 44 E. E. ; 28 L. J. Ch. 7 . 344 Harter v. Colrnan, 19 Ch. D. 030; 51 L. J. Ch. 481 ; 40 L. T. 154 ; 30 W. E. 484 . . . . • • • • ;;,,; ' Hartlev, Be (1900), 1 Ch. 152; 09 L. J. Ch. 79; 81 L. T. 804; 48 W. B. 245 • • • 193 Hartopp v. Carbery (Lord), 1 Sand. Uses, 204 . • • 331 Hartshorne v. Watson, 4 Bing. (N.C.) 178 ; 5 Scott, 500; 1 Am. 15 ; 7 L. J. C. P. 138; 6 D. P. C. 401 ; 2 Jur. 155 . .170, 172, 1-4 Harvey, Be (1901), 2 Ch. 290; 00 L. J. Ch. 094 ; 85 L. T. 36; 49 W. B. 695 • ls8 1M» TABLE OF CASES. XXXIX Has— Hey. Hasker v. Sutton. 1 Bing. 500 : 9 Moo. 2 ; 2 L. J. (< >.S.) I !. P. 68 . -41 Hastie's Trusts, Re, 35 Ch. D. 728 ; 56 L. J. Ch. 792; 57 L. T. 168 ; 35 W. R. 092 ...... 268 Hastings Union v. St. James', Clerkenwell, L. E. 1 Q. 1!. 38 : 35 D. J. M. C. 65 : 6 15. & S. 914; 11 Jur. N.S. 977 ; 13 L. T. 362 : 14 W. B. 175. ....... 152 Hawes v. Hawes, 14 Ch. D. 614 ; 4:) L. T. 971 . .240, 245, 2 Hawkes v. Baldwin, 9 Sim. 355 ; 59 E. R. ; 7 L. J. I h. 297 ; 3 Jur - 698 ........ Hawkins, Exp., 13 Sim. 569; 60 E. EL v. Kemp, 3 East, 410 . . . 292 . v. Shewen, 1 Sim. & S. 257 ; 57 E. R.; 1 L. J. (O.S. < !h. 148 ** Hayes, Be (1901), 2 Ch. 529; 70 L. J. Ch. 770 ; 8i L. T. 85; 49 W. R 659 . . . • • • -29 v. Foorde, 2 W. Bl. 698 . . 50, 134, 178, 250, 25s Haynes u. Doman (1899), 2 Ch. 13 ; 68 L. J. Ch. 419; 80 L. T. 599 320 — v. Haynes, 1 Dr. & Sou 426; 02 E. R. ; 30 L. J. Ch. 578; 7 Jur. (N.S.'; 595 ; 4 L. T. 199 ; 9 W. R. 497 . . 224 Head's Trustees v. Macdonald, 45 Ch. D. 310; 59 L. J. Ch. 604 ; 63 L. T. 21 ; 38 W. R. 057 192 Head v. Egerton, 3 P: Wms. 280 ; 24 E. R. .... 354 Heams v. Bance, 3 Atk. 630 ; 26 E. B. ^>~ Ileasman v. Pearse, L. R. 7 Ch. 275 ; 41 L. J. Ch. 705 ; 26L. T. 299 : 20W.R. 271. .... 141,318,320,323,331 Heath v. Crealock, L. R. 10 Ch. 22 ; 44 L. J. Ch. 157 ; 31 L. T. 650 ; 23 W. R. 95 ... • 352, 353, 354 v. Deane (1905), 2 Ch. -S6 ; 74 L. J. Ch. 400 ; 92 L. T. 643 . 56, 5 . v. Heath, 1 Bro. C. C. 147 ; 28 E. E 127 v.. , 2 P. Wms. 366; 24 E. B 195 Heathcote, Be, 58 L. T. 43 ; affirmed, So L. T. Jol. 120 . .188 , Be (1904), 1 Ch. 820 ; 73 L. J. Ch. 543 ; 90 L. T. 505 . 336 Hebblethwaite v. Cartwright, Cas. t. Talb. 31 ; 25 E. R. . . 207 Hele v. Bond, Prec. Ch. 474 ; 24 E. E. ; Sugden, Powers App. 904 . 298 Henderson v. Astwood (1894), A. C. 150 ; B. 450 . . .215 Hennings c. Brabason, 1 Lev. 45 ; 83 E. B. . . • ■ 150 Hensman v. Eryer, L. B. 3 Ch. 420 ; 37 L. J. Ch. 97 ; 17 L. T. 394 ; 16 W. B, 162 .... . 194 Henson, Be (1908), 2 Ch. 350 ; 77 L. J. Ch. 598 ; 99 L. T. 336 . 201 Henstead's Case, 5 Co. 10 a ; 77 E. E. .... 158 Henty v. Wrey, 21 Ch. D. 332 ; 47 L. T. 231 ; 30 W. R. 850 . 312 Hermann v. Hodges, L. B. 16 Eq. 18 ; 43 L. J. Ch. 192 ; 21 W. R. 571 ,...•••• Hervey v. Hervey, 1 Atk. 501 ; 26 E. B. 298, 303 Hewitt v. Loosemore, 9 Hare, 449 ; OS E. B. ; 21 L. J. Ch. 69; 15 Jur. 1097 ....-•• :; ' |S v. Wright, 1 Bro. C. C. 86; 28 E. B l s,i Hext v. Gill, L. E. 7 Ch. 699 ; 41 L. J. Ch. 701 ; 27 L. T. 291 : 20 W. E, 957 ...... Ileydon's Case, 3 Co. 7 a ; 76 E. E. . . 60, 62 Heydon v. Smith, 13 Co. 07 ; 77 E. B. 67 Heywood's Case, 2 Co. 35 a ; 70 E. B. ; '- Heywood v. Heywood, 34 Beav. 317 ; 55 E. E. ; 31 L. J. Cn. 31 ( ; 11 Jur. (N.S.I 033 ; 12 L. T. 108; 13 W. R. 514 . • 37 xl TABLE OF CASKS. 175; 6 E. 137 . T. 31 : 203, J16; 64 E. E. : IT I J. Ch. L. T. 10 Jut. (N.S.) 5 Hig— Hoi. Ilig-inbottom, Re (1892), 3 Ch. 132 ; 62 L. J. Ch. 71 ; (17 L. T. 190 3E. 23 ....... Higgins v. Dawson (1902), A. C. 1 ; 71 L. J. Ch. 132 ; 85 L. T. 763 50 W. E. 337 . Higinbothain v. Holme, 19 Yes. S8 ; 34 E. E. Hill v. Brown (1S94), A. C. 125; 63 L. J. P. C. 46 ; 70 L. T E. 440 ...... — v. Crook, L. E, II. L. 2(35 ; 42 L. J. Ch. 702 ; 22 \Y v. Hill, 3 Yes. & B. 183 ; 35 E. E. — - v. Rowlands (1897), 2 Ch. 361 : 66 L. J. Ch. Oso ; 77 46 W. E. 26 . r. Simpson, 7 Ves. 1.32; 32 E. E. . v. Wiggett, 2 Yern. 547 ; 23 E. E. Hilton v. Hilton, L. E. 14 Eq. 468 . Ilincliffe v. Yvestwood, 2 De G. & Sm 167; 12 Jur. 618 . Hinton r. Sparkes, L. E. 3 C. P. 161 ; 37 L. J. C. P. si ; 1 000 : 10 W. E. 360 . Hoare v. Wilson, L. E. 4 Eq. 1 ; 16 L. T. 112; 15 W. E. 54s Hohart v. Hammond, 4 Co. 27 b ; 76 E. E. . Hockey v. Western (1898), 1 Ch. 350 ; 67 L. J. Ch. 166 ; 78 L. T. 1 : 46 W. E. 312 .... Hockley v. Bantock, 1 Euss. 141 ; 38 E. E Hoddell v. Pugh, 33 Beav. 489 ; 55 E. E. L. T. 446; 12 AY. E. 782 .... Hodder v. Euffin, Taml. 343 ; 48 E. E. Hoddy v. Hoddy, 2 Bolle, 00 .... Hodgeson r. Bussey, 2 Atk. 89 ; 26 E. E. . Hodgson, Re (1899), 1 Ch. 666 ; 68 L. J. Ch. 313 ; 80 L. T. W. E. 443 .... v. Ambrose, Dougl. 336 v. Dean, 2 Sim. & S. 221 ; 57 E. E. ; 3 L. J. (O.S v. Halford, 11 Ch. D. 959; 48 L. J. Ch. 548; 2 545 ..... v. Hooper, 3 E. & E. 149 ; 29 L. J. Q. B. 222 : Jur 911 ; 3 L. T. 149; 8 W. E. 637 Holder v. Preston, 2 Wils. 400 Holdfast w . Clapham, 1 T. E. 600 ; 4 Burr. 1052 Hole v. Escott, 4 My. & Cr. 187 ; 41 E. E. ; 6 L. J. Ch. 355 ; 2 Jur. 1059 231, 255.271, Holford v. Hatch, Dougl. 183 ..... 229, Hollinrake v. Lister, 1 Euss. 500 ; 38 E. E. . Hollis' Hospital (Trustees) & Hague's Contract, Re (1899), 2 Ch. 540 : 68 L. J. Ch. 673 ; 81 L. T. 90 ; 47 AY. E. 691 . 317. Holloway v. Berkeley, 6 B. & C. 2 : 9 D. & E. 83; 5 L. J. (O.S. Iv. B. 1 v. Eadcliffe, 23 Beav. 163 : 53 E. E. ; 26 L. J. Ch. 401 ; 3 Jur. (N.S.) 198 ; 5 W. E. 271 Holmes, Re, 29 Ch. D. 786 ; 55 L. J. Ch. 33 .... r , Coghill, 12 Yes. 216 ; 33 E. E. . . . 65. r . ( iodson, 8 De Cr. M. & G. 152 ; 44 E. E. ; 25 L. J. Ch. 317 ; 2 Jur. (N.S.) 383 ; 4 W. E. 415 . . 50. v. Mathews, 9 Moo. P. C. 413 ; 14 E. E. ,.. Prescott, 33 L. J. Ch. 264; 10 Jur. (N.S.) 507 ; 12 W. E. 636; 3 N. E. 559 ..... 246,256,341, AGE 113 195 105 126 265 197 201 202 310 251 34 ; 10 276 : 4 7 258, Ch. 95 \Y E. 332, (N.S.) 69 1 1 3 217 223 221 172 251 2H7 205 363 333 58 05 61 289 232 ISO 31 s 19 lss 349 309 178 204 342 TABLE OF CASKS. xli Hoi— Hum. PAGE Holroyd v. Breare, 2 B. & Aid. 473 . . . . .54 Vm Marshall, 10 H. L. C. 191 ; 11 E. E. : 33 L. J. Ch. 193 ; 9 Jur. (N.S.)213; 7 L. T. 172; 11 W. E. 171 . . 221 v. Wyatt, 2 Coll. 327 ; 63 E. I!. ; 9 Jur. 1072 . . 221 Holt's Estate, Re, 45 L. J. Ch. 208; 34 L.T.120; 24 W. E. 339 344 Home v. Pillans, 2 M. & K. 15 : 39 E. E. . . . 266 Hooper. Exp., 1!) Ves. 477 : 34 E. E. : 1 Mer. 7 ; 35 E. R. . .217, 365 v. Cooke, 25 L. J. Ch. 467; 2 Jur. iN.S. 527 . . 360 Hope v. Johnstone (1904), 1 Ch. 470 ; 7:5 L. J. Ch. 371 : 90 L. 'I'. 253 165 Hopkins v. Hemsworth (1898), 2 Ch. 347 ; 07 L. J. Ch. 526; 7^ L. T. 832; -17 W. R. 26 . . . 220, 350 v. Hopkins, 1 Atk. 591 ; 26 E. E. . . .94,260,264 Hopkinson v. Bolt, it II. L. C. 1-1 ; 11 E. E. : 34 L. J. Ch. 468 : 7 Jur. (N.S.) 1209 ; 5 L. T. 90 : 9 \V. It. 900 .... 365 Horlock v. Priestly, 2 Sim. 7."> : 57 E. \\. . . 61, 351 Horn v. Horn. 2 Sim. & St. 44s ; 57 E. 1! 201 Horner. Re, 37 Ch. D. 695; o~ L. J. Ch. 291 : 58 I.. T. 103; 36 W. 1!. 34* 268 Hosking v. Smith, 13 App. Cas. 582 : 58 L. J. Ch. 367 ; ■'>'■> 1.. T. 565 : 37 W. II. 2.07 252 Hougham v. Sandys, 2 Sim. 95 : 57 E. R. ; 6 I.. J. (< >.S. Ch. 67 . 112 Houston -.Hughes, 6 B. & C. 420 ; 9 D. & B, 164; 5 L.J. O.S. K. B. 315 ........ 107 Howard v. Chaffers, 2 Dr. & C. 236 ; 62 E. E; 32 L. J. Ch. 686; 9 Jur. (N.S. 707; 11 W. E. 1057 . . 195, 201 v. Duncane, T. & E. 81 ; 07 E. E. ; 1 L. J. I t.S.) I % So . 116 v. Harris, 1 Vern. 190 ; 2 Wh. & T. L. C. 11 ; 23 E. E. . 200 Howatson v. Wehb (1908), 1 Ch. 1 : 77 L. J. Ch. 32 ; 97 L. T. 730 . 204 Howe v. Smith, 27 Ch. D. 89 ; 53 L. J. Ch. 1055 : 50 L. T. 573 : 32 W. E. 802 ......-• 220 Hubert v. Parsons. 2 Yes. Sen. 201 ; 28 E. E. ... 014 II udders field Banking Co. v. Lister & Co. 1895 . 2 Ch. 273; 64 L. J. Ch. 523 ; 72 L. T. 703 ; 43 W. 1!. .007 : 12 R. 331 . . 212 Hudson. Re (1908), 1 Ch. 655 ; 77 L. J. Ch. 305 . . 66 .. cook. L. R, 13 Eq. 417 ; 41 L. J. Ch. 000 : 26 L. T. 180; 20 W. 1!. 407 . . • • • 225 w. Temple. 29 Beav. 536 : 54 E. 11. : 30 L. J. I h. 251 : 7 Jar. N.S. L'js: :; L. T. 495; 9 W. E. 243 .... 203 Hudsons, Re, IOury, . . . . • .344 Hughes' Trusts. Re, 2 II. & M. 89 ; 71 E. R. : 33 L. J. I 'h. 725 : lu Jur. N.S. 900; 10 L. T. 813; 12 W. R. 1025 . 220, 346, 348 Hughes v. Britannia Permanent Building Society [1906), 2 Ch. I "7: 75 L. J. Ch. 739 ; 95 L. T. 327 .... 368 ,.. Parker, 5 M. & W. 244 ; 10 L. J. Ex. 297 . . 22! Hugo v. Williams, L. R. 14 Eq. 221 ; 11 L. J. Ch. 661 : 20 I.. T. 901 .....••• 123, 136 Huguenin v. Baseley, 1 1 Ves. 27:5 : 1 Wh. & T. L. C. Eq. 247; 33 K. B. . . . ■ • • • • 104 > ni Huish's Charity, Re, L. E. 10 Eq. 5; 39 L. J. Ch. 199; 22 L. T. 565; 18 W. E. 817 ... ;;! ! Humphrey v. Olver, 28 L. J. Ch. 400; 5 Jur. N\>. 946 ; 7 W. B. 334 • 315 Humphreys v. Harrison, 1 J. & W. 581 ; 37 E. B, . • 212 xlii TABLE OF CASES. Hun — Jac. PAGE Hunt. Re, 31 Ch. D. 308; 55 L. J. Ch. 280; 54 L. T. 69 ; 34 W. R. 247 . . . . . . . . 301 v. Burn, 1 Salk. 57 : 91 E. E. ; Holt, 60; 90 E. R. . . 17 v. Elmes, 2 De O. F. & J. 578 ; 4.3 E. R. ; 30 L. J. I h. 255 : 7 Jur. (N.S.) 200 3 L. T. 796; 9 W. R. 362 . . 354 v. Fiipp 1898 , 1 Ch. 075 ; 07 L. J. Ch. 377 : 77 L. T. 516 ; 46 W. R. 125 ..... . 347 v. Luck '1902), 1 Ch. 428 ; 71 L. J. Ch. 560 : 86 L. T. 68; .50 W. R. 291 . . . . . . . 359 Hunter v. Nockolds, 1 Mac. & G. 640 ; 41 E. E. ; 19 L. J. Ch. 177 ; 1 II. & T\v. 044 ; 14 Pr. 2.36 . . . .200 v. Walters, L. R. 7 Ch. 7.3 ; 41 L. J. Ch. 175 ; 2.3 L. T. 705 : 20 W. R. 218 ...... 349, 358 Hurford v. Carpenter, 1 Bro. C. ('. 270 n. ; 28 E. R. . . . 216 Hurst v. Hurst, 10 Beav. 372 ; 51 E. R. ; 22 L. J. Ch. 538 ; 1 W. R. 105 . ..... 308 .. . 21 Ch. D. 278; 57 L. J. Ch. 729 ; 40 L. T. 899 : 31 W. R. 327 262 Hutton v. Sealy, 27 L. J. Ch. 263 ; 4 Jur. (X.S.) 450 ; 6 W. R. 350 . 200 Hyatt, Re, 38 Ch. D. 609 ; 57 L. J. Ch. 777 ; 59 L. T. 277 . 192, 198 . Griffiths. 17 Q. B. 505 . . . . . 160 Ibhs v. Richardson, 9 A. & E. 849; 8 L. J. Q. B. 120; 1 P. & P. 018; 3 Jur. 102 ....... 160 Idle v. Cook. 1 P. Wms. 77 ; 24 E. R. . . . . . 02 Iggulden v. May, 7 East, 2:37 ; 2 B. & P: N. R. 449 ; 9 Yes. 325 : 32 E. R. . . . . . . . . 155 Illidge, Re, 24 Ch. P. 054; 53 L. J. Ch. 991; 51 L. T. 523; 33 W. R. 18 . . . . . . . 193 Ind, Coope & Co. v. Enimerson, 12 App. Cas. 200 ; 50 L. J. Ch. 989 : 50 L. T. 778; 36 W. R. 243 ..... 351, 354 Ingham, Re (1893), 1 Ch. 352; 02 L. J. Ch. 100; 68 L. T. 152 : 41 W. R. 235 ; 3 R. 126 ...... 351 Ingram v. Soutten, L. R. 7 II. L. 408; 44 L. J. Ch. 55; 31 L. T. 215 ; 23 W. E. 363 . . . . . . . 200 Inrnan, Re (1903), 1 Ch. 241 ; 72 L. J. Ch. 120; 88 L. T. 173: 51 W. R. 188 . . . . . . . .148 limes v. Jackson, 16 Ves. 350; 33 E. E. ; 1 Bligh, 104 ; 4 E. E. . 298 v. Sayer, 7 Hare, 377 ; 08 E. E. ; 18 L. J. Ch. 274 ; 13 Jur. 402; affirmed 3 Mac. & G. 606; 42 E. E. ; 21 L. J. Ch. 190 : 16 Jur. 21 ....... 305 Ireson v. Pearman, 3 B. & C. 799; 5 I). & E. 687 ; 3 L. J. fO.S.) K. B. 1 19 Ironmongers' Co. v. Attorney-General, 10 CI. & P. 908; 8 E. R. Irwin. Re (1904), 2 Ch. 752 ; 73 L. J. Ch. 832 ; 53 AY. R. 200 Isaac v. Hughes, L. E. 9 Eq. 191 ; 39 L. J. Ch. 379 ; 22 L. T. 1 1 Isaacs. Re (1894), 3 Ch. 506; 03 L. J. Ch. 815; 71 L. T. 386; 42 W. R. 085; 8R. 600 ..... Isherwood v. Oldknow, 3 M. & S. 382 Ivy v. Gilbert, 2 P. Wms. 13 ; 24 E. E. Jackson, Exp., 14 Ch. D. 725 ; 43 L. T. 272 ; 28 AY. E. 523 . 212 , Re, 34 Ch. D. 732; 50 L. J. Ch. 593; 50 L. T. 502 ; 35 W. E. 646 . . . . . .99 r. Commissioners of Stamps (1903), A. C. 350; 72 I,. J. P. C OS ; 88 L. T. 480 ..... . 270 27 104 120 309 42 224 286, 302 199 TABLE OF CASES. xliii Jac — Joh. Jackson v. Jackson, Drury, 91 ..... 312 ,.. Noble, 2 Keen, 590 ; 48 E. R ; 7 L. J. Ch. L33 . 243, 262 v . Eowe, 4 Rubs. .314 ; 38 E. R. ; 9 L. J. [O.S.) Ch. 32 . 111'. 351, 356 Jackson's Will, Re, 13 Ch. D. 189 ; 49 L. J. I !h. B2; 41 L. T. 499 : 28 W. R. 209 ...... 282, 288 - Jacob,i?< 1907), 1 Ch. 445 ; 76 L. J. Ch. 217 ; 96 L. T. 362. . 297 Jagger v. Jagger, 25 Ch. D. 729; 53 L. J. Ch. 201 : 49 L. T. 667 ; 32 W. E. 384. ....... 337 James v. James, L. R. 16 Eq. 153 ; 42 L. J. 386 ; 21 W. R. 522 . 217 v. Richardson, 1 Vent. :3«J4 ; 86 E. R. ; T. Raym. 330. 125, 249 Jared v. Clements (1903), 1 Ch. 42s ; 72 L. J. Ch. 291 : ^ L. T. 97 ; 51 W. R. 401 . . . . . . .217 Jayne r. Price, 5 Taunt. 326 ; 1 Marsh, (is . . . .4 Jeakes v. White, 6 Ex. 873 ; 21 L. J. Ex. 265 . . .99 Jee r. Audley, 1 Cox. 324 ; 29 E. E. . . . . 326 Jefferv's Trusts, Re, L. B. 14 Eq. 136; 42 L. J. Ch. 17 : 20 L. T. 821; 2o W. R. 667 . 299 Jefferys v. Jeffery-. Cr. & Ph. 13S ; 41 E. E. . . 85, 106 Jeffreson --.Morton, 2 Wins. Saund. 12; 85 E. R. . . . 192 Jemott v. Cowley, 1 Wms. Saund. 132 ; 85 E. R. . . . 156 Jenkins v. Perry, 3 Y. & C. Ex. 84 197 Jennings' Case. 10 Co. 44 a ; 77 E. E. . . . .27 Jennings, Re (1903\ 1 Ch. 906 ; 72 L. J. Ch. 4.34 ; ss L. T. 387 ; 51 W. E. 425 31 v. Mather (1902), 1 K. B. 1 ; 70 L. J. K. 1'.. 1032 : 85 L.T. 396; .30 W. R. 52 . . . . .115 r. Jordan. App. 698 ; 51 L. J. Ch. 129 : 45 L. T. 593 : 30 W. R. 369 ....... 369 Jerritt r. Weare, 3 Pri. 575 ..... 40,139 Jervoise /•. Northumberland (Duke), 1 J. & W. 570; 37 E. E. . 182 Je•; E. E. .... 221 Kensington, Exp., 2 Ves. & B, 791 ; 35 E. R. . . .217 Kenworthy v. Bate, 6 Ves. 793; 31 E. It. . Keon v. Magawley, 1 I >r. & War. 401 .... 200 Kerr's Policy, Re, L. E. 8 Eq. 331 ..... Trusts, Re, 4 Ch. 1 ». 600; Hi L. J. Ch. 287; 36 I.. T. 356; 25 W. E390 . . . . . . 301, 305 Kettlewell v. Watson, 26 Ch. I). 501; 53 L. J.Ch. 717; 46 L. T. 83; 30 W. E. 402 . . • . . . .221 Keys v. Williams, 3 Y. & C. Ex. ~>~> ; 7 L. J. Ex. Eq. 59 . .217 Keyse r. Powell, 2 E. & B. 132 ; 22 L. J. Q. B. 305 ; 17 Jur. 1052 . 138 Kiallmark v. Kiallmark, 26 L. J. Ch. 1 .... 179 Kidd, i?e(1894),3Ch. 560; 63L. J.Ch. 855; 71 L.T.481; 13 W. E. 51 ; 13 E. 101 ....... 210 Kilford v. Blaney, 31 Ch. D. 56; 55 L. J. Ch. 185 ; 54 L. T. 2s7 : 34 W. E. 109 . . . . . .193, 195 Kilpin v. Kilpin, 1 M. & K 520 ; 39 E. E. .... 102 King's Leaseholds. Re, L. It. 16 Eq. 521 ; 29 L. T. ^s: 21 W. 1: 881 . . . . . . . .84, 153, 165 King v. Burchall, 1 Eden. 421 : 28 E. II. ; Ambl. 379 : 27 E. E. . 50, r. < leaveland. 4 De G. & J. 477 ; 45 E. E. : 28 L. J. I !h. 835 : 1 Jur. [N.S.) 702; 6 W. It. 602 .... 251 r. Denison, 1 V. & B. 260 ; 35 E. E. . . . 104,192 r. Melling, 1 Vent. 214, 225 : 86 E. E. . . . . 138 v. Moody. 2 Sim. & S. 57!) ; 57 E. E. ; 4 L. J. (O.S.i I h. 227 . 73 v. Smith, 2 Hare, 239 ; 67 E. E. ; 7 Jur, 694 . . .212 v. Withers, fas. t. Talb. 117 ; 25 E. E. . . . . 343 Kinnaird v. Trollope, 39 Ch. D. 636 : 58 L. J. ( h. 566 : 60 L. T. 692 207 Kinnersley v. Williamson. 39 L. J. Ch. 788 : 2:1 L. T. 39 : 18 W. R. 1016 ......... 172 Kinsman v. Kinsman, 1 Euss. & M. . 373 : 52 L. J. Ch. 952 ; 49 E. T. 292 : 32 W. E 581 . . . . . . . . 313 Kite and Queinton's Case, 4 Co. 25 a; 7(3 E. E. . . 65 Knight v. Browne, 30 E.J. Ch. 649; 7 Jur. (N.S.) M»4 ; -l I.. T. 206; 9 \V. It. 515 ..... 165 v. Knight, 2 Sim. & S. 490 ; 59 E. E. . . . .344 — v. Marjoribanks, 2 Mae. & G. 10; 42 E. E. ; 2 II. & Tw. 308 : 17 E. E. ..... 116, 216 Knox v. (lye. L. E. 5 IE L. 656 ; 42 L. J. < h. 234 . . . 116 Lacey, Exp., 6 Ves. 625; 31 E. E. . . . . .116 v. Ingle, 2 Ph. 413 ; 41 E. E, .... 364, La< on v. Alien, 3 Drew. 579 ; 61 E. E.; 26 L. J. Ch. 579 ; 1 W. 11. 693 . . . . . . .217 Lake v. < urrie, 2 Do G. M. & G. 547 ; 42 E. R. ; 16 Jur. 1027 - 3 Lamb v. Archer, 1 Salk. 225 ; 91 E. E. . . . .91 xlvi TABLE OF CASES. Lam — Lew. PAGE Lambarde v. Peach, 4 Drew. 553; 02 I'.. It. ; 28 L.J. Ch. 569; -4 Jut. (N.S.)480; 7 W. E. 338 .... 162,168 Lambev. Eames, L. E. 6 Cb. 597 ; 40 L. J. Ch. 447; 25 L. T. 175; 1!) W. K. 659 ..... 127. 143, 284 Lambert v. Lambert, L. 1!. 16 Eq. 320; 43 L. J. Cb. 106 ; 29 L. T. ^Ts; 22 W. R, 359 . . . . .197 v. Thwaites, I.. E. 2 Eq. 151 : 35 L. J. Ch. 406 ; 14 L. T. 159; 11 W. l:. 532 ....... 282 Laming v. Gee, 10 Cb. D. 715; 48 L. J. Cb. 196; 40 L. T. 33; 27 W. 1!. 227 ........ 207 Lancastel v. Allen, Dyer, 358 a; 7:; E. B. . . . . 38 Lance v. Aglionby, 27 Beav. 65 ; 54 E. I!. ; 5 Jur. (N.S.) 561 . 193 Lancefield v. Iggulden, L. E. 10 Ch. 136; 44 L. J. Ch. 203 j 31 L. T. 813; 23 W. R. 223 . . . . . .194 Lane's Case, 2 Co. ID b ; 70 E. E. . . . 74. 76 Lane, Re 1900), 2 Ch. 581 ; 77 L. J. Ch. 774 . 290.291.296 Lanesborough (Lady) v. Fox, Cas. t. Talb. 202 ; 2.5 E. E. . . 325 Langdale (Lady) v. Briggs, 8 De Gr. M. & CI. 391 ; 44 E. E. ; 26 L. J. Cb. 27 ; 2 Jur. X.S. 982 ; 4 W. E. 703 . . .261 Langstaffe v. Fenwick, 10 Yes. 40.3 ; 32 E. E. . . . 210 Langston, Exp., 17 Ves. 227; 32 E. E. . . . .217 Langton v. Horton, 5 Beav. 9 ; 49 E. E. ; 11 L. J. Ch. 233 : 6 Jur. 359, 594 ....... . 204 Lanoy v. Atbol (Duke). 2 Atk. 446 ; 26 E. E. ... 369 Lantsbery v. Collier. 2 K. & J. 709 ; 69 E. E. ; 25 L. J. Cb. 672; 4 W. E. 826 . . . . . . . 334 Lanyon v. Came, 2 Wms. Saund. 485; 85 E. E. . . . 19 Laughter p. Humphrey, Cro. El. 524 ; 78 E. E. . . 53 Lavender v. Stanton, 6 Madd. 46; 56 E. E. . . . . 201 Law Union and Crown Insurance v. Hill (1902), A. C. 263; 71 L. J. Ch. 602; 86 L. T. 773 .... 164. 254. 300 Lawes v. Bennett, 1 Cox, 167; 29 E. E. 221 Lawrence v. Hitch, L. E. 3 Q. B. 521 ; 9 B. & S. 467 ; 37 L. J. Q. B. 209 ; 18 L. T. 483 ; 16 W. E. S13 . . . . . 50 Leach v. Jay, 9 Cb. D. 42 ; 47 L. J. Ch. 876 ; 39 L. T. 242 ; 27 W. E. 99 ....... 32, 40 Leake v. Pigot (Lord), 1 Selw. N. P. 87 . . .69 v. Eobinson, 2 Mer. 363; 35 E. E. . . 322, 320, 329, 344 Learoyd v. Whiteley, 12 App. Cas. 727; 57 L. J. Cb. 390; 5s L. T. 93;36W. E. 721 . . . . . . .115 Lee v. Fernie, 1 Beav. 483 ; 48 E. E. . . . . .312 v. Howlett. 2 K. & J. 531 ; 69 E. E. ; 4 W. E. 400 . 220. 346 Lees v. Fisher, 22 Cb. D. 283 ; 31 W. E. 94 . . . .217 v. Moseley, 1 Y. & C. Ex. 589 ; 5 L. J. Ex. Eq. 78 . . 137 Lehmann v. Mr Arthur, L. E. 3 Cb. 490 ; 37 L. J. Cb. 825 ; 18 L. T. 806 ; 16 W. E, 877 . . . . . . .70 Le Xeve v. Le Neve, Amb. 430; 2 Wh. & T. L. C. Eq. 175; 27 E. E. 112, 356. 362 Leslie v. Leslie. LI. & G. t. Sugd. 1 . . . . .197 Letbieullier v. Tracy, 3 Atk. 781 ; 26 E. E. ; Amb. 204 ; 27 E. E. . 138 Letts v. Hutcbins, L. E. 13 Eq. 176 . . . . . 204 Lewis, Be [1904), 2 Cb. 056; 73 L. J. Cb. 74S ; 91 L. T. 242: 53 W. E. 393 . . . . . . . 180 r. Baker (1906), 2 K. B. 597; 75 L. J. Iv. B. 848 ; 95 L. T. 10 . 152 TABLE OF I ASES. xlvii Lew— Lon. Lewis . linker (1905), 1 Ch. 46; 71 L. J. Ch. 39; 91 !.. T. 741 . 150, 228, -- ■ v. Branthwaite, 2 B. & Ad. 437 ; 9 L. J. (O.S. K. B. 263 v. Lane, 2 M. & K. 449; 39 E. E. . . • 103 .. Rees, :; K. & J. 123 ; 69 E. R. ; 26 1.. J. Ch. 101 ; 3 ■' N.S. L2 : 5 W. K. 96 . . . . .147 v. Waters, 6 East, 336 . . . . • -244 Le'wthwaite v. Thompson, 36 I.. T. 910 .... 134 Liddy -. Kennedy, L. II. 5 II. L. 134 ; 20 W. E. 150 . . . 170 Liefe v. Saltingstone, 1 Mod. 189 ; 1 Preem. 176 Life [nterest and Revenue Secuiities (Corporation) . Eand in II ind Life and Fire Insurance [1898 . 1 Ch. 230 ; 67 L. J. Ch. 548 ; 7^ L. T. 7<>S : 46 W. R. 668 . . . . • 112, 356 Lilley v. Whitney, Dyer, 272 a ; 73 E. E. . . ■ 232 Lindgren r. Lindgren, 9 Beav. 358; 50 E. E. ; 15 L. J. Ch. 428; lOJur. 674 ....... Line v. Hall, 43 L. J. Ch. 107 : 29 L. T. 568 ; 22 W. R. 124 . 251, 302 Lipivard r. Eicketts, L. 1!. 14 Eq. 291 : 41 L. J. Ch. 595 : 20 W. R. 898 196 Lister •. Bradley, 1 Hare, 10; 60 E. 1!.; 11 L. J. Ch. 49: 5 Jur. 1034 . . . . • • • • -344 Litchfield v. Beady, 5 Ex. 939 ; 20 L. J. Ex. .31 . . . 211 Liverpool Marine Credit Co. v. Wilson. L. E. 7 Ch. 507 ; 41 L. J. Ch. 796 : 26 L. T. 346; 20 W. 1!. 436 Llanover's (Baroness) Will, Re (1903), 1 Ch. 16; 72 L. J. Ch. 106 ; 88 I.. T. 648 : 51 W. E. 418 ..... 288, Lloyd, Rt (1903), 1 Ch. 385 ; 72 L. J. Ch. 78; 87L.T.541 : 51 W. R. 177 ' 206 -. Attwood, :! De G. & J. 614 ; 44 E. E. ; 29 L. J. Ch. 97 : 5 Jur. (X.S.) 1:322 . . . . .217. 364 v. Burton, 2 Bro. P. C. 281 ; 1 E. E. . . . . 65 v. Jackson, L. E. 2 Q. E. 209 ; 36 L. J. Q. E. 169 : 15 W. E. 408 . 128 v. Eosbee, 2 Camp. 453 ...••• 149 v. Spillet, 2 Atk. lis ; 26 E. E. .... 103 Lloyd's Bank v. Bullock (1890), 2 Ch. 192; 65 L.J. Ch. 680; 71 L. T. 687 ; 44 W. E, 033 ..... Locke v. Dunlop, 39 Ch. D. 387 : .37 L. J. Ch. 1010 : 59 L. T. 6S3 130, 207 v. Lomas, 5 De G. & S. 329 ; 04 E. E. ; 21 L. J. I h. 505 ; 16 Jur. 813 201 v. Matthews, 13 C. B. (N.S.) 7.33; 32 L. J. Ch. 98 ; 9 Jur. X.S.) S74; 7 L. T. S24 ; 11 W. E. 313 . . . 15S v. Southwood. 3 01. & E. 721 ; 6 E. E. : 9 Eli. (N.S.) 1 ; 5 E. E ,J, > Lockhart v. Hardy, 9 Beav. 349; .30 E. E. ; 15 L. J. Ch. 347 ; in Jur. .332 , 207 Locking r. Barker, L. E. 8 Ch. 30 ; 42 L. J. Ch. 257 ; 27 L. T. 6 21 W. E. 113 - os - 216 Loddington v. Kiuie. 1 Salk. 224 ; 1 L. Eaym. 203 ; 91 E. E. . 221 London and County Bank v. Lewis, 21 Ch. D. 490 ; 17 L. T. 501 : 31 VV. E.233 158,218,361 London and North Western Eailway v. Eobhing Level Commis- sioners, 66 L. -I. Q. B. 127 ; 7.3 L. t. 029 . London and South Western Eailway v. Gromm, 20 Ch. 1>. 562 ; 51 L. J. Ch. 530; 46 L. T. 449; 30 W. E. 020 . . S5, L05, 31'i \lviii TABLE OF CASES. IiOn— Mac. PAGE Long v. Blackall, 7 T. R. 100 321 v. Long, 5 Ves. 11.3; 31 E. B. . . . . • 284 v. Eankin, Sugden, Powers, App. 2, 895 . . ■ -77 Longlev v. Longley, L. E. 13 Eq. 133 ; 41 L. J. Ch. 168 ; 25 L. T. 736 ; 20 W. R. 227 126 Loosemore v. Knapman, Kay, 123 ; 139 E. E. ; 23 L. J. ( 'h. 174 . 2 Eq. R. 710; 2 W. E. (564 209 Loveland, Re (1906), 1 Ch. 542 ; 75 L. J. Ch. 314 ; 94 L. T. 336 . 268 Loveridge, Re (1904), 1 Ch. 518 ; 73 L. J. Ch. 15 ; 89 L. T. 503 : 52 W. E. 138 216 , Re (1903), 2 Ch. 859 ; 71 L. J. I 'h. 805 ; 87 L. T. 294 . 213 v. Cooper, 3 Euss. 1 ; 37 E. E. . . . 220, 349 Lovie's Case, 10 Co. 87 b ; 77 E. E. . . . . . 154 Low v. Barron. 3 P. Wms. 262 ; 24 E. E. . . . 147. 232, 330 Lowe's Case, 9 Co. 122 b ; 77 E. E. . . . . . 18 Lowe v. Bouverie (1891), 3 Ch. 82 ; 60 L. J. Ch. 594 ; 65 L. T. 533 ; 40 W. E. 50 . . . . . • 350 v. Pennington, 10 L. J. Ch. 83 . . . . . 290 Lowry's Will, Re, L. E. 15 Eq. 78; 42 L. J. Ch. 509 ; 21 W. E. 128 225 Lowther v. Carleton, Cas. t, Talb. 186 ; 25 E. B, . Ill, 353, 360 „. Heaver, 41 Ch. D. 248 ; 58 L. J. Ch. 482 ; 60 L. T. 310 ; 37 W. E. 465 ..... 151.154 ,.. Ra Wi Fort. 44 ; 2 Bio. P. C. 451 ; 1 E. E. 58, 59, 60, 70 Loyd v. Brooking, 1 Vent, 188 ; 86 E. E. 35, 139, 249 Lucas v. Dorrien, 7 Taunt. 278 ..... 216 v. Goldsmid, 29 Beav. 657 ; 54 E. E. ; 30 L. J. ( h. 935 ; 7 Jur. (N.S.) 719 ; 4 L. T. 632 ; 9 W. E. 759 . . . 143 Ludford /•. Barber, 1 T. B, 90 . ..... 229 Lufkin v. Nunn, 11 Ves. 170; 32 E. E. . . . 04. 300 Lutkins v. Leigh, Cas. t. Talb. o3 ; 25 E. E. . . . . 370 Lrell v. Kennedy, 14 A. C. 437 ; 59 L. J. Q. B. 268 ; 02 L. T. 77 : 38 W. E. 353 ....... 40 Lysaght v. Edwards, 2 Ch. D. 499 ; 45 L. J. Ch. 554 ; 34 L. T. 7s 7 ; 24 W. E. 778 220, 224 Lywood v. Kimber or Warwick, 29 Beav. 38; 54 E. E. ; 30 L. J: Ch. 507 ; 7 Jur. (N.S.) 507 ; 9 W. E. 88 . . . . 137. 141 McAdam v. Logan, 3 Bro. C. C. 310 ; 29 E. E. . . 289 McCreieht v. Foster, L. E. 5 Ch. 604 ; affirmed nom. Shaw v. Foster, q.v. 220 McDonald v. Bryce, 2 Keen, 276 ; 48 E. E. . . . . 338 McLeod v. Drummond, 17 Ves. 152 ; 34 E. E. . . . 202 McQueen v. Farquhar, 11 Ves. 467; 32 E. R. . . . 313 M'Fadden v. Jenkins, 1 Hare, 462; 66 E. E. ; 11 L. J. Ch. 281 ; affirmed 1 Ph. 153 ; 41 E. E. ; 12 L. J. Ch. 146 . . L02, 106 Machell v. Weeding, 8 Sim. 4; 59 E. E. ; 5 L. J. Ch. 182 . 138, 323 Machu, Re, 21 Ch. D. 838 ; 47 L. T. 577 ; 30 W. E. 837 . . 165 Mackenzie v. Marjoribanks, 29 L. J. Ch. 604 ; 22 L. T. 841; 18 W. E. 993 . . . . • -313 . ( 'hilders, 43 Ch. D. 265 ; 59 L. J. Ch. 188 ; 69 L. T. 98 319 Mackinnon v. Sewell, 5 Sim. 78 ; 58 E. E. ; affirmed 2 My. & K. 202 : 39 E. E. . . • • • • 260, 323. 329 Mackintosh v. Eogose (1895), 1 Ch. 505; 64 L. J. Ch. 274 ; 72 L. T. 251; 43 W.E. 247; 13 E. 254 165 TABLK OF CASES. x )ix Mac — Mat. PAGE Mackretk v. Symmons, 15 Yes. 329 ; 2 Wh. & T. L. C. 926 ; 33 E. E. 221, 222, 346 Maddison v. Alderson, 8 App. Cas. 407; 52 L.J. lommissioners) v. Palmer (1907), A. I '. 17!); 76 L. J. P. C 41 ; !»ii 1.. T. 27s . . . .12 Newton v. Newton, L. H. 1 I h. 14:; ; 38 L.J. Ch. 145 ; lit L. T. 588 ; 17 W. R. 238 354 v. Ricketts, 9 II. L. C. 262; 11 E. R.; 31 L. J. Ch. 247; 7 Jur. (N.S.) 952 ; 5 L. T. 62; 10 W. R. 1 . - . 291 Nicholas v. Ridley (1904), 1 Ch. 192; 7:; L. J. Ch. 145; 89 L. T. 654; 52 W. R. 226 . 365, 368 Nicholls v. Sheffield, 2 Bro. C. 0. 215; 29 E. R. . . 330 Nichols v. Hawkes, 10 Hare, 342; 68 E. R. ; 22 J,. J. Ch. 255; 1 W. R. 124 126 Nicholson r. Smith, 22 Ch. D. 640 ; 52 L. J. Ch. 191 ; 4 7 L. T. 650 ; 31 W. R. 471 ...... 151, -517 Nishet and Pott's Contract, Re (1906\ 1 * !h. 386 ; 75 L. J. Ch. 238 ; 94 L. T. 297 ; 54 W. R 286 . . . . . . 358 Noble v. Kennoway, 2 Dougl. 570 . . . . .58 Noel v. Henley, McCl. & Y. 302 . . . . -277 v. Walsingham (Lord), 2 Sim. & St. 99 ; 57 E. R. ; 3 L. J. ' >.S. Ch. 12 . • 313 Norfolk's (Duke) Case, 3 Ch. Cas. 1 ; 22 E. R. . . • 324 Norfolk (Duke) v. Hall. 1 Vern. 163 ; 23 E. R. . . .110 Norrington, Be, 13 Ch. D. 654; 28 AV. R. 711 ... 186 North v. Way, 1 Vern. 13 ; 23 E. P. . . . . 109 Northen v. Carnegie, 4 Drew, 587 ; 62 E. R. ; 28 L. J. Ch. 030 ; 7 W. E. 481 104, 14 ~ Northern Counties of England Fire Insurance v. Whipp, 26 < h. 1 >. 482 ; 53 L. J. Ch. 629 ; 51 L. T. 806; 32 W. R. '126 . . 348 Northwick (Lord) v. Stanway, 3 B. & P. 346 ... 5 i Norton v. Johnstone, 30 Ch. D. 64!) ; 55 L. J. Ch. 222 ; 34 W. R. 13 3 1<» ■ v. Ladd, 1 Lutw. 755 . . . . . -126 Nottingham v. Jennings, 1 P. Wms. 23 ; 24 E. E. . 135, 324 (Earl) v. Monson (Lord), Dy. 32 a, pi. 1 marg. ; 73 E. P. 27 Nunn v. Fabian, L. E. 1 Ch. 35 ; 35 L. J. Ch. 140 ; 11 Jur. (N.S. 868 ; 13 L. T. 343 . . . . • • • 151 Oakley v. Monck, L. R. 1 Ex. 159 ; 35 L. J. Ex. ^7 ; 4 11. & I '. 251 ; 12 Jur. (N.S.) 253; 14 L. T. 20; 14 AV. P. 406 . . • 160 Oates v. Jackson, 2 Stra. 1172 . . . 246,268,323 Occleston v. Fullalove, L. R. 9 Ch. 147 ; 43 L. J. Ch. 2!»7 ; 29 L. T. 785 ; 22 AV. P. 305 .268, 305 Ocean Accident and Guarantee Corporation v. Ilford Gas Co. ^1905), 2 K. B. 493 ; .74 L. J. K. B. 799 ; 93 L. T. 381 . . 42 Oddie v. Brown, 4 De G. & J. 179 ; 45 E. R. ; 28 L. J. < h. 542 . 337 Official Receiver v. Cook.- (1906), 2 I h. 661 ; 75 L. J. Ch. 7. _ 7 . 347 Ogilvie v. Jeaffreson, 2 Giff. 353 ; 06 E. R. 146; 29 L. J. Ch. 905 : 6 Jur. (N.S.I 970; S AV. P. 745 . ;;,;,; Olivant v. Wright, 9 Ch. D. 646 ; 47 L. J. Ch. 664 ; 38 L. T. 077 ; 27AA r . R. 2S4 1(t ' Oliver's Settlement. Re (1905), 1 Ch. 191 : 73 L. J. Ch. 62 ; .V-', W. R. 215 •• • 12 ° Oliver v. Hinton (1899), 2 Ch. 264 ; 68 L. J. Ch. 583 ; 81 L. T. 212 ; 48 A\ r . P. 3 . . . . • • 348, 357, 3o9 liv TABLE OF CASES. Oma— Pat. PAGE O'Mahoney v. Burdett, L. R. 7 II. L. 388; 44 L. J. Ch. 56 n. ; 31 L. T. 705; 23 W. E. 361 262,266 ( >rme's Case, L. E. 8 ! P. 281 ; 42 L. J. C. P. 38 : 27 L. T. 652 ; 21 W. E. 171 93 Osborne and Bright's, Limited, lie (1902), 1 Ch. 335; 71 L. J. Ch. 215; 86 L. T. 178 ; 50 W. R 468 288 Osman v. Sheafe, 3 Lev. 370 ; 83 E. E. . . . . 253 Owen, Be (1894), 3 Ch. 220; 63 L. J. Ch. 749; 71 L. T. 181 ; 43 W. E. 55 ; 8 E. 566 ..... 205, 217 -, Be, 10 Ch. D. 166 ; 48 L. J. Ch. 248 ; 27 W. E. 305 . . 148 v. Crouch, 5 W. E. 545 . . . . . .215 r. Wynu, Ch. D. 20 ; 38 L. T. 623 ; 26 W. E. 944 . . oo Oxford University •. Clifton, 1 Eden, 473 ; 28 E. E. . . . 138 Page's Case, Cro. Jac. 671 ; 79 E. R. . . . . .60 Page v. Leapingwell, IS Yes. 463 ; 34 E. E. . . . . 190 v. Smith, 3 Salk. 100 ; Comb. 387 . . . .54 . v. Soper, 11 Ha. 321 ; 60 E. E. ; 22 L. J. Ch. 1044 ; 17 Jur. s.jl 151 Paget's (Lord) Case, 1 Co. 154 a ; 76 E. E. . . . .86 Paine v. Mellor, 6 Yes. 349; 31 E. E. . . . . . 221 Palmer's Case, 5 Co. 126 b . . . . . .19 Palmer r. Graves, 1 Keen, 545 ; 48 E. E,; 1 Jur. 164 . . 192 — v. Hendrie, 27 Eeav. 349 ; 28 Beav. 341 ; 54 E. E. . . 207 v. Holford, 4 Euss. 403 ; 3S E. E. . . 320, 322, 328 v. Temple, 9 A. & E. 508 . . .222 v . Wheeler, 2 Ball & B. IS 312 Parfitt v. Ilember, L. E. 4 Eq. 443 . . . . . 243 Parker v. Carter, 4 Hare, 400 ; 67 E. E. . . . . 98 v. Clark, 8 De G. M. & G. 104 ; 43 E. E. ; 2 Jur. (N.S.) 335 140 v. Clarke, 30 Beav. 54 : 54 E. B. . . . . 252 r . Hodgson, 1 Dr. & Sm. 568 ; 62 E. E. ; 30 L. J. Ch. 590 ; 7 Jui\ (N.S.) 750 ; 4 L. T. 762 ; 9 W. E. 607 . . 345 — v. McKenna, L. E. 10 Ch. 96 ; 44 L. J. Ch. 425 ; 31 L. T. 739 ; 23 W. E. 271 . . . . . .116 v. Barker, Gilb. 163 . . . . . . 303 v. Taswell, 2 De G. & J. 559 ; 45 E. E. ; 27 L. J. Ch. 812 ; 6 W. E. 60S 151 v. Watkins, 1 Johns. 133 ; 70 E. E. . . . .115 Parkhurst v. Smith. 3 Atk. 135; 6 Bro. P. C. 351 ; 2 E. E. ; Eearne. C. R. 220 ; Willes, 327 .... .41,234,239 Parkin, Be (1892), 3 Ch. D. 510 ; 62 L. J. Ch. 55; 67 L. T. 77; 41 W. E. 120 309 v. Eadcliffe, 1 Bos. & P. 282, 393 . . . .19 Parcnenter r. Webber, 8 Taunt. 593 ..... 229 Parsons, Be, 45 Ch. D. 51 ; 59 L. J. Ch. 666; 62 L. T. 920; 38 W. E. 712 . . . . . . . .122 v. Mills, 2 Eoll. Abr. 786 . . . . . 253 Partridge v. Partridge (1894), 1 Ch. 351 ; 63 L. J. Ch. 122 ; 70 L. T. 261 ....... 176, 261 Passingham v. Pittv, 17 C. B. 299; 25 L. J. C. P. 4 ; 2 Jur. (N.S.) s:J7; 4 AY. E. 122" . . . . . . .54 Patch v. Wild, 30 Beav. 99; 54 E. E.; 7 Jur. (N.S.) 1181 ; 5 L. T. 14; 9 AY. E. 844 . . . . . . .215 Patman v. Harland, 17 Ch. D. 353; 50 L. J. Ch. 642 ; 44 L. T. 72s ; 29 AY. E. 707 ....... 35s TABLE OF CASES. lv Pat— Phi. 1AI,K Patrick v. Milner, 2 C. P. D. 312 ; 46 L. J. C. P. 537 ; 36 L. T. 738 ; 25 W. K. 790 . . • • • • • 203 Patton v. Randall, 1 J. & W. 189; 37 E. R 198 Pawlett v. Pawlett, 1 Vein. 204, 321 : 23 B. R. . ■ 343, 344 Peachy v. Somerset (Duke), 1 Stra. 477 ; 2 AYh. & T. L. 0. Eq. . 67, 3 V 70, 71, 108, 180, 203 Peacock v. Burt, 4 L. J. Ch. 73 366 v. Eastland, L. R. 10 Eq. 17; 39 L. J. Ch. 5:34; 22 L. T. 706; 18 AY. R. 856 . . • • • 93 v. Peacock, 34 L. J. Ch. 315 ; 11 Jur. [N.S.) 280; 12 L. T. 299; 13 W. R. 516 196 Pearce v. Bullard, King & Co. (1908), 1 Ch. 780; 77 L. J. Ch. 340 . 203 v. Loman, 3 Yes. 135 ; 30 E. E. . . • -345 v. Morris, L. E. 5 Ch. 227 ; 39 L. J. Ch. 342 ; 22 L. T. 190; 19 AV. E. 196 204 v. Slocombe, 3 Y. & C. Ex. 84 . . . ■ 197 v. Vincent, 2 Keen, 230 ; 48 E. E. ; 7 L. J. Ch. 285 . . 125 Pearks v. Moseley, 5 App. Cas. 714 ; 50 L. J. Ch. 57 ; 43 L. T. 44!) ; 29 AY. E. 1 . • • • 246, 320, 323, 320, 327 Pearson v. Lane, 17 Ves. 101 ; 34 E. R. . • . .188 „. Pearson, 1 Sch. & L. 10 . . • • • 19 ~ Pedder v. Hunt, 18 Q. B. D. 565 ; 50 L. J. Q. B. 212 ; 56 L. T. 687 ; 35 W. E. 371 13G Peers v. Ceeley, 15 Beav. 208 ; 57 E. R. .... 215 Peiton v. Banks, 1 Vera. 65 ; 23 E. R. . . • • 12G Pelham Clinton v. Newcastle 'Duke) (1903), A. 0. Ill; 72 L. J. Ch. 424 ; 88 L. T. 273 ; 51 AY E. 60S . . . . 50, 51, 138 Pells v. Brown, Cro. Jac. 590 ; 79 E. E. . . . 324, 330 Penhav v. Hurrell, 2 Vera. 370 ; 23 E. E. ; 2 Freeman, 235, 253 ; 22 E.R 25G Pennant's Case, 3 Co. 64 a ; 70 E. E. . . • 109,172 Pennock v. Pennock, L. E. 13 Eq. 144 ; 41 L. J. Ch. 141 ; 25 L. T. 091; 20 AY E, 141 1Sa Pepin v. Bruyere (1902), 1 Ch. 24 ; 71 L. J. Ch. 39 ; 85 L. T. 461 ; 50 W. R. 34 6 Perceval v. Perceval, L. R. 9 Eq. 386 . . 244, 247, 258 Perkins, Re (1893), 1 Ch. 283 ; 62 L. J. Ch. 531 ; 07 L. T. 743; 41 AY. R. 170; 3 E. 40 . . 301, 303, 304, 312, 314 v. Sewell, 1 W. Bl. 654 : 4 Burr. 2223 . . .27 Perry v. Clissold (1907), A. C. 73 ; 76 L. J. P. C. 19 ; 95 L. T. 890 4, v 150 — v, Aleddowcroft, 4 Beav. 197 ; 49 E. E. ; affirmed 12 L. J. Ch. 104 203 Perrv-Herrick v. Attwood, 2 De G. & J. 21 ; 44 E. E. ; 27 L. J. Ch. 121 ; 4 Jur. (N.S.) 101 ; 6 AV. E. 204 .... 34S Perrvman's Case, 5 Co. 84 a ; 77 E. E. . • • • 59 Pettinger v. Ambler, L. R. 1 Eq. 510 ; oo L. J. Ch. 389 ; 33 Beav. 321; 55 E.E.; 14 L. T. 118 -'•»' Phen's Trusts, Re, L. R. 5 Ch. 139 ; 39 L. J. Ch. 316 ; 22 L. T. Ill ; 18 W. R. 303 149 > 282 Phillips v. Ball, C. B. (N.S.) Sll ; 29 L. J. C. P. 7 ; 6 Jur. (N.S.) _ 48 ; 7 AV. E. 580 . . . • ' l v. Bridge, L. E. 9 C. P. 43 ; 43 L. J. C. P. 13 ; 29 I, T. 692 ; 22 W. R. 237 . • • • ■ • 17 ° v. Brydges, 3 Ves. 120 ; 30 E. R. . ■ • • 1:;1 lvi TABLE OF CASES. Phi — Por. PAGE Phillips v. Cayley, 43 Ch. D. 222 ; 59 L. J. Ch. 177 ; 62 L. T. 86 ; 38 W. B. 241 . . . . 290, 291, 296 v. Miller, L. R. 9 C. P. 196 ; 43 L. J. C. P. 74 ; 30 L. T. 61 ; 22 W. E. 485 . . . . . 359 v. Parry, 22 Beav. 279 ; 52 E. E. . . . .194 . Phillips, 1 M. & K. 649; 39 E. E. ; 1 L. J. Ch. 214 189, 347 v. , 4 De G. F. & J. 208 ; 45 E. E. : 31 L. J. Ch. 326; 8 Jur. (N.S.) 145 ; 5 L. T. 655 ; 10 TV. E. 236 . 353, 354 v. Silvester, L. E. 8 Ch. 173; 42 L. J. Ch. 225; 27 L. T. 840 ; 21 W. E. 179 . . . . . . .221 Phipps v. Ackers, 9 01. <& F. 583 ; 8 E. E. . . . .178 ■ v. Lovegrove, L. E. 16 Eq. 80 ; 48 L. J. Ch. 477 ; 2S L. T. 584 ; 31 W. B, 590 . . . . . . . 350 Phipson v. Turner, 9 Sim. 227 ; 59 E. E. . . . 294, 334 Pihus r. Mitford, 1 Vent. 374 ; 86 E. E. . 37, 124, 247, 252, 255 Picken v. Matthews, 10 Ch. D. 264 ; 48 L. J. Ch. 150 ; 39 L. T. 531 327 Pickering v. Vowles, 1 Bro. C. C. 197 : 28 E. E. . . . 116 Pickersgill v. Grey, 30 Beav. 354 ; 54 E. E. . . . 232, 241 Pickup's Trusts, Re, 1 J. & H. 389 ; 70 E. E. ; 30 L. J. Ch. 278 ; 4 L. T. 85 ; 9 TV. E. 251 267 Pickwell v. Spencer, L. E. 7 Ex. 105 ; 41 L. J. Ex. 73 . . 128 Pierson v. Vickers, 5 East, 548; 2 Smith, 160 . ... 136 Pigg v. Caley, Noy, 27 ; 74 E. B, . . . 53 Pike v. White, 3 Bro. C. C. 286 ; 29 E. E. . . . .65 Pilcher v. Eawlins, L. E. 7 Ch. 259 ; 41 L. J. Ch. 485 : 52 L. T. 921 ; 20 TV. E. 281 . . . . . 348, 352, 353, 359 Pinede's Settlement, Re, 12 Ch. D. 667 ; 48 L. J. Ch. 741 ; 41 L. T. 579 ; 28 TV. E. 178 . . . . . . . 297 Pinhorn v. Sonster, 8 Ex. 763 ; 22 L. J. Ex. 266 . . . 158 Pitt v. Jackson, 2 Bro. C. C. 51 ; 29 E. E. . . . . 243 Playters v. Abbott, 2 M. & K 110 ; 39 E. E. ; 3 L. J. Ch. 57 . 199 Pledge v. White (1896), A. C. 187 ; 65 L. J. Ch. 449 ; 74 L. T. 323 ; W. E. 589 368, 369 Plews v. Samuel (1904), 1 Ch. 464 ; 73 L. J. Ch. 279 ; 90 L. T. 533 ; 52 W. E. 510 . . . . . . .221 Plomley v. Felton, 14 App. Cas. 61 ; 58 L. J. P. C. 50; 60 L. T. 193 209 Plunket v. Holmes, T. Eaym. 28; 1 Lev. 11; S3 E. E, . . 239 v. Penson, 2 Atk. 290; 26 E. E. f\ 180 Pocock v. Lincoln (Bishop), 3 Br. & B. oO ; 6 Moo. 159 . .126 Podger's Case, 9 Co. 104 a ; 77 E. E. . . 60, 63, 72, 73 Pollard's Estate, Re, 3 De G. J. & S. 541 ; 46 E. E. ; 32 L. J. Ch. 657; 2 N. E, 404; 8 L. T. 710; 11 TV. E. 1083 . . .141 Polley v. Seymour, 2 Y. & C. Ex. 708 ; 7 L. J. Ex. Eq. 12 ; 1 Jur. 958 186 Poole v. Heron, 42 L. J. Ch. 348 ..... 196 Poor v. Miall, 6 Madd. 32 ; 56 E. E. . . . . .177 Pope, Re{1901), 1 Ch. 64 ; 70 L. J. Ch. 26; 49 W. E. 122 . 336, 339 v. Biggs, 9 B. & C. 245 ; 4 Man. & E. 193 ; 7 L. J. (O.S.) K. B. 246 . ; . . . . . . .211 Pople, Re, 40 Ch. D. 589 ; 58 L. J. Ch. 372 ; 60 L. T. 668 ; 37 TV. E. 554 . . . . . . . . .148 Porter's Settlement, Re, 45 Ch. D. 179 ; 59 L. J. Ch. 595. .281, 301, 302 Porter v. Bradley, 3 T. E. 143 . . 139, 161, 324, 330, 343 Portington's Case, 10 Co. 36 ; 77 E. E. . . 164, 168, 169, 178 TABLE OF CASES. ]\ii Por — Had. page Portland (Dukei v. Hill, L. R. 2 Eq. 765; 35 L. J. Ch. 439; 12 Jur. (N.S.) 286; 15 W. R. 38 . 54, 07 v. Topham, 11 H. L. 0. 32 ; 11 E. 1{. ; 3-1 L. J. Ch. 113 ; 10 Jur. (N.S.) 501 ; 10 L. T. 355 : 12 W. R. 697 . 311, 312 Potter v. North, 1 Wins. Saund. 635; 85 E. R. . . 54, 56 v. Sanders, (i Hare, 1 ; 07 E. R. 221 Potts v. Britton, L. P. 11 Eq. 4:j:3 ; 24 E. T. K)9 : 19 W. P. 651 . 287, 289, 306 Poulett Earl) v. Hill (Viscount) (1893), 1 Ch. 277 : 62 E. J. Ch.466; 68 L. T. 476 ; 41 W. R. 503 ; 2 R. 288 .... 205 Poulson v. Wellington, 3 P. Wins. 43:3 ; 24 E. P. . . . 290 Powell v. Brodhurst (1901), 2 Chi 160 ; 70 E. J. Ch. 587 ; 84 I.. T. 620 ; 49 W. P. 532 .... 203, 364 ■ ■ v. Davies, 1 Beav. 532 ; 48 E. P. ; 3 Jur. 839 . . 142 v. Smith, L. R, 14 Eq. 85 ; 41 L. J. Ch. 734: 20 W. P. 602 152 v. Trotter, 1 Dr. & Sim. 38S ; 62 E. P. ; 7 Jur. (N.S.) *"> \ 4L. T. 48 . .... . . . . 215 Prebhle v. Boghurst, 1 Swanst. 309. 580 ; 36 E. P. . . . (15 Preston v. Preston, 21 L. T. 34(5 . . . . .515 Price v. Hall, L. P. 5 Eq. 399; 37 E. J. Ch. 191 ; 16 W. II. 12 . 235, 237, 20.", v. Strange, 6 Madd. 159; 56 E. R. . . . .151 v. Worwood, 4 H. & N. 512 ; 28 L. J. Ex. :>29 ; 5 Jur. (X.S.) 472; 7 W. P. 50(5 .175 Pride v. Eooks, 3 Beav. 430 ; 49 E. P. ; 9 E. J. Ch. 232 . . 338 Proby v. Landor, 28 Beav. 504 ; 54 E. P. ; 30 E. J. ( h. 593 ; (i Jur. (N.S.) 1278; 9 W. R. 47 . . . . . . 291 Proctor v. Bath and Wells (Bishop), 2 IE Bl. 358 . 321. 323, 328 Prowse v. Abingdon, 1 Atk. 482 ; 26 E. R, .... 345 Prudential Assurance v. Edmonds, 2 App. Cas. 4s7 . . . 14!) Pryce v. Bury, L. P. 16 Eq. 153 n. ; 23 L. J. Ch. (376 . 217, 219 l'rvor v. Pryor, 2 De G. J. & S. 205 ; 46 E. P. ; 33 E. J. Ch. 441 ; 10 Jur. (N.S.) (303 ; 10 L. T. 360 ; 12 W. P. 781 ; 4 N. P. 440 313, 314 Prytherch, Re, 42 Ch. D. 590 ; 59 L. J. Ch. 79; 01 E. T. 799; 38 W. R. 61 200 Pugh v. Heath, 7 App. Cas. 235; 51 L. J. Q. B. 3(57 ; 4(5 E. T.321 ; 30 W. P. 553 . . . . . . . 205 Pullen v. Brewer, 7 C. B. (N.S.) 371 ; (3 Jur. (X.S.) 509 . . 15s v. Middleton, 9 Mod. 483 ; 88 E. R. . . . 108,133 Punnett, Ex p., 16 Ch. I). 22(3; 50 E. J. Ch. 021 ; 44 I.. T. 220; 2!) W. R. 129 . . . . . . .212 Purefoy v. Rogers, 2 Wms. Saund. 70s, 781 : 85 E. R. . 239, 210. 244, 25:; Pusey v. Pusey, 1 Vern. 273 ; 23 E. R. . . . .10 Pye, Exp., 18 Yes. 1 10 ; 2 Wh. ,v T. I.. ( '. Eq. -100 ; 3 1 E. P. . 345 Pyle, 7»'e(lS95), 1 Ch. 724; 04 I,. J. Ch. 477; 72 E. T. :527 ; 4:5 W. P. 420 ; 13 P. 396 .. . . . . 224 Quarm v. Quarm (1892), 1 Q. B. 184 ; 01 I.. J. Q. B. 154 ; 00 I.. T. 418 ; 40 W. P. 302 235, 238 Quested v. Michell, 24 L. J. Ch. 722; 1 Jur. (N.S.) 488; :; W. E. 435; 3 Eq. P. 1014 ...... 23,285 Padburn v. Jen-is, 3 Beav. 450; 49 E. P. . . . . (3 Padford v. Willis, E. E. 7 Ch. 7; 41 L. J. Ch. 19; 25 E. T. 720; 20 W. P. 132 179 lviii TABLE OF CASES. Had— Rex. pagb Radnor (Earl) v. Shafto, 11 Ves. 448 ; 33 E. E. 225 Ralph v. Carrick, 11 Ch. D. S73 ; 48 L. J. Ch. 801 ; 40 L. T. 50a 141, 140 Ramsden v. Eauglev. 2 Vern. 530; 23 E. R. . . . 215 Ramsey v. Cruddas (1893), 1 Q. B. 228; 02 L. J. Q. B. 269; 68L.T. 364;* 4 R, 218 ...... 14,58 Randalls Tutchin, 6 Taunt. 410; 2 Marsh, 113 . . . 1^6 Randfield v. Randfield, 8 H. L. C. 225; 11 Ex. 414; 30 L. J. Ch. 177 ; 6 Jut. (N.S.) 901 ; 9 W. R. 1 . 265 v. , 3 De G. F. & J. 760 ; 45 E. R. ; 31 L. J. Ch. 113 ; 8 Jur. (N.S.) 101 ; 5 L. T. 09S . . . . 69 Randoll v. Doe, 5 Dow, 202 ; 3 E. R, .... 323 Ranking v. Barnes. 33 L. J. Ch. 539 ; 10 Jar. (N.S.) 463 ; 12 W. R. 565; 3N. R. 660 ...... 314, 316 Ratcliffe v. Barnard, L. R. Ch. 052 ; 40 L. J. Ch. 777 ; 19 W. R. 764 . • . . • • • • 358 Raw, Re, 26 Ch. D. 601 ; 53 L. J. Ch. 1051 ; 51 L. T. 282 ; 32 W. R. 980 186 Rawley v. Holland. 22 Yin. Abr. 189 . . . . . 256 Ray v. Pung, 5 B. & Aid. 501 ; 5 Madd. 310 ; 56 E. R. . . 270 Eavbould, Re (1900), 1 Ch. 199; 09 L. J. Ch. 249 ; 82 L. T. 46 ; 48 W. R. 301 115 Ravner v. Preston, 18 Ch. D. 1 ; 50 L. J. Ch. 472 ; 44 L, T. 787 ; 29 W. R. 546 . 221 Read v. Errington, Cro. El. 321 ; 79 E. R . 229 v. Smith, 2 Atk. 042 ; 20 E. R. . . . . • 151 Rector of Chedington's Case, 1 Co. 153 a;' 70 E. R, . . . 149 Rede v. Tarr, M. & S. 121 . . . . . • 170 Redgate, Re (1903), 1 Ch. 356 ; 72 L. J. Ch. 204 ; 51 W. R. 210 284, 302 Reece v. Steel, 2 Sim. 233 ; 57 E. R. ; L. J. (O.S.) Ch. 120 . 123 Rees v. Metropolitan Board of Works, 14 Ch. D. 372 ; 49 L. J. Ch. 620 ; 42 L. T. 685 ; 28 W. R. 614 . . . .215 v. Parkison, 2 Anstr. 497 ..... ^07 Reeve v. Berridge, 20 Q. B. D. 523 ; 57 L. J. Q. B. 205 ; 58 L. T. 836; 36 W. R. 517 ..... 350 v. Long, 1 Salk. 227 : 91 E. R. . . • . 238 Reg. v. Bishop's Stoke, 8 Dowl. P. C. 008 ; 4 Jur. 630 . 57, 70 v. Dare, 2 E. & E. 255 . . . ' ■ • • 67 : v. Evans, 7 Dowl. P. C 709 ; 1 Q. B. 355 n. ; 8L. J. Q. B. 251 ; 3 Jur. 533 . . . • • • .55 v. Garland, L. R. 5 Q. B. 269 ; 39 L. J. Q. B. 96 ; 22 L. T. 100 ; 18 W. R. 429 . . . . • • 6 * v. Hale, 9 A. & E. 330 : 8 L. J. Q. B. 83 ; 1 P. & D. 293 . 70 v. Ingleton, 8 Dowl. P. C. 093 ; 4 Jur. 700 . . 03, 109 v. Powell, 1 Q. B. 352 ; 4 P. & D. 719 ; 10 L. J. Q. B. 14s ; 3 Jur. 998 . . . • • • 00 > 68 v Wilson, 3 B. & S. 201 ; 32 L. J. Q. B. 9 ; 9 Jur. (N.S.) 439 ; 7 L. T. 326; 11 W. R. 70 2,2 v. Woodham Walter Manor, 10 B. & S. 439 . . . 69 Reid v. Shergold, 10 Yes. 370 ; 32 E. R. . . 206, 308 Remnant v. Hood, 2 De G. F. & J. 396 ; 45 E. R. ; 30 L. J. Ch. 71 ; Jur. (N.S.) 1173; 3 L.T. 485 ... • 314 Reuter v. Sala, 4 C. P. D. 239 ; 48 L. J. C. P. 492 ; 40 L. T. 476 ; 27 W. R. 631 -°' ! Revell r. Jodrell, 2 T. 11.415 14,58 Rex v. Bonsall, 3 B. & C. 173 ; 4 D. & R. 825 . . 46, 68 TABLE OF CASKS. lix Rex-Rid. ** GB Rex v. Boughey, 1 B. & C. 565 ; 2 D. & R. 824 ;1L.J.(I >.S.) K. B. 184 ,,v v. Brewers' Co., 3 B. & C. 172 ; 4 D. & R. 492 . .68 v. Coggan, 6 Must, 431 : 2 Smith, 417 . v. Cotton, Parker, 112 . v. Dickenson, 1 Wins. Saund. 152 ; 85 B. R. • 15 v. Dullingham, 8 A. & E. 858 : 8 L. J. Q. B. 37 ; 1 P. & D. _ 172 ; 1 W. W. & H. 865 v. Eton College, 8 Q. B. 52(3; 16 L. J. Q. B. Is v. Ham, 8 L. J. (N.S.) Q. B. 265 v. Hendon, 2 Tr. 484 . . • Tu - ln> v. Hexham, 5 A. & E. 55!) ; 6 L. J. K. B. 33 : 1 N. & P. 53 ; 2 H. & W. 397 • • ,,x v. Hornehurch, 2 B. & Aid. 189 ... • 58 v. Joliffe, 2 B. & C. 54 ; 3 D. & R. 240 ; 1 L. J. (O.S.) K. B. 232 57 v. Lucas, 10 East, 235 . • • 55 ,-. Mildmay, 5 B. & Ad. 25 ; 2 N. & M. 77s . . 61, 72 v . Oundle,' 1 A. & E. 283 ; 3 N. & M. 184; 3 L. J. K. B. 117 . 61, <;:>, 64, 272 . Bigge, 1 B. & Aid. 550 . v. Saunderson, Wightw. 50 . • • . •> >- v. Topping, McCl. & Y. 544 362 v. Tower, 4 M. & S. 1(32 •' ,: ' v. Wilbv. 2 M. & S. 504 :,s v. Willes, 3 B. & Aid. 510 T - Reynolds, Re, 3 Ch. D. (31 ; 35 L. T. 293 ; 24 W. P. 991 . .188 r Wright, 2 De G. F. & J. 590 ; 45 E. E. ; 30 L. J. Ch. 381 ; 7 Jur. (N.S.) 246 ; 3 L. T. 531 ; 9 W. P. . • 148 Rhodes v. Muswell Hill Land Co., 29 Beav. 560; 54 E. P.; 30 L. J. Ch. 509 • ■ 1(8 Pice v. Rice, 2 Drew. 73 ; (31 E. P. ; 23 L. J. Ch. 289 ; 2 W. P. 139 : 2Eq. P. 341 340. :; 17. 319 Richards, Re, L. R. 8 Eq. 119 . . . • • • 1!) ' , Re, 45 Ch. D. 589; 59 L. J. Ch. 728-; 03 L. T. 451 ; 39 W. P. 186 • ■ • 3,l> v . Bassett, 10 B. & C. 057 ; 8 L. J. (O.S.) K. B. 289 . 57 v. Bergavenny (Lady). 2 Vera. 324 ; 23 E. P. • 130 v. Delbridge, L. P. 18 Eq. 11 ; 43 L. J. Ch. 459 ; 22 W. P. 584 ...... lor> i.. Richards, Johns. 754; 70 E. P. 023 ; 29 I.. J. I h. 536; (5 Jur. (N.S.) 1145 - :{v Richardson, Re (1904), 1 Ch. 332 ; 73 L. J. Ch. 153 ; 91 L. T. 1 69 : 52 W. P. 119 . . • • • ■- 4 -' v. Harrison, 16 Q. B. D. 85 ; '>■'> L. J. Q. B. 58 ; 54 L. T. 45(3 - v - v. Ivensit, 5 Man. & G. 485 ; 12 L. J. < !. P. 154 ; G Scott, N. P. 419; 7 Jur. 856 . ( *'-* v. Langridge, 4 Taunt. 128 . ■ 152, 154, 156, 157 v. Morton, L. R. 13 Eq. 123 ; 41 L. J. I !h. 8 • 195 Richerson, Re (1892), 1 Ch. 379; 61 L. J. Ch.202; 66 L. T. 171: 40 W. P. 233 .... Rid-way v. Newstead, 3 De G. F. & J. 5(3(5 ; 45 E. P. ; 30 L. J. < 'h. 889 ; 7 Jur. (N.S.) 451 ; 4 L. T. 86; 9 W. R. 401 . 194 v. Woodhouse, 7 Beav. 437 : 19 E. R. • i: ' ; Ridley Re, 11 Ch. D. 045; 48 L. J. Ch. 563 ; 27 W. R. 527 . ]X TABLE OF CASES. Rig— Roe. PAGE ftigden v. Valliere, 2 Ves. Sen. 357; 23 E. B. . . . 62 Bigg v. Lonsdale (Earl), 1 II. & N. 923 ; 26 L. J. Ex. 196; 3 Jur. (N.S.) 390 ; 5 W. E. 355 49 Eight v. Bawden, 3 East, 260 . . . . . .148 v. Beard, 13 East, 210 ..... 157, 158 v. Greber, 5 B. & C. 866 ; 8 D. & E. 7 is ; 4 L. J. (O.S.) K. B. 324 137 v. Darby, 1 T. E. 159 ..... 152, 153 v. Day, 16 East, 67 ..... 261,326 v. Smith. 12 East, 455 . . . . . .83 Eimmer v. Webster (1902), 2 Ch. 163; 71 L. J. Oh. 561 ; 88 L. T. 491 ; 50 AY. E. 517 . . . . . . . 349 Eing v. Hardwick, 2 Beav. 352 ; 48 E. E. ; 4 Jur. 24 2 . . 328 Biplev v. Watersworth, 7 Ves. 44S ; 32 E. E. . . 147,186 Rising, Re (1904), 1 Ch. 533 ; 73 L. J. Ch. 455 ; 90 L. T. 504 . 243, 281,302 Roach c. Trood, 3 Ch. D. 429 ; 34 L. T. 105 ; 24 W. E. 803 . . 312 v. Wadham, 6 East, 2. -321 ; 54 L. J. Ch. 732 ; 52 L. T. 733 : 33 ^y. B. 773 ....... 332 Routledge v. Dorril, 2 Yes. Jun. 357 ; 30 E. R. . 243. 32s. 333 Rowe v. Brenton, 8 B. & C. 737 ; 3 Man. & R. 133 . . . 58 Rowley v. Rowley, Kay, 242 ; 69 E. R. ; 23 L. J. Ch. 275 ; 18 Jur. 306' . . . • • • • • 313, 311 Royal Bristol Premier Building Society v. Boinash, 35 Ch. D. 390; 56 L. J. Ch. 840; 57 L.T. 179] 221 Rucher v. Scolefield, 1 H. & M. 36 ; 71 E. E. : 32 L. J. Ch. 46; 9 Jur. (N.S.) 17; 11 W. R. 137 304 Ending's Settlement, Re, L. R. 14 Eq. 266 ; 41 L. J. Ch. G5:> ; 20 W. R. 936 • 297 Russel v. Russel, 1 Bro. C. C. 269 ; 2 Wh. & T. L. C. Eq. 76 ; 28 E. R. 216 Russell, Re (1895), 2 Ch. 698; 64 L. J. Ch. 891; 73 L. T. 195; 44 W. E. 100 ; 12 R. 499 . . . . . . 327 Russell Road Purchase, Re, L. R, 12 Eq. 78 ; 40 L. J. Ch. 673 ; 23 L.T. 830; 19 AY R. 520 . .... 363 Rye's Settlement, -Re, 10 Hare, 106; 68 E. R. ; 22 L. J. Ch. 345 ; 16 Jur. 1128; 1 W. R. 29 329 Ryves v. Ryves, L. R. 11 Eq. 539 ; 40 L. J. Ch. 252 . . 194 Sackville-West v. Holmesdale (Viscount), L. R. 4 H. L. 543; 39 L.J. Ch. 505 182, 1-3 Sadler v. Pratt, 5 Sim. 62; 58 E. R 301. 303 St. John's Hospital, Re, 18 L. T. 317 . . . .148 St. Paul v. Dudley (Viscount), 15 Yes. 157 ; 33 E. R. . . 73 Salaman, Re (1908), 1 Ch. 4 ; 77 L. J. Ch. 60; 98 L. T. 255.. 23s. 268, 317, 321 Ixii TABLE OF CASES. Sal— Set. TAGE Salisbury (Marquis) v. Gladstone, 9 II. L. C. 692; 11 B. P.; 34 L. J. C. P. 222 ; 8 Jur. (N.S.) 625 ; 4 L. T. .Si!) ; 9 W. R. 930 56, (37 Salmon, Re, Exp. Trustee (1903), 1 K. B. 147 ; 72 L. J. K. B. 125 ; 87 L. T. 654 ; 51 W. R. 288 . . . . 368 v. Gibbs, 3 De G. & Sm. 343; (34 E. R, ; 18 L. J. Ch. 177 ; 13 Jur. 3.35 . . . • • • • .313 Salt v. Northampton (Marquis) (1892), A. C. 1; 61 L. J. Ch. 49; 65 L. T. 765; 40 W. R. 529 . . . . . .203 Samme's Case, 13 Co. 54 b; 77 E. R. ... 35, 70, 93 Sampson v. Pattison, 1 Hare, 533 ; 66 E. B. . . . . 206 Samuel v. Samuel, 2 Coop. t. Cott. 119 ; 47 E. B. ; 14 L. J. Ch. 222 ; 9 Jur. 222 ........ 183 Sandon v. Hooper, OBeav. 246 ; 49 E. B. ; 12 L. J. Ch. 309 ; affirmed 14 L. J. Ch. 120 . . . • • • .215 Sargood's Claim. L. B, 15 Eq. 43 . . . .196 Saul v. Pattinson, 55 L. J. Ch. 831 ; 54 L. T. 670 ; 34 W. B. 561 . 279 Saumarez v. Saumarez, 4 M. & Cr. 331 ; 41 E. B. . . . 126 Saunders v. Evans, 8 H. L. C. 721 ; 11 E. B. ; 31 L. J. Ch. 233 ; 7 Jur. (N.S.) 1293 ; 5 L. T. 129 ; 9 W. B. 501 . 299 v. Nevil, 2 Vera. 428 ; 23 E. B. . . . .99 v. Milsome, L. B. 2 Eq. 573 ; 14 L. T. 788 ; 15 W. B. 2 . 206 „. Shafto (1905), 1 Ch. 126; 74 L. J. Ch. 110 ; 91 L. T. 789; 53 \V. B. 424 .... 313, 314 v . Vautier, 1 Cr. & Ph. 240 ; 41 E. B. ; 4 Beav. 115: 49 E. B. . . • • • • • 328 > 240 > 344 Savage v. Tyers, L. B. 7 Ch. 357 ; 41 L. J. Ch. 356; 20 W. B. 817 127 Sayer^ Trust, Be, L. B. 6 Eq. 319 ; 36 L. J. Ch. 350 ; 16 L. T. 203 : 15 W. B. 613 . • • • • • 323 > 326 Scarborough (Earl) v. Doe, 3 A. & E. 897 . . . .245 v. Scarborough, 58 L. T. 851 .... 245 Scarisbrick v. Skelmersdale, 17 Sim. 187; 60 E. B. ; 19 L. J. Ch. 126; 14 Jur. 562 ...... 339 Schnadhorst, Be (1902), 2 Ch. 234 ; 71 L. J. Ch. 454 ; 86 L. T. 426 ; 50 W. B. 485 266 Schofield v. Solomon, 54 L. J. Ch. 1101 ; 52 L. T. 679 . . 361 Scholefiekl v. Ingham, C. P. C. 477 ; 47 E. B. . . . .215 School Board for London, Exp., 41 Ch. D. 547 ; 58 L. J. Ch. 752; 60 L. T. 817; 38 W. B. 61 241 Sclater v. TraveU, 3 Yin. Ab. 427, pi. 8 .... 289 Score, Be, 57 L. T. 40 • -^ Scotney v. Lomer, 29 Ch. D. 535 ; 54 L. J. Ch. 558 ; 52 L. T. 747 : 33 W P 633 ...•• 302, 304 Scott r.Harwood, 5 Madd. 332; 56 E. B 267 v Tyler, 2 Bro. C. C. 431 ; 1 AVh. & T. L. C. Eq. 535 ; 29 E. R. 176 Searle v. Cooke, 32 Ch. D. 519 ; 59 L. J. Ch. 259 ; 26 L. T. 221 . 68 Seaward v. Willock, 5 East, 198; 1 Smith, 390 . . . 243 Seeley v. Jago, 1 P. Wms. 389; 24 E. R 188 Selby v. Alston, 3 Yes. 339 ; 30 E. R. . . ■ • 99 v . Pomfret, 3 De G. F. & J. 595 ; 45 E. B. ; 7 Jur. 'X.S.; 835 ; 4 L. T. 314 ; 9 W. B. 5S3 . ; . Selous, Be (1901), 1 Ch. 921 ; 70 L. J. Ch. 402; 84 L. T. 31s ; 49 W. R. 440 . Serjeant v. Nash, Eield & Co. (1903), 2 K. B. 304 ; 72 L. J. K. B. 630; 89L.T. 112 15:J - 172 Seton v. Slade, 7 Yes. 273 ; 2 AVh. & T. L. C. Eq. 475 ; 32 E. B. . 203 368 99 TABLE OF CASKS. ] x jjj Sew— Sim. , , , Sewell v. Denny, 10 Beav. 315; 50 E. E. Seymor's Case, 10 Co. 95 a ; Tud. L. I '. I !onv. 158 ; 77 E. ];. 24 25 28 92, 1 17. 163, 23] Seymour v. Bridge, 14 Q. B. 1 >. 460; 54 L. J. Q. B. 347 . . ;,s Shannon v. Bradstreet, 1 Sch. & L. 52 . . . 303 307 Sharington v. Stratton, Plowd. 298 ; 75 E. B. gg Sharp's Case, 6 Co. 2G a ; 77 E. B. Sharp v. Jackson (1899), A. C. 419; 68 L. J. Q. B. 866 ; 80 L. T. 841 ]U] v. Richards (1909), 1 Ch. 109 : 78 L. J. Ch. 29 . 368, 369 Sharpe v. Foy, L. B. 4 Ch. 35 ; 19 L. T. 541 : 17 W. R. 65 . Hi'. 351, 356, 360 Sharpies v. Adams, 32 Beav. 213 ; 55 E. B. . . . :;,,,; Shaw v. Borrer, 1 Keen, 559 ; 48 E. E. ; 5 L. J. Ch. 364 . 200 v. Bunny, 2 De G. J. & S. 468 : 4(5 E. R. ; 3-1 I. J Ch 257 ■ 11 Jur. (N.S.) 99 ; 11 L. T. 645 : 13 W. R. :i74 . M.i v. Foster, L. E. 5 II. L. 321 ; 42 L. J. < h. 49 ; 27 I T 281 • 20 W. R. 907 105,217,220 ■ v. Lawless, 5 01. & F. 529 ; 7 E. R. . . . i 14 v. Neale, 6 H. L. C. 581 ; 10 E. R. ; 27 L. J. Ch. 444 ; 4 Jur (N.S.) 695 ; AY. R. 635 \ 365 v. Rhodes, 1 M. & Cr. 139; 40 E. R. ; affirmed, nom. Evans v Ilelher, q.v. . ' 33*^ 338 Sheffield v. Orrery (Lord), 3 Atk. 282 ; 26 E. R, . 245 Shelburne v. Biddulph, 6 Bro. P. C. 356; 2 E. R. . 155, 317 330 .Shelley's Case, 1 Co. 93 b ; Tud. L. C. Conv. 332 ; 76 E. R. . 24, 87, 89, 135, 182, 235, 247. ■ ■Shepard v. Jones, 21 Ch. D. 469 ; 47 L. T. 604 ; 31 W. R. 308 . 215 Shephard v. Payne, 16 C. B. (N.S.) 132; 33 L. J. C. P. 158- 10 Jur. (N.S.) 540 ; 12 TV. R. 581 . . . ' 56 Shepherd v. Harris (1905), 2 Ch. 310; 74 L. J. Ch. 574; 93 L T 45; 53 W. R. 570 . . . 115 v. Ingram, Ambler, 448 ; 27 E. R. . . . 267 Sheppard, Re (1897), 2 Ch. 67 ; 66 L. J. Ch. 445; 76 L T 756- 45 W. R. 475 . . . ' 148 ''• Woodford, 5 M. & TV. 608; 9 L. J. Ex. 90 . . 69 Shirley r. Terras, 1 Bro. C. C. 41 ; 28 E. B. . . . '. i9,j Shirt v. TYestby, 16 Ves. 393 ; 33 E. R. . . • .197 Shortridge v. Lamplugh, 2 Ld. Raym. 798 : 92 E. R. 85 Shrapnell v. Vernon, 2 Bro. C. C. 26S ; 29 E. R. . . ;.\ Shrewsbury's (Countess) Case, 5 Co. 13 b ; 77 E. R. . . . 1.3s Shuldam v. Smith, 6 Dow, 22 ; 3 E. R. . . . 49 Shuttleworth v. Murray (1901 1, 1 Ch. 819;. 70 L. J Ch 453" M L. T. 605; 49 TV. R. 388 . . . . ' Sidebotham v. Holland (1895), 1 Q. B. :;7^ ; 64 L J Q B l'iki ■ L. T. 187 ; 43 TV. R. 338 ; 14 R. 299 Silk v. Prime, 1 Bro. C. C. 138 n. ; 28 E. R, . Silvester, Re (1895), 1 Ch. 573; 64 L. J. Ch. 390- 72 J T 283 43 W. R. 443; 13 R. 4 is . . , \ 2 51 v. Wilson, 2 T. R. 444 .... 95,343 Simmons v. Heseltdne, 5 O. B. N.S.] 554; 28 L .1 C 1' 1"» Jur. (N.S.) 270; 7 W. R. 133 . . ". " ' . 99 v. Pitt, L. R. 8 Ch. 978 ; 43 [j.J.Ch.267; 21 W.R.860 187, 340 •Simonds v. Lawnd, Cro. El. 239 ; 78 E. R. . . ] 7;; Simpson's Settlement, Re, 4 De G. & Sm. 521 : 64 E. R. ; 20 !.. J. Ch. 415 ••.... 300 193 lxiV TABLE OF CASES. Sim— Sop. PAGE Simpson v. Bathurst, L. B. 5 Cli. 193; 22 L. T. 29; 18 W. R. 772 . 277 r. Clayton, 4 Bing. (N.O.) 758 ; 8 L. J. C. P. 59; 6 Scott, 469; 1 Arm.' 299 . . . . . . .155 Singleton t: Gilbert, 1 Cox, Ch. 68; 29 E. B. ; 1 Bro. 0. ( '. 542 ; 28 E. R. ...... 2*57, 268 17. Tomlinson, 3 App. Cas. 404 ; 38 L. T. 653 ; 26 W. R. 722 187 Sisson'a Trusts (1903), 1 Ch. 262 ; 72 L. J. Ch. 212 ; 87 L. T. 743 ; 51 W. R. 411 . ...... 34s Skett v. Whitmore, T. Ereem. 280 . . . . . 102 Skipwith r. Shirley, 11 Yes. 64; 32 E. E. .... 307 Sladen v. Sladen, 2 J. & IE 369 ; 70 E. B. ; 31 L. J. Ch. 775 ; 7 L. T. 63; 10W. B. 597 124 Slark v. Dakyns, L. R. 10 Ch. 35; 42 L. J. Ch. 524; 31 L. T. 712; 23W.R. 118 21)4.332,334 Slater v. Dangerfield, 15 M. & W. 263 ; 16 L. J. Ex. 139 . 137, 140 Sloman v. Walter, 1 Bro. C. C. 418 ; 2 Wh. & T. L. I '. 257 ; 28 E. E. 180, 203 Smartle v. Eenhallow, 2 Ed. Baym. 994; 92 E. B. . . 60,61 Smith, Be, L. B. 10 Ch. 79 ; 23 W. E. 297 . . . 188 ,7?e(1899), 1 Ch. 331; 68 E. J. Ch. 198; 80 E. T. 21s ; 47 W. B. 357 . • • • • 165, 370 v. Adkins, E. B. 14 Eq. 402 ; 41 E. J. Ch. 628 ; 27 L. T. 90 ; 20 W. E. 717 . • • • • 291 v. Barneby, 2 Coll. 728 ; 63 E. B. ; 10 Jur. 748 . . 251 v. Butler (1900), 1 Q. B. 694 ; 69 E. J. Q. B. 521 ; 82 L. T. 281 ; 48 W. B. 583 223 v. Claxton, 4 Madd. 4S4 ; 56 E. B. .... 188 . v. Clyfford, 1 T. B. 738 41, 71, 239 v. Guyon, 1 Bro. C. C. 186; 28 E. E. . . . 200 v. Lomas, 33 E. J. Ch. 578; 10 Jur. (N.S.) 742; 10 L. T. 746; 12 W. E. 949 187 v. Moreton, 37 L. J. Ch. 6 . 209, 210 v. Robinson, 13 Ch. D. 148 ; 49 L. J. Ch. 20 ; 41 L. T. 405 ; 28 W. E. 37 :]iil v Smith (1891), 3 Ch. 550 ; 60 L. J. Ch. 694 ; 65 L. T. 334 ; 40 W. R. 32 . • • ■ 204, 322, 320 v. Snow, 3 Madd. 10 ; 56 E. E. . ' . • 99 v. Widlake, 3 C. P. D. 10 ; 47 L. J. Ch. 2S2 ; 26 W. R. 52 . 153, 157, 158, 22s Snook v. Mattock, 5 A. & E. 239 108 Snow v. Boycott (1892), 3 Ch. 110 ; 61 L. J. Ch. 591 ; 66 L. T. 702 ; 40 W. B. 603 . . • • • • • 145 Soane v. Ireland, 10 East, 259 ..... 14 Solley v. Gower, 2 Vern. 61 ; 23 E. B 208 Sollory v. Leaver, L. B. 9 Eq. 22 ; 39 L. J. Ch. 72 ; 40 L. J. Ch. 39s ; 21 L. T. 453; 18 W. E. 59 . . . • ■• 200. Somerset (Duke) v. Fogwell, 5 B. & C. 875 ; 8 D. & R. 747 ; 5 L J. (O.S.) K. B. 49 . . • • 38 v. France, 1 Strange, 654 ; Eort. 41 58, ■',<>, no, 70 Somerville and Turner's Contract, Be (1903), 2 Ch. 583 ; 72 L. J. Ch. 727 ; 89 L. T. 405 ; 52 W. B. 101 . . .6b v. Lethbridge, 6 T. B. 213 . . • • 243 Sonday's Case, 9 Co. 127 b ; 77 E. E. . . . • 138, 323 Soper v. Arnold, 14 App. Cas. 429 ; 59 L. J. Ch. 214 ; 61 L. T. 702 ; 38W.B.449 99,203,22a TABLE OF CASES. lxY Sot— Sto. PAGB Sotheran v. Dening, 20 Ch. D. 99 ..... 292 Soulsby v. Neving, 9 Bast, 310 ..... 16] South of England Dairies v. Baker (1906), 2 Ch. 631 ; 76 I.. J. Ch. 78 ; 96 L. T. 48 . . . . . 229, 232 Southampton (Lonli v. Eertford (Marquis), 2 V. & B. ">1; 35 E. i:. 339 Southcotv. Stowell, 2 Mod. 210; 86 E. R. .... 37 Sowarsby v. Lacy, 4 Madd. 142; 56 E. It. 660 . . 201 Spalding v. Shalmer, 1 Vern. 301 ; 23 E. R. .... 201 v. Spalding, Cro. Car. 185; 79 E. I!. . . 203. 265 Speakman v. Speakman, 8 Hare, 180 ; 68 E. R. . . 320,322 Speight v. I raunt, 9 App. < las. 1 ; 53 I.. J. < 'h. 419 ; 50 L. T. 330 ; 32 W. R. 13.3 • • • • • • • 115 Spenceley, Re (1892), P. 255 ; 61 L. J. P. 133 . . . 14!) Spencer's Case, 5 Co. Hi; 1 Smith, L. C. 52 ; 77 E. B. . . 171 Spencer v. Marlborough (Duke), 3 Bro. P. C. 232 : 1 E. B. . . 332 v. Wilson, L. R. 16 Eq. 501 ; 42 L. J. Ch. 7.31 ; 29 L. T. lit 185, 187 Spencer-Bell v. London and South- Western Railway, 33 W. R. 771 204 Spencer-Cooper, Re (1908), 1 Ch. 130 ; 77 L. J. Ch. 64 ; 98 L. T. 344 188 Spiller v. Spiller, 3 Swanst. 556 ; 36 E. R. .... 221 Spon- v. Spong, 3 Bligh (N.S.) 84; 4 E. R. ; 1 Dow. & CI. 365; 6 ]•:. R. ....... 196 Spoor v. Green, L. R. 9 Ex. 10.3 ; 43 L. J. Ex. 57 ; 30 L. T. 393 ; 22 W. R. 517 276 Sporle v. Whayman, 20 Beav. 607 ; 52 E. E. ; 24 L. J. Ch. 789 . 21s Spurway v. Glynn, 9 Ves. 483 ; 32 E. B. . . . . 195 Stackhouse v. Jersey (Countess), 1 J. & II. 721; 70 E. R. ; 30 L. J. Ch. 421 ; 7 Jur. (N.S.) 359 ; 4 L. T. 204 ; 9 W. R. 453 . 348 Stafford (Earl) v. Buckley, 2 Ves. Sen. 170 ; 28 E. R, . 26, 231 Staines v. Maddock, 3 Bro. P. < '. 108 ; 1 E. R. . . 324, 330 Staniar v. Evans, 34 Ch. D. 470; 50 L. J. Ch. 381 : 56 L. T. s7 ; 35 W. R. 286 . . • • • • • .114 Stanley v. Colthurst, L. E. 10 Eq. 259 ; 39 L. J. Ch. 650 ; 23 L. T. 761 ; 18 W. R.969 . . . . . . .183 Stanton v. Barnes, Cro. El. 373 ; 78 E. R. .... 60 Stead v. Ilardaker, L. B. 15 Eq. 175 ; 42 L. J. Ch. 317; 21 W. EL 258 194 v. Preece, L. R. 18 Eq. 192 ; 43 L. J. Ch. 687 ; 22 W. R. 432 188 Steele v. Prickett, 2 Stark. 463 . . . • .14 Stephens, Re (1904), 1 Ch. 322; 73 L. J. Ch. 3 ; 91 L. T. 167 ; 52 \Y. 1!. 89 ...... 336 v. Stephens, Gas. t. Talb. 228; 25 E. R. . 260, 261, 262, 263, 322 Stevens, Re, 31 Ch. D. 320 ; 55 L. J. Ch. 433 ; 54 L. T. SO; 34 W. R 268 11S v. Theatres, Ltd. (1903), 1 Ch. 857; 72 L. J. Ch. 701 : ss L. T. 458; 51 W. l:. 585 205 Steward v. Blakeway, L. R. 4 Ch. 603 . . . .189 Stewart, Re, 1 Sm. & G. 32; 65 E. R. ; 22 L.J. Ch.369; 16 Jur. 1003; 1 W. H. 17 189 v. Garnett, 3 Sim. 398 ; 58 E. R .... 126 Stillman v. Weedon, 16 Sim. 26 ; 60 E. R. : 18 L. J. Ch.46; 12 Jur. 992 297 Stn.k v. M'Avoy, L. B. 15 Eq. oo ■ 12 L. J. Ch. 230 ; 27 L. T. 441 ; 21 W. R. 520" 102, 103 L.P.L. <-' lxvi TABLE OF CASES. Sto— Tay. rAGj: Stocks v. Dobson, 4 De G. M. & G. 11 ; 43 E. E. ; 22 L. J. Ch. 884 ; 17 Jut. 539 . . . . . ■ • -349 Sfconor v, Curwen, 5 Sim. 264 ; 58 E. E. . . • . 183 Storrs v. Benbow, 3 De G. M. & G. 390 ; 43 E. E. ; 22 L. J. Ch. 823 ■ 17 Jur. 821 ; 1 W. E. 115 ..... 320,327 Streatfield v. Streatheld, Cas. t. Talb. 176 ; 1 AVh. & T. L. C. Eq. ~ 416; 25 EB 183, 300, 302 Strickland v. Strickland, 10 Sim. 374 ; 59 E. E. ; 9 L. J. Ch. 60 . 371 v. Turner, 7 Ex. 208; 22 L. J. Ex. 115 . . . 221 Stroughill v. Anstev, 1 De G. M. & G. 635; 42 E. E. ; 21 L. J. Ch. 130; 16 Jur. 671" 199, 200,201 Stuart v. Cockerell, L. E. 5 Ch. 713; 39 L. J. Ch. 729; 23 L. T. 442; 18 W. E. 1057 320, 322 Sturgeon v. Wingfield, 15 M. & W. 224 ; 15 L. J. Ex. 212 . .211 Sudbury (Corporation) v. Empire Electric Light Power Co. (1905), 2 Ch.' 104 ; 74 L. J. Ch. 442 ; 53 W. E. 684 . . 218 Sudeley (Lord) and Baines' Contract, Re (1894), 1 Ch. 334 ; 63 L. J. Ch. 194; 70 L. T. 549; 42 W. E. 231 ; 8 E. 79 . . .334 Sussex (Earl) v. Temple, 1 Ld. Eaym. 311 ; 91 E. E. . 246, 323 Sutherland v. Briggs, 1 Hare, 26 ; 66 E. E. ; 11 L. J. Ch. 36 ; 5 Jur. 1151 . . . . • • -151 (Countess) v. Northmore, 1 Dick. 56; 21 E. E. . . 289 Sutton's Hospital, Re, 10 Co. 23 a ; 77 E. E. . . . .85 Swain v. Ayres, 21 Q. B. D. 289 ; 57 L. J. Q. B. 428; 36 W. E. 798 151 Swayne's Case, 8 Co. 63 b ; 77 E. B. . . . .75 Sweet v. Soutbcote, 2 Bro. C. C. 66 ; 29 E. E. . . Ill, 352 Sweetapple v. Bindon, 2 Vera. 536 ; 23 E. E. . . .183 v. Horlock, 11 Ch. D. 745 ; 48 L. J. Ch. 660 ; 27 W. E. 865 . . . . . . . . .276 Swinburne, Re, 27 Ch. D. 696 ; 54 L. J. Ch. 229 ; 33 W. E. 394 . 301 ■ v. Milburn, 9 App. Cas. 844 ; 54 L. J. Q. B. 6; 52 L. T. 222 ; 33 W. E. 325 . ■ . . . . .155 Syer v. Gladstone, 30 Ch. D. 014; 34 W. E. 565 . . . 209 Sykes v. Sykes, L. E. 13 Eq. 56; 41 L. J. Ch. 25 ; 25 L. T. 560 ; 20 ' W. E. 990 . 332 Symes v. Hughes, L. E. 9 Eq. 475; 39 L. J. Ch. 304 ; 22 L. T. 462 104 v. Symes (1896), 1 Ch. 272 ; 65 L. J. Ch. 265; 73 L. T. 684 ; 44 W. E. 521 ...... 242, 284 Symson v. Turner, 1 Eq. Cas. Ab. 383, marg. ; 21 E. E. . . 95 Tait v. Northwick (Lord), 4 Yes. 816; 31 E. E. Talbot v. Frere, 29 Ch. D. o6S ; 27 W. E. 148 v. Yillebois, cited 3 T. E. at p. 142 . Talbot's Case, 8 Co. 104 b ; 77 E. E. . Taltarum's Case, Y. B. 12 Ed. IV. fo. 19 Tanqueray "Willaume and Landau, Re, 20 Ch. D. 463 434 ; 46 L. T. 542 ; 30 W. E. 801 . Tarbuck v. Marbury, 2 Vern. 511 ; 23 E. E. . v. Tarbuck, 4 L. J. (N.S.) Ch. 129 . Tarn v. Turner, 39 Ch. D. 456 ; 57 L. J. Ch. 10S5 ; 59 L W. B. 276 Taylor v. London and County Bank (1901), 2 Ch. 231 ; 70 L. J. 477; 84 L. T. 397; 49 W. E. 451 . . 111,112,220, 348, 350, 351, 352 51 L T. Ch 192, 273, ; 37 203, Ch. 346, , 356 197 5(37 55 19 27 198 298 262 204 347, 366 TABLE OF CASES. ] x Vll Tay— Til. PAG] Taylor r. Meads, 4 De G. J. & S. 597 ; 46 E. R. ; 34 L. J ( 'h 203 ■ 11 Jur. (X.S.) 166; 12 L. T. 6 ; 13 W. R. 394; 5 N.' B. 348 . . . . . , 290, 291, 2 v. Popham, 1 Bro. C. < '. 107 ; 2s ]•;. R. . _ , M) v. Russell (1892), A. C. 244; 61 L. J. Ch. 657 ; 66 I.. T 565 41WR. 43. . . . 216,348,351,352,366 v. Taylor, 2 De G. M. & G. 190 ; 43 E. R. ; 22 L J Ch 742 ■ 17 Jur. 583; 1 W. E. 398 . . ■ . ' . 187 Teape's Trusts, Be, L. R. 16 Eq. 442 ; 43 L. J. Ch. 87 ; 28 L. T. 799 • 21 W. R. 780 ... " OQ . Tebb v. Hodge, L. R. 5 C. P. 73 ; 39 L. J. C. P. 56 ; 21 L. T. 499 218 Tebbott v. Voules, 6 Sim. 40 ; 58 E. R. . . .",..., Touch v. Cheese, 6 De G. M. & G. 453 ; 43 E. R. ; 24 L. J ( h 716 ■ 1 Jur. (X.S.) 6S9 ; 3 W. R. 500, 582 . 194, 336, 337, 338, 339 Tennant v. Trenchard, L. R, 4 Ch. 537 ; 38 L. J. Ch. 661 ; 20 L T rn 856 • 205, 217 Tewart v. Lawson, L. R. 18 Eq. 490 ; 43 L. J. Ch. 673 • 22 W R '"•••••. 339 Teynham (Lord) v. Webb, 2 Ves. Sen. 198 ; 28 E. R. .' .' 300 Thacker v. Key, L. R. 8 Eq. 408 .... 308 Thellusson v. Woodford, 4 Yes. 227 : 31 E. R. ; 11 Ves 112 • 3'? E B • 1 Bos. & P. N. R. 357 . . . .'.'". 335 Thetford School Case, 8 Co. 130 b ; 77 E. R. . . . .' 10 4 Thomas, Be, 34 Ch. D. 166 ; 56 L. J. Ch. 9 ; 55 L. T. 629 .' .' 224 v. Jones, 1 De G. J. & S. 63 ; 46 E. R. ; 32 L. J. Ch. 139 ■ 9 Jur. (X.S.) 161 ; 7 L. T. 610 ; 11 W. R. 242 ; ] X. R. 138 ••..... 289 v. Lulham (1895), 2 Q. B. 400; 64 L. J. Q. B. 720 • 73 L. T. 146 ; 43 W. R. 689 ; 14 R. 692 . . .172 v. Thomas, 22 Beav. 341 ; 52 E. R. ; 25 L. J. Ch. 391 4 W. R. 345 . . .,..- •■■•■. obi Thompson v. Grant, 4 Madd. 438 ; 56 E. R. . . . . 205 v. Hardinge, 1 C. B. 940 ; 14 L. J. C. P. 268 . 54, 59 «'■ Beach, 2 Salk. 427 ; 91 E. R. ; 2 Vent. 198 ; 86 E. R. . 239 f. Simpson, 1 Dr. & War. 495 . . . 281 304 Thomson's Estate, Be, 14 Ch. D. 263; 49 L. J. Ch 62'> • 43 L T 35 ; 28 W. R. 802 . . . . . 28 - Thornbrough v. Baker, 1 Ch. Cas. 283 ; 2 Wh. & T. L. C. 1 ; 22 E. R. 206, 213, 211 Thome v. Heard (1895), A. C. 495 ; 64 L. J. Ch. 652 ; 73 L. T. 291 ■ 44 W. R. 155; 11 R. 254 . . . [ 3,0 v. Thorne (1893), 3 Ch. 196 ; 63 L. J. Ch. 38 ; 69 L. T 378 42 W. R. 282 ; 8 R. 282 ..... 199,202 Thornton, Exp., L. R. 2 Ch. 171 ; 36 L. J. Ch. 190 ; 15 L. T. 523 ■ 15W.R.292 ; 36] Thorpe r. Owen, 2 Sm. & G. 90; 65 E. R. ; 23 L. J. Ch. 2m; ; Is Jur. 641 ; 2 Eq. R. 392 ; 2 W. R. 208 .... 124 Thunder v. Belcher, 3 East, 449 . . . . .160 Thursby v. Plant, 2 Wms. Saund. 281 ; 85 E. R. . . . ;;s Thurston's Will, Be, 17 Sim. 21 ; 60 E. R. ; 18 L. J. Ch. 137 . 344 Tibbetts v. Tibbetts, 19 Yes. 656 ; 34 E. R. ; Jac. 317 ; 37 E. R. . 17s Ti.ld v. Lister, 5 Madd. 429 ; 56 E. R. 98 *'• , 3 De G. M. & G. 857 ; 43 E. R. ; 23 L. J. Ch. 249 ; IS Jur. 543; 2 W. R. 184 . . . . . 369 Tilburgh v. Barbut, 1 Yes. Sen. 89; 27 E. \l. . . . 231 e 2 lxviii TABLE OF CASES. Til— Tur. PAGE Tildesley v. Lodge, 3 Sm. & G. 543 ; 65 E. E. ; .3 Jur. (N.S.) 1000 . 351, 356 Tillet v. Nixon, 25 Ch. D. 23S ; 53 L. J. Ch. 199 ; 49 L. T. 59S ; 32 W. R. 226 . . . . . . . .200 Tippin r. Cosin, Carth. 272 ; 90 E. E. . . . .94 Tipton Green Colliery v. Tipton Moat Colliery, 7 Ch. D. 192 ; 47 L. J. Ch. 152; 26 W. E. 348 . . . . .215 Toleman v. Portbury, L. E, 6 Q. B. 245 ; affirmed L. E. 7 Q. B. 344 ; 41 L. J. Q. B. 48 ; 22 L. T. 33 ; 18 W. E. 579 . 172, 175, 179 Tollemaehe v. Coventry (Earl), 5 Madd. 232 ; 56 E. E, ; affirmed 8 Bligh (N.S.) 547 ; 5 E. E. ; 2 CI. & F. 61 1 ; 6 E. E. . . 321 Toilet v. Toilet, 2 P. Wms. 489 ; 2 Wh. & T. L. C. Eq. 289 ; 24 E. E. 304, 305, 306 Tomlinson v. Dighton, 10 Mod. 36 . . . . 295, 296 Toovey v. Bassett, 10 East, 460 .... 127 Topham v. Portland (Duke), L. E. 5 Ch. 40; 39 L. J. Ch. 259; 22 L. T. 847 ; 18 W. E. 235 . . . . 311, 312, 314, 315 Torrance v. Bolton, L. E. 14 Eq. 124; affirmed L. E. 8 Ch. 118; 42 L. J. Ch. 177 ; 27 L. T. 738 ; 21 W. E. 134 . . 196, 223 Torrington (Lord) v. Bowman, 22 L. J. Ch. 236 . . . 127 Tourville v. Naish, 3 P. Wms. 307 ; 24 E. E. . 112, 351, 356 Tower v. Sous (Lord), 18 Ves. 132 ; 34 E. E. ... 195 Townley v. Bedwell, 14 Yes. 591 ; 34 E. E. . . . . 186 v. Sherborne, Bridgm. 35; 2 AYh. & T. L. C. Eq. 629 .115 Tracy v. Glover, cited 3 Leon. 130 . . . .134 Traherne v. Gardner, 5 E. & B. 913 ; 25 L. J. Q. B. 201 ; 2 Jur. (N.S.) 394 ; 4 W. B. 281 . . . . . .70 Trash v. Wood, 4 M. & Or. 324 ; 41 E. E. ; 9 L. J. Ch. 105 ; 4 Jur. 669 . . . . . . . . .142 Travis, Re (1900), 2 Ch. 541; 69 L. J. Ch. 663; 83 L. T. 241; 49 W. E, 38 328 Tredwell, Re (1891), 2 Ch. 640 ; 60 L. J. Ch. 657 ; 65 L. T. 399 . 245 Tregonwell v. Sydenham, 3 Dow, 194 ; 3 E. E. . . 104, 318 Trent v. Hunt, 9 Ex. 14 ; 22 L. J. Ex. 318 ; 17 Jur. 899 ; 1 W. E. 481 213 v. Trent, 1 Dow, 102 ; 3 E. B. . . . . . 126 Treport's Case, 6 Co. 15 a ; 77 E. E. . . . . . . 38 Tress v. Savage, 4 E. & B. 36; 23 L. J. Ch. 339; 18 Jur. 680; 2 C. L. E, 1315; 2 W. E. 564 . ., . . 153 Trevor v. Trevor, 1 P. Wms. 622; 24 E. E. ; 5 Bro. P. C. 122 ; 2 E. E. . . . . . . . . .183 Trickey v. Trickey, 3 M. & K 560 ; 40 E. E, ... 339 Trimmer v. Bayne, 9 Ves. 207 ; 32 E. E. . . . 369 Tringham's Trusts, Re (1904), 2 Ch. 487 ; 73 L. J. Ch. 698 ; 91 L. T. 370 ........ 120 Trinidad Asphalt Co. v. Coryal (1896), A. 0. 587 ; 65 L. J. P. C. 100 ; 75 L. T. 108 ; 45 W. E. 225 ..... 359 Trollope v. Eoutledge, 1 De G. & Sm. 662 ; 63 E. E. ; 11 Jur. 1002 316 Tucker v. Bennett, 38 Ch. D. 1 ; 57 L. J. Ch. 507 ; 58 L. T. 650 . 102, 312, 313 Tuffnell v. Page, 2 Atk. 37 ; 26 E. E. . . . . 109 Turner, Re (1907), 2 Ch. 126, 539; 76 L. J. Ch. 492 ; 96 L. T. 798 . 115 — v. Buck, L. E. 18 Eq. 301 ; 43 L. J. Ch. 583 ; 22 W. E. 748 . 197 - v. Doe, 9 M. & W. 643 ; 11 L. J. Ch. 453 . . . 158 v. Smith (1901), 1 Ch. 213 ; 70 L. J. Ch. 144 ; 83 L. T. 701 49 W. E. 186 ....... 346 TABLE OF CASES. lxix Tur— Vil. PAGE Turvin v. Newcombe, 3 K. & J. 16 ; 69 E. EL; 3 Jur. (N.S.) 203; 5 W. IL 35 Tweedale v. Tweedale, 2:; Beav. 341 ; 53 E. E. Tyler v. Thomas, 25 Beav. 47 ; 53 E. EL Tyrone (Earl) v. Waterford [Marquis), 1 De G. F. & J. 613 ; 45 E. E.: '29 L. J. Ch. 486 ; 6 Jur. (N.S. 667 : 8 W. E. 154 Tyrrel's Case, Dyer, 155 a ; To E. E. . Tyson v. Smith, 9 A. & E. 406 . Tyte v. Willis, Cas. t. Talb. 1 ; 25 E. K. 339 361 142 93 55 135 Underhay v. Eead, 20 Q. B. D. 209 ; 57 L. J. Q. B. 129 ; 5s L. T. 457 ; 36 W. E. 298 . . . . . . .211 Underhillv. Devereux, 2 Wms. Saund. 197 ; 85 E. E. . . 156 „. Eoden, 2 Ch. I>. 494 ; 45 L. J. Ch. 26(5 ; 34 L. T. 227 ; 24 W. E. 574 245 Union Bank of London v. Ingram, 10 Ch. D. 53 ; 50 L.J. Ch. 74 ; 43 L. T. 659 ; 29 W. E. 209 .... 215 v. Kent. 39 Ch. D. 2ss . 57 L. J. Ch. 1022 : 59 L. T. 714 ; 37 W. E. 364 ....... 350 Uvedale v. Uvedale, 2 Eolle, Ab. 119 .... 244 Uxbridge (Earl) v. Bayley, 1 Ves. Jun. 499 ; 30 E. E. ; 4 Bro. C. C. 13 ; 29 E. E. . 285 Valletort Sanitary Steam Laundry, Re (1903), 2 Ch. 054 ; 72 L. J. Ch. 074 ; S9L. T. 00 . . . . . 348, 357, 358 Valpy, Re (1900), 1 Ch. 531 ; 75 L. J. Ch. 301; 94 L. T. 472; 54 W. E. 401 210 Van G-elder, Apsimon & Co. v. Sowerby Bridge United District Flour Society, 44 Ch. I). 374 ; 59 L. J. Ch. 292 ; 03 L. T. 132 ; 3s W. E. 625 208. 213 Van Grutten v. Foxwell (1897), A. C. 058; 00 L. J. Q. B. 745 ; 77 L. T. 170 . . . . . 51, 123, 135. 247, 259. 343 Van Hagan, Re, 16 Ch. D. 18 ; 44 L. T. 161 ; 29 W. E. 84 . . 297 Vanderplank v. King, 3 Hare, 1 ; 67 E. B. ; 12 L. J. Ch. 197 ; 7 Jur. 548 ......... 243 Vanderzee v. Willis, 3 Bro. C. C. 21 ; 29 E. E. 367 Vane v. Dungannon (Lord), 2 Sch. & Lef. 118 . . • 312 v. Vane, L. E. 8 Ch. 383 ; 42 L. J. Ch. 299; 28 L. T. 320; 21 W. E. 252 ....... 1 (Earl) v. Eigden, L. E. 5 Ch. 003 ; 39 L. J. Ch. 797 ; 18 W. E. 1092 193 Veale's Trusts, Re, 5 Ch. D. 022 ; Hi L. J. Ch. 799; 36 L. T. 634 . 281 Venables v. Morris, 7 T. E. 342, 438 .... 250,271 Vernon v. Wright, 7 E. 1, C. 35; 11 E. E. ; 28 L. J. Ch. 198; 4 Jur. (N.S.) 1113 132, 135 Verulam (Karl) v. Bathursfc, 13 Sim. 374 ; 00 E. B,; 12 L. J. Ch. 359 ; 7 Jul-. 295. . . ■ 250 v. Howard. 7 Bing. 327; 5 Moo. & P. 14s; 9 L. J. ;< ).S ) C. P. 69 69 Vesturme r. Gardiner, 17 Beav. 33s ; 51 E. E. . . • 298 Viant v. Cooper, 76 L. T. 768 ...... 314 Vigors v. St. Paul's Dean), 14 Q. B. 909 ; 18 L. J. Q. B. 97; 13 Jur. 256 ......... 3s Villar v. Gilbey (1907), A. C. 139 ; 76 L. J. Ch. 339 ; 96 I.. T. 511 . 1 12, 238, 2.S. I 171 199 r . Kenrick, 31 Ch, 1 ». 05s ; 55 L. J. Ch. 525 ; 51 I.. T. Oil . 316 v. Mount, 2 Beav. 397 ; 48 E. E. ; 1 Jur. 262 v. Pigott, 2 Yes. Jun. 351 ; 30 E. E. . . 295, 307 - v. Queen's Club (1891), 3 Ch. r,^ ; 60 1.. J. Ch, 698; 65 L. T. 42; 40 W. E. 172 211 lxXlV TABLE OF CASES. Wil— Wri. PAGE Wilson v. Willes, 7 East, 121 ; 3 Smith, 167 . . . .56 r. Wilson, 28 L. J. Ch. 95; 4 Jur. (N.S.) 1076; 7 W. B. 26 327, 337 Wilton r. Dunn, 17 Q. B. 294; 21 L. J. Q. B. 60; 15 Jur. 1104 . 211 Wiltshire v. Babbits, 14 Sim. 76; 60 E. E. ; 13 L. J. Ch. 284; 8 Jur. 769 220 Wimborne (Lord) and Browne's Contract, Be (1904), 1 Ch. 537 ; 73 L. J. Ch. 270 ; 90 L. T. 549 ; 52 W. E. 334 . . . .287 Winchester (Bishop) v. Knight, 1 P. Wms. 406 ; 24 E. E. 67 . 67 v. Payne, 11 Yes. 194 ; 33 E. E. . . 361 Windus v. Windus, 6 De G. M. & G. 549; 43 E. E. ; 26 L. J. Ch. 185; 2 Jur. (N.S.) 1101 . . . . . .49 Wing v. Angrave, 8 H. L. C. 183 ; 11 E. E. ; 30 L. J. Ch. 65 . 149 v. Wing, 34 L. T. 941 ; 24 W. E; 878 . . . . 201 Winter v. Anson (Lord), 3 Euss. 488 ; 38 E. E. . . . 222 v. Loveday, Com. 40; 1 Ld. Eaym. 267 ; 2 Salk. 537 ; 91 E. E. 53 v. Perratti 9 CI. & F. 606 ; 8 E. E. ; 10 Bing. 198 ; 3 Moo. & Sc. 5S6 ; 6 Man. & G. 314 . . . 51, 122, 125, 237, 246 Winterbottom v. Ingham, 7 Q. B. 611 ; 14 L. J. Q. B. 298 ; 10 Jur. 4 157 Wisden v. Wisden, 2 Sm. & G. 396 ; 65 E. E. ; 18 Jur. 1090 ; 2 W. E. 616 . 192 Wise v. Perpetual Trustee Co. (1903), A. C. 139 ; 72 L. J. P. C. 31 ; 87 L. T. 569 ; 51 W. E. 241 . . . . . .115 Witham v. Bland, 1 Ch. Cas. 241 ; 22 E. E. ; 1 Swanst. 277 n. ; 36 E. E. . . . . . . . . .299 Withy v. Mangles, 10 CI. & F. 215 ; 8 E. E. ; 8 Jur. 69 . . 252 Wollaston v. Hakewill, 3 Man. & G. 297 ; 10 L. J. C. P. 303 ; 3 Scott, N. E. 593 229 v. King, L. E. 8 Eq. 165 ; 38 L. J. Ch. 61, 392; 20 L. T. 1003 ; 17 W. E. 641 . . . . 294, 333 Wolley v. Jenkins, 23 Beav. 53 ; 53 E. E. ; 26 L. J. Ch. 379 ; 3 Jur. (N.S.) 321 . 276, 334 Wood, Be (1894\ 3 Ch. 381 ; 63 L. J. Ch. 790 ; 71 L. T. 413 ; 7 E. 495 326 v. Lambirth, 1 Phill. 8 ; 41 E. E. ; 5 Jur. 741 . . . 61 r. Penoyre, 13 Ves. 325 ; 33 E. E. . . . . 197 ■ — v. Bichardson, 4 Beav. 174 ; 49 E. E. ; 5 Jur. 623 . . 283 v. White, 4 M. & Cr. 460 ; 41 E. E. ; 8 L. J. Ch. 209 ; 3 Jur. 117 .334 v. Wood, L. E. 10 Eq. 220 ; 39 L. J. Ch. 790 ; 23 L. T. 295 ; 18 W. E. 819 289 Woodall v. Clifton (1905), 2 Ch. 257 ; 74 L. J. Ch. 555 ; 93 L. T. 257 ; 54 W. E. 7 224, 317 Wnodhouse v. Herrick, 1 K. & J. 352; 69 E. E.; 24 L. J. Ch. 649; 3Eq. E. 817; 3 W. E. 303 . .... 137,178 Woolridge v. Woolridge, Johns. 63; 70 E. E. ; 28 L. J. Ch. 689; 5 Jur. (N.S.) 566 303 Woolston v. Eoss (1900), 1 Ch. 788 ; 69 L. J. Ch. 363 ; 82 L. T. 21 ; 48 W. E. 556 ..,...- 213 Wormald v. Muzeen, 50 L. J. Ch. 776 ; 45 L. T. 115 ; 29 W. E. 795 199 Worsley v. Scarborough (Earl), 3 Atk. 292 ; 26 E. E. . 360, 361 Wright, Be (1907), 1 Ch. 231 ; 76 L. J. Ch. 89 ; 59 L. T. 697 . 179 v. Atkins, 1 V. & B. 313 ; 35 E. E. . . . • 212 r. Atkyns, 19 Yes. 299 ; 34 E. E. . . • 143 v. Cartwright, 1 Burr. 282 . . 149, 152, 166, 229, 232 TABLE OF CASES. lxxv Wri — Zou. PAGE Wright v. Dowley, 2 W. Bl. 1183 . . . . .145 v. Rose, 2 Sim. & S. 32:3 ; 57 E. E. . . . . 209 v. Stavert, 2 Ell. & Ell. 721 ; 29 L. J. Q. B. 161 ; 6 Jur. (N.S.) 867 ; 2 L. T. 175 ; 8 W. B. 413 . . .151 v. Vernon, 2 Drew. 439 ; 61 E. B. ; affirmed, 7 H. L. C. 35 ; 11 E. E. ; 28 L. J. Ch. 198 . . . 127 v. Wright, 1 Ves. Sen. 411; 27 E. E. . . 120, 262 Wright's Mortgage, Be, L. E. 16 Eq. 41 ; 43 L. J. Ch. 66 ; 28 L. T. 491 ; 21 W. E. 667 . . . . . . . 362 Wrightson, Re (1904), 2 Ch. 93 ; 73 L. J. Ch. 742 ; 90 L. T. 748 . 262 v. Macaulav, 14 M. & W. 214 ; 15 L. J. Ex. 121 ; S. C. in Equity, 4 Hare, 487 ; 67 E. E. . . . 125, 133, 137, 246 Wriglev v. Gill (1905), 1 Ch. 241 ; 74 L. J. Ch. 160 ; 92 L. T. 491 ; 53 W. E. 334 . . . . . 215 v. Sykes, 21 Beav. 337 ; 52 E. E. ; 25 L. J. Ch. 458 ; 2 Jur. (N.S.) 78 ; 4 W. R 228 192 Wyatt v. Barbell, 19 Yes. 435 ; 34 E. E. . . . . 361 Wykham v. Wykham, 18 Yes. 395 ; 34 E. E. . . . 302 Wynch, Ex } :~5 De G. M. & G. 188 ; 43 E. E. ; 23 L. J. Ch. 930 ; 18 Jur. 659 . . . . . . . .250 Wynne v. Crookes, 1 Bro. C. C. 515 ; 28 E. E. . . 76 . v. Williams, 5 Ves. 130 ; 31 E. R. .... 167 Yarrow v. Knightly, 8 Ch. D. 736 ; 47 L. J. Ch. 874 ; 39 L. T. 238 ; 26 W. E. 704 * . . . . . . .129 Yates v. University College, London, L. E. 7 H. L. 43S ; 45 L. J. Ch. 137 ; 32 L. T. 43; 23 W. E. 408 . . . . . 179 Yellowly v. Gower, 11 Ex. 274; 24 L. J. Ex. 289 . . . 286 York (Corporation) v. Pilkington, 1 Atk. 282 ; 26 E. E. . . 55 York Union Banking Co. v. Artley, 11 Ch. D. 205 ; 27 W. E. 704 . 218 Y r ouman's Will, Ee (1901), 1 Ch. 720 ; 70 L. J. Ch. 430 ; 84 L. T. 201 ; 49 W. E. 509 ....... 343 Young v. Waterpark (Lord\ 13 Sim. 202 ; 60 E. E. ; affirmed, 15 L. J. Ch. 63 . . . . . . . . 316 Zimbler v. Abrahams (1903), 1 E. B. 577 ; 72 L. J. K. B. 103 ; 8S L. T. 46 ; 51 W. E. 343 . 36, 151, 152, 154, 157, 160, 165, 166 Zouch v. Forse, 7 East, 186; 3 Smith, 191 . . . 75. 148 v. Woolston, 2 Burr. 1136; 1 W. Bl. 281 . . 298 TABLE OF STATUTES to. PAGE 3 Ivlw. I. c. 29 • • • • • • .56 13Edw I. c. 1 (De donis conditionalibw) .... 25 18 Edw. I. c. 1 {Quia emptor, i) . 12, 14, 19, 29, 163, 174, 229. 233 27 Hen. VIII. c. 10 (Statute of Uses) . . 39, 48, 51, 81, 95 32 Hen. VIII. c. 34 (Covenants running with the Land) 34 & 35 Hen. VIII. c. 5 (Statute of Wills 12 Car. II. c. 24 (Abolition of Feudal Tenures) 29 Car. II. c. 3 (Statute of Frauds), ss. 1, 2 . s. 4 s. 7 s. S s. 9 3 & 4 W. & M. c. 14 (Statute of Fraudulent Devises) 10 & 11 Will. III. c, 1(3 (Posthumous Children) 4 Anne, c. 1(3 . 7 Anne, c. 20 (Middlesex Registry Act, 170S) 4 Geo. II. c. 28 . 7 Geo. II. e. 20 1 1 Geo. II. c. 19 (Distress for Hunt Act, 1737 | 39 & 40 Geo. III. c. 98 (Accumulations Act, 1800) 1 Will. IV. c. 46 (Illusory Appointments Act, 1830) 1 Will. IV. c. 47 (Debts Recovery Act, 1830) 2 & 3 Will. IV. c. 71 (Prescription Act, 1832) 3 & 4 Will. IV. c. 27 (Real Property Limitation Act, 1832), s. 40 2 I, 49, 59 . 34, 35, 150 216, 21s. 224, 307 83, 101 85, 102 . 109 . 192 . 238 38 . 362 . 101 . 2d4 38, Ml 335 . 315 . 192 57 .42, s. I 3 & 4 Will. IV. c. 74 (Fines and Recoveries Act, 1833), s. 1 s. 2 ss. 4-6 ss. 5o-5:i 3 & 4 Will. IV. c. 104 (Administration of Estates Act, 1833) 3 & 4 Will. IV. c. 10(3 (Inheritance Act, 1833), ss. 1. 2 s. 3 . -. 4 . ss. 5-S s 9. . 1 Vict. c. 20 (Wills Ac', 1837), s. 3 ss. :;. I • 5 s. (3 . s. !• . s. 10 . > • . 68 . 159 2^ 27. II 17 63,109 . 191 43, 44, 46 37, 4:i. 12 1 . 12 1 47 45 43, 117, 297 65 . 147 19, 201 •J01. 305 (a) Fur an elementary work like the present, it has been considered su ■to refer only to the more important statutes. lxxvin TABLE OF STATUTES. FAGE 1 Vict. c. 26 (Wills Act, 1837), s. 21 . 289, 297 a. 25 . . 187 s. 27 . 289, 296 s. 28 . 125, 126, 146 s. 29 . . 139 s. 30 . 128, 155 8 & 9 Yict. c 106 (Real Property Act, 1845), 8. 2 34, 36 s. 3 36, 150 s. 6 . 43, 171, 242 s. 8 41, 240 8 & 9 Yict. c 112 (Satisfied Terms Act, 1845) . 167 15 & 16 Yict. c. 76 (Common Law Procedure Act, 1852), ss. 210-212, 219 . 174, 180 17 & 18 Yict. c. 113 (Real Estate Charges Act, 1854) . 209 22 & 23 Vict. c. 35 (Law of Property Amendment Act , 1859), s. 1 . 179 s. 12 . 291 ss. 14-16 19S 23 & 24 Yict. c. 3S (Law of Property Amendment Act, 1860), s. 6 . 180 s. 7 . 91 23 & 24 Yict. c. 126 (Common Law Procedure Act, : 860), s. 1 . 180 30 & 31 Yict. c. 69 (Real Estate Charges Act, 1867) 209, 225 36 & 37 Yict. c. 66 (Judicature Act, 1873) 100, 108, 151,180,204,207,213 40&41 Yict. c. 33 (Contingent Remainders Act, 187 7) . 240, 257 40 & 41 Yict. c. 34 (Real Estate Charges Act, 1877) 210, 225 44 & 45 Yict. c. 41 (Conveyancing Act, 1881), s. 5 . 202 s. 14 . 180 s. 18 211, 274 s. 19 . 213,215,216,274 s. 25 . 206 s. 30 110, 214 s. 44 . 199 s. 51 119, 131 s. 52 . 279 4 5 & 46 Yict. c. 38 (Settled Land Act, 1882) . 274, 286 s. 2 . 288 8. 3 76 s. 20 71 s. 21 76 s. 40 . . 200 s. 50 . . 287 s. 51 . . 165 45 & 46 Yict. c. 39 (Conveyancing Act, 1882), s. 3 3.36. 360 s. 6 . 279 s. 10 . 240 55 & 56 Yict. c. 13 (Conveyancing Act, 1892), s. 4 . 181 55 & 56 Yict, c. 58 (Accumulations Act, 1892; . 336 56 & 57 Yict. c. 53 (Trustee Act, 1893) . , . 114 s. 11 . . 114 s. 13 . . 113 s. 20 . 112, 200 s. 25 . . 113 s. 29 . . 214 TABLE OF STATUTE-. lxxix PAGE 57 & 58 Vict. c. 46 (Copyhold Act, 1894) . . . .77 s. 82 . .-,) s. 88 . . 66, 110, 214 60 & 61 Yict. c. 65 (Land Transfer Act, 1897), Part 1 . 48, 66, 192. 197, 198, 208, 363 INTRODUCTION. Rights distinguished— ^'wa in rem— jura in personam. Subjects of property distinguished — land and goods. Property in land and goods distinguished — estates in land — various uses of land as subject of property — title and possession. Principles of the civil law of property. English law of property in land — possessory and future estates — difference between the English and the civil law. Distinction of things as real and personal — real and personal property — real and personal actions. Order of treatment — estates in land — land as subject of property — transfer of property in land — law of persons, as affecting property in land. Sources of English law — law of freehold tenure — law of customary tenure — equity — uses — trusts — statute law. Arrangement of the work into Parts. Jurispktjdence distinguishes Eights, using the term in the Rights dis- strict legal meaning, into the two classes of Rights to Things jura in rem and Rights against Persons, familiarly known in the civil law r by an 'U'"''« "» ... ... personam. the terms jura in rem and jura in personam (a). Rights to things, jura in rem, have for their subject some Jura in rem. material thing, as land or goods, which the owner may use or dispose of in any manner he pleases within the limits prescribed by the terms of his right. A right of this kind imports in all persons generally the correlative negative duty of abstaining from any interference with the exercise of it by the owner; and by enforcing this duty the law protects and establishes the right. But a right of this kind does not import any positive duty in any determinate person, or require any act or intervention of such person for its exercise and enjoyment (l>). (//) "The distinction between rights in rem' and 'jus in personam' were — is that all-pervading and important devised by the civilians of the middle distinction which has been assumed by ages, or arose in times still more rec the Roman Institutional writers as the 1 adopt them without hesitation — I main groundwork of their arrangement : all the numerous terms by which the namely, the distinction between rights distinction is expressed, they denote it in rem and rights in personam; or the most adequately and the li rights which avail against persons ambiguously." 1 Austin Jur., Lect. xi v. generally or universally, and rights Compare 1 OrtoLm Inst. Part 2, tit. -. which avail exclusively against certain Des Droits, p. 636, 11th ed. or determinate persons. The terms 'jus (£*) 1 Austin Jur., Lect. xiv. L.P.L. 13 INTRODUCTION. Jura in per- sonam. Rights against persons, jura in personam, on the other hand, have for their subject an act or performance of some certain determinate person, as the payment of money, the delivery of goods and the like. A right of this kind imports the correlative positive legal duty in the determinate person to act in the manner prescribed. It depends for its exercise or enjoyment upon the performance of that duty, and is secured by the legal remedies provided for a breach of performance. This class of rights includes the rights arising from contracts and all transactions of the nature of contract, which form the branch of law known as the Law of Contracts (c). The present work treats of the former class of jura in rem, and of only one subject of that class. The subjects of property distinguished. Land. Goods. Property in land and goods dis- tinguished. Estates in land. Eights to things, Jura in rem, vary and are distinguished according to the things or material subjects in the use or disposal of which the right consists. Things, as subjects of property, may be referred to two principal kinds, distinguished by qualities inherent in their nature. The one kind, which may be designated by the general term Land, is characterised by the abstract physical qualities : — that the subject is immoveable and indestructible ; that the use and enjoyment of it is perpetual and uniformly continuous. The other kind, which may be designated by the general term Goods, is characterised by the qualities : — that they are moveable and perishable ; that the use and enjoyment of them is not per- petual or uniform, but is transitory and exhaustible. They are, in various degrees, consumed or destroyed in using, — qua in ipso usu consumuntur. These two classes are designated in the Eoman civil law after their most characteristic quality, by the terms " moveable" and " immoveable," — res mobiles and res immobiles or qua soli sunt(d). The distinctions of quality in the subjects of property form the ground of important differences in the law. By reason of the perpetuity and uniform continuity of the use of Land the future use may be considered separately from the present possession, and may be limited or measured out by intervals of time and treated in distinct property or properties. It is true, the use and possession of land in specie cannot be (c) Austin, supra. See Leake on Les Choses, p. 595 ; Code Civil, liv. ii. Contracts. tit. 1. (rf) See 1 Ortolan Inst. Part 1, tit. 2, INTRODUCTION. anticipated; it flows on uniformly and concurrently with the progress of time by which the property is measured out; but though the possession be deferred, the future use or property is capable of presently defined ownership, with a present power of sale or exchange whereby it may be made available for present purposes. The total or indefinite extension, as to duration, of property in land may thus be portioned out by means of succ sive intervals of use into separate properties, measured by terms of years, or by lives, or other specified times or events of certain or uncertain occurrence. In this manner are produced the various Estates in land which are familiar, at least, to English Jurisprudence (e). But Goods, as a class, by reason of their transitory and perish- & able nature are incapable, except in a slight degree, of this mode p JJ§| rty in of treatment, and the property in such subjects is, in general, * simple and absolute. There are, however, included in this class of things subjects of various degrees of permanency, which may, therefore, in corre- sponding degrees be assimilated to land in legal treatment. Accordingly, the general legal doctrine that the property in goods must be simple and absolute is largely qualified by various concurrent legal doctrines and principles ; such, for instance, as the law of bailment, or the delivery of the possession of goods under contracts for special and limited purposes. Also English Courts of Equity by means of the doctrine of trusts create temporary and substitutional interests in property of this kind ; and by the peculiar equitable doctrine of conversion it may be impressed, for many purposes, with the quality of permanence, and may be distributed in as many and complicated estates and limitations as land itself. Land, again, is a complex subject, subservient to a great The various variety of beneficial uses, some derived from the surface, some ,! ~ p„ rt i.i • , , , , ' """"* as subject of nom tlie regions above and below the surface, some from the property, various productions of the land, animal, vegetable, and mineral ; —and some of the uses and profits of land are so far independent and separable from the rest that they may be appropriated as dis- tinct subjects of property. Such are the rights of taking minerals. rights of common, rights of way, and numerous other rights of using land for profit, or for mere convenience. Whence arises an extensive branch of law concerning the various uses and profits of land and their separate appropriation. te> 7 See ar & WahingliavCi Case, Plowden, :>47. al p. 555; Bacon's i B 2 IXTKODUITIOX. Title and ession of land. Title and possession of goods. On the other hand, the kind of property designated by the term goods, while it comprises many species of things each subservient to a distinct purpose, does not admit, as to specific things, of a like division into separate uses and property ; and there is no corresponding branch <>f law relating thereto. Again, by reason of the fixity and permanency of land the difficulty of ascertaining and identifying any portion is incon- siderable, and the title is conveniently referred to records and documentary evidence. Property in land, with few exceptions, is transferred only by written instruments; while all future estates and interests, which form so large a proportion of that class of property, being incapable of possession, rest entirely upon documentary title. Possession of land, if wrongfully taken, can always be restored ; mere possession is presumptive evidence of right, but this presumption may itself be rebutted by other presumptive evidence, and is of no efficacy whatever against proof of a rightful title ; nor is prolonged possession of any avail except by the operation of time in extinguishing adverse claims (/). On the other hand, by reason of the moveable and fluctuating nature of goods and the consequent difficulty of tracing and identifying them, and by reason also of the use lying for the most part in consumption, possession is, in general, taken as sufficient proof of property, and the mere transfer of posses- sion as a sufficient act of conveyance. Possession, if wrong- fully taken, can seldom be restored, and it generally happens that the only practicable restitution is by compensation in value. Principles of the civil law of property. In the Roman civil law and the systems founded upon it, as the French " Code Civil," the capacity of land to be appro- priated in possessory and future interests is not directly recog- nised. Property in land and in goods is reduced to one and the same system of rules, subject only to necessary modifications in detail. Property, strictly so called, whether in land or in goods, things immoveable or moveable, is entire, indivisible, and absolute. Pights of temporary possession, so far as they are recognised, are not considered as infringing upon the integrity of property, but are ranged, together with rights to (/") Joynr. v. Price, 5 Taunt. 326 ; Ather v. Whitlock, I.. 1!. 1 Q. B. 1 ; Vane v. Vane, I.. R. 8 I h. 383 ; 12 L. J. Ch. 302; Rosenberg v. Cook, 8 Q. B. D. 162 ; 51 L. J. Q. B. 170 ; Emmerson v. Maddison, [1906] A. ('. 669 ; 7.". L. .1. 1'. 0. 109; Perry v. Clissold, [1907] A. C. 73 ; 76 L.J. V. I !. I'.'. INTRODUCTION. 5 detached uses and profits, in a separate class under the denomi- nation of jura in re aliend or simply jura in re and opposed to Dominium dominium or jus in re propria. A corresponding distinction is aai J urainre ' marked in the terms corporis clominus and is qui jus habet, the former having possession and the latter merely a quasi posscs- sion ,■ — also in the classification of things as res corporal's and res incorporates, quae in jure consistunt(g). The full recognition of possessory and future property in land English law may be said to constitute the characteristic feature of the SH?** 7 English system. It is made a leading distinction by Blackstone that " estates, with regard to the time of their enjoyment, may Possessory either be in possession or in expectancy "(A) ; and upon this andfufcure capacity of sustaining future estates depends all the intricacy of limitations occurring in the settlement and distribution of land. The cause of this difference between the Roman and English Difference systems seems to lie in the derivation of the latter from the lTonTaTand Feudal system ; under which the originally precarious interest En g lj sh of the tenant became gradually established as a fixed estate or property in the land as against the lord, whose property was thereby converted into a reversionary or future estate. The principle of division of estates thus instituted was subsequently worked out by conveyancers and sanctioned by the courts to the full capacity of the subject for such mode of treatment, and in subservience, it must be presumed, to the exigencies of the public. The Legislature interfered but seldom with this process of development ; and even its occasional interference has operated in most cases in aid of the principle by facilitating the creation and disposition of future estates, and by liberating future estates and interests from their ancient dependance upon the present seisin or possession (i). On the other hand, the English law of property in goods, No future conforming to the different nature of the subject, does not admit JT^oodg. (7/) 2 Austin, 876, ( .»6") ; Savigny on every other country whose jurisprudence Possession, b. 1, § ix. xii., in Perry's is of a feudal extraction, the difference Transl. 7t>, 131 : 1 Ortolan Inst. 636 between real and personal, or iminove- et seq., 11th ed. ; Code Civil, liv.ii. tit. ii., able and moveable property is so De la Propriete, tit. iii., DerUsufruit, strongly marked, and the legal qualities etc. In the French code substitutions ami incidents of the two species of pro- of ownership are absolutely prohibited, perty, are in so many important conse- Art. 896 ; with an exception in favour quences, utterly dissimilar, the distinc- of children, Art. 1048 ; and, where no tion between them in the civil law. children, in favour of brothers and except in the term of prescription, is sisters, Art. 1019. seldom discoverable." Butler's note to (/() 2 Blackst. Com. 163, 1st ed. Co. Lit. 191 a, II. 2 : and see lb. V. ." ; (/) "While in this country, and in Butler's note to Fearne, C. R. 567. in rRODUcnoN. Things real and personal. Real and personal property. Distinction derived from real and personal actions. tlic same mode of limitation. According to Blackstone : — "By the rules of the antienl common law, there could be no future property, to take place in expectancy, created in personal goods and chattels; because being things transitory, and by many accidents subject to he lost, destroyed, or otherwise impaired, and the exigencies of trade requiring also a frequent circulation thereat', it would occasion perpetual suits and quarrels, and put p to the freedom of commerce, if such limitations in remainder were generally tolerated and allowed" (/<•)• Thus it appear- th.it in the English law property in land and property in goods are regulated upon different systems, and require to be treated as separate branches of law. According to English law the subjects of property are divided into Things real and Things personal. The class of Things real comprises land, and all the separate uses, profits and interests in land which are capable of heing treated as separate subjects of property. The class of Things )>rrs<>>htl comprises goods and all things moveable. The terms Real property and Personal property follow for the most part this division of things the subjects of property (/). An estate for a term of years, owing to an historical accident, is for many purposes regarded as per- sonal property, and is accordingly known as a chattel real, or a chattel interest in land ; hut where questions of international law arise, it is classed among immoveables, and the lex loci rei sitae furnishes the governing rule relative to its transfer and devolution (///)• There is also an anomalous property created by grants from the Crown of annuities payable to the grantee and his heirs, which descend to the heir, but are yet personal property and may be disposed of as such (n). The terms real and personal were originally applied, follow- ing the civil law, to actions, which were distinguished as real and personal, in rem and in personam: the former, claiming to recover the thing in specie, were appropriate to land, which, as being immoveable and indestructible, was always at hand to answer the claim ; the latter, claiming to recover compensation or damages, applied to injuries to the person and property, including moveable things as not being adaptable to recovery in (A) 2 Blackst. Com. 398. (0 2 Blackst. Com. 16, 384, 389, 397 ; :s lb. 117, ill. Bui the term personal property includes certain interests in land known as chattels real, to l>e ex- plained hereafter, and it further includes all rights arising out of contracts and rights of action. (»/) Freke v. Carbery (Lord), L. 1!. 16 Eq. 1'W ; Duncan v. Lawxim, 41 Ch. D. -'I . 58 L. J. Ch. 502 ; Pepin v. .. 1902 I Ch. 24; 71 I.. J. C. 39 ; 7.V Gram, 1905] 1 Ch. .".14 : 74 L. .1. ci . 341. („) Aubin v. Daly, 4 B. & Aid. 59 : Radbum v. Jervis, 3 I'.eav. 450. INTRODUCTION. ( specif. Hence the terms real and personal were afterwards transferred to the subjects of property, to the deprivation of which such actions were appropriate, and they were so used in the time of Coke (o). The abstract considerations above noticed respecting property Order of in land may serve as a guide to the distribution of the subject or order of treatment. For the purpose of investigating the various estates and Estates in interests which may be had in land, that quality of the subject only need be considered upon which the limitation of estates is based, namely, perpetuity and uniformity of use. Property in a subject of the standard quality here assumed admits of varia- tion only in two respects, namely, in the quantity or duration of the possession, and in the time when the possession is to begin. And accordingly this Part of the work will treat of the rules of law regulating the limitation of estates, and will be conveniently divided into two Chapters treating respectively of the limitation of estates as to quantity or duration, and of the limitation of future estates. But there occurs at the outset a peculiar difficulty in the way Sources of of systematic treatment of any kind, in the circumstance that ng 1S the sources of the law are not homogeneous. There is no single source or standard of authority to which the law on all points is to be referred, and which can be tacitly assumed on all occasions, as the basis of statement and argument. There exist concurrently several systems, sprung from distinct historical sources, and developed independently through distinct lines of progress ; framed on different technical principles and producing different and in many points contradictory sets of rules; but which combinedly constitute the English law of real property. These have to be compared and duly subordinated in operation in order to discover the resultant regulative effect. The various sources here referred to may be summarily enumerated as follows : — The law of Freehold tenure, being the common law of the Lawoffree- ii • \\o\a tenure, realm, generally applicable to all land therein (_/>). The law of Customary tenure applicable to particular lands Lawofcusto- . , . , , mary tenure, only, which are commonly known as lands ot customary or (o) Bracton, lb; 101 J- 102 b. Accord- or else for that they are to be recovered ing to Coke, " goods or chattels are by personal actions. Real, because they either personal or real. Personal, as concern the realty, as terms for years of beasts, household stuff, and such like, lands or tenements, and such like. ' called personal, because for the most Co. Lit. 118 b ; see lb. 1 b, 6 a. part they belong to the person of a man, (j>) Seej)OSt, p. 11. 8 INTRODUCTION. copyhold tenure. This law, where it exists, is concurrent with the former, being engrafted upon it by local custom. It is com- posed in part of general customs applicable to all such lands, and partly of special customs prevailing only in particular places (q). Equity. Concurrently with the above, property in land has from an early date been regulated by the system of Equity, as administered in the Court of Chancery and its branches; which court, while recognising the rules of freehold and customary tenure, exercised a jurisdiction to control and modify their effect, by compelling the legal owner to deal with the land at law according to the rules and principles of equity. Uses. Trusts. The system of equity, in its application to land, may again be divided into two periods : — The system of Uses or equitable pro- perty before the passing of the Statute of Uses. Uses by that statute were converted into legal estates ; and the doctrines of uses, after the passing of the statute, became matter of legal cognisance and jurisdiction. — And the system of Trusts or modern equitable property in land, which remained within the exclusive jurisdiction of the Courts of Equity (r). Statute law. In addition to the above systems or sources of law there is to be noticed a large body of Statute bur by which they have been, sometimes collectively, sometimes separately, from time to time, modified and amended. These statutes may, for the most part, be considered and treated as constitutive parts of the systems to which they respectively relate. In attempting to construct a systematic body of law out of these apparently discordant materials the problem presented is to obtain the compound results of the various sources in the form of positive rules, and to state and arrange them in an uniform style and method. But the rules of law are found so deeply rooted in their peculiar sources and so dependent upon those sources for their relative efficacy that it is impossible (in and conveyance of freehold estates. IV. Descent, and disposition by will. Section I. Tenure. Tenure — sub-tenure— infeudation — sub-infeudation— statu tequiaeiiiptores. Manors— demesne land— services— emu i baron— creation of manors — extinction of manors — reputed manors— customary tenants and cus- tomary court. Services of tenure— Knight service— escuage— special forms of knight service. Socage tenure— rent service— special forms of socage tenure— burgage — gavelkind — ancient demesne. Frankalmoign. Incidents of tenure — homage — fealty— wardship — marriage — relief— heriots — fines — aids — escheat. Statute 12 Car. II., abolishing feudal incidents and converting tenures into common socage. The law of freehold tenure is derived from the feudal system ; it still retains much of its original feudal form, and is expressed in terms and phrases which can he interpreted rightly only by reference to their feudal origin. The feudal system of property in land, as established in Tenure. England, was based on the theory that all land held by a subject was derived originally by grant from the crown, as sovereign lord or owner ;— that land could not be held by a subject in absolute independent ownership, for such was the exclusive prerogative of the crown ;— but that all land was held under obligation of duties and services, imposed either by force of law or by express terms of the grant ; whereby a relation was con- stituted and permanently maintained between the tenant and the crown called the tenure of the land, characterised by the quality of the duties and services upon which the land was held. In like manner the tenants of the crown might grant out parts sub-tenure, of their land to sub-tenants upon similar terms of rendering services, thereby creating a sub-tenure or relation of tenure 12 PART I. CHAP. I. THE LAW OF FREEHOLD TENURE. between themselves, as mesne or intermediate lords and their grantees as tenants; but without affecting the ultimate tenure under the crown as lord paramount (a). A tenure without the interposition of any mesne lord was called a tenure in capite or tenure in chief (/>). It does not appear to have been decided that in the absence of proof of mesne tenure, it will be presumed that the land is held immediately under the crown, and the existence of this presumption has been judicially doubted (c). If it ever becomes necessary to decide the question, the "incon- trovertible rule of law that where the King's and the subject's title concur, the King's shall be preferred "(•") a ; Hargrave's note Giles v. Grover, 1 CI. & F. 72 ; New S. (1; lb.; Co. Lit. 1 n, 92 l> : Butler's Wales (Taxation Commrs.') v. Palmer, to Co. Lit. l'.'l a, V. "This [1907] A. C. 179 ; 76 L. J. P. C. 41. universality of tenure is peculiar to (e) Gouge v. Woodunn, llobinson, England." 11). VI.; Hallam, Middle Gavelkind, 44, 5th ed. Ages, p. 164, 6th ed. (/) Sir Join, Moly/t's disc, 6 Co. 5 b. (//) Co. Lit. 108 a ; Hargrave's note (}/) Co. Lit. 1 />,'.)«. Qi) lb. (//) C>. Lit. 98 b, 143 h ; Bradshaw 0) Doe v. Red/ern, 12 East, 96. v. Lawson, 4 T. R. in. (it) See Rex v. Cotton, Parker, 112; tion. SECT. I. TENURE. 13 Before the statute the tenant, though he might by sub- infeudation have created a new tenure of himself as lord, could not transfer or get rid of his own tenure, with its attendant duties and services, without the licence of the lord. The statute, while disabling him from sub-infeudation, enabled him freely and without licence to alien his own tenure (t). The statute extends only to the sale or alienation of the entire fee or estate in the land (k). By aliening the land for a partial or less estate, reserving the ulterior estate in the fee, a species of sub-tenure or imperfect tenure might still be created (/). A grant of land from the crown under the feudal system .Manors. usually conferred rights of jurisdiction and other sovereign rights or franchises within the territory, b}' virtue of which it was constituted a manor. The larger manors, comprising inferior manors and lordships held of them by sub-infeudation, were, in early times, often called, with some slight distinctions of meaning, honours and baronies. In regard to territory, a manor comprised the portions of the Demesne fee retained in possession by the lord himself, called the demesne ™ y [ C q^ lands, terra' dominicales, and the portions granted in fee to tenants by sub-infeudation to hold of the manor by services, terrce tenement ales, of which the lord retained the seignory and services. There might also be waste land, not as yet in occupa- Waste land. tion, used in common by the tenants of the manor for pasturage and like purposes; but the title remained in the lord, who might from time to time approve or appropriate the waste, subject to the rights exercised over it by his tenants. In regard to jurisdiction, the manor comprised a court called Court Baron. the Court Baron or Lord's Court, having two distinct branches or courts. The superior or freehold branch of the court was constituted of the tenants holding fees of the manor, who were bound by their tenure to give suit or service at the court, as judges; and their jurisdiction extended to pleas concerning the lands thus held of the manor. The aggregate of these rights and incidents constituted a manor in the legal acceptation of the term ; and, accordingly, a manor is described in law as consisting of demesne lands, and seignories and services anciently united thereto, together (0 Merttens v. BUI, [1901] 1 Oh. 842 ; cited. 70 L. J. 0. 489. See Co. Lit. 43 a : (/<•) 18 Ed. I. c. 1. s. 3. Hargrave's note (2) lb., & auth. there (J) See post, p. 29. 14 PART I. CHAP. I. THE LAW OF FREEHOLD TENURE. on of man..!-. Extinction of mani erance of the demesnes and services. By extinction of the services. By failure of the Court Baron. Reputed manors. with the jurisdiction of a court baron; all of which elements are necessary to constitute a perfect manor (m). After the statute Quia emptores no new manor could be created. The grant of a fee no longer created a seignory and tenure, for the grantee held of the superior lord and not of the grantor. The lord, therefore, could not create freehold tenants to hold a court baron, which is an essential element in the constitution of a manor. Moreover, manors are sanctioned only by prescription or ancient custom ; hence the king himself, though he can create a new tenure, cannot create a perfect manor at the present day without statutory confirmation (»)• A manor may become extinguished, as a perfect manor, by the severance of the demesne lands from the seignory and services of the lands in tenure ; as, if the lord transfer to some stranger the services of all his tenants, and reserve unto himself the demesnes ; or, if he grant away the demesnes and reserve the services. A manor may also be extinguished by the extinction of the services ; as if the lord purchase all the land of the freeholders, or release unto his freeholders all their services (o). A manor might also be extinguished by failure of the court baron. Two freeholders of the manor, at least, were necessary to hold the court baron ; consequently, if this number of tenants failed, the court could no longer be constituted, and the manor, without a court baron, ceased legally to exist (p). But in all the above cases of extinction, though the manor no longer exists in its legal integrity, it may continue as a manor by repute, amain" tantum ; and it may still be attended with such of the rights and incidents of the original manor as may remain unaffected by the legal extinction (q). Perkins, s. 670 ; Co. Lit. 58 >/. l> ■ Co. Cop. b. :'.l ; Elton, ('up. pp. 9 - Spelman Gloss. " Manerium." As to the distinction of the demesne lands and the lands in tenure, sec ('(.. Lit. 17 n : Att.-Gen. v. Parsons, 2 Cr. & .J. 279, and the authorities cited in the judg- As to tli'' i ight (if the tenants overthe waste and <.f the Lord to approve the waste, with and withoul theconsenl of the tenants, see Betts v. Tlwvipson, I.. i,\ 6 I !h. 732 ; Warwick v. Queen's Coll.. Oxford, I-. R. I4 ; Bradshaw v. Lawson, I T. II. 143. The jurisdiction of the Court Baron in writs of righi concerning lands within the manor was expressly abolished by 3 & 1 Will. IV. e. 27, b. 36, and in all other matters the court lias been either superseded or fallen into disuse. See a provision for the surrender of manorial courts in which debts or demands may be recovered. The County Courts Act, L888 CI & r,2 Vict. c. 43), s. ... ( Co. 6 b. 0) Co. Lit. 86 a. (/) Co. Lit. 87./. (g) Co. Lit. 86, a, b ; 87 a, b ; see Bullen on Distress, p. 23. SECT. I. TENURE. 17 were to be rendered in kind, as ploughing land, carrying dung, plashing hedges and the like (//). Other forms of tenure were classed under the general term Special forms socage, by reason of their certain services and similar general ',''. incidents; — as Petit serjeanty and Burgage tenure: — And some socage tenures had local peculiarities, as Gavel hind, and Ancient demesne. Petit serjeanty was a tenure of the king in chief to yield to Petii him yearly a bow, or a sword, or a lance, or arrows or such other things belonging to war, like a rent, but not to do anything in person ; such service was therefore socage in effect, and subject only to the incidents of that tenure (i). A man could not hold by petit serjeanty but of the king (7c). Tenure in burgage is the tenure in ancient boroughs (7) in Burgage. respect of tenements held of the king or other lord by a certain annual rent. It is socage in effect, though generally subject to local customs (in). Gavelkind is the socage tenure existing in the county of Kent, Gavelkind. having some peculiar incidents, of which the most important consists in the partition of the land on descent. All lands in that county are presumed to be of Gavelkind tenure, until the contrary be proved ; whence it has been called the common law of Kent (»)• Ancient demesne (antiquum dominium regis) consists of those Ancient manors which, though now perhaps granted out to subjects, were anciently in the property of the crown, and so appear to have been by the record of Domesday Book. In such manors, the Court Baron of the manor had exclusive jurisdiction in all suits concerning lands of the manor held in socage, so that a suit respecting such lands brought in the superior courts might be met by a plea to the jurisdiction ; but this rule did not extend to copyholds, because the lord or his steward was judge in the manorial court (o). The freehold of land held in socage of a manor of ancient demesne is in the tenant, and not in the lord (j>). (It) Co. Cop. s. 18 ; see post, p. 58. v. Burn, 1 Salk. 57 ; Brittle v. Dade, 1 (0 Co. Lit. 108 a, b ; see Wheeler's Salk. 185. The issue whether a manor Case, 6 Co. 6 b. is ancient demesne or not is tried bythe (/.') Co. Lit. 108 b. record of Domesday Book; Doe v. Roe, (V) See May v. Street, Cro. El. 120. 2 Burr. 1046 ; Doe v. Roe, 10 East, O) Co. Lit 108 b, et sea.; see 523 ; see post, Part I. Ch. II., " Custo- Bushei- v. Thompson, 4 C. B.48 ; Beckett mary Tenure." Andsee3&4 W. IN. v. Leeds (Corp.), L. R. 7 Ch. 421. c. 74, ss. 4-6, Carson, Ileal Property (/t) Co. Lit. 175 // ; Robinson on Statute-. 168. Gavelkind, p. 44. See Doe v. Llandajf (/>) Merttens v. Hill, [1981] 1 Ch. (Bp.) 2 Bos. & P. N. R. 491. 842 : 70 L. J. ( !h. 189. (o) Alden's Case, 5 Co. 105 a ; Hunt L.P.L. C is PART I. CHAP. I. THE LAW OF FREEHOLD TENURE. Frankal- moign. Frankalmoign (in liberam eleemosinam) is the tenure by "which all ecclesiastical persons, as bishops, deans and chapters, arch- deacons, prebends, parsons, vicars and the like, being incorporate bodies aggregate or sole, hold lands to them and their successors; they are bound to divine services, for which, however, they are an>\verable only to their ecclesiastical superiors, and they owe no fealty or temporal service (q). If the tenure were by a certain divine service, as to sing a mass on appointed days, to find a chaplain or to distribute alms to the poor, the lord might distrain as for other services certain ; but such a tenure is not frankalmoign, for in that tenure no mention is made of the manner or certainty of the service (r). Occasional incidents of tenure. Homage. Fealty. Wardship Besides the above regular services of tenure prescribed by the grant according to the requirements of the lord, other occasional rights and profits accrued to the lord as incidents of the tenure, for the most part by rule of law without special reservation ; some being incident to tenure generally, and some to particular tenures only. Of these the following may be mentioned as the most important. Homage and fealty, or fealty at least, were due to the lord by his tenant (s). Homage, which included fealty, was an essential incident of knight service and presumptively indicated that tenure, though it might be incident also to socage tenure (t). Fealty was the universal incident of every tenure except tenure by frankalmoign, which owed no temporal service. Whatever services were expressed, fealty was implied ; and though no services were expressed, fealty, at least, was due to preserve the tenure. To hold by fealty only was socage tenure. Homage disappeared with knight service ; and the formal observance of fealty has long ago become obsolete (u). Wardship entitled the lord, upon the death of a tenant in knight service leaving an infant heir, to have the land until his age of 21 years, subject only to the charge of maintaining and educating him ; because such heir by intendment of the law was not able to do knight service before that age (r). There was no wardship in socage tenure, because the heir might perform the services by his guardian ; and for this purpose 0/) Co. Lit. 93 /'. rf seq. (/•) Co. I. it. 96 A. (*) Co. Lit. 65 n. it seq. CO Co. Lit. 67 h. 68 a, 86 6, et seq. (it) Co. Lit. 92 b, 93 a, b ; 95 <>, h ; WJieeler's Case. 6 Co. f> /;; Luivc's Case, 9 Co. 12:5 '/. (.'■) Co. Lit. 7 1 //. <■! seq. ; Hargrave's note (11) to Co. Lit. 88 b. SECT. I. TENURE. 19 the next of kin of the heir to whom the fee could not descend was entitled, as guardian in socage, to hold the land until the heir was of the age of fourteen, but for the use of the heir, to whom he was bound to account on coming of age (//). The lord was also entitled to the marriage of the infant ward .Marriage, for such value as he could obtain, or to the value of the marriage, and that whether he tendered a marriage or not. The heir might refuse a marriage tendered, subject to satisfying the lord's claim for its value ; but if he married without the lord's licence, the lord was entitled to double value of the marriage by the Statute of Merton (z). Belief was a sum payable by the heir to take up (relevare) the Relief. fee upon the death of his ancestor. It was common to all tenures by common law without special reservation ; — in knight service a fourth part of the annual value, according to the assessment of a knight's fee ; — and in socage tenure, one year's rent (a). In tenures in capite of the king, whether knight service or socage, it took the form of primer seisin or first fruits, being one year's profits of the fee (/>). A heriot is a right in the lord upon the death of the tenant Heriots. to seize his best beast, or, it may be, some other chattel, in the name of a heriot. Such right is not of general incidence, but must be claimed either by special custom or, if created since the statute of Quia emptores, by express grant ; in the latter case it must be reserved in the form of heriot-service, and is then attended, like rent service, with the remedy of distress ; in other cases it is only recoverable by seizure, as vesting in the lord immediately upon the death (c). The custom may be that a sum of money be assessed in the lord's court as payable in lieu of the heriot (d). The tenant originally could not alien his fee without the Fines on licence of the lord, for granting which a fine or payment was alhnatlon - (//) Co. Lit. 87 b ; Hargrave's note 20; Basingstoke Corp. v. Bolton (13) to Co. Lit. 88 /'. (Lord), 1 Drew. 270 ; 3 Drew. 50. See (--) 20 H. III. e. 6 ; Palmer's Case, 5 CopestaUe v. Harper, ! 1908] 2 Ch. 1" ; Co. 126 b ; Lord Barcy's Case, 6 Co. 77 L. J. Ch. 610. 70 6. . (,/) Parkin v. Radcliffe, 1 B. i: 1". (//) Co. Lit. 69 b, 7(i a, 83 a. b ; '.hi a, 282, 393. As to the extinguishment or 1>, et seq. ; see Hargrave"s note (2) to continuance of the right to a heriot Co. Lit. 93 a. upon a purchase by the lord of part of (7>) Co. Lit. 77^/. When the heir had the lands, see Talbot's Case, supra; and been in ward, he sued out livery or an as to the multiplication of heriots on ouster le m /in, which was half a year's division of the tenement amongst several profit of his land, instead of a relief, or tenants, see Garland v. Jekyll, 2 Bing. primer seisin. lb. L'7:; : Hollovoay v. Berkeley, 6 B.& ('. 2. (<-•) Co. Cop. s. 24 ; Elton Cop. 8, Provision has been made by statute for 198 ; Lanyon v. Carne, 2 Wms. Sannd. the extinguishment of heriots at the 485, and notes: Talbot's Case, 8 Co. instance of either lord or tenant, 21 & 104 b ; Bamerell v. Protlieroe, 10 Q. B. 22 Vict. c. 9t. s. 7. o 2 '20 PART I. CHAP. I. THE LAW OF FREEHOLD TENURE. Aids. Escheat. Statute Car. II. converting common socage. Wardships, etc., taken away. Fine- for alienation. etc., taken away. charged. The statute; Quia emptores enabled tenants to alien without licence ; but this statute did not extend to the tenants in capite of the crown. The claim of the crown was afterwards settled by statute at a reasonable fine, which was adjudged to be one-third of the yearly value for licence, and one year's value upon alienation without licence (e). Aids were contributions exacted by the lord to meet his .'\prnses upon the occasions of marrying his daughter, aide pur file mamer, and of making his son a knight, aide pur j aire fitz chivalier. They were incident to both knight service and socage tenure (/). Escheat may be here mentioned as a right of seignory, though it is not, strictly speaking, an incident of tenure, as it occurs only upon the determination of the tenure. On failure of the heirs designated in the grant of the fee, the land escheats or falls back to the lord. The like occurred upon the determina- tion of the tenure by forfeiture. Hence it was said " to happen two manner of ways, aut per defectum sanguinis, i.e., for default of heir, aut per delirium tenentis, i.e. for felony." (g). The statute 12 Car. II. c. 24, finally put an end to the distinc- tions of freehold tenures, by reducing them to the one general form of common socage, and by abolishing, with few exceptions, the special services and occasional incidents by which they were characterised (/>). The statute, entitled " An act taking away the court of wards and liveries, and tenures in capite, and by knights service, and purveyance, and for settling a revenue upon his Majesty in lieu thereof " provided, in effect, as follows :— (s. 1.) " that the court of wards and liveries, and all wardships, liveries, primer seisins, and ousterlemains, values and forfeitures of marriages, by reason of any tenure of the king's Majesty, or of any other by knights service, be taken away and discharged, — and that all fines for alienations, seizures and pardons for alienations, tenure by homage, and all charges incident or arising, for or by reason of wardship, livery, primer seisin or ousterlemain or tenure by knights service, escuage, and also aide pur file marrier and pur faire n't: chivalier, be likewise taken away and discharged, — and (e) Co. Lit. 43 a, h ■ 2 Inst. 67. (/) Co. Lit. 7'i a, '.tl a. \fj) Co. Lit. 13 a. 215 b : Att.-Gen. v. Sands, Hani. 488 ; Tud. L. C. Conv. l'11 : Burgess v. Wlieate, 1 Eden, 177; 1 W. Bl. 123. (//) This statute, passed in 12 Car. II., HitjO, the first year of the restoration, was made to operate retrospectively from 21 Feb. 1645 (sect. 1), that being the date from which the feudal seig- nories had been before suspended by parliament. A similar reform had been presented to parliament by the king in 18 Jac. I. See 4 Inst. 202. SECT. I. TENURE. 21 that all tenures by knights service of the king, or of any other Tenure-, by . . . . knight person, and by knights service in capite and by soccage m capite service taken of the king, and the fruits and consequents thereof, be taken awa -'- away and discharged, — and all tenures of any honours, manors, All ten lands, tenements or hereditaments, or any estate of inheritance conm ^ on ' at the common law, held either of the king, or of any other socage. person, are hereby enacted to be turned into free and common soccage." Sect. 4 enacted " that all tenures hereafter to be created by All tenures the king's Majesty, his heirs or successors, upon any gifts or crea ted to grants of any manors, lands, tenements or hereditaments, of any be common estate of inheritance at the common law, shall be in free and common scccage, and shall be adjudged to be in free and common soccage only, and not by knights service or in capite." Sect. 5 expressly provided that the act "shall not take away Saving of . * . » , i , • -j l rents, henots, any rents certain, henots or suits of court belonging or incident suitso f to any former tenure now taken away or altered by virtue of this Court, fealty, act, or other services incident or belonging to tenure in common soccage, — or the fealty and distresses incident thereunto; and that such relief shall be paid in respect of such rents as is paid in case of a death of a tenant in common soccage." Sect. 6 provided that the act "shall not take away any fines Fines by 1 . „ , . i custom of for alienation due by particular customs ot particular manors manors# and places, other than fines for alienation of lands, or tenements h olden immediately of the king in capite" Sect. 7 provided " that this act shall not take away tenures Saving of 1 , ,, frankal- in frankalmoigne, or subject them to any greater or other moigI1) services than they now are ; nor alter or change any tenure by J^ffiJJ^ copy of court roll, or any services incident thereunto ; nor take ,_r ia nd away the honorary services of grand serjeanty." The statute, it has been justly observed, uses very inaccurate language and undistinguishing modes of expression, especially in the title and enacting clause, as to taking away tenure in capite. The intention and effect is to take away such tenures so far only as they varied from common socage, by converting them into common socage, and not " to annihilate the indelible dis- tinction between holding immediately of the king, and holding of him through the medium of other lords" (i). The statute retained the principle of tenure and left untouched the rules of freehold tenure as regards the estate of the tenant, and the formal modes of conveyancing,— which matters are treated in the following sections of this Chapter. (i) Hargrave's note (5) to Co. Lit. 108 o, and notes ib. 85 a, 93 b. serjeanty. 22 PART I. CHAP. I. THE LAW OF FREEHOLD TENURE. Section II. Estates of Freehold Tenure. The feudal estate— extended to heirs restricted to heirs of the body — I itle of heir by grant —by descent. Fee simple at common law — limitation to heirs. Estate for life — followed by limitation to heirs — Rule in Shelley's case. Fee simple conditional— fee conditional upon issue— ancient instances of fee simple conditional— effect of the statute Quia emjrtoms upon Mich limitations. Fee tail under the statute Be donis — efficacy of Fines and Recoveries in barring entails Fines and Recoveries abolished and now nude of disentailing substituted — base fee. Reversion — remainder— no reversion or remainder after fee simple— tenure of tenant to reversioner -services, etc., incident to reversion. Freehold estates. Lease for years— estate and tenure of lessee— leaseholds and chattels real are personal estate. The fee or feudal Grant extended to heirs. general. The fee or feudal estate in the land appears to have heen granted, in early times, for the life of the tenant only, the land reverting to the lord upon a vacancy by death. The grant was afterwards extended to the sons and other issue of the tenant under the designation of heirs, leaving no reversionary interest in the lord except upon the failure of the heirs so designated (a). A grant extending to the heirs was originally confined to the issue or lineal descendants of the first feudatory. Upon his death without issue, his brothers and other collateral relations acquired no claim under such grant ; but upon the death of a tenant who had acquired the fee as heir, his collateral relations might succeed as being heirs of the original feudatory. In the former case the fee was distinguished- as feudum novum ; and in the latter, as feudum antiquum. The fee might be enlarged in its creation to all the heirs, collateral as well as lineal, by granting the feudum novum expressly to be held ut antiquum ; and such appears in later times to have become the general con- struction of a grant even without that express addition ; at least in the English common law a grant "to a man and to his heirs" simply, was construed as extending to the heirs general, collateral as well as lineal. («) Wright's Tenures, p. 14 ; 2 Blackst. Cum. 55 : Butler's note to Co. Lit. 266 h. "Mosl of tie — - who have written upon the feudal system, lav it down that benefices were originally precarious and revoked at pleasure by the sovereign; that they were afterwards granted for life ; and at a subsequent period became hereditary. No satisfactory proof, how- ever, appears to have been brought of the first stage in this progress." Hal- lam's Middle Ages, Chap. II., p. 160, 6th ed., ami note ib. ; Supplement. note 66, p. 113. See 1 Spenee E [. Jur. 45. SECT. II. ESTATES OF FREEHOLD TENURE. 23 This extension of the term heirs at the Bame time necessarily l,: , , ,-j- i>iif ii- i -i • -p restricted to required that the restriction 01 the tee to the lineal heirs, if the heirs of intended, should he expressed in terms; such grants were ' heb ' n! . v - accordingly made with the limitation : ' to the heirs of ///-■ body." Similarly, the ^rant might he restricted "to the heirs male of the body," or to the heirs by a certain wife, or to other restricted lines of issue (b). The heir originally derived his title to the fee from the grantor Title of by designation in the grant, perfurmam doni. But as the tenant ^'un- acquired, in course of time, the power of alienating the fee, the interest of the heir became reduced to a mere expectation of succeeding, in the event of the ancestor not exercising that power. The additional grant " to the heirs " was then referred wholly to the estate of the ancestor, as importing merely an estate of inheritance, an essential incident of which was the power of transferring the land to another for a like estate ; and by descent the heir no longer claimed as grantee by designation in the grant, but derived his title from the ancestor by descent (<■). Such was the ultimate state of the fee simple or estate of Fee simple at inheritance at common law. It conferred the largest rights of c use and enjoyment allowed by law, together with the largest power of alienation. A grant in fee simple left no estate or interest in the grantor, except the rights of seignory appertaining to the lord by the rules of tenure, amongst which was the right of escheat, whereby the lord was entitled to resume the possession of the land upon the death of a tenant without heirs. But even these rights could not be reserved after the statute Quia emptores ; for by the effect of that statute the new grantee held directly of the same lord as the grantor held before ((/). Ultimately also the limitation " to the heirs," became the Limitation technical description of an estate of inheritance, which could not h e ; rs ," be legally expressed by any other means («). (*) Wright's Tenures, 16-18, 186; depended upon their insertion: see 2 Blackst. Com. 221, 222, 229 ; see post, Madox Form. Diss. p. v. Forms 308-331. Tart II. Chap. I. " Fee tail." The word " assigns " is still of tea added ; (c) See ante, p. 22; Co. Lit. 22 b; but where it follows sufficient words of Burgess v. Whectte, 1 "w. Bl. 133; 1 limitation.it merely imports the power Eden, 191, see judgment of Clarke, of alienation legally incident to the M. R. and authorities there cited. But- estate and is superfluous; where used let's note to Co. Lit. 191 a, V. 3; and alone it may be operative in giving a to Co. Lit. 266 b. power of appointment. Quested v. (,/) Seeante,p. 12 : BurgessY. Wheate, Mlcliell, 24 L. J. Ch. 722 ; see Brookman supra v. Smith, L. U. 6 Ex. 291, 306 ; 43 L.J. O) Co. Lit. 1 a, 8b. Words import- Ex. 161, L70. The express mention of ing the power of alienation appear to '"assigns" appeals to have had some have been added in feoffments, when operation in extending the eff< that power became recognised; and warranties and covenants, see Bracton, that power may perhaps originally have 17 b. •24 PART I. CHAP. I. THF LAW OF FliEKHOLT) TFXrilK. >. Estate for life followed by limitation to heirs. i~4 Estate for Before the amendment of the law to be hereafter mentioned a life conveyance of the legal estate to a person simply without extending it in terms "to his heirs," or without any other limitation of the estate intended, continued to be construed according to its primitive force and effect, as conferring an estate only for the term of his life (/). The grant "to A. and to his heirs," and a grant "to A. for life and after his decease to his heirs," according to the primitive force and effect of the expressions, were manifestly identical ; inasmuch as they both conferred life estates upon A., and upon the persons designated as his heirs in succession. They were still construed as identical, notwithstanding the change in the position and interest of the heir consequent upon the enlarged power of alienation in the ancestor ; the limitation " to the heirs," in both cases, ceased to confer directly any estate upon the persons answering to that designation, and was referred to the estate of the ancestor, which, though expressed to be in the first place for life, it enlarged to an estate of inheritance, so that the heir took only by descent. This is the origin and simplest form of the rule in Shelley's Case, an ancient rule of great importance in construing the limitations of estates, which will be noticed more fully hereafter ( ^ ne ^ m ighk De absolute or conditional, that is, determinable by /<£> "5 -w. 119. (//) 1 Margrave's Law Tracts, p. ~>~2 ; Shelley's Case, 1 Co. 93 b ; Tu.l. L. C. ( !onV. 332. Sim; pott, p. 2J7 '. -i (/<) Co. Lit. 1 I), 18 (i ; Seynun's Case, 10 Co. 95 a, 97 i ; Tu.l. L. C. Conv. 158. There is a third kini, u qualified or hate fee, not at common law, but resulting from certain modes of alienation by tenant in tail since the statute de doiiis ; these are noticed hereafter : sec post, p. 28. It seems necessary here also to notice that condition- might he annexed to grants, reserving to the grantor the right of entry to defeat the grant upon breach of the condition ; but such con- ditions of re-entry operated differently from a conditional limitation. The fee simple conditional is determined by intrinsic force of the limitation : but a condition, Btrictly so called, renders the estate voidable only and not void, it may be avoided by an entry for breach of the condition; but until entry the estate continues. Conditions of this kind were implied in tenure, and might be imposed by express terms in the grant. They require no further notice at present, bat will be treated hereafter as part of the existing law. See post Tart II. Chap. L, Sect. VI. ''Condition *»?.«£ SECT. II. ESTATES OF FREEHOLD TENURE. '1 But the restriction upon the duration of the fee did not, at common law, otherwise affect the rights and powers of the tenant ; and in respect of these it remained a fee simple. So long as the fee lasted the tenant for the time being had all such powers, including the power of alienation, as were the inseparable incidents of an estate of inheritance. Only it was adjudged to be a necessary condition of the full effect of his alienation, so as to bar not only his issue, but also the possibility of reverting to the grantor, that he should have heritable issue (i). As other ancient instances of fees simple conditional, may be Ancient cited : — a fee limited to A. and to his heirs for so long as the j-"^'^ 1 ,' \, church of St. Paul shall stand ; — to A. and to his heirs, tenants conditional. of the manor of Dale ; — to A. and to his heirs, so long as A. or B. has heirs of his body (A). But the statute Quia emptores (/) by preventing the creation of Cannot be any tenure between the grantor and grantee, where the fee was J^^T^f granted subsequently to the statute, put an end to any right of emptores. reverter upon such grants. Before the statute, upon the determination of the fee by the conditional limitation, the land reverted to the grantor by way of escheat; for, the grant having conveyed the whole fee, there was no reversionary estate left in the grantor to entitle him to the possession. But under such a grant made after the statute there could be no seignory created to which an escheat would be incident; and escheat to the superior lord could not occur until failure of the original tenure, the terms of which were not altered by the alienation of the tenant (m). The statute commonly known as the statute De donis con- Fee tail ditionalibus (n), after a preamble to the effect, that under such statutc . ,/',. grants or gifts upon condition, to a person and the heirs of his ^onis. body, it was a grievance to the donors and their heirs that the will of the donor expressed in the gift was not observed, but that, after issue begotten, the donees had power to aliene the land and (/') Mart in v. Straclian, 5 T.R. 107, n. ; let's Case, 2 And. 138, as an accurate Co. Lit. IS b, 19a, b. It may he observed expression of the law : — " that if the land that the condition thus constructively be given to one and his heirs, so long as precedent to the power of alienation, J. S. and his lieirs sltall enjoy the was independent of the conditional manor of J)., those words so long, etc., are limitation of the estate, whereby it was entirely voiJ and idle, and do uoi determinable upoD the failure of the abridge the estate;" adopted also in issue of the donee, if the power of 3rd Report of Real Property Commis- alienation were not exercised. sioners. The statement in Wowden, (/.-) See Seymor's Case, in Co. 97 h ; 557, "that the feoffor shall have the Shiepp. Touch. 101; 1 Sanders, Dses, land again'' must refer to feoffments 208 ; arg. Cirdigan (Earl) v. Armitage, made before the statute. See also 2 B. & C. 197 at p. 202. Collier v. Walters, L. R. 17 Eq. 252; (/) IS Ed. I. c. 1, ante, p. 12. 13 L. -J. Ch. 216. {in) 1 Sanders. Use>. 200, citing Cor- (« ) 13 Ed. I. stat. 1, c. 1. 26 PART I. CHAP. I. THE LAW OF FRKKIKU.M TEN1 RE. Inheritances not within the statute de (fornix. Efficacy of i inea and Uccoveries in barring entails. to disherit their issue, and to bar the donors of their reversion, which was manifestly contrary to the form of the gift, proceeds to enact 7. (Lor/I), Dy. 32 a, pi. 1 marginal note; (x) Treson v. Pearman, 3 !'•. >v ' . Johnson v. Derby (Karl), Pigott, 799. Bee Pigott, Recoveries. Recoveries 201; Grafton (Dulte) v. (y) Taltarum's Case, Year Book, London and Birmingham Ry., 5 Bing. 12 Ed, 1 W. f. 19; see 9 L. Q. R. I; -N. C. 27; 8 L. J. C. P. 47 ; Perltlns v. 12 L. Q. II. 301 ; and see Martin v. Sewell, 1 W. Bl. 654; 4 Burr. 2223: Strachan, 5 T. R. 107 n, WiUes, III. Abergavenny (Earl) v. Brace, L. R. 7 (-) 3 & 4 Will. IV. c. 74. 28 PART 1. CHAP. I. THE LAW OF FREEHOLD TKXURE. assurance, or may rectify a mistake in a disentailing assurance, which has been actually enrolled (a). Base fee. A tint' l»y barring the issue in tail only, and not the estates I J, 7.4- -n-o^ subsequently limited, conveyed what was called a base fee an ""J* estate of the quality of a fee simple and descendible to the heirs * L " general of the grantee, but determinable by failure of the issue in tail, upon which event the subsequent limitations took effect (fc). By the Fines and Recoveries Act, " The expression ' base fee ' Bhall mean exclusively that estate in fee simple into which an estate tail is converted where the issue in tail are barred, but persons claiming estates by way of remainder or otherwise are not barred." Such an estate is created by a disentailing deed under the statute, when executed without the required consent of the protector of the settlement (c). Reversion. Particular estate. Reversion after fee tail. Remainder. If a tenant in fee simple granted to another for a term of life, the alienation of the fee was partial only, in respect of duration of time, the residue being left in the grantor ; and upon the determination of the estate for life, the possession reverted or returned to him or to his heirs; whence the residuary estate left by such conveyance was called a reversion, and the estate for life was called, in relation to the reversion, a particular or partial estate (d). So, upon a gift in fee tail after the statute De donis there was a reversion in the donor secured to him by the statute, and upon the death of the tenant in tail without issue, whereby the fee tail was determined, the possession reverted to the donor or his heirs (e) . A tenant in fee simple might grant a particular estate, whether for life or in tail, to one person, and at the same time grant the residue or remainder, technically so-called, of the fee to another, leaving no reversion in himself. A remainder is defined to be "a residue or remnant of an estate in land, expectant upon a ] articular estate created together with the same at one time " (/). So he might grant several particular estates successively in remainder, leaving the reversion in himself, or at the same time (>> Ch. 1». 716; 56 I.. .!. Ch. 832. (Ii) Seymors Case, 10 Co. 96 //. Tudor L. C. C'unv. 158 ; Bee Roe v. Daldivere, 5 T. R. 104. 00 3& 4 Will. IV. c. 74. ss. 1. 34, 38, 39. 00 Co. Lit. 22 b ; and see ib. 142 V. "i Co. Lit. 22 a ; see Martin v. Strachan, 5 T. B. 107 n ; 11 >e v. Buld- were, 5 T. J;. 104. (/) Co. Lit. 49 a, 143 a. SECT. II. ESTATES OF FREEHOLD TENURE. 29 granting awa}' the ultimate remainder in fee without leaving any reversion. The grant of an estate in fee simple exhausted the power of No reversion the grantor; no reversion was left nor could any remainder be j^'afce 6 ' limited after such estate. On the determination of a fee simple simple, for want of heirs, per defectum sanguinis, the land fell back to the lord by right of escheat, which was not an estate in the land, strictly so called, but a right incident to the seignory (g). A fee simple conditional at common law was equally extensive in this respect, and left no reversion or residue at the disposal of the grantor (//). The grant of a partial or particular estate only, as an estate Tenure for life or an estate tail, created a relation of tenure between the tenanTand tenant of the particular estate and the reversioner, to which reversioner, fealty and services were incident according to law or the express reservation of the grant. The statute Quia emptores, which abolished sub-infeudation, was expressly confined to alienations of the fee simple and did not affect this tenure of particular estates to the reversion, which may still be created. It has been called an imperfect tenure, as distinguished from the perfect tenure incident to the seignory of the fee, in which the rent and services are incident to the seignory ; in the imperfect tenure they are incident to the reversion (i). A grant of a particular estate and at the same time of the remainder in fee, retaining no reversion, is within the statute Quia emptores; no new tenure is created and both the grantee of the particular estate and of the ultimate remainder hold immediately of the lord of whom the grantor held before (A). If a man make a gift in tail, without any express reservation, sen-ices, etc., the donee holds of the donor by the same services as the donor rev ersion. holds of the next superior lord; as was the case with a grant in fee simple conditional at the time of the passing of the statute Dc donis ; and before the statute the donee held of the donor as of his person, but since the statute he holds of him as of his reversion. If a man makes a lease for life and reserve nothing, he shall have fealty only, though the lessor hold over by rent or other services. But if in such cases there be made a special reservation of rent or services, the terms of the tenure are regulated by the express reservation (/). The fealty and other (;/) SeeaiUe, p. 20. '.•:! ". 112 b ; Co. Cop. s. 31, Tracts, (ft) Dor v. Simpson, 4 Bing. N. ('. p. 48. 333; 3 Man. & G. 929. As to the (k) Co. Lit. 142 b, et seq. ; Butler's creation of a base fee, see ante, p. 28. note (2) to Co. Lit. 327 n . (/) 18 Ed. I. s. 3 ; Co. Lit. 22 a. rt seq., (7) Co. Lit. 22 a, 142 A. 151 h. 30 PART I. (HAP. I. THE LAW OF FREEHOLD TENURE. services are incident to the reversion and pass with it ; the fealty inseparably, but the services are separable. The reversion, in respect of the fealty, rent or other services reserved or incident thereto, is a present and immediate interest; though in respect of the possession of the land it is future (///). Freehold estates. Estates for life and estates of inheritance, being the estates admissible at common law in land of freehold tenure, are called freehold estates. An estate for life is sometimes called specially an estate of freehold, or the freehold, as distinguished from the inheritance, which in this sense includes the freehold (n). " The word freehold is now generally used to denote an estate for life, in opposition to an estate of inheritance. Perhaps, in the old law it meant rather the latter than the former. It is known that fees were held originally at the will of the lord ; then, for the life of the tenant ; that afterwards they were descendible to some particular heirs of the body of the tenant ; then, to all the heirs of his body ; and that in succession of time the tenant had the complete dominion or power over the fee. The word freehold always imported the whole estate of the feudatory, but varied as that varied " (<>). Thus the term freehold is used to denote the quantity or dura- tion of estates as well as the tenure of the land ; and, as applied to estates, even a customary tenant or copyholder may be said to have a freehold. "A tenant in fee simple, fee tail, or for life is said to have a freehold interest, whatever his tenure may be; but none except he who holds or did hold by knights service, in free socage, or in frankalmoign can be said to have a freehold tenure " (p). Lease for years. A lease for a term of years or any certain duration of time was originally considered at common law not to convey any estate in the land. The tenant or termor, though de facto in possession, was considered to hold the land in the name and on behalf of the freeholder who let him into possession, and who through him still retained the possession in law. He was in the position of an agent or bailiff entrusted with the possession (q). His right was founded on the lease or contract which entitled him to enter and occupy during the term and upon the conditions (m) 2 Cruise, Dig. tit. 17, ss. 13, 14, 15, 18 et seq. [n] Co. Lit. (2 b. (o) Butler's note to Co. Lit. 26G I; see ante, p. 22. (p) Blackstoneon Copyholders, Tracts, p. 223 : Co. Lit. 43 b. ( ; and cases cited, auto, p. 4, n. (/) ; Williams, Seisin, 4. (/•) Co. Lit. 48, 4!) ; Williams, Seisin, ; Co. Lit. 49 a, 50 'i, h, as to when a freehold might pass without livery. Butler's note (1) to Co. Lit. 271 I, and to 330 // ; see Dae v. Taylor, 5 B. & Ad. 675 ; 1 Hayes Conv. 12. SECT. III. SEISIN AND CONVEYANCE OF FREEHOLD ESTATES. 33 A feoffment might be made with an express appropriation of Feoffment for the seisin to a series of estates in the form of particular estati .,j|!i and remainders, and the livery to the immediate tenant was then remainder. effectual to transfer the seisin to or on behalf of all the tenants in remainder, according to the estates limited. But future estat* - could only be limited in the form of remainders, and any limita- Limitations tions operating to shift the seisin otherwise than as remainders seis j n \ expectant upon the determination of the preceding estate were void at common law. Thus, upon a feoffment, with livery of seisin, to A. for life or in tail, and upon the determination of his estate to B., the future limitation takes effect as a remainder immediately expectant upon A.'s estate (d). But upon a feoffment to A. in fee or for life, and after one year to B. in fee ; — or to A. in fee, and upon his marriage to B. in fee ; — or to A. in fee or for life, and upon B. paying A. a sum of money to B. in fee, — the limitations shifting the seisin from A. to B. at the times and in the events specified, as they could not take effect as remainders, were wholly void at common law (c). Such limitations became possible in dealing with uses and in dispositions by will, as will appear hereafter. The exigencies of tenure required that the seisin or immediate Rnle a?ain>t freehold should never be in abeyance, but that there should at all the seisin. times be a tenant invested with the seisin ready, on the one hand, to meet the claims of the lord for the duties and services of the tenure, and, on the other hand, to meet adverse claims to the seisin, and to preserve it for the successors in the title (/). This rule had important effects upon the creation of freehold Limitation estates ; for it followed as an immediate consequence of the rule, ^ates. 6 as also from the nature of the essential act of conveyance by livery of seisin, that a grant of the freehold could not be made to commence at a future time, leaving the tenancy vacant during the interval (g). As a consequence of the same rule if a feoffment were made to Limitation A. for life and after his death and one day after to B. for life or the freehold, in fee, the limitation to B. was void, because it would leave the freehold without a tenant or in abeyance for a day after the death of A. (h). A remainder limited to an uncertain person or upon an Remainders. (d) Co, Lit. 143 a ; Williams, Seisin, As to the application of this rule in the 67, 169. case of equitable estates, see post, p. 108. (e) Co. Lit. 378, it seq. ; Fearne, (jj) Buckler's Case, -' Co. 55 a; Co. Cont. Rem. 307. Fit. l'17 ,/. (/) Butler's note (1), Co. Lit. 312 b. (/') Fearne, Cont. Rem. 307. L.P.L. D 34 PART f. CHAP. I. THE LAW OF FREEHOLD TENURE. Remainder in abeyance pending the part icnlar estate. Possession of leasehold. Lease for years did no! require livery Statute re- quiring leases to be in writing. Statute re- quiring deed. uncertain condition, and so long as the uncertainty lasted, became known as a contingent remainder. A remainder limited absolutely and to a determinate person, or which had become absolute and certain in ownership by subsequent events was a rested remainder ; the remainderman was presently invested with a portion of the seisin or freehold (i). The seisin or freehold in remainder might be in abeyance during the continuance of the particular estate ; for the present seisin of the tenant of that estate was sufficient to satisfy all the requirements of tenure, and it represented and supported all the future estates and interests, whether vested or contingent, in the fee. But it was essential that it should have l>ecome certain and absolute at the time when the particular estate determined ; and if not then ascertained, so as to be capable of taking up the seisin, it failed altogether, and the next estate in remainder took immediate effect (k). As will be mentioned hereafter, contingent remainders, which alone were affected by the feudal rule respect- ing the abeyance of the freehold, are now preserved from destruction by statutes (/). It may also be observed here, that a contingent remainder, whether legal or equitable, is void if obnoxious to the rule against perpetuities, unless saved by the statute De doiiis (in). As before stated, the word seisin has ceased to be used to describe the interest of a tenant for years or leaseholder in his own right ; he has no participation in the freehold, and is described in law simply as possessed. But his possession, being referred to the title of the freeholder under whom he holds, constitutes the seisin. The freeholder is still described as seised, though his seisin is subject to the lease for years (n). As a lease for years did not import a transfer of the seisin or freehold, it required no livery ; and at common law a lease for years might be made by mere parol, without deed or writing. The Statute of Frauds, 29 Car. II. c. 3, s. 1, required all leases to be made in writing and signed by tbe lessor or his agent ; excepting (s. 2) leases not exceeding three years from the making and on which a rent of two-thirds at least of the full value is reserved. The statute 8 & 9 Vict. c. 106, s. 3, enacted that all (i) Fearne, Cont. Rem. 215, see ante, p. 32. (ft) Fearne, Cont. Rem. 3, 281, 307. Set; per Farwell J., lie Ashforth, [ 1 9i 15 |. 1 Ch. 535, at p. 542, et seq. ; 74 L. J. Ch. 361. (0 See post, p. 240. (m) 13 £<1. I., stat, 1, c. 1 ; AbUss v. Burney, 17 Ch. D. 211 ; He Ash forth, | 1905] 1 Ch.535 ; 74 L. J. Ch. 361. See post, p. 318. (/() Be O'rci/ v. Richardson, 3 Atk. 469 ; Co. Lit. 200 b ; Butler's note (1) to Co. Lit. 330 b, ante, pp. 30, 31. SECT. III. SEISIN AND CONVEYANCE OF FREEHOLD ESTATES. 35 leases, required by law to be in writing, should be void at law unless made by deed (<>). If a lease were made for years with remainder over to another Lease for for an estate of freehold, for life or in tail or in fee, it was reminder of necessary for the lessor to make livery of seisin to the lessee for freehold. years before entry, in order to pass the remainder. If the lessee entered before livery, his estate in the term was perfected by the entry and the freehold and reversion was in the lessor ; and livery of seisin could not afterwards be made without the assent of the lessee, because the possession was already in the lessee (p). If a lease were made for years with a contingent remainder of Lease for ... . -t in -li years with freehold, the limitation in remainder was wholly void, because contingent it left the seisin in abeyance until the happening of the contin- j em ' h 1 " 1 ( ( , 1 er of gency ; nor could livery be given for such an estate for want of a present certain grantee of the freehold (q). Thus, "it is a general rule, that wherever an estate in contingent remainder amounts to a freehold, some vested estate of freehold must precede it" (?*). A lease for a term of years might be made to commence in Lease for . years to com- futuro, though a grant of the freehold could not ; because such rae nce in lease was merely an executory contract as to the possession, f uturo - which might be executed at the time agreed upon ; " as if a man make a lease for years to begin at Michaelmas next ensuing, it is good " (s). A deed or charter of feoffment was generally used to attest the Deed or char- livery of seisin and record the terms of the grant. Livery of meut> seisin was then expressed to be made according to the form of the deed, secundum for mam cartce ; and a memorandum of such livery was endorsed upon the deed. The deed or charter was not necessary to the feoffment at common law ; and in case of variance between the terms of the deed and of the feoffment, the latter as the efficient act prevailed ; unless the feoffment was expressly made according to the form of the deed, when the deed regulated the effect of the feoffment (t). The Statute of Frauds, 20 Car. II. c. 3, s. 1, first made a statutory re- quirements of (o) See Co. Lit. 48 a, 200 b. (7) Shares Case, ."> Co. 26 a ; Samme's i 'c'' tl ' | iicnt.- O0 Co. Lit. 49 a; Williams, Seisin, Case, 13 Co. 54 h. Thus— " If a man wncm & 100. See Doe v. Taylor, 5 B. & Ad. make a charter in fee and deliver seisin 575. for life secundum formam carta, the (ff) Ante, p. 33 ; Co. Lit. 217 a. whole fee simple shall pass."—'' If ;l (/•) Fearae, Cont. Rem. 281. See man make a lease for years by deed and Loyd v. Brooking, 1 Vent. 188. deliver seisin according to the form ami (s) BarvolelCs Case, 5 Co. 94 b. See effect of the deed, yet he hath but an Male v. Mackenzie, 1 M. & W. 747, estate for years and the livery is void." 759 ; and see ante, p. 31. Co. Lit. 48 a. D 2 30 PART I. CHAP. I. THE LAW OF FREEHOLD TENURE. Deed. writing necessary to a feoffment by enacting " that estates made or created by livery and seisin only, or by parol, and not put in writing and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of estates at will only." And the Real Property Act, 1845, s. 3, enacted " that a feoffment made after October 1, 1845, other than a feoffment made under a custom by an infant, shall be void at law unless evidenced by deed"(«). Freehold now lies in grant :is will as in livery. Bales of limitation in grants. Limitation to grantor at common law. The same statute dispensed with livery of seisin altogether by enacting (s. 2) that " after 1 October, 1845, all corporeal tene- ments and hereditaments shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery." Since this enactment a deed of grant alone is sufficient to convey freehold estates, and feoffment by livery of seisin may he described as obsolete, except in the case of a conveyance by a minor of gavelkind lands in Kent (x). The word " grant " has ceased to be a term of art, if indeed it ever was (y). It will be observed that no attempt has been made to alter the rules of common law above stated concerning the limitation of estates ; and although a deed of grant is now made effectual to pass the seisin and freehold without livery, it is not made effec- tual to pass the seisin infuturo, or to shift or suspend the seisin, or to leave it in abeyance. The same rules of limitation of estates apply now to a grant of the freehold, as before applied to a feoff- ment by livery of seisin (z). It is different with a grant operating under the Statute of Uses to he noticed hereafter (a). It was impossible for a person to make a direct conveyance to himself, so as to alter his title to his own property and take as purchaser from himself, by feoffment, grant, or any mode of conveyance known to the common law. The maxim applied " tie mo potest esse agens etpatiens" ; he could not be both feoffor and feoffee, or grantor and grantee. So, if upon a feoffment or grant he limited the estate to himself for life, with remainder to another, the remainder was void for want of a particular estate (k) 8&9Vict. c. 106. See Zimbler v. Abrahams, [1903] 1 K. B. 577; 72 L. J. Q. B. 103. It might be effective a- an agreement ; see Leake, Contracts, pp. 15»'>. ft sr//. See Re Maskell and (laid finch's Contract, [ 1895 J 2 Ch. 525; 64 L. J, Ch. 678. (//) Conveyancing and Law of Pro- perty Act, 1881 (44 & 45 Vict. c. 41), s. 49. See Chester v. Willan, 2 Wms. Saund. 283, and notes. (z) See 'ante, p. 33 ; Doc v. Prince. 20 L. J. C. P. 223. («) Post, Part I. Chap. III. " Law of Da -." SECT. III. SEISIN AND CONVEYANCE OF FREEHOLD ESTATES. 37 to support it (b). By making a conveyance to another and taking a re-conveyance to himself and his heirs, he might acquire a new title by purchase, which, if effective, would make an important difference in tracing the descent (c). Nor could a person by any common law conveyance make his heir a purchaser, for it was a maxim that lucre est pars anteces- soris. Thus, if a man made a gift in tail, or a lease for life, with remainder to his own right heirs, the limitation of the remainder was inoperative, being merely descriptive of the reversion remaining in him ; so if the remainder were limited to the heirs male of his own body, this was a void remainder, for the donor could not make his own right heir a purchaser (J). By the statute 3 & 4 Will. IV. c. 106 (the Inheritance Act, 1833), s. 3, it is enacted that " when any land shall have been limited by airy assurance (executed after 31st December, 1833), to the person or to the heirs of the person who shall thereby have conveyed the same land, such person shall be considered to have acquired the same as a purchaser by virtue of such assurance, and shall not be considered to be entitled thereto as his former estate or part thereof " (e). In the case of land where the title held has been registered under the Transfer of Land Acts, 1875 and 1897 (/), written instru- ments are not dispensed with, nor is the old method of convey- ancing entirely superseded ([/). Limitation to 't' the grantor. Limitation to grantor or his heirs creates new title by statute. Registered land. The distinction between grant and livery referred to the subject Distinction of , . « , • i grant and of conveyance. Things incapable of actual possession, of which, livery — therefore, no livery could be made, were said to lie in grant, ^^ ms that is to say, were conveyed by a deed of grant (/<)• Reversions and remainders, being incapable of possession Reversions during the continuance of the particular estate, were not the remainders. subject of livery, but were conveyed by deed of grant (i). If the (b) JJ hi// hum's Case, 2 Co. 91 ; per Hale, C. J., in Films v. Mitford, 1 Vent. 378 ; Southcot v. Stowell, 2 Mod. 210 ; 1 Sanders, Uses, 129. From the prin- •ciple of the common law that husband and wife are one person, it followed that .a husband could not during the cover- ture by any conveyance at common law limit an estate to his wife. (c) Co. Lit. 12 b ; Doe v. Morgan, 7 T. R. 103. A person might also con- -vey to himself under the Statute o£ Uses. See Bex v. Baldwere, 5 T. R. 104. (rl) Co. Lit. 22 b, " without departing of the whole fee simple out of him." £fresicold's Case, Dyer, 156 a. (c) Heywood v. Hey wood, 34 Beav. 317 ; Nanson v. Barnes, L. R. 7 Eq.250. See 1 Haves Conv. 315. (/) 38 & 39 Viet. c. 87; GO & 61 Vict. e. •;.">. (17) Capital and Counties Bank v. Wwdes, [1903] 1 Ch. 631 ; 72 L. J. Ch. 336. See forms published with the Land Transfer Rules. 1903. (A) As to the meaning of the word "gsant," see Shep. Touch. 228 ; I v. Willan, 2 Wms. Saund. 283; Doe v. Prince, 20 I.. .1. C. P. 223 ; Convey- ancing and Law of Property Act, 1881 (11 &45 Viet. c. 41). s. !'.». (0 See Doe v. Cole, 7 B. & C. 243. 38 PART I. CHAP. I. Till: LAW OF FREEHOLD TENURE. tenant of the particular estate and the reversioner joined in a feoffment, though without deed, it was supported by means of an implied surrender of the particular estate to the reversioner preceding the livery by him (/.). So, a feoffment by the rever- sioner to the tenant of the particular estate might be supported by an implied surrender of the particular estate preceding the livery (I). Future Future limitations of an estate in reversion or remainder were lvvei ''ionsand !SU ' , J6ct to the same rules as a feoffment of the present seisin. A remainders, grant of a reversion or remainder could not be made to A. from Christmas next, or to A. for life and after his death and one year to B. ; but it might be made for a particular estate with re- mainder, vested or contingent, as to A. for life with remainder to ]>., or with remainder to the heirs or children of B. not yet born (m). The class of rights and interest in land known as incorporeal hereditaments, comprising seignories, rents and services, rights of profit or use in the land of another, as rights of common, rights of way and the like, when taken as separate subjects of property and not as incident or appurtenant to other land, being incapable of actual possession or seisin, lie in grant, that is, are conveyed by deed of grant ; nor can any estate or interest in them be created except by deed (»). Incorporeal heredita- ments. Attornment to grant necessary at common law. Grant made effectual without attornment by statute. Upon the grant of a manor or seignory to which tenure with rent or other services was incident, attornment or consent of the tenant to hold of the grantee was necessary at common law to give effect to the grant, as it was to perfect a grant of the rever- sion of a particular estate, for years, or for life, or in tail (o). The necessity for attornment in these cases was taken away by the statute of 4 Anne, c. 16 ; but the statute provides that the tenant shall not be prejudiced or damaged by payment of any rent to any grantor, or by breach of any condition for non-pay- ment of rent, before notice shall be given to him of such grant by the grantor (p). And the Distress for Rent Act, 1737 (q), after (/<:) Bredovls Case, 1 Co. 70 a ; Tre- port's ('use. i, ( !o. 15 (i ; see Doe v. Lynes, 3 B. & C. 388 ; Co. Lit. 48 //. (/) Lancastel v. Aller, Dyer, 358a. (»/) See ante, p. 33; 1 Haves I'onv. 21. O) Co. Lit. 9 h. 49 „. 121 t, 172 a; Somerset (Duke) v. Fog well, ."> B. & <'. 876 ; Gardiner v. Williamson, 2B.& A'!. 336 ; see Coryton v. Lithehye, 2 Wins. Saund. 302 n. (c). (<0 Thursby v. Plant, 1 Wins. Saund. 281 n (4) ; Vigers v. St. Pauls (Dean~) t 14 o. B. 909 : 1!) L. J. Q. B. 84. See Butler's note (1), Co. Lit. 309 a. The attornment of a tenant could not be compelled even in Chancery. Cary, p. 6. O) 4 Anne, c. 10, ss. 9, 10 ; Be Nicholh v. Saunders, L. It. r, C. P. 589 ; Cook v. Guerra, L. R. 7 C. F. 132. 0/) 11 Geo. II. c. 19, b. 11. SECT. III. SEISIN AND CONVEYANCE OF FREEHOLD ESTATES. 39 reciting that the possession of estates in land is rendered very Attornment precarious by the frequent and fraudulent practice of tenants in claimant attorning to strangers who claim title to the estates of their landlords or lessors, enacts that all such attornments of any tenants shall be absolutely null and void, and the possession of their respective landlords or lessors shall not be anywise changed, altered or affected by any such attornments. A grant of a reversion or remainder to a person having a prior Release, vested estate in the land was distinguished as a Release. Such conveyance, like a grant, required to be by deed under seal, and differed from a grant only in its special effect and operation in enlarging the previous estate (r). A lessee for years, or even a lessee at will, after entry, might Kelease to take the freehold reversion by release ; but not before entry, , because he then had but an interesse termini and no possession, and the release by way of enlarging an estate could only operate upon a possession ; before entry there was no reversion and the immediate freehold could only pass by livery (s). The capacity of a lessee for years to take the reversion b}- conveyance release, supplied the means in early times of conveying an £ ^^,1 immediate freehold without livery of seisin. A lease for a year release was first made under which the lessee obtained possession by i; ve rv. entry, and was then in a position to take the reversion by release. By the lease and release thus executed the freehold was conve} T ed as effectually as by feoffment with livery of seisin {t). After the passing of the Statute of Uses («) the necessity of an Lease for actual entry to perfect the estate of the lessee was obviated by bargaii^and making a bargain and sale for a year instead of a lease for a sale without year at common law ; a use was thereby created in the lessee which was at once executed in possession by mere force of the statute, as hereafter explained. In this form the conveyance by lease and release, without entry or livery of seisin, continued in use for the transfer of freehold estates until quite recent times (x). The statute 4 Vict. c. 21, s. 1, further simplified this mode of statute conveyance by rendering a release alone as effectual for the ]"^!"%^ t * ual conveyance of freehold estates as if the releasing party had also without lease. O) Lit. s. 465 ; Co. Lit. 273 a ; as to (0 2 Sanders, Uses, 62, citing Year the different kinds and operations of Books, 11 Hen. IV., 33 ; 21 Ed. IV. 24. releases, see Lit s. 444 ; Co. Lit. ib. ; («) 27 Hen. VIII. c. 10. Butler's note (1) to Co. Lit. 267 a. (#) 2 Sanders, Uses, G2 ; see post, 0) Co. Lit. 46 b, 270 a. See Doe v. p. 85. Walker, 5 B. & C. 111. 40 PART I. CHAP. I. THE LAW OF FRKKHoLD TFXl'LF. Lease and release superseded by grant. executed a deed of bargain and sale or lease for a year for giving effect to such release. But the conveyance by lease and release is now superseded altogether by a simple direct conveyance by deed, or a transaction under the Transfer of Land Acts (//). Disseisin. Disseisin divested remainders and reversion. Conveyances having tortious operation, — feoffment by tenant of 1 particular estate, operated as a forfeiture, Disseisin was a wrongful entry upon the land and ouster or dispossession of the freeholder. An entry, or perception of the rents and profits, under colour of an adverse title, although evidence of an ouster, might be explained by the circumstances, and not amount to a disseisin (z). The disseisor acquired, by his wrongful act, an estate in fee simple, as against all but the real owner, and upon this title he might maintain an action of ejectment against a stranger to the title who had ousted him (a). The disseisee retained a mere right of entry which, if exercised within the limits of time which were periodically fixed by law, revested the estate in him (b). Disseisin of the tenant of a particular estate disseised or divested all the estates in remainder or reversion, and con- verted them into mere rights of entry, exerciseable in their order of succession (c). The tenant himself of the particular estate whether for life, or for years, having the actual seisin, had it in his power to make a feoffment to another by livery, which effectually conveyed the fee, if it in terms imported to do so, irrespectively of his own estate or interest ; and such feoffment disseised all the estates in remainder or in reversion dependent upon his seisin and converted them into rights of entry (J). Feoffment by tenant in tail operated rightfully at common law, but was provided against by the statute De donis, giving a writ of formedon to the issue or reversioner or remainderman. It therefore took away the right of entry and left only the right of action under the statute (c). But such act on the part of the tenant for life or for years was a direct breach of the conditions of his tenure, and operated as a forfeiture of his estate, which thus became merged or ex- tinguished in the reversion or seignory, and the reversioner or (//) See ante, p. 36. (1-) Jerritt v. Weave, 3 Pri. 575; Bvshby v. Dixon, 3 B. & C. 298. Bee Li/ell v. A, nnedy, It A. I '. 137 ; 59 L. J. Q. P.. 2fi8. O) Ather v. Whitloch, L. 11. 1 Q. P.. 1 : Leach v.«7ay,9Ch. D.42 ; 17 L.J. Ch. 876 : Rosenburg v. Cook, 8 Q. B. D. 1G2 ; Bl 1,. J. Q. B. 17(1: Pern/ v. CliiSoU, [1907 J A. C. 73 ; 7. 42. (r) See ante, p. 32. (d) Co. Lit. 330 b, and Butler's note (1) ib. (>•) Co. Lit. 326 b, 327 a, b ; see ante, p. 20. SECT. III. SEISIN AND CONVEYANCE OF FREEHOLD ESTA 1 ES. 41 next remainderman became entitled to the immediate possession •with the right to enter accordingly (/). In such case if the next estate in remainder was then in contingency so that it could not take effect in possession, it failed altogether, and the next vested remainder took immediate effect, because the freehold could not remain in abeyance. Con- tingent remainders might thus be destroyed by a feoffment oi the tenant of the particular estate ; and it was formerly the practice to use feoffments for this purpose (//). Sect. 4 of the Eeal Property Act, 1845 (//),' provided that a feoffment executed after October 1, 1845, should not have a tortious operation. It is possible that the courts would have held that this enactment had overridden the decided cases (i). But the matter was put beyond doubt by sect. 8 of the same statute, which provided that contingent remainders should be capable of taking effect, not- withstanding the determination by forfeiture of any preceding estate of freehold in the same manner as if such determination had not happened. A fine or recovery, in general, had the same efficacy as a feoffment in conveying the fee, if it purported to do so ; and if by a tenant for life, it induced a forfeiture of his estate if the estate in remainder were vested, but destroyed contingent re- mainders immediately expectant (A). This cause of forfeiture was abolished by the Fines and Recoveries Act, 1833, s. 2(/). Conveyances by deed without livery, as a grant, release, or a lease and release, in whatever terms, had no effect beyond the estate and interest which the person executing might rightfully convey. Those conveyances only which operated directly upon the seisin, as feoffments, fines and recoveries could operate tortiously according to their import, irrespectively of the estate of the party conveying (m). So, of things lying in grant as rents, commons, reversions and remainders, the con- veyance, though importing to be in fee, had no tortious effect, nor did it induce a forfeiture, for nothing passed thereby but that which rightfully might pass (h). destroy oil contin remainders. Contingent remainders preserved by statute. Fines and recoveries. Grant and release had no tortious operation. (/) Co. Lit. 233 b, Butler's note, ib. ; Co. Lit, 251 a, b, 252 a ; Gilbert's Tenures. 38, 39 ; see Doe v. LyTiex, 3 B. & C. 388. Qj~) Archers Case, 1 Co. 66 J ; Hasher v. Sutton, 1 Bing. 500. See post, p. 238. (A) 8 & 9 Vict. c. 106. ' (/) See Smith v. Clyfford, 1 T. It. 738. (It) Smith v. Clyfford, 1 T. It. 738; Doc v. Gatacre, 5 Bing. N. C. 608. As to the effect of a fine or recovery by tenanl in tail, see ante, p. 26. Fine by lessee for year- operated only by estoppel between the parties and Lad no ulterior effeel ; see Fermor's Case, :> Co. 77 a ; Park-hurst v. Smith,3 Atk. 135, 141. (0 3 & 4 Will. IV. c. 74. (m) Co. Lit. 332a; Butler's note to Co. Lit. 330 a. («) Co. Lit 251 b. 42 PART I. CHAP. I. THE LAW OF FREEHOLD TENURE. Right of entry. Right of entry lost by descent east, by discon- tinuance, preserve< 1 by continual claim . Right of action. Statute aboli>hing real act descent cast and discon- tinuance. Limitation of entry or action An entry on the land within the time allowed by law restored the seisin, and, if made by the tenant of a particular estate, it restored or revested the estates in remainder or reversion, which were dependent upon the same title. Hence a right of entry was sufficient to preserve a contingent remainder (<>). It is to be observed that the entry of the disseisee before his right is barred by lapse of time restores him to his former title by rela- tion back. He may therefore maintain an action against a trespasser for a wrong done between the date of disseisin and entry (p). And even before a change in the law enabled after- acquired freehold estates to be devised, the entry of the disseisee validated a devise of lands made while he was out of posses- sion (q). The right of entry, arising upon a disseisin, was lost in certain events ; as by the seisin being cast by descent upon the heir of the disseisor, which was technically called a descent cast (r) ; — also by an alienation of the fee by the disseisor to another, which was called a discontinuance of the possession (s). On the other hand, the right of entry might be kept alive against a descent cast by the process of continual claim {t). Where the right of entry was lost there remained a mere right of action, to be prosecuted within certain limits of time in the form of real action provided for the circumstances of the ease(w). The doctrines concerning rights of entry and of action and the proceedings in real actions were highly technical and elaborate, and formed a large and complicated branch of the law of real property, until the amendments of the law made by the Real Property Limitation Act, 1833 (x). By that statute, s. 36, real actions were put an end to with three exceptions, which were subsequently abolished, and the action of ejectment, or as it is now known, an action for the recovery of land, is the appropriate remedy at law for the recovery of the possession of land. By the same statute the right of entry or action is no longer defeated by a descent cast or a discontinuance (s. 39) ; and and it is exempted from all other casualties except lapse of time. But it must be prosecuted within twelve years next after the («) A rcher't ('use, 1 Co. 66 b ; Fearne, Cont. Rein. 286. (_//) Burnet v. Guildford {Earl), 11 Ex. 19 ; 24 L. J. Ex. 281 ; Ocean Acci- dent and 1 1 mi ranter Cm p. v.Jl/ord Gas Co., [1905] 2 K. B. 4 facit stipitem. The title by descent was traced from the person last seised (a). The heir originally derived title from the terms of the grant, per for mam doni, and must accordingly have traced his descent from the original grantee or purchaser ; but the adoption of the seisin as the root of descent was a maxim of convenience to avoid further inquiry into the origin of the title (6). (y) Peal Property Limitation Act (a) Co. Lit. 11 b ; Bracton, 65 t : -' 1874. 37 & 38 Vict. c. 57. Blackst. Com. 209 ; Williams, Seisin, 51. (as) Co. Lit. 214 f/, 266 a; Perkins, (//) See ante, p. 22 ; Wright, Tenures, ss. 85, 86, 156, 271 ; see Oulley v. 185. Taylerson, 11 A. k, E. 1008, 1020. 44 PART I. CHAP. I. THE LAW OF FREEHOLD TENURE. Seisin of heir, of pin of disseisor. Descent from j mic baser, under Inheri- tance Act. According to the above maxim, an heir, by obtaining seisin in fact, (either by entry or through the possession of a tenant), constituted himself a new root of inheritance ; his heir was not necessarily the heir of the purchaser. The seisin in law which vested in an heir before entry was not sufficient to change the root of descent from his ancestor, as being the person last seised (c). A purchaser, or person entitled otherwise than by descent, had in all cases sufficient seisin to make the root of descent (d). A disseisor could transmit the seisin by descent, and the descent cast (until January 1, 1834) took away the right of entry of the disseisee (e). The Inheritance Act, 1833 (/) (applying to all descents after that date), restored the original principle of descent by enacting that " in every case descent shall be traced from the purchaser." But it added the rule that " the person last entitled to the land shall be considered to have been the purchaser thereof, unless it shall be proved that he inherited the same." This rule, enacted as a substitute for the above common law maxim as to seisin, " to the intent that the pedigree may never be carried further back than the circumstances of the case and the nature of the title shall require," more nearly satisfies the original principle of reaching the purchaser. Descent re- stricted to blood of purchaser. Breaking the descent. Notwithstanding the force attributed to seisin as the root of descent, the principle of descent from the purchaser appeared in the rule of common law which confined the descent to the blood of the jmrchaser ; according to which rule the heirs on the mother's side were excluded from an inheritance descended from the father, and conversely ([/). The above rule is now included as a consequence of the new rule of the Inheritance Act, 1833, that in every case descent shall be traced from the purchaser. A person taking by descent might by various means acquire a new title by purchase and so break the former line of descent and constitute himself a new root, not only as regards the seisin, but for all purposes. He might thus admit both his paternal and maternal lines of heirs, on whichever side the inheritance might have descended upon him. The Inheritance Act (s. 3) renders a direct conveyance to himself sufficient for this purpose, before which enactment it required, at common law, a feoffment {r) Co. Lit. 14 h, 15 a; Goodtitle v. Newman, 3 W'il-. ."Id. (£ the paternal line Primogeni- ture. Parceners. Lineal ances- tors excluded at common law. Collateral descent. rule of descent males were preferred to females in each degree ; or, as it was expressed, the worthiest of blond should inherit. Therefore the son was preferred before the daughter, the brother before the sister, the uncle before the aunt(n). According to this rule, in collateral descent from a purchaser, though the heirs on the side of both parents might inherit, yet nil those on the father's side, including females, were preferred before any on the mother's side. Thus Coke says : "Here it is to be understood that the father hath two immediate bloods in him, viz., the blood of his father and the blood of his mother. And both these bloods of the part of the father must be spent before the heir of the blood of the part of the mother shall inherit. And the reason of all this is, for that the blood of the part of the father is more worthy, and more near in judgment of law, than the blood of the part of the mother " (o). The exigencies of feudal tenure also required, in general, a single tenant to secure the performance of the services and duties of the fee ; and the eldest was selected amongst males of equal degree, except in the cases where the custom of gavelkind obtained, as in Kent (p). With females, there being no capacity for the active duties of tenure, all took together as one heir to their ancestor ; but the law enabled them to obtain a partition of the land, whence they were called parceners {q). The common law excluded lineal ancestors as such, it being a maxim that an inheritance could descend but not ascend (?•), but it admitted collaterals to inherit in their own right, as brothers and sisters, uncles, great-uncles, etc., who were traced from the ancestors in ascending order. Hence, according to Coke, " a division of heirs, viz., lineal (who shall first inherit) and col- lateral (who are to inherit for default of lineal) ; for in descents it is a maxim in law, quod linea recta semper prcejertur trans- versali. Lineal descent is conveyed downward in a right line ; as from the grandfather to the father, from the father to the son, etc. Collateral descent is derived from the side of the lineal ; as grandfather's brother, father's brother, etc. — and the father's brother and his posterity shall inherit before the grand- er Co. Lit. 14 a. («) Co. Lit. 12 b ; 14 a. (j>) Co. Lit. 14 a. Glai.vill, 1. 7, c. 3 Common Law. by Lunnington, HI 2. (q) Due v. Pewrson, 6 East, 173 : Hex v. Honsall, 3 B. & C. 173 ; see Roe v. nd see Co. Lit. Sec ante, p. 17; Hair's Hist, of Rowlstan, 2 Taunt. 441 ; Due v. Dixon, 5 A. & E. 834 ; 6 L. J. K. B. 61 ; Co. Lit. 163 b. The common law writ of partition was taken away by 3 & 4 Will. IV. c. 27, s. 36, and the proceed- ing is now by action for partition. (/•) Lit. s. 3 ; Co. Lit. 10 b, 11 a. SECT. IV. DESCENT. 47 father's brother and his posterity " (s). As the inheritance could not ascend in a right line, the father could not succeed to the inheritance of the son except as collateral heir to the uncle, if the latter by dying seised formed a new root of descent (t). The Inheritance Act, 1833, altered the law both as to lineal Lineal ances- ancestors and collaterals. It renders the lineal ancestors capable by the. of inheriting and ranks them in ascending order next after Inheritance the issue of the purchaser; and at the same time it excludes c ' , collateral inheritance, except by right of representation to the des , / v excluded. ancestor (u). The right of representation to a deceased ancestor, who, if he Right of had lived, would have inherited, remains as at common law ; his t j on t0 eldest son or other lineal heir inherits by right of representation, deceased J .° L ancestor. Thus, a child or grandchild or remoter lineal descendant of a deceased eldest son succeeds before a younger son. " Whensoever the father, if he had lived, should have inherited, his lineal heir by ri^ht of representation shall inherit before any other, though another be, jure propinquitatis, nearer of blood " (x). The modern rules governing the devolution of an estate in fee simple as settled by the Inheritance Act, 1833, may be thus summarised : — I. The descent is traced from the purchaser in the descending scale. Males are preferred to females. And among males primogeniture prevails. II. In default of lineal descendants, the line is traced upward with a like preference for the male line and seniority, but the line is never to be traced upward further than the exigencies of the case require; and as soon as an ancestor is found who had descendants the line is traced downward, as in rule I., until that posterity is exhausted. III. Where females inherit, if there is more than one, all members of the same class take an equal partible share which devolves in the descending scale upon the descendants of the daughter with priority of males and birth as in rule I., and failing descendants the line is traced in an upward and downward scale, as in rule II. (y). IV. Where relations of the whole blood fail, relations of the half blood succeed next after any relation in the same degree of 0) Co. Lit. 10 b, 13 b ; Lit. ss. 2, 5. (.r) Co. Lit 10 b ; 2 Blackst. Com. (f) Lit. s. 3. 216. (it) Sects. 1 5, 6, and see as to the (y) Cooper v. France, 11) L. J. Ch. order of ancestral descent, ss. 7, 8. 313. 48 PART I. CHAP. I. THE LAW OF FREEHOLD TENURE. the whole hlood where the common ancestor is a male, and next after the common ancestor where the ancestor is a female. Y. Descendants cannot take in competition with their imme- diate ancestor. Part I. of the Land Transfer Act, 1897 (e), does not affect the right of the heir claiming by descent or devise, but expressly empowers him to call for a conveyance from the personal repre- sentative in whom the real estate is temporarily vested by the statute for the purpose of administration. § 2. Disposition by Will. Land not devisable at common law — except by special custom— u-es in equity devisable — until the Statute of Uses. Statutes of Wills— Statute of Frauds— the Wills Act, 1 Vict. c. 26. Disposition by will — how far subject to the rules of common law— how far independent of those rules— devises of future estates. Construction of wills — use of technical terms. Land not devisable at common law, except by special custom. Uses in equity devisable, — until the Statute of Uses. The feudal principles of the common law did not admit of a disposition by will of land of freehold tenure. Upon the death of the tenant his heir was originally entitled by the terms of the grant ; and though afterwards the title of the heir became liable to be defeated b}>- an alienation of the ancestor during life, it was never defeasible at common law by a devise or testamentary disposition at death. Land was devisable by will in some places by special custom, as lands of gavelkind tenure in the county of Kent, land in the City of London, and in some boroughs ; which customs are supposed to be relics of the earlier and prse-feudal common law (a). Under the system of uses, to be noticed presently, the use or beneficial interest in the land, as recognized in the Court of Chancery, became disposable by will ; and a testamentary dis- position of land might be effected by conveying it to be held to the uses to be declared by will (b). The Statute of Uses, 27 Hen. VIII., by the conversion of uses into legal estates, took away this capacity of testamentary disposition ; but, probably for that reason, it was soon followed by the Statute of Wills, conferring a direct testamentary power over the legal estate. (.-) 60 k 61 Vict. c. 65. (//) See ante, p. 23 ; Lit. s. 167; Co. Lit. Ill a \ Hargrave's note(l) on Co. Lit. Ill b; Wild's Case, 6 Co. 16 b ; Kobinson on Gavelkind, b. ii. c. v. (J)) Lit. ss. 462, 463 ; Co. Lit. ib. ; Perkins, ss. 528, 538 ; Clere's Case, 6 Co. 17 b ; sec post, p. 80. SECT. IV. DISPOSITION BY WILL. 49 These statutes, 32 Hen. VEIL c. 1 and 34 & 35 Hen. VIIL Statutes of c. 5, empowered a tenant in fee simple to give, dispose, will or devise to any person or persons by his last will and testament in writing, all his manors, lands, tenements, rents and heredita- ments or any of them, " at his own free will and pleasure." The power was expressly restricted, as to lands held by the tenure of knight's service, to the extent of two-thirds of such lands only. But the statute 12 Car. II. c. 24, which afterwards converted the tenure of knight service into socage tenure, abolished this restric- tion, and rendered all lands of freehold tenure uniformly dis- posable by will (c). The Statute of Frauds, 29 Car. II. c. 3, s. 5, invalidated devises statute of and bequests of any lands or tenements devisable either by force the form of of any statute, or any custom, unless in writing, and signed by wills - the party so devising the same, or by some other person in his presence and by his express directions, and attested and sub- scribed in the presence of the devisor by three or four credible witnesses. Sect. 6 prescribed the modes by which devises might be revoked (d). The above enactments were all repealed by the last Wills Act, The Wills Act. 18S7 1837, 1 Vict. c. 26, s. 2 (except as to wills made before 1838, sect. 34) ; and this statute requires all gifts by will to be in writing signed by the testator, or by some other person with his authority, made or acknowledged in the presence of and attested by two witnesses who must be present at the same time, and attest the signature of testator in the presence of each other. The Wills Act, 1837, requires that the signature of the testator should be " at the foot or end thereof," and an elaborate gloss has been given for these words by sect. 1 of the Wills Act Amendment Act, 1852 (15 & 16 Vict. c. 24). The statutory power of dis- appointing the expectations of the heir has always been regarded as a qualification upon his common law right to succeed his ancestor in the possession or enjoyment of the estate, and no principle is better established than that the heir shall take all the fee simple lands that are not effectively disposed of by the will (e). This rule formerly placed the heir in a very advantageous position, but the greater freedom of expression now conferred upon testators by sects. 24, 27, and 28 of the Wills Act, 1837, has narrowed its scope, although it has not been abrogated (/). (e) Co. Lit. Ill b; Hargrave's notes (e) Note (2) to Cook v. Gerrard, 1 (ib.) ; see Butler's note to Co. Lit. 271 i, Wins. Saund. 172 ; Shuldham v. Smith, III. 5. 6 Dow. 22; Cooke \. Stationm'*' Co., 3 (d) See Hargrave's note (3) to Co. Lit. My. & K. 262. Ill b. (/) See Windus v. Windus, 6 De G. L.P.L. E 50 PART L CHAP. I. THE LAW OF FREEHOLD TENURE. Part I. of the Land Transfer Act, 1897 (g), vests the real estate of testators in their personal representatives notwithstanding any testamentary disposition, but this is only for the purposes of the administration of assets, and when those purposes are satis- fied the devisee may require the personal representative to transfer the real estate to him. Disposition by will. How far subject to the rules of the common law. How far inde- pendent of rules of law. Devises of future estates. A disposition by will, equally with a disposition by deed, is subject to the general rules of the common law regulating the estates or interests which may be given. A testator can only devise such estates as are known to the law, nor can he alter or take away the legal incidents and qualities of such estates ; for instance, he cannot render estates of inheritance inalienable, nor alter the law of inheritance (h). But the power of disposition by will, being derived directly from the statute, is for the most part independent of the restric- tions imposed by the peculiar feudal doctrines of the common law, and by the common law forms of conveyance. Devises of free- hold estates were operative without livery of seisin, and without attornment, before these formalities were dispensed with by statute (/). Devises of freehold estates may be made to take effect in future, at a future date or upon any specified event, leaving the inheritance in the meantime to descend to the heir ; or such devises may be made to take effect in defeasance of and in substitution for preceding clevises — although such limitations of estates are contrary to the rules of the common law, which admit no future limitations or substitutions of the tenancy, except by way of remainders (/.). These future devises are analogous to the springing and shifting uses which became legal limitations under the Statute of Uses, and they are called dis- tinctively executory devises (/). Construction of wills. The testator, in expressing his intention, is not restricted to the technical language of the common law ; nor to any technical rules, beyond the rules of construction which, with some aid M. & <;. 549 ; 26 L. J. Ch. 185 ; Attree v. Attree, L. R. 11 Eq. 280; 40 L.J. Ch. 192 ; Hall v. Hall, [1892] 1 ( h. 361 : 61 L. J. Ch. 289; lie Ashforth, 1905] 1 Ch. 535; 74 L. J. Ch. 361 ; Asten v. Asten, [1894] 3 Ch. 260; 63 L.J. Ch. 834; Re Gibbs, [1907] 1 Ch. 465 : 76 L. J. Ch. 238. ((f) 60 k. 61 Vict. c. 65. (A) King v. Burchell, 1 Eden, 424 ; Hayes v. Foorde, 2 W. Bl. 698 ; Chapman v. Brown, 9 Jur. N. S. 993 ; Holmes v. Godson, 8 De G. M. & G. 152 ; 25 L. J. Ch. 317 : Re Dixon, [1903] 2 Ch. 458. " Albeit a devise may create an inheri- tance by other winds than a gift can, yet cannot a devise direct an inheritance to descend against the rule of law." < !o. Lit. 25 a. See Pelham Clinton v. New- castle (Duhe), [1903] A. C. Ill ; 72 L. J. Ch. 424. (i) Lit. s. 586. (/.•) See ante, p. 33. (I) See post, \>\> 88, 257. .SECT. IV. DISPOSITION BY WILL. 51 from statutes, have been developed by judicial criticism and authority. " It is a rule in the judicial exposition of wills, that technical Presumptive words, or words of known legal import, are to be considered as [echnicai° £ having been used in their technical sense, or according to their terms - strict acceptation, unless the context contains a clear indication to the contrary" (m). Hence devises in the terms of common law are construed according to the rules of common law, as in a deed (») ; so devises to uses expressly declared are presumed to be intended to pass estates according to the operation of the Statute of Uses, and are so construed (o). O) Parke, P.., Winter v. PerraU, 9 F. 67 ; VanGruttenv. Foxwell, [1897] CI. & F. 606, 671 : Roddy v. Fitzgerald, A. C. 658 ; 66 L. J. Ch. 745. 6 H. L. C. 823 ; Van Grutten v. Foxwell, O) Baker v. White, L. \\. 20 Eq. 166 ; [1897] A. C. 658; 66 L. .J. Q. B. 74:.; 41 L.J. Ch. 65] : Van Grutten v. Fox- Pelliam Clinton v. Newcastle (DuJte'), well, [1897] A. C. 658; G6 L. J. Ch. [1903] A. C. HI ; 72 L. J. ch. 124. 745. See post, p. 95. («) Fetlierston v. Fetherston, 3 CI. & E 2 52 PART I. CHAP. II. CUSTOMARY TENURE. CHAPTER II. Customary Tenure. Section I. Origin and form of customary trnure. II. Limitation and transfer of customary estates. III. Rights and Remedies incident to customary tenure. IV. Extinguishment, Rcgrant and Enfranchisement. Section I. Origin and Form of Customary Tenure. Origin of customary tenure — Yillenage — services of villenage. Form of customary tenure — tenancy at will of the lord — conveyance by surrender and admittance — title by copy of court roll. Customary Court — court rolls. Customs of manors — general customs — special customs — evidence of customs. Land is not grantable by copy, except by custom — custom to grant waste by copy. Copyhold and customary freehold — Special forms of customary tenure. Customary tenures excepted from 12 Car. II. — application of statutes to customary tenure. Origin of customary tenure. Yillenage. The law of freehold tenure is of universal application, extend- ing over all lands within the realm. Customary tenure exists only in certain places, concurrently with the freehold tenure ; and in those places the rights of the freeholder are subjected to the rights of the customary tenant. The origin of customary tenure is in part matter of conjecture. The task of tracing the system back to its starting point has recently occupied the attention of persons competent to deal with the subject, and they warn us to be careful in the inferences which we may attempt to draw from the materials which have come down to us. Under the manorial system described in the last chapter the territory of the manor was partly held by the lord in demesne, and partly granted out in fee to freehold tenants upon services. Of the demesne lands part were occupied by the lord himself, and part were usually allotted to a class of tenants to whom freehold estates, with the attendant rights of freeholders, were not conceded. This class consisted of persons called villeins. The villein was in a servile condition, but was not a slave, for the SECT. I. ORIGIN AND FORM OF CUSTOMARY TENURE. 53 terms villanus and serous occur in passage after passage in Domesday Book as representing distinct personalities. At a later stage, we find apparently two classes, namely, villeins regardant, who passed by conveyance as parcel of the manor, and villeins in gross, who were not appurtenant to any manor or land. This division into two distinct classes is later than the fourteen tli century, when the distinction was apparently used to express the position of the villein from two points of view. The customary tenant whom we call a copyholder is the modern representative of the villein regardant as we know him at a later stage ('0- Villeins regardant occupied the parcels of land, necessarily allotted to them for dwelling and maintenance, by a tenure called villenage, holding at the will of the lord and being removable at his pleasure. In course of time the usage prevailing in the manor in regard to these tenants, under the control and influence of the general law of the land, imposed restrictions upon the lord's absolute right to dispossess them and to the disposal of their persons and. services, until by force of custom they ultimately acquired the fixity of tenure, together with the freedom of persons and certainty of service, which appears in modern times in customary tenure. Thus, in relation to freehold tenure these lands were still reputed to be demesne lands, being held at the will of the lord and resumable at pleasure ; but under the customary tenure they became tenemental according to the custom of the manor (/>). The services of villenage consisted chiefly of agricultural labour Services of on the lord's demesne lands ; and though originally arbitrary in kind and quality as regards the pure villein, they were afterwards regulated by the custom of the manor. In course of time they were, for the most part, commuted, like other services, into money payments or rents, and thus became rent service recover- able by distress (c). Customary tenure in point of form bears the distinctive cnarac- Form of teristics of its origin. The two principal denominations are copy- tenure!*"^ hold and customary freehold, although the latter is not a distinc- tive term, as will appear hereafter ( ; Laughter Caley, (1618) Noy, 27. v. Humphrey, Cro. El. 521. See mite, (V) Ante, p. 15 ; Co. Lit, 116a; Co. p. It!. Cop. ss. 12, 13, 14, 32 ; Browii's Case, (jl) Post, p. 58. 54 PART I. CHAP. II. CUSTOMARY TENURE. Conveyance l>y surrender and admit- tance. Title by copy of court roll. is described as holding at the will of the lord, according to the custom of the manor ; in the latter, he is described as holding according to the custom of the manor (e). The copyholder has no power of disposition by feoffment, grant, or other common law conveyance, but only by surrender and admittance. By custom he may surrender his tenancy to the lord to the use of any person or persons designated by him ; and the lord is bound to admit such persons into the tenancy according to the uses declared in the surrender so far as they are warranted by the estate of the tenant, and the custom of the manor (/). The customary free- holder is distinguished from a freeholder enjoying a common law estate, by reason of the privity of the lord being essential to complete his title, for the freehold of these tenements is in the lord and not in the tenant (g). The surrender and admittance and all other transactions relating to the title are entered upon the rolls of the court of the manor. Copies of the rolls are delivered by the steward to the tenants as evidence of their title ; whence the tenure is called copyhold, and the tenants are called copyholders, as holding by copy oj court roll {It). Customary Court. The court rolls. The court in question is the customary branch of the Court Baron, already referred to ; in this branch of the court the lord or his steward is the sole judge. The customary court may be held notwithstanding the freehold branch of the Court Baron has become extinguished, and the manor in its legal integrity destoryed, so as to remain only a manor by repute (>)• The Copyhold Act, 1894 (Ic), sect. 82, enables the lord or steward to hold a customary court, though there be no copyhold tenants of the manor, or though there be no such tenant present at such court. The court rolls are the property of the lord, but the steward has, during the continuance of his appointment, the right to maintain the custody of them(/), for the benefit of persons interested, who may obtain inspection of the parts concerning their interest by mandamus or order of the court upon showing (p) See Potter v. North, 1 Wms. I. I 35, 646, n 8). (/) Co. Lit. 58 b : Bullock v.Dibley, 4 Co. 23 a ; Keen v. Kirby, 1 -Mod. 199 ; 2 Mod. 32; Doe v. Tomkins, 11 East, 18. r > ; Doe v. Webber, 3 Bing. N. C. 922. (-7) Page ■?. Smith, 3 Salk. 100; Bing- ham v. Woodgate, 1 R. & M. 32, 750; Thompson v. Hardinge, 1 C. I'.. 940; 14 L. J. C. P. 268; Passingham v. Pitty, 17 C. !'.. 299 ; 25 L. .1. C. P. 4 ; Port- land [Duke) v. Hill, L. ft. 2 £q. 765; 35 I.. .1. Ch. 239. (//) Co. Lit. 58 a ; Doe v. Danvers, 7 Ei st,299 ; Doe v. Llewillin, 2 Cr. M. & R. 503; 5 L. J. Ex. 84; see Combe's Case, 9 Co. 76 b. (/') See ante, pp. 13, 14. 15 ; see also Holroyd v. Breare, 2 B. & Aid. 473. (/) .".7 & 58 Vict. c. 46. (/) Reg. v. Bishop's Stoke, 8 Dowl. P. C. 608 ; Re Jennings, [1903] 1 Ch. 906 ; 72 L. J. Ch. 454. .See Elston v. Wood, 2 My. & K. 678. SECT. I. ORIGIN AND FORM OF CUSTOMARY TENURE. 55 a. prima facie title (m). The lord should be the party against whom the proceedings are directed, and in proceedings by man- damus the steward has also been included (n) ; and where the Icrdship is vested in the Crown, the remedy by mandamus is not available (<>). -But persons who challenge the title of the lord to the freehold are not entitled to inspection of the court rolls \ p). The court rolls are evidence of the transactions recorded, and may be produced to prove a surrender or admittance or other matter of entry. The copies of court roll delivered by the steward are also admissible in evidence in all cases to prove the title of the tenant. The Stamp Acts require the copy to be stamped, but not the original court roll ; and it is no objection to the production of the latter that there is no stamped copy. The copyholder is not obliged to take a copy of the roll of his title {q). The court rolls are not, like the records of a superior court, conclusive upon the parties, but the transaction may be proved, or the roll corrected, by extrinsic evidence (/•)• The customs of manors regulating customary tenure are so far General uniform as to admit of a general custom, or system of rules SJJSot. generally applicable, as common law, to lands of that tenure, but subject to variation by the special customs prevailing in particular manors (s). Courts of justice take judicial notice of the general customs of General manors without proof ; but special customs must be particularly ^ji^ny alleged and proved in legal proceedings (t). noticed. Special customs of a manor are proved by immemorial mi- Special customs of reasonable (u). The tendency in more recent times is to make interrupted usage ; subject to the conditions of being certain and B O) Bex v. Lucas, 10 East,235 ; Bex Doe v. Calloway, 6 B. & C. t8J ; Doe v. v. Tower, 4 M. & S. 162; Hoare v. Olley, 12 A. & E. 481 ; 9 L. J. Q. B. Wilson, L. R. 4 Eq. 1 ; Minet v. 379 ; Elston v. Wood, 2 My. & K. 678. Morgan, L. R. 11 Eq. 284 ; Warriclt v. (*) Combes' Case,9 Co. 75a; Ghantham Queen's Coll., L. K. 3 Eq. 683; 36 v. Copley, 2 Wms. Saund. 840, and nn. L. J. Ch. 505. CO Co. Lit. 17.". b ; BacAbr. Cop. IX ; (») See Bex v. Lucas, 10 East, 235 ; Dudjield v. Andrews, 1 Salk. 184; Sogers v. Jones, 5 Dowl. ) Talbot v. Villebois, 3 T. R. at Queen's Coll., L. R. 6 Ch. 716; Fork p. 142; Owen v. Wynn, 9 Ch. D. 29. (Cvrjp.) v. Pilkington, 1 Atk. 282. Pro- See Bex v. Tower, 4 M. .S: S! 162. ceedings by tenants in a Crown manor (). By special custom in some manors the lord, may grant out portions of the waste to hold by the customary tenure of the manor ; such land having been by the custom grantable, though not so granted, from time immemorial {q). But the lord cannot exercise such right to the prejudice of the rights of common of the tenants of the manor without the consent of the homage (;•)• By section 81 of the Copyhold Act, 1894, the previous consent of the Board of Agriculture must be obtained to effectuate a valid grant. The distinction between the two principal kinds of customary tenure, namely, copyhold and customary freehold, is explained by reference to the two kinds of ancient villenage from which modern customary tenure is derived. Pure villenage was the tenure of villeins by birth, whose persons and services were at the arbitrary disposal of the lord and who originally held their lands absolutely at his will. These tenants became the modern copyholders, who still hold nominally at the will of the lord. Villein socage was a privileged species of villenage in which the services were certain and due only by tenure, and not by reason Pure villenage. Villein socage. (//() Freeman v. I'll ill 'ipps, 4 M. & S. 186. («) Somerset (Dulie) v. France, 1 Si range, ti."<4 ; LoictJier v.. ltair, Fort. 44 ; Bowe v. Brtnton, 8 B. & C. 737 ; Anglesey QJUarq.") v. Mat/ierton ( Lord~), 10M. & W. 218 ; 12 L. J. Ex. 57. See a variety of special customs collected 2 Watkins, Copyholder, and in Blount's Ancient Tenures, ed. Beckwith. In the cum- ut usages which do not require to be established by immemorial usage, e.g., customs of a trade (see Daliy v. Hirst, 1 Brod. & li. 22 1; Seymour v. Bridge, 14 Q. B. I). 4HO), evidence of usages in other places, or in similar trades, may be given in evidence to support the custom set up : Noble v. Ken/noway, 2 Dougl. 510 ; Fleet v. Murton, L. B. 7 Q. B. 126. (V) Co. Lit. 58 h ; Murrel v. Smith, 4 Co. 24 b; Revell v. Joddrell, 2 1. 11. 410 ; Everest v. Glyn, (> 'Jaunt. 42"). (j>) See Evans v. Upsher, 16 M. & W, C75 ; 1<> L. J. Ex. 185 ; Scriven, 16, n. (t). (fc .~>4 ; Lowther v. Raw, Fort. in Northumberland, Brown v. Rawlins, 44; Doe v. Huntingdon, 4 Hast, 271; 7 East, 409. I)oe\. Davidson, 2 M. & S. 175 ; Burrell (.■>■) Rigg v. Lonsdale (Eaj-l), 1 11. >v v. Dodd, 3 B. & P. 378. See Blnqham v. N. Vl\\ ; Ewart v. Graham, 7 II. L. • '. Woodgate, 1 R. & My. 32, where the 331 ; 29 L.J. Ex. 88. custom required a conveyance as well as (y) Sect. 7: see ante, p. 20 ; Doe v. a surrender, and the freehold was held Huntingdon, 4 East, 271, 287. 60 PART r. CHAP. II. CUSTOMARY TENURE. but statutes which do not prejudice the interests of lord or tenant may include copyholds by general words, without expressly mentioning them {z). Section- II. The Limitation and Transfer of Estates of Customakv Tenure. The customary estate— limitation of uses of surrender — construction of limitations. Fee simple conditional— estate tail by special custom— modes of barring estate tail. Future and contingent uses— powers of appointing uses— use limited to surrenderor. Lease for years — at common law — under surrender to use — freehold estate, seisin, etc., applied to copyholds. Devise by surrender to use of will— devise without surrender — the Wills Act, 1 Vict. c. 26. Descent in customary tenure. The custom- The power of the lord to grant or admit to land to be held by ary estate. co ^ . g regu i ate( i s t r ictly by the custom of the manor. The estate sanctioned by custom is in some cases an estate of inherit- ance in fee simple (a), or for life or lives (b), or for years (c), and in the case of copyholds for life or lives or for years there may also exist a right to obtain a renewal upon failure of the lives, or the expiration of the term (d). A grant for lives in some manors imports by custom that the persons named take in succession (e). Any estate may be limited which does not exceed in duration that authorized by the custom. Thus a custom authorizing a grant in fee simple will authorize the grant of an estate tail (/) ; but for this a special custom is necessary (g), failing which, the tenant will take a fee simple conditional (/<)• So where a custom authorizes the grant of an estate of inheritance, a grant for life or lives or for years will be good (/). And a custom admitting (:) Hey dons ('use, 3 Co. 7 a ; see Doe. L. J. N. 8. Oh. 289. And see cases cited v. Bottriell, 5 I'». & Ad. 131 ; 2 L. J. in two preceding notes. K. I'.. 158 See a list of statutes con- (e) Podger's ('"■■«■, 9 Co. 104 a; Btrued according to this rule, Scriven, Smartle v. Penluillow, 2 L. Kaym. 994 ; Cop. 81 — 9o. Doe v. Goddard, 1 B. .V C. 522. fa) Wade v. Bache, 1 Wms. Saund. (O Stanton v. Hume*. Cro. El. 373. 160. 07) Graxenor v. Rake, Cro. El. 307. (b) Somerset (Duhe) v. France, 1 ('/') Doe V. Chirk. 1 I'.. & Aid. 458; Stra. 654 : Lowt/ier v. Raw, Fort. 44. Dor v. Simpson, ■'> Man. k (i. 929. id Page's Case, Cro. Jac. 671 ; Bath (i) Brown's Case, 1 Co. 21 a; (Karl) v. Abney, 1 Burr. 212. Gravenor v. Todd, 4 Co. 23 a. (77) Walker v. Abingdon {Lord), 10 SECT. II. LIMITATION AND TRANSFER. Gl of an estate for three lives impliedly admits a limitation for one (j). A custom admitting an estate for life admits of an estate durante viduitate (k). And it seems that a custom to grant for years would warrant a grant for a term of years, if the grantee should so long live (/). The copyholder may, in general, surrender to the use of Limitation of another for his own estate and interest, or any less estate within Burre nders. the custom (in). The surrender does not pass the estate of the surrenderor to the lord(»), and until admittance the surrenderee takes no estate in the land (o), but after admittance his title relates back to the date of surrender against all persons but the lord(_p). Thus, the wife's claim to freebench, which was defeasible at the will of the husband, and in this respect differed from the right to dower at the common law, was defeated by the admittance of the surrenderee after the death of the husband (q). So, too, where the surrenderor makes a surrender to uses which did not exhaust the estate vested in him, the reversion is in the surrenderor and not in the lord (?•)• Accordingly, if a copyholder in fee surrendered to the use of his will (which was generally necessary prior to the statutory amendment of the law hereafter mentioned) and devised for life, his heir claiming by descent took the reversion (s). A surrender does not operate by way of estoppel against the surrenderor, or those claiming under him (t); or against the lord («), who is a mere instrument to pass the estate (x). In some manors the surrenderee must come in within a limited time and claim admittance (//). Where copy- holds of inheritance are surrendered to the use of a person for a particular estate with limitations in remainder to other persons, the admission of the tenant of the particular estate is the admis- sion of all in remainder, whether the particular estate be an estate of freehold or for a term of years (2). (/') Smartle v. Penhallow, 2 L. Horloch v. Priestley, 2 Sim. 75. Raym. '.I'.IL (q) Benson v. Scot, 3 Lev. 385. See (It) Down v. Hopkins, 4 Co. 29 b. Wood v. Lamhirth, 1 l'hill. 8. (/) 1 Watk. Cop. by Coventry. (/•) Bunting v. Lepingvoell, 4 Co. 29 a ; 66,i). Roc v. Griffiths, 1 W. Bl. 605. («) Bulloch v. Dibley, 4 Co. 215 '/ : (*) Bullen v. Grant, Oro. El. 148. Gravenor v. Todd, 4 Co. 23 a; and the (7) Goodtitle v. Morse, 2 T. R. 365 ; cases cited ante, p. 54. Doe v. Tomhins, 11 East, 185; Doe v. O) Fitch v. Stuchley, 4 Co. 23 a; Wilson, 4 E. & Aid. 303. See Doe v. Be.r v. Mildmav, 5 B. & Ad. 2TA ; Ilex To Held, 11 East, 246. v. Oioidle, 1 A."& E. 283 ; 3 L. J. K. B. '(» Bex v. Mildmay, 5 B. & \J 117. 254. O) Doe v. fflehs, 2 Wils. 13, 16 : Doe (x) Westwiek v. Wyer, 4 Co. 28 a. v. TofieloZ, 11 East, 246; L'c.e v. Mild- (?/) Doe v. Coovibes,G Q. B. 535; 12 may, 5 B. & Ad. 254. L. J. Q. B. 36. O) Holdfast v. Clapham, 1 T. R. (-) Fitch v. Stuchley, 4 Co. 23 a ; 600. bee Doe v. Vernon, 7 East, 8 ; Bat more v. Graves, 1 Vent. 260; Boe 62 PART I. (HAL'. IT. CUSTOMARY TENURE. Construct ion of limitations Fee simple conditional, or estate^ tail. Proof of custom of entail. The limitation of the uses of a surrender is generally framed in the same technical terms, and is subject to the same rules of construction, as the limitation of estates in a conveyance of the freehold at common law (a). Thus, a surrender to the use of a person in general terms, without words of inheritance, passes an estate for life only, unless there he a special custom by which a fee simple may be created without the word " heirs," as by such words as " sibi et suis," " sibi et assignatis," or the like (b). The rule in Shelley's case applies to the limitations of copy- holds ; and if a grant or surrender be made to the use of a person for life with a remainder to his heirs, the limitation to the heirs is referred to the estate -of the ancestor, and enlarges it to an inheritance (c) . YYhere the custom admits of an estate by copy to a person and his heirs, it also admits of a grant or surrender to a person and the heirs of his body, or the heirs male of his body, or the like special lines of heirs ; the construction and effect of which limitations depend upon the custom of the manor. The con- struction of the common law was generally, though not univer- sally, followed in the manorial courts ; and as the statute De donis did not apply to copyholds, these limitations, in general, retain the construction of fees simple conditional at the present day ('?)• I 11 tnose manors, however, in which the construction of the common law was not followed, such limitations were taken to confer successive estates upon the issue designated in the grant, per formam doni, according to the primitive construction or, at' least, intention of such grants, which was restored and rendered effectual, as to the freehold, by the statute De donis. Hence in some manors by special custom limitations " to the heirs of the body," etc., create estates tail, analogous to estates tail of freehold since the statute (c). Amongst the proofs of such a special custom of entail are:— "If a remainder have been limited over such estates and enjoyed ; or if the issues in tail have avoided the alienation of the ancestor; or if they have recovered the same in writs of formedon in the discender"; or if the tenant be permitted by the custom to alien before issue born, in prejudice to the right of reverter ; all which incidents are inconsistent with a fee simple conditional. On the other hand, where such remainders are not allowed, or the power v Loveless > B & Aid. 4. r >3 ; Doe v. (J>) Bunting v. Zepingwell, 1 Co. 29 a. nomas 8 'Man. ft G. 815; 11 L. J. (0 Doe v. Wilson, i B. ft Aid. 303. I . | , j ., | (77) I ley don's (Vise, 3 Co. 7 a ; Gravenor (a~) Per Holt, Oh. J., Idle v. CooJt, v. Todd, 4 Co. 23 a; Doe v. Simpson, 1 1* Win- 77 • Hardwicke, ('.. Bigden 3 Man. & G. 929. See ante, pp. 24, 25. v miiere, 2 Ves. Sen. 357. ('') Heydon's Case, 3 Co. 7 a. SECT. II. LIMITATION AND TRANSFER. ^ of alienation originates with the birth of issue, the estate is of the nature of a fee simple conditional (/). An estate tail in copyhold might be barred, according to the Modes of custom : — by a recovery in the customary court of the manor ; g^teftail. by forfeiture to the lord and regrant ; or, in the absence of any other customary mode of barring it, it might be barred by a surrender (//). And in some manors there were concurrent customs giving a choice to the party seeking to bar those in remainder (It). The Fines and Recoveries Act, 1833, provides that the legal estate tail in copyholds shall be barred by surrender and an equitable estate tail therein by deed entered on the court rolls of the manor (i). The limitation of the uses of a surrender is not restricted by Uses limited the rules concerning the seisin which prevail in freehold tenure, upon Jon'.'!' " for the freehold remains vested in the lord. Hence the use may, tiugcucy. in general, be limited for an estate to commence in futuro, though freehold in quantity ; and such estate may be limited to arise upon conditional terms or contingent events. So, a contingent Contingent remainder may be limited without a prior vested estate of free- iemamt( hold ; and though a contingent remainder would fail, if it had not become vested at the time appointed by the terms of limitation for taking effect in possession, yet it would not be destroyed by the premature determination of the prior estate, as by surrender or forfeiture, for remainders in copyholds are not thereby accele- rated as in freeholds. So, the use may be limited in defeasance or substitution of prior uses. The lord is bound to admit according to uses limited in the above forms, though such limitations are not admissible in a conveyance operating at common law (k). The surrender may also be made to such uses as some other Uses person shall appoint, under a power or authority given to him apP |°' 1 nt ) a |' vei . < for that purpose. The lord is not bound, without a special custom in the manor, to accept a surrender containing a power of appointment of the uses ; but, if he does accept such a sur- render, he is bound to recognize and admit the appointee (/). The appointees of uses under the power take their title from the surrender and not from the appointor, and it is not necessary (/) Co. Lit. 60 1) ; Scriven Cop. 55, (A') Wade v. Bache, 1 Wms. Saund. 4th ed. 160; Podger's (Use, :i Co. 1"7 a; Rex (, and notes. v. Ahernethi/, 5 15. & C. 77ti. (A) Doe v. Dannceij, 7 Taunt. G74 ; (/) Boddington v. Abernet/iy,5 B. & Doe v. Ossingbrooke, 2 Bing. 70. C. 77tj ; Flack v. Downing College, 13 (/) Beg y.Ingleton, 8 Dowl. P. C. 693. C. B. 945 ; 22 L. J. C. P. 220. (U PART. I. CHAP. II. CUSTOMARY TKN'I IIK. Use limited to surrenderor. Lease for years, — at common law. Lease by surrender. Freehold, seisin, etc., applied to copyholds. that the latter should be admitted in order to give validity to the uses, although he take an estate until and in default of appointment (in). As the conveyance operates through the medium of the lord by surrender to him and admittance of the new tenant, a copy- holder is thus enabled to make a surrender to his own use and take an admittance of a new estate ; so he may surrender to the use of his wife ; — limitations which were void of effect at common law (»)• By the general custom of copyholds a tenant may make a lease for one year to take effect at common law without a sur- render and without the licence of the lord; and by special custom or by licence of the lord he may make such a lease for a longer term. The lessee under such lease has a common law and not a copyhold interest; he is tenant to the copyholder only, and not to the lord, and does not require admittance. The copyholder may also lease by a surrender to the use of the lessee for any term of years without licence or special custom, under his general power of disposition of the copyhold ; and the surrenderee must then be admitted and becomes tenant by copy to the lord and not to the copyholder (o). A lease made at common law against the custom and without licence is good against all parties except the lord ; as against him it is ground of forfeiture, which he may enforce or waive ( p). The term freehold as expressing the quantity or duration of estates admissible in freehold tenure, namely, estates for life and of inheritance, is applied by analogy to estates of customary tenure and distinguishes such estates from leasehold or terms of years ; but the freehold as expressing the tenure of the land is in the lord, and not in the customary tenant (q). So the posses- sion of a copyholder for an estate freehold in quantity is commonly termed the customary seisin, and the copyholder is said to be seised of such estate ; though the terms are strictly applicable only to the possession of the freehold tenant. But there can be no disseisin, technically so called, with its peculiar consequences, of a customary tenancy (r). (m) Bex v. Oundle, 1 A. & E. 283 ; 3 L. J. K. P.. 117 ; Glass v. Richardson, ■2 I). M. & (}. 658 ; 22 L. J. Ch. 105. (?z) Bunting v. Lepingwell, 4 Co. 29 i ; Brooks v. Brooks, Cro. Jac. 434. See ante, pp. 36, 37. («) Co. Cop. s. 51 ; Melwieh v. Swter, 4 Co. 26 a ; Bath (A'arZ) v. Abney, 1 Burr. 206 ; Doe v. TjiLfhin, 4 East, 221 ; l.iitkin v. Xiinn, 11 Ves. 170. (y/) East v. Harding, Cro. El. 498; Doe v. Tresidder, 1 Q. B. 416 ; 10 L. J. Q. B. 160 ; Doe v. Bousjield, 6 Q. B. 492 ; See Doe v. Dyke, 5 M. & S. 146. (iy) See ante, p. 53. (/•) Co. Cop. 6S. 14-17 ; Brown's SECT. II. LIMITATION AND TRANSFER. 65 By general custom a copyholder in fee might surrender to the Devise by J . . surrender to use of his will, and hy his will declare and limit the uses. The the use of land then passed by the combined effect of the surrender and Wl11, will, as if the uses declared by the will had been inserted in the surrender ; and the appointee or devisee, upon the death of the testator, was in the position of a surrenderee. Under the will a further power of appointing the uses might be created (s). Copyhold land was thus devisable, independently of the statuh a of wills which did not extend to copyholds, and without any other formalities than those, if any, prescribed by the terms of the surrender for the appointment of the uses(0- By special custom a copyholder might devise without a Devise by surrender to the use of his will (»)• In the absence of such ^Xmwith- custom, a will, without the surrender, was void of effect at law. out surrender. The Court of Chancery, however, would compel the heir to surrender surrender, in support of wills devising to a wife, child, or creditors, ^hance'i'v" which would otherwise have failed for want of the surrender (,r). It seems that there could not be a special custom against surrendering to the use of a will, because it is implied in the general power to surrender (y). The statute 55 Geo. III. c. 192, commonly called Preston's Power to Act, dispensed with the necessity of a surrender to the use of a ^^thout will ; and by the recent Wills Act, 1837 (repealing the above surrender and Act, see sect. 2), the general power thereby given to dispose of admittance. real estate by will is extended " to all real estate of the nature of customary freehold or tenant right, or customary or copyhold, notwithstanding that the testator may not have surrendered the same to the use of his will, or may not have been admitted thereto, or notwithstanding that the same in consequence of any spe 'ial custom could not have been disposed of by will, if this Act had not been made " (z). The Act provides for the pay- ment of the stamps, fees, and fines which would have been payable on the admittance of the testator and surrender by him (sect. 4). And if the land could not have been devised except under the Act, the same fines and dues are to be payable to the lord as upon a descent (sect. 5). The will must be signed and Case, 4 Co. 21 a ; Prebble v. Boghurst, (») See Devenish v. Baines, Prec. 1 Swanst. 309, 580 ; Kite and Queinton's Ch. 3. Case, 4 Co. 2:> a. See ante, \>. 40. (a?) Lloyd v. Burton, 2 Bro. P. C. 281 ; (s) Fitch v. Stucldey, 4 Co. 2 5 u ; Marston v. Guioan, 3 Bro. C. C. 170: Holder v. Preston, 2 Wils. 4ou ; Glass Holmesv. Coghill, 12 Ves. 21.; ; Bixby v. Richardson, 2 De G. M. & G. 658 ; v. Elev, 2 Bro. C. C. 325. 22 L. J. Ch. 105. (y) Doe v. Llewellin, 2 C. M. .V; R. (O Devenish v. Barnes, Prec. Ch. 3 ; 503 Pike v. White, 3 Bro. C.C. 286 ; Church (;) Garland v. Mead, L. R. 6 Q. B. v. Mimdy, 15 Ves. 403. Ill ; 40 L. J. Q. B. 171). L.P.L. F 66 PART I. CHAP. II. CL'STOMARY TENURE. Descent in customary tenure. attested in the manner required by the Act (sect. 9), and is to be entered upon the court rolls (sect. 5). The common law rules of descent, as amended by the Inherit- ance Act, 1833, apply to inheritances of customary and copyhold tenure, subject to the variations of special customs (a). In the case of equitable interests, including those arising under implied or resulting trusts, an estate of inheritance will descend upon the customary heir and not upon the common law heir, as is the case if the trust be executory (b). Sect. 1 of the Land Transfer Act, 1897, does not apply to " land of copyhold tenure or customary freehold in any case in which an admission or any act by the lord of the manor is necessary to perfect the title of a purchaser from the customary tenant ' ' (c). The exception does not extend to equitable estates in copyholds or customary freehold, and these estates, if in fee, vest in the personal representative, but only for the purposes of administration (d). By sect. 88 of the Copyhold Act, 1894, which reproduces an earlier statute, the older law relative to the descent of trust and mortgage estates in copyholds is restored, and these devolve upon the customary heir unless there is a testamentary disposition to the personal representatives (e). The title of the customary heir is complete without admittance (/). Rights of copyholder incident to tenure or possession. Section III. Eights and Remedies incident to CUSTOMAKY TeNUKE. Rights of copyholder. Remedies of copyholder — trespass — ejectment — mandamus to compel admittance — bill in Chancery. Rights of lord — seizure to compel admittance — suit to ascertain boun- daries. Fines on admittance, etc. — fees to steward. Fealty and services of customary tenure. Escheat — forfeiture — waiver of forfeiture. The customary tenant has all the rights of enjoyment incident to the mere possession ; but the rights of property, subject to the (a) 3 & 4 Will. IV., c. 106, s. 1 ; Brown's Case, 4 Co. 21 a; Locke v. South, rood, 3 CI. & F. 721 ; Muggleton v. Burnett, 2 H. & N. 653 ; 27 L. J. Ex. 12.") ; Na/nson v. Barnes, L. R. 7 Eq. 250. See Mallinson v. Sid die, 39 L. J. Ch. 42(1. (//) Be Hudson, [1908] 1 Ch. G55 ; 77 L. J. Ch. 305. 0) 60 & 61 Vict. c. 65, s. 1, sub-s. 4. ('/>.) v. Knight, 1 (ft) Lit. s. 76 ; Co. Cop. s. 51. P. Wms. 406 ; Portland (Duhe) x. Hill, (I) See cases cited, supra, notes (/) L. R. 2 Eq. 765. See Dearden v. Evans, and (g). F 2 68 PART I. CHAP. II . CUSTOMARY TENURE. Proceedings to compel lonl to admit, accept sur- render, etc. Rights of the lord. Seizure quousque to compel admittance. Suit in equity to ascertain boundaries. ordinary mode of recovering copyhold lands (in). Now all plaints in the nature of real actions, in common with real actions at common law, are taken away by the 3 & 4 Will. IV. c. 27, s. 36 (») ; and the only remedy is by action of ejectment. A mandamus issues to the lord to compel him to accept a surrender and admit a new tenant (<>). The lord is a necessary party against whom the writ should issue, and it is consequently an inappropriate remedy where the Crown is lord of the manor (p). The writ issues upon proof of a prima facie title, and where two persons claim under adverse titles, the court will require the admittance of both (q). The Court of Chancery exercised a con- current jurisdiction to compel admission (r), and this jurisdiction is now vested in the High Court (*). A mandamus, which it is in the discretion of the court to refuse, will not issue in a doubtful case (t). The lord is entitled to have a tenant upon the rolls (u), and may by general custom seize and retain the tenement until the tenant comes in and is admitted. This seizure quousque is in the nature of process to compel admittance, but the right can only be exercised after three proclamations made at three consecutive courts (x). By special custom the lord may be entitled to seize absolutely for want of a tenant, as he may for a forfeiture 0/). Where the lord is in possession under a seizure lawfully made, the tenant must take proceedings to recover the tenement within the period allowed by the Statute of Limitations (z). The lord has no remedy in equity merely to compel admittance (a) ; but if he cannot exercise his legal remedy of (m) Melwich v. Later, 4 Co. 26 a. (n) See ante, p. 42. (o) Hex v. Boughey, 1 B. & C. 565 ; Bex v. Brewers Co., 3 B. & C. 172. See /,'<•>• v. Bigge, 1 B. & Aid. 550. ( p) Beg. v. Powell, 1 Q. B. 352 ; 10 L. J. Q. B. 148. (q) Bex v. Ilrewers Co., 3 B. & C. 172 ; Bex v. Hexham, 5 A. & E. 559 : i> L. J. K. B. 33 ; Bex v. Ham, 8 L. J. N. S. Q. B. 265. (>•) Dimes v. Grand Junction Canal, 3 H. L. C. 794 : Andrews v Hulse, 4 K. & .J. 392 : 27 L. J. Ch. 655. See Williams v. Lmisdale (Lord), 3 Yes. 752; Widdowsonv. Harrington (Earl), 1 .1. ,5c W. 532; Walters v. Webb, L. R. 5 Ch. 531 ; 39 L. J. Ch. 677. (x) Judicature Act, 1873 (36 & 37 Vict. c. 6r,), s. 16. (t) Beg. v. Garland, L. R. 5 Q. B. 269 ; 39 L. J. Q. B. 86. (w) Ereringham v. draft, L. R. 8 Q. B. 388; 42 L. J. Q. B. 203 : Hall v. Bromley, 35 Ch. D. 642 ; 56 L. J. Ch. 722 : Garland v. Mead, L. R. 6 Q. B. 4(1 : 40 L.J. Q. B. 179. (./•) Doe. v. HelUer. 3 T. R. 162 ; Doe v. Trveman, 1 B. & Ad. 736 ; Doe v. Muscott, 12 M. .V W. 832 ; 14 L. J. Ex. 185; Eeeles. Commrs. v. Parr, [1894] 2 Q. B. 420 : 63 L. J. Q. B. 784 ; Beighton v. BeigMon, tit L. J. Ch. 796. See Dor v. Coombes, 6 Q. B. 535; 14 L. J. Q. B. 37. (if) Doe v. HelUer, 3 T. R. 162. (1-) Walters v. Webb, L. R. 5 Ch. 531 ; 39 L. J. Ch. 677 ; Eeeles. Commrs. v. Parr, [1894] 2 Q. B. 420 ; 63 L. J. Q. II. 784. (a) Searle v. Coolie, 32 Ch. D. 519 ; 59 L. J. Ch. 259. See Durham (Bp.) v. Bipon, 4 L. J. O. S. Ch. 32 SECT. III. EIGHTS AND REMEDIES OF CUSTOMARY TENURE. 69 seizure by reason of confusion of the boundaries of the copyhold tenement, he may maintain an action to ascertain and set out the boundaries, and, if that should be impossible, to have lands of equal value set out in substitution (&). By general custom the lord is entitled to a fine upon the Fine upon admission of a tenant. Where copyholds stand limited to one for life or for years with limitations over to other persons by way of remainder, the admission of the tenant of the particular estate is the admittance of all entitled in remainder, and no fine is payable by them unless there be a special custom to that effect (c): The amount of the fine may be fixed by the custom of the manor ; if it is not so fixed, it is arbitrary, but subject to the condition of reasonableness, which is satisfied if it does not exceed two years' improved yearly value of the land in respect of one life 00 . Where two or more persons claim to be admitted, whether they are to enjoy the property contemporaneously or in succession, the fine is assessed on the principle that the first person pays a full fine, the second one half of the full fine, and the next one quarter of the full fine, and so on in a descending scale (r). Coparceners, however, make but one heir, and in their case it would seem that only one fine is payable (/). The restriction of reasonableness only applies when the lord is bound to admit, but not upon a voluntary grant, as after a forfeiture, in which case the fine is purely arbitrary (. 478. Roe v. Lore? ess, 2 B & Aid. 4:>?> ; Eeelyn (>■) Sheppard v. Woodford, •"> M. & W. v. Worsfold, 15 L. T. 0. S. 4 ; Rand- 608; 9 L. J. Ex. 90; Ricltardson v. field v. Randjield, 3 Do G. F. & J. 766 ; Kensit, 5 Man. & U. 485 : 12 L. J. C. P. 31 L. J. Oh. 113; Reg. v. Woodham 154. Walter Manor, 10 B. & S. 439. (/) Rex v. Bonsall, 3 B. & C. 17:'.. (//) Willoive's Case, 13 Co. 1 ; Hobart See Doe v. Pearson, 6 East, 173; per v. Hammond, 1 Co. 27 b ; Leahe v. Lindley, L.J., Evans v. Ecans, [1892] 2 Bigot (Lor<0, 1 Selw. N. P. 87 ; Douglas Ch. 173, at p. 185 ; 61 L. J. Ch. 156. v. Bysart (Earl), 10 O. B. N. S. 688; 0/) Willowe's Case, 13 Co. 1, 4th res. Eraser v. Mason, 11 Q. B. D. 574; 52 (//) Attree v. Scutt, 6 East, 176; L.J. Q. B. iU3. As to the method of Ecans v. Upsher, 16 81. ,v W. 675 ; 16 assessing the tine, see Verulam (Earl) L. J. Ex. 185 ; Reg. v. Eton College,^ v. Howard, 7 Bing. 327; Richardson Q. B. 526; 16 L. J. Q. B. 18. v. Kensit, 5 Man. in G. 485 ; 12 L. J. 70 PART I. (HAP. II. CUSTOMARY TKNURK. Fine not due until admit- tance. Fine upon change of lord. Fines for licences. Fees to steward. Fealty and services. to gain the exemption in respect of the remaining tenements (i), nor will the right be admitted where he makes a colourable purchase to obtain the advantage of the exemption or reduction (/.•). The lord cannot refuse admittance until the fine is paid, for the fine is not due until admittance (/). But he may refuse admittance, if previous fines in respect of the same title remain unpaid (m). By special custom a fine may be due upon a change of the lord by death. A custom to have a fine upon a change of the lord by alienation or other act of the party would be unreasonable and bad (»). As before stated, a copyholder can only lease from year to year, except under the sanction of a custom (o). By special custom fines may be due upon licences granted to the copyholder to make leases, or to do other acts ; but by general custom fines are due only upon admittances. Where the fines for such licences are certain, it seems that the lord cannot be compelled to grant them (])). Fees are due by custom to the steward of a manor for his official services in regard to surrenders, admittances, copies of the rolls, and the like. The amount of the fees is in some cases fixed by the custom ; in the absence of customary assessment the steward is entitled to claim a reasonable remuneration for his services (q). By the general rules of customary tenure the lord is also entitled to fealty and suit of court ; and by special custom or by express reservation he may be entitled to rents, reliefs, and heriots. " The doing of fealty by a copyholder proveth that a copyholder, so long as he observes the customs of the manor and payeth his services, hath a fixed estate ; for tenant at will, that may be put out at pleasure, shall not do fealty " (?■)• (I) Evelyn v. Wbrsfold, 15 L. T. 4 : Johnstone v. Spencer {Earl), 30 Cli. D. 581 : (7«) Att.-Gen. v. Sandorer, [1904] 1 Ch. 689 : 78 L. J. K. B. 178. But see A\ m v. Flood, [1898] A. C. 1 : 07 L. J. Q. B. 119. (/) li. v. Hendon, 2 T. II. 184 ; Graham v. Sime, 1 East, (532. (m) 11. v. Coggan, (J East, 131 ; /.'. v. DulUngham, 8 A. & E. 858 ; 8 L. J. Q. B. 37. See He Naylor and Spendld's Contract. 34 Ch. 1 1. 217 (n) LowtJier v. Raw, Fort. 44 ; Somer- set (Duke) v. France, 1 Strange, 654. (o) Ante. p. 64. (y0 Cowper v. Clerk, 3 P. Wins. 155 ; Reg. v. Hale, 9 A. cV; E. 339 ; 8 L. J. Q. B. 83. See Peachy v. Somerset (Duhr). l Stra. 117: Lehmann v. McArthur, L. 11. 3 Ch. 496 ; 37 L. J. Ch. 825. (//) Everest v. Glyn, 6 Taunt. 42."> ; Reg. v. Bishopstoke, 8 Dowl. P. C. 608; Evans v. JJpsher, 16 M. & W. 675; 1G L.J. Ex. 185; 'IVaherne v. Gardner, 5 E. & B. 913; 25 L. J. Qv B. 201. See Allen v. Aldridge ~> Beav. 401. (/•) Co. Lit. 63 a. See ante, p. 18. SECT. III. RIGHTS AND REMEDIES OF CUSTOMARY TENURE. 71 The lord may become entitled to the land by escheat upon the Escheat, death of the tenant without leaving an heir and without having disposed of the tenement by will. By escheat the copyhold estate is merged or extinguished in the freehold, with all its incidents, of customary descent and the like ; but it retains the capacity of being held by copy and may be regranted in that form of tenure (s) . Forfeiture is the consequence of certain acts of the tenant Forfeiture. which are inconsistent with the customary tenure or are violations of its rules (0- The alienation of the land by a conveyance operating at common law, and purporting to convey an estate of freehold tenure, operates as a disseisin of the lord and a forfeiture, except in the case of copyhold lands falling within the provisions of the Settled Land Act, 1882 (u). A deed conveying lands and tenements at common law will be construed, if possible, to apply to freehold lands onty in order to avoid a forfeiture of copyhold (x). A lease at common law for more than a year, unless it be made with the licence of the lord or under a special custom to lease in that manner, operates as a ground of forfeiture (y). A document will be construed as a mere agreement for a lease instead of an operative lease, if possible, to avoid this effect (z). Any acts of waste, injurious to the inheritance, whether permissive or voluntary, if there be no custom to the contrary, are cause of forfeiture ; as pulling down a building, or suffering it to be out of repair, ploughing meadow, cutting trees, digging and removing minerals, removing fences and confounding boundaries, and the like (a). By special custom a refusal to take admittance may operate as a forfeiture and entitle the lord to seize absolutely and not merely quousque, as by the general custom (b). A refusal to pay the proper fines or rent or to do the services of the tenure upon demand is ground of forfeiture (c). There were other causes of forfeiture, as attainder which followed upon judgment for treason (.5) See ante, p. 20 ; post, p. 74. (a) Co. Lit. 63 a ; Hargrave's note, (f) Co. Cop. s. 57 ; Scriven, 437. ib. ; Co. Cop. s. '<7 ; Doe v. Clements, O) Brown's Case, 4 Co. 21 b ; 45 & 2 SI. k. S. 68 ; Doe v. Burlington 46 Vict. c. 38, s. 20. (Earl), 5 P.. ,v Ad. 507 ; 3 L. J. K. B. O) Co. Cop. s. 58. See Smith v. 20. Clyfford, 1 T. R. 73S ; Francis v. Miidon, (V) Doe v. Hellier, 3 T. K. 62. L. *R. 2 C. P. 543; 30 L. J. C. P. (<•) Co. Cop. s. r,7 ; Willoive's Case, 13 201. Co. 1 ; see Ghrant v. Astle, Dougl. 726, n. (//) Ante, p. 64. See Peachy x. Fines may also be recovered by action Somerset [Duke), 1 Stra. 447. of debt ; ib. 727 ; ami see ante, (z) Doe v. Clare, 2 T. R. 739 ; Fenny p. 09. v. Child, 2M. & S. 255. 72 PART I. CHAP. II. CUSTOMARY TENURE. Operation of forfeiture. Waiver of forfeiture. Extent of forfeiture. or felony, whereby the tenant became incapacitated to fill the tenancy and it reverted to the lord(rf). Some acts of forfeiture operate by destroying the copyhold tenure, as conveyances which transfer the land to another for a freehold estate, for such an estate is wholly inconsistent with the copyhold tenure and is a disseisin of the lord's freehold. A for- feiture of this kind formerly occurred upon a conveyance by feoffment with livery, and upon conveyance by fine or recovery ; and it may still occur by a conveyance transferring a freehold (state at common law(c). But where the estate in remainder is made to commence upon the determination of the estate for life by forfeiture in the life- time of the tenant for life, the remainderman and not the lord is the proper person to make the entry (/). Other acts operate as forfeitures only at the election of the lord, by entitling him to enter and seize the tenement ; such are leases without licence, acts of waste, refusal of services, and the like. As to these acts the forfeiture may be waived, and the lord is taken to do so by any acknowledgment of the tenancy con- tinuing after notice of the act, as by accepting or distraining for rent, accepting a surrender, or the like ; and if he does not himself enforce the forfeiture, it is taken as waived as against the succeeding lord. Hence no lord can take advantage of such acts of forfeiture but he who is lord at the time of the act com- mitted. But the forfeiture produced by an act which destroys the copyhold cannot be waived ; and a succeeding lord, under the same title, may exercise the right to enter and seize absolutely (g). A forfeiture extends to the whole of the tenement as to which the act is committed, but not to other separate tenements held by the copyholder of the same manor. It is confined to the estate of the forfeiting tenant and does not affect estates in remainder or reversion, which will take effect in the time and order prescribed by the terms of limitation, notwithstanding the forfeiture of the particular estate (/<). (V) Bex v. Mildmay, 5 B. & Ad. 254 ; Bex v. WUles, 3 B. & Aid. 510. The 33 .V: 34 Vict. c. 23, s. 1. enacts that no judgment for any treason or felony shall cause any attainder or any forfeiture or escheat. It seems worthy of remark that this Act makes no mention of copyholds. See ante, p. 59. (e) Aide, pp. 10, .04. (/) Benison v. Strode, Pollexf. 614. (//) Doe v. Hellier, 3 T. It. 102 ; Doe v. Trueman, 1 I!, & Ad. 736; Doe v. Bousfield, 6 Q. B. 492 ; 14 L. J. Q. B. 4 2 : Doe v. Coombes, 6 Q. B. 535; 14; L. J. Q. B. 37. (//) Podger's Case, 9 Co. 107 a ; Doe v. Clements, 2 M. & S, 68. SECT. IV. EXTINGUISHMENT OF CUSTOMARY TENURE. 73 Section IV. Extinguishment of Customary Tenure ; Regrant ; Enfranchisement. Union of copyhold and freehold titles— surrender to lord— for partic estate — to lord having a particular estate. Copyholder acquiring estate in the freehold — or in the manor. Severance of the tenement from the manor. Eegrant of copyhold — must conform with the custom— regrant is voluntary. Enfranchisement — to copyholder for life or years — to copyholder in tail — no tenure or services can be reserved — statutes to facilitate enfran- chisement. A customary estate is extinguished by the union of the freehold Union of and customary title in the same person. The possession is then JUjjJ^ " referred to the freehold title only, and may be disposed of under titles, that title at common law. The customary title may vest in the lord, by surrender to his Surrender to use, or release to him ; also by escheat or forfeiture. It thereby becomes extinguished, though the tenement, in the hands of the lord, may retain the quality of being demisable upon the cus- tomary tenure, and may be regranted by him as copyhold (a). A surrender to the lord for a particular estate suspends the Surrender for tenure during that estate only ; and the customary tenant in [jf^e remainder continues entitled according to the terms of his estate. For remainders, whether vested or contingent, are not accelerated or barred by the surrender or forfeiture of the particular estate, as was the case with like limitations of the freehold, but they may be made to commence upon the forfeiture of the particular estate (b). A surrender to a lord having a particular estate or limited Surrender to interest in the manor operates as an extinguishment (subject to ™ rt i cu k° g a regrant by copy) in favour of all persons having ulterior estate, estates in the manor (c) . The freehold and customary title may also become united in Extinguish- the tenant. If the copyholder accepts a lease or other common CO p y holder law estate under the freehold title of the tenement, his copyhold acquiring L J estate under the freehold (a) French's Case, 4 Co. 31 n ; Blem- Clements, 2 M. & S. 68. See ante, p. 4n. title. merhasset v. Humberstone, Hutt. 05; (.-) St. Paul v. Dudley (Visc.% 1~> Beversham's Case, 2 Vent. 345. Ves. 157; King v. Moody, 2 Sim. & S. (&) Podger's Case, 9 Co. 107a; Beni- ->7d. See Bingham v. Woodgate, 1 so/i v. Strode, Pollexf. 61 4 ; Doe v. Buss. & M. 32. 74 PART I. CHAP. II. CUSTOMARY TENURE. interest, being a tenancy at will only relatively to such estate, is Copyholder merged or extinguished absolutely. So, if the copyholder acquiring the ac(m j res D y aD y means an estate in the manor, which includes the copyhold tenement, his copyhold interest is extinguished ; but in this case, as lord of the manor, he would have the right to regrant the tenement to be held by copy (d). Severance of the tene- ment from the manor. If the lord conveys away the freehold title in a copyhold tenement, so that it is no longer parcel of the manor, the cus- tomary tenure is extinguished, except as to the rights of the copyholder. The rents and services reserved may continue due to the grantee of the freehold, but the rights incident to the lord, as such, namely, suit of court, fines upon admittance, and the like, are extinguished. They cannot be conveyed with the free- hold of the tenement, except as parcel of the entire manor ; for " a manor is an entire thing, and not severable," at least by act of the party ; nor can a new manor be created at the present day. The copyholder may afterwards release to the grantee of the freehold or may take a release from him, and so unite the titles ; and this seems the only mode of dealing with the legal title of a tenement so circumstanced ; for it can no longer be conveyed by surrender because the land is no longer parcel of the manor (e). Regrant of copyhold. Regrant is independent of the lord's estate. Where the copyhold tenement reverts to the lord, which may happen, as already noticed, in various ways: — by surrender to the use of the lord, — by expiration of the copyhold estate, as where it is for lives only, and the lives have expired, — by escheat or failure of heirs, — by forfeiture ; — though the possession is then referred to his freehold title, and he may dispose of the tenement under that title by a common law conveyance ; yet he may, if he pleases, grant it out again to be held by copy according to the custom of the manor (/). In like manner, where the copyhold tenure is extinguished by the copyholder acquiring an estate in the manor, as lord of the manor he may again grant the tenement to be held by copy(/). The grant by copy is an exercise of his power as lord ; it does not take effect out of his estate and is not restricted thereby. Though entitled to the manor for a particular estate only, as for (7/) Lands Case, 2 Co. 16 b ; French's (axe, 4 Co. 31 a ; Cuttle y v. Anmld, i K. & •). 595. (e) Murrel v. Smith, 4 Co. 25 a : Sir Moyle Finch'* Case, G Co. 64 a ; Cattley v. Arnold, 1 K. & J. 595; Phillips v. Ball, 6 C. B. N. S. 811 ; 29 L. J. ('. P. 7. (/) French's Case, i Co. 31 a. •SECT. IV. REGRANT. 75 life or for years or at will, provided he is rightfully lord for the time being, he may grant the customary tenements to hold by copy ; and if the custom be strictly followed his grant will bind the inheritance of the manor. The copyholder under such grant is in by the custom ; his estate is independent of the freehold title of the manor, and is not affected by the charges and incumbrances attaching on that title (h). The lord retains the power of granting the tenement by copy Regrant is , , i • , .■ t w dependent so long as he retains possession ; but by any interruption 01 ms upon the possession, unless it be wrongful, the customary quality or lotto posses- capacity of the copyhold is interrupted and consequently lost. Thus, if the lord makes a lease for years or for life or any other estate at common law, the land can never after be granted by copy by him or any persons claiming under him ; but the power of those in remainder or reversion after him to grant by copy is not affected. If the lord is wrongfully disseised, and the land is afterwards recovered, it is again grantable by copy (*'). In such regrant the lord must conform strictly to the custom, as Regrant must to the tenement, the estate granted, the incidents and appur- Sricti^with tenances of the estate, the tenure, the rents and services reserved, the custom. and all other points ; for the grant being authorized only by the custom, deviation from the custom in any point would render it void (k). The grant in such cases is voluntary and may be made for Regrant by any estate within the custom ; in this respect it differs from an voluntary. admittance upon a surrender, which is a ministerial and com- pulsory act, directed and controlled by the uses of the surrender. An admittance, as conferring the legal title, is equivalent to a grant and may be so pleaded; but it has no force except as following the surrender, and an erroneous admittance cannot be supported as a voluntary grant (/). A grant entered upon the rolls imports an admittance or acceptance of the grantee as tenant (m). A regrant, being voluntary, is not, like an admittance upon a No restriction surrender, restricted as to the fine or consideration to be paid a for it ; but the lord, as he is at liberty to grant or not, may ask what he pleases (n). (A) Clarke v. Pennifather, 4 Co. 23 b ; Q. B. 305. Swayne's Case, 8 Co. 63 b ; Doe v. (I) Brown's Case, 4 Co. 21 a ; Roe v. Strickland, 2 Q. B. 792; Neal and Loveless, 2 B. & Aid. 457; Zouch v. Jar I; so n's Case, 4 Co. 26 h. Forse, 7 East, 1m;. (/) French'* Case, 4 Co. :51 a. (/«■) Roe v. Loveless, 2 B. & Aid. 153 ; (/.•) Badger v. Ford, 3 B. & Aid. 153 ; Doe v. Whitdker, 5 B. & Ad. 409. Doe v. Strickland, 2 Q. B. 792 ; 11 L.J. («) Willowe's Case, 13 Co. 3, 4th res. 7G PART I. CHAP. II. CUSTOMARY TENURE. Enfranchise- ment. By convey- ance of free- hold. To copyholder for life or years. To copyholder in tail. No tenure or services can be reserved. Enfranchise- ment pre- sumed. Enfranchisement is effected by the lord of the manor convey- in: g the freehold title of the tenement in fee simple to the copy- holder, or by a general release of the seignorial rights ; the customary tenure is thereby wholly extinguished. An enfran- chisement operates out of the lord's estate and not by exercise of his power as lord. It is therefore dependent upon his title to the manor, and can only be fully effected by a lord entitled in fee simple, or having a power of disposition to that extent. The conveyance of a less estate, or by a lord entitled for a less estate, would only give a limited title to the freehold; though by accepting such less estate the copyholder's interest would be merged and extinguished (o). A tenant for life has now a statu- tory power to enfranchise copyholds (p). Enfranchisement or conveyance of the freehold in fee simple to a copyholder for life or for years operates as an enfranchise- ment for the benefit of those in remainder (q). But it so operates in equity only ; the legal estate in fee simple rests in the grantee and will pass to his heir or devisee ; and a conveyance will be decreed to those entitled in remainder, upon equitable terms as to the consideration paid for the enfranchisement (r). Questions of this character will now seldom arise, as tenants for life will exercise their power to have capital moneys laid out in purchas- ing the freehold, which will be conveyed to the trustees of the settlement (s). Enfranchisement to a copyholder in tail bars the entail and all ulterior estates and limitations, and leaves no interest at law or in equity in the issue in tail or the remainderman (£). Upon an enfranchisement since the statute of Quia emptorcs no tenure or services can be reserved ; because the grantee of the freehold holds of the next superior lord. Consequently, if the deed of enfranchisement purports to reserve a rent, it is not a rent-service, but in the nature of a rent-charge granted by the tenant (//). An enfranchisement may be presumed in favour of a long possession and course of dealing with the tenement as free- hold (x). (c) Lane's Cage, 2 Co. 16 h : Sample's Case, I'd Co. 54 ; Doe v. Huntington. 4 East, 271. See FawlJtmer v. Fawlkner, 1 Vein. 21. O) Settled Land Act, 1882 (45 & 4G Vict. c. 38 . -. 3. (. 547 ; 58 L. J. Ch. 752. («) Bradshaw v. Dawson, 4 T. 11. 443 ; see ante, p. 12. (x) Roe v. Ireland, 11 East, 2S0. SECT. IV. ENFRANCHISEMENT. 77 Statutes have been passed from time to time to facilitate the statutes enfranchisement of customary tenures, at the instance either of enfranchise- the lord or of the tenant, providing for compensation for the ment ' rents and services by the payment of a gross sum or a fixed rent-charge (y). 0/) Copyhold Act, 1894 (57 & 58 Vict. c. 40). 78 PART I. CHAP. III. THE LAW OF USES. CHAPTER III. THE LAW OF USES. Section I. Uses before the Statute of Uses. II. Uses since the Statute of Uses. III. Operation and limits of the Statute of Uses. Section I. Uses before the Statute of Uses. Origin and nature of Uses. Uses at law — possession of cestui que use. Uses in equity — enforced by subpoena — not subject to rules of tenure — assignment of uses — disposition by will — descent. Statutes concerning uses — the Statute of Uses. The law of freehold tenure above described was administered Uses. in the courts of common law. A concurrent jurisdiction over property in land was exercised by the Court of Chancery in the system of Uses ; which was subsequently, to a great extent, incorporated with the law of freehold tenure by the Statute of Uses. Origin and The system of Uses was founded on the practice, adopted in nature of early times for various purposes, of transferring the seisin or legal possession of the land by feoffment or other sufficient mode of conveyance to some person or persons upon a trust or confi- dence to permit the feoffor or some person to have the Use. This trust was at first of a secret nature, and not mentioned in the charter of feoffment or instrument of conveyance ; but after- wards a clause was commonly inserted expressing that the feoffees were to hold " to the use " of the person intended to be thereby benefited. The latter person became known as the cestui que use, relatively to the legal feoffees who were commonly known as the feoffees to uses (a). («) As to the origin of uses, see 1 13 Eic. II. It is probable that before Sanders, Uses, eh. 1 ; Go. Lit. 272 a. the statute Quia emptorcx. IS Edw. I., In the feoffments collected in Madox's if a tenant in fee simple enfeoffed a " Formulare Anglicanum," joint feoffees, stranger without any consideration, and which maybe taken as the sign in early without expressing any use, there could deeds of secret uses (see post, p. 82), be no resulting use in the feoffor, appear first towards the end of the because the tenure and services supplied reign of Edw. III.: see forms 337, a consideration to carry the use to the 49 Edw. HI. ; 389, 50 Edw. III. ; 339, feoffee. See post . p. 84. uses SECT. I. USES BEFORE THE STATUTE OF USES. 79 The courts of law took no notice of the use or trust ; they Uses at law. regarded the feoffee exclusively as tenant of the land for all purposes. His seisin or possession was subject to all the services and incidents of tenure, and was liable to escheat and forfeiture. He had the power to aliene the land by feoffment or other legal conveyance ; and it passed by descent to his heir. Cestui que use, as such, had no estate or interest in the land at Possession of law ; and no remedy in a court of law against the feoffees to uses, nor against strangers. But while in possession, with the consent of the feoffees, he was in the legal position of a mere tenant at will (l>) . In the Court of Chancery, on the other hand, the use imparted Uses in all the beneficial incidents of property, namely, the right of e ' lU1 y ' occupying and enjoying the land in specie, and of taking the profits, also the power of directing the disposal of it to another. The correlative tfust imposed on the feoffee consisted in permit- ting the cestui que use to occupy and take the profits, in preserving the legal title on his behalf, and in executing conveyances of the land according to his direction (<■). The Court of Chancery exercised jurisdiction over the use by Enforced in giving to the cestui que use the remedy bu subpoena against the subpoena. feoffee to compel him to disclose and perform the use or trust upon which he held the land (d), The Court of Chancery also in course of time enforced the trust against the heir of the feoffee to uses taking the land by descent ; also against a purchaser from the feoffee to uses taking the land with notice of the trust, or without consideration. But a purchaser for a valuable consideration and without notice of the trust held the land free of any claim in equity on the part of the cestui que use, whose remedy in such case lay against the feoffee only, for the breach of trust committed in parting with the land (e). Accordingly, a use was summarily defined by Coke in the following terms : — " A use is a trust or confidence reposed in some other, which is not issuing out of the land, but as a thing collateral, annexed in privity to the estate of the land, and to the person touching the land, scilicet, that cestui que use shall take the profit, and that the terre-tenant shall make an estate (7/) Co. Lit. 271 a, b, and Butler's Bacon, Uses, 15, Tracts, p. 312; 1 note (1) to Co. Lit. 271 b, sect. ii. ; 1 Sanders, Uses, 56. See the progressive Sanders on Uses, 65 ct sea. jurisdiction over uses stated by Lord (p) Co. Lit. 272 b; 1 Sanders, Uses, Mansfield in Burgess v. Wheate, 1 Eden, c. 1. 2\s. 219; ami see 1 Spence, Eq. Jur. (d) 1 Sanders, Uses, 15, 19. 442. 445. (/) Chudlehjli's Case, 1 Co. 122 a, b ; 80 PART I. CHAP. III. THE LAW OF USES. Uses not subject to rules of tenure. Power of disposition over uses. Disposition by will. Descent of uses. according to his direction. So as cestui que use had neither jus in re nor jus ad rem, but only a confidence and trust, for which he had no remedy hy the common law, hut for breach of trust his remedy was only hy subpoena in Chancery " (/). By these means the use or beneficial ownership of the land was withdrawn altogether from the rules of tenure and from the feudal dues and incidents attaching to the legal estate. The legal ownership was still subject to these obligations, and though the regular services of the tenure could not be avoided and might be enforced against the land, yet by vesting the seisin in numerous feoffees jointly, whose number was from time to time renewed by a new feoffment to others upon the subsisting uses, it was kept almost entirely clear of the occasional charges which fell due by reason of descents, wardships, marriages, alienations, and the like, and from the graver incidents of escheat and forfeiture (g). By these means also the use became disposable, according to the rules of equity and independently of the rules of law, except so far as they were followed in equity. — It was assignable without feoffment or deed, attornment, entry, or any other common law formality (//).— It was devisable by will, although the freehold was not so devisable. A feoffment might be made of lands to uses to be declared by will, and the will then took effect by declaring the uses (i). An estate of inheritance in the use descended, upon an intestacy, according to the rales of the common law, or according to the special customs of descent, if any, to which the land was subject (A). Statutes relating to uses. Statutes were passed from time to time bringing the use within legal cognizance for certain purposes, amongst which may be mentioned, as being the most important, the statute 1 Eic. III. c. 1, giving the cestui que use a direct power of conveying ( f) Co. Lit. 272 ft ; see this definition developed and applied to trusts in Lewin on Trusts, c. 1. Compare the simpler and broader foundation of modern trusts since the Statute of Uses, as established by Lord Nottingham, and expressed in the maxim that the trust in equity is the land, post, p. 98. (//) Butler's note to Co. Lit. 191 a, sect. v. (11); ib. 271 b, II. Besides the evasion of the rules of tenure, con- veyances to uses were also employed in early times by religious persons or corporations to evacb- the Statutes of Mortmain, which prohibited such per- sons from purchasing land in their own right, until the statute 15 Eic. II., c. 5, brought uses also within the prohibition of those statutes : 1 Sanders, Uses, 15. See the various objects served by uses fully stated in St. German's " Doctor and Student,"' Dialog. 2, c. 22. (A) 1 Sanders, Uses, 01 ; Bacon, Uses, 16. (/') ChvMeigKs Case, 1 Co. 123 b ; 1 Sanders, Use's, 64 ; Bacon, Uses, 20, Tracts, 315. (A) Corbet's Case, 1 Co. 88 a ; 1 Sanders, Uses, 62. SECT. I. USES BEFORE THE STATUTE OF USES. 81 the legal estate (I) ; but the earlier statutes were superseded in effect by the statute 27 Hen. VIII. c. 10, commonly known as The Statute the Statute of Uses, which was passed with the object of at ° once converting the use into legal possession (m). The preamble Preamble as of the statute recites that " where by the common laws of this ^JJmto^ realm, lands, tenements, and hereditaments be not devisable by testament, nor ought to be transferred from one to another but by solemn livery and seisin, matter of record, writing sufficient made bond fide without covin or fraud ; — yet nevertheless divers subtle inventions and practices have been used, whereby the hereditaments of this realm have been conveyed from one to another by fraudulent feoffments, fines, recoveries, and other assurances craftily made to secret uses, intents and trusts, and also by wills and testaments sometime made by nude parols and sometime by writing ;— by reason whereof heirs have been Evils result- unjustly disherited, the lords have lost their wards, marriages, ^f s r reliefs, heriots, escheats, aids, and scantly any person can be certainly assured of any lands by them purchased, nor know surely against whom they shall use their actions or execution, for their rights titles and duties — to the utter subversion of the ancient common laws of this realm." The statute enacts, by sect. 1, " that where any person or persons stand or be seised, or at any time hereafter shall happen to be seised of any honours, manors, lands, tenements, rents, services, reversions, remainders or other hereditaments to the use confidence or trust of any other person or persons or of any body politic by reason of any bargain, sale, feoffment, recovery, covenant, contract, agreement, will or otherwise by any manner of means whatsoever it be, that, in every such case, all and every such person and persons and bodies politic that Persons have or hereafter shall have any such use confidence or trust in ^ se fo f any fee simple, fee tail, for term of life or for years, or otherwise, estate shall 1 . . be in lawful or any use, confidence or trust, in remainder or reverter, shall seisin of same from henceforth stand and be seised deemed and adjudged in Jjjj^^j^ lawful seisin estate and possession of and in the same honours, use. castles, manors, lands, tenements, rents, services, reversions, remainders and hereditaments, with their appurtenances, to all intents constructions and purposes in the law, of and in such (/) See Co. Lit. s. 272 a, b ; 1 Sanders, 325. As to the intention of the statute. Uses, 23 ; see the statutes collected in see Chudleigh's Case, i Co. 12-i u ; Bacon, Uses, 22, Tracts, 320. Brent's Case, 2 Leon. 17; and see 1 (m) "The title in course of pleading Sanders, Uses, 83; 1 Spence, Eq. Jur. is. stiit nt inn ili' usibus 111 possessionem 461. transferendis," Bacon on Uses, 31, Tracts, L.P.L. G 82 PART I. CHAP. III. THE LAW OF USES. Estate and possession of person seised i.. usrs shall be deemed to lie in them that have the use. like estates, as they had or shall have in use trust or confidence of or in the same : And that the estate right title and possession that was in such person or persons that were or shall he hereafter seised of any lands tenements or hereditaments to the use confidence or trust of any such person or persons or of any body politic, be from henceforth clearly deemed and adjudged to he in him or them that have or hereafter shall have such use confidence or trust after such quality manner form and condi- tion as they had before in or to the use confidence or trust that was in them." Sect. 2 enacts to the same effect in the case where divers and many persons shall he jointly seised to the use, confidence or trust of any of them that be so jointly seised (>i). Creation of uses within the Statute of Uses. Section II. Uses since the Statute of Uses. Creation of uses within the statute— with transmutation of possession- declaration of use— uses raised by payment of consideration— resulting uses. Creation of uses without transmutation of possession— bargain and sale- covenant to stand seised. Limitation of uses— express limitations— resulting uses— limitation of uses upon bargain and sale— uses in remainder— springing and shifting uses -powers of revocation and new appointment— uses limited to the grantor— or to his heirs. As the statute did not prohibit or prevent the creation of uses in the future, but operated by executing them, that is, converting them into legal estates, the creation of uses became the means, by force of the statute, of creating and conveying legal estates ; and it thenceforth became necessary for the courts of common law to take cognizance of such modes of conveyance, and of the doctrines of uses upon which they depended. These doctrines, which for the most part are still applicable, may be shortly stated as follows. Uses may be raised under two conditions, involving different considerations ;— with transmutation of possession, where uses are created upon an actual transfer of the seisin or legal posses- sion ; — without transmutation of possession, where new uses are created upon the existing seisin (a). (») It was the common practice to make the cestui que use himself one of the joint feoffees to uses, and to place his name first among them. See Brent's Case, 2 Leon. 15; Madox Form. Angl. ante, p. 78, n. (a). The above section of the statute expressly provides for such eases. (a) 1 Sanders. Uses, pp. 83 et ssq. ; Co. Lit. 271 h ; Butler's note, ib. iii. (3) ; 1 Hayes, Conv. 72*. G 2 Declaration of use must lie 1 1 roved by writing. Use raised by payment of consideration. Resulting uses. 84 PART I. CHAP. III. THE LAW OF USES. Resulting uses of reversion on partial use. Use declared to grantor rebuts result- ing use. Consideration of tenure prevents resulting use. uses ; it was presumed not to pass unless expressly declared so to do, or paid for with a consideration, and the proof of considera- tion was put upon the purchaser (//). Upon the same principle, if upon a feoffment or conveyance in fee the use be declared for a particular estate only, and no consideration appear to carry the residue, so much of the use as is undisposed of by the declaration remains in the grantor as a resulting use. Thus, if the use be declared to the grantee or another for life, or in tail, or for years only, the reversion of the use being undisposed of results to the grantor. And a con- sideration paid in such a case will be presumptively attributed to the estate limited, and will afford no inference as to the use undisposed of (h). But if the use be declared to the grantor for an estate for life or years, the reversion, though not expressly disposed of, does not result to him but vests in the grantee ; for by the opposite construction the particular estate would merge in the reversion and the grantor would resume the entire fee, against the express terms of the declaration of uses, which restricts his interest to the particular estate. If, however, the use be declared to the grantor for an estate tail, he may also take the reversion by resulting use ; for an estate tail and the reversion in fee may subsist together in the same person (i). If the feoffment or conveyance of the legal possession be made for a particular estate only, as a gift in tail, or a lease for life or for years, the tenure alone thereby created, with its attendant services and obligations, supplied a consideration sufficient to prevent the use from resulting, and to carry it to the donee or lessee; and this doctrine applies at the present day. But an express use declared in favour of another would rebut the use implied from the tenure in such cases (A). The statute Quia emptores prevented the creation of any tenure which might carry the use upon a conveyance of the fee simple (/). ( T. R. 110. (It) 1 Sanders, Uses, 9 ; Perkins, ss. 534-537; J! rent's Case, 2 Leon. 16; Dyer, 312 a. The relation of landlord and tenant is a, consideratioD in law, hence in a contract for a lease no other consideration is necessary. King's Leaseholds, L. R. 16 Eq. 521. (0 Perkins, s. 528, ?>2\) : see ante, p. 12, n.(//). SECT. II. USES SINCE THE STATUTE OF USES. 85 Uses may also be raised upon the existing seisin without a conveyance or transmutation of the legal possession: — Upon principles of equity any agreement, supported by a valuable con- sideration, to the effect that an estate or interest in land should be conveyed, as it might be specifically enforced in the Court of Chancery, was held to entitle the purchaser to the use or beneficial ownership according to the terms and intent of the agreement, without any legal conveyance ; and accordingly the vendor was held to be or stand seised to the use of the pur- chaser (m). Such transaction, as creating a use executed by the statute, became technically known as a bargain and sale As a bargain and sale would thus have been effectual to convey a legal estate under the statute by mere force of the agreement without any writing or formality, it was thought expedient to add some formal conditions to the operation of the statute upon it ; and it was enacted by a statute of the same session of parliament, 27 H. VIII. c. 1G, to the effect that no estate of free- hold shall pass by reason only of a bargain and sale, unless made by writing indented, scaled and enrolled in manner and place therein provided. This statute applied only to estates of freehold, and a use for a term of years might still be created within the Statute of Uses by mere bargain and sale without deed or enrolment (n). An agreement unsupported by a valid consideration, or a mere declaration of use without transfer of possession, was altogether void of effect in raising a use within the statute by reason of the principle that equity will not enforce gratuitous or, as they are called, voluntary agreements. And, in general, no distinction was admitted in equity in this respect by reason of the agree- ment or declaration being made in the form of a covenant or by deed under seal; although in law such formality supplied the force of a consideration (o). But the value or amount of the consideration paid was immaterial ; the existence or expression of it was sufficient to denote that the transaction was intended by way of bargain and not as a mere voluntary agreement : and if not a voluntary agreement it was effectual to raise a use by way of bargain and sale (p). Uses raised without transmuta- tion of posses- sion. By bargain ami sale. Formalities required by- statute of enrolments. Consideration necessary. Value of consideration immaterial. O) See Base v. Watson, 10 H. L. <'. (',72 ; 33 L. .1. C. 385 ; L. ,V S. II'. By. v. Gomm, 20 Ch. D. 562 ; 51 E. J. C. 530; WMtbread 3> Co. v. Watt, [1902] 1 Ch. 835 ; 71 L. J. C. 424. («) Fox's Case, 8 Co. 93 6; but a mere termor, nol being seised, could not ovate or transfer uses under the Statute of Uses, see post, p. !»2. (,/) Bacon, Uses, 13 : Tracts. 310; Sanders. Uses, 5fi ; see Ellison v. Ellison, (■ Ves. 656 : 2 Wh. & T. L. C. Eq. 835 : Jefferys v. Jefferys, Cr.& Ph. 138. O) Case of Sutton's Hosp., 1" Co. 23 a ; Barker v. Keat, 2 Vent. 35 SlwHr'idge v. Laiiij)lugh,2 Ld. Raym.798. 80 PART I. CHAP. III. THE LAW OF USES. Covenant to An exception to the general rule of equity not to enforce stand seised. ■ . , . , , „ voluntary agreements was made in the case of a covenant or declaration by deed executed by the person seised to stand seised (i "" ,1 ,,,n - to the use of his wife, child, or some blood relation. The motive sideration. then stood in place of a consideration, and it was said to be made upon a good consideration, as distinguished from a con- sideration of money or value, which formed the characteristic of a bargain and sale. A Covenant to stand seised to uses was thus a recognised mode of raising uses in family settlements (q). Accordingly, a covenant to stand seised to the use of the brother of the covenantor raised a use in him ; so a covenant to stand seised to the use of the heirs male of the body, or the heirs male special of the body of the covenantor effectually raised a use in such heirs male(r). But an illegitimate child is not within the consideration of blood to raise a use (s). A covenant to stand seised to the use of a son or relative, if expressed to be made for a valuable consideration, is a bargain and sale, and requires enrolment under the statute ; because the consideration expressed excludes the implied motive or considera- tion of relationship (0- The same deed may operate both as a covenant to stand seised and as a bargain and sale in favour of different parties, " as if A. covenants that in consideration that B. is his son, he shall have for life, and after his death in con- sideration that C. hath given him i;i(J0 that he shall have in fee " 0). A good consideration would not supply the want of a valuable consideration for the purpose of raising a use by an agreement or declaration not under seal (x). These modes of conveyance, operating without transmutation of possession, were formerly employed for the purpose of avoiding the formalities necessary for transmutation of possession at common law, such as livery of seisin, entry, attornment and the like; but a deed of grant being now in all cases sufficient with- out other formality to transfer the legal possession, upon which uses may be declared, the conveyances by bargain and sale and covenant to stand seised are no longer required or used. Some knowledge of them, however, is still necessary for the investigation (?) Chester v. Willan, 2Wms.Saund. (*) Co. Lit 123 a; Hargrave's note (8) 288 and n) Corbet's Cane, 1 Co. 87 /< ; Shelley's C. P. 223. Cane, I Co. LOO J : 1 Sanders, Uses, L22. (.-) Abraham v. Twigg, Cro. El. 178; (<•) Adams v. Savage, 2 Salk. 679 ; 1 Sanders, Uses, 122, 123; ««te,pp. 23, 24. Sugden's note to Gilbert on Uses, (a) Clere's Case, 6 Co. 17 b ; Beck- p. 164 ; Fearne, Cont. Rem. 284; see witfis Case, 2 Co. 58 a ; Doe v. ante, p. 33. 88 PART I. CHAP. III. THE LAW OF USES. Springing The limitation of uses is not restricted by the doctrines of common law concerning the seisin ; and, therefore, a use for a freehold estate may be limited to arise in futuro or upon a contingency without any prior limitation to support it as a remainder. — Thus a conveyance of the immediate legal posses- sion may be made to the use of a person and his heirs, after four years, or after the death of the grantor, or to such uses as the grantor shall appoint by will (2.->. 398, 420; 2 Hayes Conv. 51 n. (43), («) Fenwick v. Mit/ord, 1 Leon. 1 82 ; 81 n. (64); Mildmay's Case, 1 Co. 175 a. Co. Lit. 22 b; I Sanders, Dses, 136; See ante, pp. 85, 86. Fearne, C. R. 51. And see Fearne, (I) Co. Lit, 22 b ; 1 Sanders, Uses, C. R. 66. 134; Gilbert, Uses, by Sugden, 150; (e) See unto, p. 37 ; as t . . the etl'eei Sugden, Powers, 24 et seq. See ante, of such limitations in breaking the line pp. 36, 37. of descent, see ante, p. 44. (w) Co. Lit. 12 b, 13 a : Hargrave's 90 PART I. CHAl\ IH. THK LAW OF USES. Section III. Operation of the Statute of Uses. Operation of the statute in executing the use. Nature of possession transferred. Mode of executing future and contingent uses. Doctrine of Scintilla juris. Operation of the statute in executing the use — nature of the possession i ransferred. Mode of operation upon future and contingent uses — doctrine of scintilla juris — Lord St. Leonards' Act. - 9 a required to support uses seisin not co-extensive with the uses — -in for life — seisin in tail. Limits of operation of the statute— uses declared upon possession for term of years— uses limited to the grantee of the legal possession- uses limited upon a use. Special or active trusts — passive trusts or uses. Application of the Statute of L T ses to wills. The statute does not apply to copyholds. The statute executes the use, that is to say, invests it with the seisin or legal title, and subjects it to all the incidents of a legal estate. The grantee to uses is divested of all estate and interest in the land, and the cestui que use becomes seised or possessed in law of the same estate and interest which is limited to him in the use (a). The possession transferred by the statute is equivalent, for most purposes, to that acquired by livery of seisin, or, in case of leaseholds, by entry (/;). The mode of operation of the statute with future uses, when limited by way of contingent remainders or as springing or shifting uses, formerly caused much perplexity and difference of opinion. The statute seemed to exhaust the seisin in serving the prior vested uses, so as to leave none to serve such future uses as and when they should arise. To meet this difficulty it was conceived that there remained in the grantees to uses a possibility of seisin, becoming an actual seisin when the execu- tory uses required it. This was the celebrated doctrine of the scintilla juris, as this possibility of seisin was called. The only practical bearing of this doctrine lay in the suggestion that the scintilla juris might be dealt with in a manner to endanger the safety of the dependent uses. After much abstruse speculation concerning the nature of the statutory process the result generally accepted seems to have (a) Re Dudson's Contract, 8 Ch. D. 62« ; 47 L. J. C. 632 : Co. Lit. 22 b ; Bacon, Uses. 45, Tracts, 337 : 1 Sanders, Uses. 1 17. (//) Bee HadJieWs Case, L. R. * C.P. 306 : 42 L. J. 0. P. 146, and the autho- rities there cited; lie Dudson's Con- tract, 8 Ch. D. 628 ; 47 L. J. C. 632 : 2 Sanders, Uses, '>'>. SECT. III. OPERATION OF THE STATUTE OF OSES. 91 been that it immediately converted uses of all admissible kind.-, into legal limitations in a manner quite beyond the power or control of the grantees to uses, and that the latter were merely formal instruments for carrying the legal title to the uses (c). All question as to the operation of the statute has been removed Statutory by the statute 23 & 24 Vict. c. 38, s. 7, " Where by any instru- SJItSl ment any hereditaments have been or shall be limited to uses, take effect out . .. , . . , of original all uses thereunder, whether expressed or implied by law, and seis i n> whether immediate or future, or contingent or executory, or to be declared under any power therein contained, shall take effect when and as they arise by force of and by relation to the estate and seisin originally vested in the person seised to the uses; and the continued existence in him or elsewhere of any seisin to uses or scintilla juris shall not be deemed necessary for the support of or to give effect to future or contingent or executory uses ; nor shall any such seisin to uses or scintilla juris be deemed to be suspended, or to remain or to subsist in him or elsewhere." There must be a seisin to support uses to be executed by the Seisin re- statute. A conveyance purporting to transfer the freehold at a p^tus future date is void at common law, and will not support a declaration of uses ; which, therefore, in such case, unless it can be supported upon the seisin of the grantor, without trans- mutation of possession, fails altogether. Thus, a grant to A. and his heirs after the death of the grantor is void, as purporting to transfer the seisin at a future time ; but a grant to A. and his heirs, to the use of B. after the death of the grantor, is good, the transfer of seisin being present and the use only future ; and the use is executed by the statute (">■ v. Fearne. Cont. Rem. 300; 1 Sanders, Prince, 20 L. J. C. V. 223; Sugden's I'^rs. L08 ; Gilbert's Uses, by Sugden, note to Gilbert, Uses, it;:*. 206 n. (1«»): Sugden on Powers, Ch. I. (e) Haggerston v. Banbury, 5 1'.. & sect. iii. 7th ed. 0. 101; 1 Saadere, Uses, l<"''. See (ft) Roe v. Tranmar, Willes, S7, in accord with Bacon. (A) Seymnr's Case, 10 Co. 95 b. (i) Anon., Dyer. 369 a. (//.) Hey ward's Cute, 2 Co. 35 a ; Barker v. Keate, 2 Mod. 2">2. See ante, p. 39. SECT. III. OPERATION OF THE STATUTE OF USES. 93 or implied use in the grantor, and the grantee remains in for his own use and henefit at the common law ; but if a grant he made to A. and his heirs to the use of A. for life or for years, with remainder to the use of 13. and his heirs, A. is in of an estate for life or for years at the common law (by way of abridgment of estate in course of possession) and B. is in of the fee simple by the statute (/). But if a grant be made to A. and his heirs to the use of A. in tail, the use in tail is executed by the statute, being a new estate in favour of the issue, and no part of the legal estate conveyed by the grant ; so also, if tenant in fee simple covenants to stand seised to the use of himself in tail (m). The case of many persons being jointly seised to the use of Uses limited any of them is expressly provided for in the statute, and the joint grantees. uses are executed accordingly (n). Also in the case of a grant to Uses limited A. and his heirs to the use of A. and B. and their heirs, the use J^f^S is executed by the statute in A. and B. jointly (o). The operation of the statute was also limited by judicial con- Uses limited struction. The courts of law decided that the statute did not ap01 execute a use limited upon a use ; that is to say, upon a feoffment to A. and his heirs, to the use of B. and his heirs, to the use or in trust for C, the statute executed the use in B., and invested him with the legal possession ; but the operation of the statute was thereby exhausted, and the use limited to C. remained unexecuted (j>). So, upon a bargain and sale to A., expressed to be to the use Upon a bar- of B., the use raised in A. by the force of the consideration is gain :I executed by the statute, and the further use to B. remains unexecuted (q). The bargain and sale might be made to A. for a particular estate with remainder to B., and the use in remainder executed by the statute, as the consideration might be paid on account of the remainder ; but all the uses declared upon a bargain and sale must be within the consideration (r). By the same rule, if the grant be to A. and his heirs to the use Use Limited of A. and his heirs, (or to and to the use of A. and his heirs,) to g}.^ n tee. e the use of B. and his heirs, though A. is in by the common law (7) Samme's Case, 13 Co. 54; Doe v. (in) Samme's Case, 13 Co. 56; Bacon, Prestuxidge, 4 M. & S. 178 ; Orine's Case, Uses, 63 ; 1 Sanders, Uses, 92. L. R. 8 C. P. 281 ; 42 L. J. C. P. 38. («) See seel. 2, ante, p. 82. Bee Peacock v. Eastland, L. R. 10 Eq. (") Samme's Case, 13 Co. .".I. 17; 39 L. .1. C. 534; holding that (/>) Cooper v. Kynock, L. R. 7 Ch. grantee to his own use can disclaim the 398; 41 L. J. C. 296; 1 Sanders, Uses, estate, which would he inoperative in 275. the case of a mere grantee of the seisin (//) TyrreVs Case, Dyer, 155 ,/ ; see to uses executed by the statute: Be Haggerston v. Haribury, 5 11. .v. ('. 101. Dudsorfs Contract, 8 Ch. D. 628; 17 (/■) l 1 Sanders, Uses, 56; see ante, L. J. C. 632 ; Bacon, Uses, 45 ; Sanders. pp. 85, 89. Uses, 117 ; Sugd. Powers, 11. 94 PART I. CHAP. III. THE LAW OF USES. [Ise shifting previous use. Operation of statute avoided by- limiting inter- mediate use. and the use declared to him not executed by the statute, neither is the use declared to B. executed, because it is a use limited upon a use (a). A shifting use is not a use upon a use in the above sense, because it takes effect in substitution for and instead of the use previously declared, and is then executed by the statute (0- And where the previous use is declared to the grantee himself so that it is not executed by the statute, and he remains in at common law, a shifting use in favour of another takes effect in substitu- tion of the use limited to him, and is not a use limited upon a use, so as to be beyond the operation of the statute. — Thus, if a grant be made to A. and his heirs to the use of A. and his heirs, but in a certain event, as the marriage of A., to other uses, the latter uses are executed ; so if, as frequently occurs, a conveyance be taken to A. and his heirs, to such uses as he shall appoint, and until and subject to such appointment to him and bis heirs, the power of appointing uses is valid and the uses appointed under it will be executed (//). Thus, it has been observed, the statute has had no other effect, as regards the jurisdiction of equity over uses, than to add three words to the conveyance, for the purpose of declaring an inter- mediate use. Further uses may then be declared beyond the reach of the statute, and within the cognizance of equity only (x). Special or The trusts or confidences upon which a conveyance may be made are further distinguished into special and general', — some- times distinguished as active and passive. Special or active trusts are created for such intents and purposes as require that the grantee should retain the legal estate in order to perform them ; — as a trust to receive the rents and profits and pay them over in a prescribed manner, to pay taxes and outgoings, to do repairs, and the like ; — a trust to execute an estate or settlement of the land, or to grant leases ; — a trust to raise money by sale or mortgage. Trusts of this kind are not uses within the statute, Passive trusts, and remain cognizable in equity only. General or passive trusts are such as are simply and absolutely for the benefit of another (*) Doe v. Passingliam, 6 B. k C. 305 : Cooper v. KynocJt, L. It. 7 Ch. 398 ; 41 L. J. C 296. {t) Ante, p. 88. See Tippin v. Cosin, Garth. 272. (>i) It has been objected that as a grantee to his own express use takes at common law, and not under the statute, a shifting use limited upon his sieisin is void bv the rule of common law against shifting limitations (see ante, p. 313); but the objection has been overruled and the law settled as in the text. See Sugden, Powers, 140, 470 ; Burton Comp. (154); 1 Hayes Conv. App. ii. p. 459, 5th ed. (•/■) Per Hardwicke, L. ('.. Ho/thin* v. Ho/)/; inn, 1 Atk. 591 : Cooper v. Kynock, L. It. 7 Ch. Hits ; 41 L. J. C. 296. SECT. III. OPERATION OF THE STATUTE OF USES. 95 person, importing, expressly or impliedly, that he may take the possession and profits and direct the disposal of the land, without any duties in the grantee requiring him to retain the legal estate. These are uses within the meaning of the statute (//). But where a use is executed in trustees by force of the statute, if the limita- tions are contained in a deed, the legal estate remains vested in them whether their duties are active or passive (z). The Statute of Uses, 27 Hen. VIII., was passed before the Application „ ..,.,. __ TT ttttt i ,1 iii i • l of the Statute Statute of \\ ills, 32 Hen. \ III., when there could be no devise to ,,f ^ses to uses and no question of the application of the statute to wills. wllls - Accordingly it has been made a question whether the Statute of Uses applies to wills. At the same time expressions used by a testator have been regarded as " an index of intention " that the same construction with reference to the application of the Statute of Uses should be placed upon the limitations contained in his will as if they had occurred in a settlement of real estate, and effect will be given to this expression of intention ((f)- Accordingly, a devise to A. and his heirs, to the use of B. and his heirs, vests the fee simple in B. ; and on the other hand, a devise to A. and his heirs to the use of A. and his heirs, or a devise to the use of A. and his heirs, in trust for or for the use of B. and his heirs, vests the legal inheritance in A. in trust for B., and does not carry it on to B. ; and these results follow from the presumed intention of the testator in using limitations of established effect with reference to the operation of the statute (b). Upon the same principle a devise to A. and his heirs upon any Devise to special or active trust requiring the possession of the fee vests the legal estate in A. and prevents its passing over to the ultimate beneficiaries, because such trusts are not executed by the statute, and it is the manifest intention of the testator that they should not be. Here the question whether and how far the devisee named as trustee takes the legal estate depends upon the nature of the trust imposed, and how far it requires the vesting of the legal estate in order to carry it out (c). The Statute of Uses does not apply to the limitations of copy- Statute of hold tenure, because there can be no seisin in the tenant, in the apply to " (//") Symson v. Turner, 1 Eq. Cas. Ab. L. R. 20 Eq. 166, 170 : Butler's note t.> 383 marg. ; Bio. Ab., tit. Feoff, al Uses, Co. Lit. 271, iii. 5 ; ] Sanders, Uses, pi. 52; Wltite v. Parker, 1 Bing. X. ('. 250; Sugden, Powers, 146; 2 Jarman, 593; i L. J. C. P. 17s. See Bacon, Wills, 1137. Uses, 8, Tracts, 305; 1 Sanders, Uses, 253. (ft) 2 Jarman on Wills, 1137, and (--) Cooper v. Eynoeh, L. It. 7 Ch. auth. there cited. 398; 41 L. J. C. 296. (V) Silvester v. Wilson, 2 I'. K. Ill ; (a) Per Jessel, M. R., Bakerv. White, Doe v. Biggs, 2 Taunt. 109 ; Barker v. copyholds. 96 PART I. CHAP. III. THE LAW OF USES. Devise of freehold and copyhold or leasehold combined upon trust. strict meaning of the word, but only a tenancy at will under the freehold title, the seisin or freehold remaining in the lord. Also because transmutation of possession by operation of the statute without an admittance would be prejudicial to the interests of the lord, and inconsistent with the form of the tenure ( : Balt&r v. Wltite, L. R. 20 Eq. 166 . 44 L. J. C. 65 : Van Grvtten v. Foxwell, [1897] A. C. 658 ; 66 L. J. Q. B. 745. See the Wills Act. 1837. ss. 30, 31. (//) Baler v. White. L. R. 20 Eq. 166; 44 L. J. 0. 651. (c) See ante, p. 63. (/) Baiter v. White, L. R. 20 Eq. 166; 44 L.J. C. 651. 07) Be Brooke, [1894] 1 Ch. 43 ; 63 L. J. C. 159. SECT. I. THE NATURE AND ORIGIN OF TRUSTS. 97 CHAPTER IV. THE LAW OF TRUSTS AND EQUITABLE ESTATES. Section I. The Nature and Origin of Trusts. II. The < !reation of Trusts. III. Equitable Estates, and Estate and Office of Trustee. Section I. The Nature anI) Origin of Trusts. Uses not executed by th-- statute -trustee and cestui que trust. Trusts in equity — equitable seisin and estate — legal estate held subservient to the equitable estate. Trusts at law — possession of cestui que trust. Legal and equitable title— union of legal and equitable title — the Supreme Court of Judicature Act. Trusts of copyholds. The Statute of Uses was made with the object of converting Trusts dis- uses into legal estates and so far as it operated was effectual : t iQ g uished . r ' trom uses. but the operation of the statute was restricted by the terms in which it was framed, and further by the judicial construction with which it was applied ; also by the essential nature of the uses upon which it was intended to operate. It did not apply to uses declared upon terms of years ; to uses declared upon a use ; nor to special trusts and confidences requiring the grantee of the property to retain it for the active performance of his duties («). The uses, trusts and confidences unexecuted by the statute continued to be subject to the jurisdiction of the Court of Chancery, and were administered upon the same general prin- ciples of equity as before the statute, though with a more extensive application. They became known as trust* in a special sense ; the owner of the legal estate being distinguished as the trustee and the owner of the trust or beneficial interest as the cestui que trust. There is originally no essential difference of meaning in the words use and trust; the distinction is between those executed by the statute and those not executed, and in the different practice of the court respecting them before and since the statute {b). («) Ante, pp. !H' etseq. WJteate, 1 Eden, 217 ; and see Doe v. (6) Per Lord Mansfield in Ji/irt/ens v. Collier, 11 East, 377. L.P.L. ir 98 PART I. CHAP. IV. TRUSTS AND EQUITABLE ESTATES. The cestui que trust is entitled in equity to the possession and enjoyment of the land, or to receive the profits or proceeds of it, and to dispose of the same according to the terms of the trust. The result is sometimes expressed hy the phrase that in the Court of Chancery " the equity is the land " ; and the cestui que trust is said, hy analogy, to he seised or x>ossessed of an equitable estate (c). The court of equity recognises the legal owner of the land and admits his title, but makes him wholly subservient to the equitable owner. It restrains him from exercising his legal rights for his own benefit, and compels him to hold, defend and dispose of the legal estate for the sole purpose of maintaining and realising the equitable estates and interests prescribed in the trust (d). The cestui que trust, in general, may compel the trustee to put him in possession of the property to which he is beneficially entitled ; but where the cestui que trust is not exclusively interested, and other parties have also claims, the court will exercise a discretion as to whether the possession shall remain with the trustee or be given to the cestui que trust, subject to such claims and with proper securities for them (e). Trusts at law. The jurisdiction of the courts of law, on the other hand, is confined to the legal ownership, at least in theory, and in regulating the rights of property takes no cognisance of any trust or equitable estate or interest. — In relation to the trustee or legal owner, the cestui que trust, if in possession, though in accordance with the trust, was in the position of a mere tenant at will (/) ; — and with regard to the legal title, as against strangers, the possession of the cestui que trust was the possession of the trustee (g). Trusts in equity. Equitable estate and seisin. The legal estate made subservient to the equit- able estate. Right oi cestui que trust to possession. Possession of cestui que trust at law. Legal and equitable title. There might thus be two different titles to the same land sub- sisting concurrently, the legal and the equitable title, regulated (/■) Blake v. Buniury, 1 Ves. jun. 514 ; 'J nl C. B. N. S. 554 ; Goodson v. Ellison, 3 Russ. 583 ; Angier 28 L. J. ('. P. 129; Clarke v. WUlott, v. Stannard, 3 M. <.V K. 566; Willis v. L. R. 7 Ex. 313 ; 41 L. J. Ex. 197. See BRscox, 4 M. & Cr. 197; Bond v. S per v. Arnold, 14 A. C. 429 ; 59 L. J. C. Walford, 32 Ch. D. 238 : 55 L. J.C. 667. 211. See Smith v. Snow, 3 Mad. 10 ; Delves v. (It) Selly v. Alston, 3 Ves. 339 ; S. C. Gray, [1902] 2 Ch. GUO ; 71 L. J. C. 808. nom. Goodright v. Wells, Doug. 771. ii -2 100 TAUT I. CHAP. IV. TRUSTS AND EQUITABLE ESTATES. Supreme ( 't lilt of Judicature Act. Uses of copyholds. Trusts of copyholds. By the Supreme Court of Judicature Act, 1873 (36 & 37 Vict. c. 66), which came into operation 2 Nov., 1876, the jurisdictions of Law and Equity have been combined in the one court which is compelled to recognise equitable as well as legal rights, and where there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity now prevail (o). The Statute of Uses, as already stated, does not apply to copyholds ; and the uses of a surrender which serve to direct and limit the legal estate and possession under the peculiar forms and rules of customary tenure are not matter of equitable jurisdiction, nor are they within the scope of the Statute of Uses {p). But uses or trusts may be raised upon the legal possession to which admission is given according to the uses of the surrender, in like manner as upon the seisin of freehold tenure ; and as the statute does not operate upon the possession of a customary tenant, such uses or trusts remain within the cognisance of equity only. Thus if a surrender be made to the use of A. to the use of or in trust for B., the legal estate is vested in A. by admittance, but he is trustee in equity for the use or trust declared in favour of B. who accordingly takes the equitable estate (q). O) As to the effect of this and the amending statutes, which only affect the remedies, and not the rights, of the parties, see ••Annual Practice." (//) Ante, p. 95. 0/) Baiter v. White, L. K. 20 Eq. 166 ; 44 L. J. ('. 651. See Weaver v. Manic, 2 M. & K. :;13: Oallard v. Hawkins, 27 Ch. U. 298 ; 53 L. J. C. 834. SECT. II. THE CREATION OF TRUSTS. 101 Section II. The Cbeation of Trusts. Trusts raised upon conveyance of the Legal estate. By declaration of trust — precatory trusts — evidence in writing required by the statute of Frauds. By constructive trust — from payment of consideration — purchase in name of wife or child— voluntary conveyances— conveyances obtained by fraud. By resulting trust— from partial declaral it >n of I rust — from declaration which fails of effect. Trusts raised without conveyance of the legal estate. By declaration of trust — voluntary declaration of trust. I'.\ constructive trust arising from contract — voluntary agreements- imperfect gifts — voluntary declarations of trust distinguished. The system of trusts is formed upon the same general prin- Creation of ciples of equity as that of uses before the statute ; but it has been much more largely developed, and in some points with different results. Like uses before the statute, trusts may be raised by express declaration, or by construction of equity; and they may be raised upon two conditions of the legal estate, — upon a conveyance of the legal estate, vesting it in another for the purpose of or subject to the trust— or without any such con- veyance, by severing the equitable interest from the legal estate as previously vested, leaving the legal owner in the position of trustee (a). Upon a conveyance of the legal estate, a declaration of trust is Trusts raised sufficient to denote the intention of the conveyance, and to direct "Lance " the course of the trust or equitable estate. If the legal convey- of the k '- al . estate — by ance is effectually made, the court of equity enforces the trust declaration according to such direction (b). of fcrust ' No technical language is required to declare a trust ; any words or expressions, including precatory words (as words expressing a Construction wish, request, recommendation, hope, or confidence), may be read ^rdTand 7 as showing an intention to constitute a trust, if the trusts in expressions, other respects, as to the subject and object of the trust, be declared with sufficient certainty (<■). The Statute of Frauds, 29 Car. II. c. 3, s. 7, requires that all Evidence in declarations or creations of trust of lands tenements or heredita- mm i rL ~i la- ments shall be manifested and proved by some writing signed by the statute L * of I rauds. (a) See ante, p. 82; and see Lewin, (c) Harding v. Glyn, 1 Atk. 169; 2 ch. vi., on transmutation of possession. Wh. & T. L. C. Eq. 335; Comishey v. (7/) Ellison v. Ellison, 6 Ves. 656; Bowring Hanbury, [1905] A.. C. 84; 7-1 2 Wh. & T. L. C. Eq. 835. L. J. C. 263. Sec post, p. 105. 102 PART 1. CHAT. IV. TRUSTS AND EQUITABLE ESTATES. Writing sub- sequent to creation of trust. Trusts proved by parol evidence. Constructive trust raised by payment of considera- tion. Trusts of copyhold raised by pay ment of tine or purchase money. the party; with a saving of trusts arising or resulting by the implication or construction of law, as in the cases next men- tioned (d). The statute applies to leaseholds and chattels real (e) ; but not to personal chattels, and as to these a declaration of trust may be made and proved without writing ( /'). The statute does not require that a trust shall be created by writing, but that it shall be manifested and proved by writing ; and therefore the written declaration or evidence may be subse- quent to the creation of the trust (g). The trust or disposition of the equitable interest, whether declared or constructive, is determined at the time of the conveyance made, and, as then constituted, cannot be altered or affected by subsequent declara- tion, except under an express power of revocation reserved in the declaration of trust (h). Courts of equity will allow the trust to be proved by other means than writing, notwithstanding the Statute of Frauds, where it becomes necessary in the exercise of their jurisdiction to prevent fraud; as where a person accepts a conveyance or devise upon a trust, which he afterwards fraudulently refuses to execute, the trust may be established against him by parol evidence (/). Where a conveyance is made without any declaration of trust, Equity, as a general rule, raises a trust in the purchaser or the person who advances the consideration or purchase money ; and the rule is applied whether the conveyance is taken in the name of a stranger, or in the name of a stranger and that of the pur- chaser, either jointly or in successive limitations. The trust thus raised is within the saving clause (sect. 8) of the Statute of Frauds, as being a trust arising by construction of law, and may be proved by parol evidence (k) . So with land of copyhold tenure, if a surrender or grant be made without any declaration of trust, but it appear that another person advanced the tine for admission upon the sur- render, or the purchase money for the grant, the surrenderee or grantee will be presumed to hold upon a trust in his favour. Where admittance is given for several lives in succession, if one (d) See ss. 7, 8, cited ante, p. 83. (e) Skett v. Whltmore,-! Freem. 280. (/) M'Fadden v. Jenkyns, 1 Ha. 458. On appeal, 1 Ph. 153 ; 12 L. J. C. 146. (g) Forster v. Hale, 3 Ves. 696 ; Gardner v. Howe, 5 Russ. 258. (/() See Kilp'in v. Kilp'in, 1 M. ic K. 520, 531 ; Stock v. M'Avoy, L. R. 15 Eq. 55 ; 42 L. J. C. 230 ; Tucker v. Bennett, 38 Ch. D. 1 ; 57 L. J. C. 507. (0 Haigh v. Juiye, L. R. 7 Ch. 469 ; 41 L. J. C. 567 ; Rochefoucauld t. Boustead, [1897] 1 Ch. 196 ; 66 L.J. C. 74. (It) Dyer v. Dyer, 2 Cox, 92 ; 2 Wh. & T. L. C. Eq. 803 and notes. See ante, p. 83. conveyance. SECT. II. THE CREATION OF TRUSTS. 103 of the cestui que vies pay the whole price or purchase money, the trust results to him for the whole estate granted; and such trusts are the creation of equity and independent of the Legal custom as to the distribution of the estate {I). An exception to this rule occurs if the conveyance be taken in Purchase in -, , .,, , ,, i name or wite the name of the husband, wife, or a child of the purchaser ; a 01 . child presumption then arises from the relationship that the purchase was intended for the benefit or advancement of the husband, wife, or child. But such presumption may be rebutted by con- temporary evidence of a contrary intention (m). So, where the conveyance was taken in the names of the trustees of a previous marriage settlement containing trusts for the benefit of the purchaser's wife and children, it was held to be subject to the trusts of the settlement for their benefit (»)• So, if the surrender and admittance of copyholds be taken in Surrende ... copyholds to the name of the child or of the wife of the purchaser, it imports use o{ wi f e or an advancement for their benefit, and rebuts the resulting trust °™^ er in favour of the purchaser (o). Where a conveyance is made without any declaration of trust, Voluntary and without any payment of purchase money whence to infer a trust or disposal of the beneficial interest, it is presumed to be made for the benefit of the legal grantee. The rule is different with uses, as has been seen, for absence of consideration and of declared intention raises a resulting use in the grantor. Thus, a grant to A. and his heirs, without any declaration of use and without any consideration to raise a use, imports a resulting use- in the grantor, which is executed by the statute and the estate remains in him as before ; but a grant to A. and his heirs to the use of B. and his heirs conveys the legal and equitable interest to B. although there be no consideration given or express appropriation of the beneficial interest, and there is no resulting trust (p). But conveyances made without consideration, or voluntary Volunt: conveyances, as they are called, may be fraudulent and void J^lagainS against creditors and subsequent purchasers, within the statutes creditoreand „ ,,,,.,. ,, purchasers. 13 Eliz. c. 5 and 27 Ehz. c. 4, although binding upon the grantor and his representatives (//). (/) Dyer v. Dye-r, 2 Cox, 92; 2 Wh. («) Be Ourteis Trust, L. R. 14 Eq. & T. L. C. Eq. 803 ; Lewis v. Lane, 2 217 ; 41 L. J. C. 631. M. .*c K. 449. See ante, p. 60. 0) Dyer v. Dyer, 2 Cox, 92 ; 2 W h. (/«) Di/er v. Dyer, 2 Cox, 92 ; 2 Wh. & T. L. C. Eq. 803. & T. L. C. Eq. 803; Stock v. M'Avoy, (j>) See per Hardwicke, L. C, Lloyd L. R. 15 Eq. 55; 42 L. J. C. 230; v. Spillet, 2 Atk. 148 ; Denton v. Batstone v. Salter, L. R. 10 Ch.431 ; 44 Davies, 18 Ves. 449 ; 1 Sanders, Dses, L. J. C. 760 ; Bennet v.Bennet, 10 Ch. D. 352 et seq. See ante, p. 83. 474; Merrier v. Mercier, [1903] 2 Ch. (7) The latter statute has been 98 ; 72 L. J. C. 511. amended by the Voluntary Conveyances 104 PART I. CHAP. IV. TRUSTS AND Egi-Tl'AIJLK ESTATES. Conveyance obtained by fraud. Voluntary conveyance for purpose which fails. It may liere be noticed that a conveyance, whether voluntary or not, obtained by fraud or undue influence, may be set aside in equity, and a reconveyance decreed ; and a trust may thus result in equity in favour of the grantor (r). So, a voluntary conveyance made for a special purpose which fails of effect (not being an unlawful or illegal purpose), may entitle the grantor to call for a reconveyance, and raise a resulting trust in his favour (s). But the trusts are raised in these cases by the general jurisdiction of equity to prevent fraud, which is not within the scope of this treatise further than to call attention to it as a copious source of constructive trusts, distinct from those arising in the ordinary bond fide dealings with property. Resulting trusts — from partial declaration of t rust. Devise upon partial trust. Resulting trust from declaration which fails of effect. Where a conveyance is made to trustees, in that character, with a partial declaration of trust, or for the purpose of a trust which does not exhaust the beneficial interest, the interest undis- posed of remains in the grantor as a resulting trust, like a resulting use before the statute. The presumption here is against the intention to pass the beneficial interest beyond the trust or purpose expressed {t). So with a devise of land by will, if it be declared to be upon trust for a particular purpose, as for the payment of debts, and no further trust is declared, it is taken to be for that purpose only and no other, and the unexhausted beneficial interest results to the heir or passes to the residuary devisee ; but if the land be devised merely subject to a particular charge, as a charge of debts, the unexhausted beneficial interest remains with the devisee. Difficulty often occurs in construing wills in this respect, because, from the universally voluntary nature of devises, absence of consideration affords no guide to the intention, as it does in a conveyance inter virus (u). So, where the declaration of trust extends to the whole interest, but is void or incapable of taking effect or in the event fails of effect wholly or partially, there is a resulting trust for the grantor or his representatives (,r). But if a conveyance, though Act, 1893. See May, "Fraudulent Con- veyances." (/•) Hvgnenin v. JBaseley, 14 Ves. 273 ; 1 Wh. .v' T. L. C. Eq. 2-17. As to the omission of a power of revocation in a voluntary settlement, sec Hall v. Sail, L. R. 8 Oh, 430; 12 L. .I.e. 141. (.v) See Cecil v. Butcher, 2 J. & W. 565 ; Symes v. Ilnijlira. L. 1!. 9 Eq. 475 : 39 L.J. C. 304 : Haigh v. Kaye, L. R. 7 Ch. 469 : 41 L. J. C. 567 : Co'lquhoun v. Courtenay, 43 L. J. C. 338. (/ 1 Cottington v. Fletcher, 2 Atk. 155 ; Northen v. Carnegie, t Drew. 587. There is no resulting trust in the case of gifts to charities as a general rule. See Theiford School Case,8 Co. 130 J; Ironmongers' Co. v. Alt. -den., 10 CI. k. Y. 908. ( a ) King v. Denison, 1 V. k B. 260 ; lie Wed, [1900] 1 Ch. 84 ; 69 L. J. O. 71. (./•) Ackroyd v. Smithson, 1 T.ro. C. C. 503 : 1 Wh. & T. L. C. Eq. 372 ; Tregonwell v. Sydenham, 3 Dow. 194. SECT. II, THE CREATION OF TRUSTS. 105 voluntary, be accompanied with a declaration, which is construed Precatory as precatory only, and which therefore fails of legal effect only as not intended to amount to an obligatory trust, the beneficial interest rests in the grantee, and there is no resulting trust (y). Trusts may be raised without a conveyance of the legal estate, Tin-'- ra by express declaration of trust ; — a complete declaration of trust ye yanC( made by the owner of the legal estate is as efficient to raise the theiegai J ° . estate, — by trust as if made upon a transfer of the legal estate; the trust is declaration raised by force of the declaration, and does not require any con- of trust - sideration to support it by way of contract {z). " A declaration Voluntary , . „ ., -i declaration. of trust is considered in a court of equity, as equivalent to a transfer of the legal interest in the court of law ; and if the transaction by which the trust is created is complete, it will not be disturbed for want of consideration " (a). But if voluntary, it may be void against purchasers or creditors upon the same principles as a conveyance of the legal estate {!>). Any contract or agreement concerning an interest in land, Trusts n which a court of equity would, if the limitations were valid, 3 L decree to be specifically performed, creates an equitable estate to the extent of the interest contracted for, and the party con- tracting to convey an interest in the land becomes a trustee of the land for the performance of the contract according to its terms and conditions so far as they are valid (c). A contract satisfying the statutory requirements of a bargain Contract t i • • 1 operating as and sale, as being by deed indented and mrolled, might raise a bargainand use executed by the statute and at once convey a legal estate ; sale - "but," it has been remarked, "even if those requisites were observed a contract could rarely so operate, for, as it ordinarily contemplates a future conveyance, to be preceded by an investiga- tion of the title, its executory nature would negative that opera- tion, no less than it prevents the vendor standing in the simple relation of a bare trustee to his cestui que trust." "It raises a qualified trust in favour of the purchaser " — a trust for specific performance according to the terms of the contract (d). (y) Harding v. Glyn, 1 Atk. 469: 2 (V) See Rose v. Watson, 10 II. 1.. 0. Wh. & T. L. C. Eq. 335. As to the <>72 ; S/anr v. Foster, L. R. 5 II. L, e II Vet of precatory expressions in wills, 321; L. ,v S. W. Uy. v. Oomm, 20 seeante, p. 101. Ch. D. 562; Whitbread .V Co. v. (s) Ellison v. Ellison, 6 Ves. 656 ; 2 Watt, [1902] 1 Ch. 835; 71 L. J. C. Wh. & T. L. C. Eq. 835, and notes. 421. (a) Per Lord Langdale, M. R., (d) ] Hayes, Conv. 96. As to the Collinstm v. PatricJt, 2 Keen. 123. trust arising upon a contracl of sale, see (//) Ante. p. 10:3. Sliaw v. Foster, L. R. 5 B. L. 321. 106 PART I. CHAP. IV. TRUSTS AND EQUITABLE ESTATES. Voluntary agreement. Imperfect gift. Voluntary declaration of trust dis- tinguished. An agreement without consideration or voluntary agreement to transfer an estate or interest is not enforced in equity, and therefore raises no trust (e). Nor does it have any greater effect in raising a trust when made in form of a covenant under seal, or in favour of a wife or child or other relation (/) ; herein differing from a covenant to stand seised to uses, which raised a use upon a good consideration, i.e., in favour of a wife or blood relation, without any valuable consideration to support it. An intended marriage is considered as a valuable consideration in support of an agreement, and for the purpose of raising a use or trust (//). The same principles apply to a gift or voluntary conveyance, if imperfect ; equity will not assist or enforce it, and therefore no trust is raised in favour of the donee (//). The distinction between a voluntary declaration of trust and a voluntary agreement to convey or an imperfect gift, the former being sufficient to raise a trust and the latter not, has been further explained as follows : — " A declaration of trust purports to be and is in form and substance a complete transaction, and the court need not look beyond the declaration of trust itself or inquire into its origin ; — whereas an agreement or attempt to assign is in form and nature incomplete, and the origin of the transaction must be inquired into by the court ; and where there is no consideration, the court, upon its general principles* cannot complete what it finds imperfect " (?'). It may be added that by a declaration of trust the owner of the property intends to constitute himself a trustee ; but in making an agreement or an attempt to convey he has no such intention, and if he becomes so, it is by construction of equity only (A). (p) Ellison v. Ellison, 6 Ves. (>56 ; 2 Wh. & T. L. C. Eq. 835, and notes. (/") Ellison v. Ellison, supra; Jefferys v. Jefferys, Cr. & Ph. 138; Eurrows v. Greenwood, 4 V. & C. Ex. 251. Qj) Fremoult v. Dedire, 1 P. Wins. 429 ; Gilbert, Uses 4 7. (//) Antrobus v. Smith. 12 Ves. 39; Edwards v. Jones, 1 M. <.v Cr. 226 ; 5 L.J. C.194. (/) Per Wigram, V. C., At'Eadden v. Jenkins, 1 Hare, 458; 11 L J. C. 2*1 ; affd. 1 I'll. 153; 12 L. J. C. 146. >>■>; ■per Jesse], M. R., Hi rim nix v.Eelbridge, L. R. 18 Eq. 11 ; 43 L.J. C. 459. (//) See Antrobvs v. Smith, 12 Ves. 39; "> L. J. C. 194 ; Edwards v. Jones, 1 M. & Cr. 226 : Jones v. Lock, L. R. 1 Ch. 25 : 35 L.J. C. 117. SECT. III. LIMITATION OF EQUITABLE ESTATES 107 Section III. § 1. Equitable Estates, and § 2. Estate and Office of Thustee. § 1. Equitable Estates. Equity follows the law— limitation of equitable estates rules of tenure and doctrines peculiar to freehold. Equitable estates of copyhold follow the custom — are not subject to fines and incidents of the legal tenancy— lord not bound by trusts unless appearing on the rolls — custom to surrender upon trusts. Equitable estates arising from constructive trusts. Conveyance of equitable estates -writing required by the Statute of Frauds — equitable estates of copyhold. Disposition by will and descent of equitable estates. In the regulation of trusts, equity, in general, follows the law ; Equity .„, . , , . • t , • i j follows the except where the different nature of the jurisdiction excludes law< any analogy (a). Accordingly in the declaration of the trust or beneficial interest ThelimitatioD i. u i mi of equitable the limitations of the legal estate are followed. Ine same esj estates are allowed and the same language is generally used and receives the same construction as at law. Thus, the equitable estate may be limited in fee simple or in tail, for a term of life or for years, in possession and in remainder {!>) . It was formerly the practice for the Court of Chancery, in a Practice of case of doubtful construction of the limitations of an equitable \ or l^ ' estate, to send the case to a court of common law, with the opinion of , • court of law. question stated as if it had arisen upon an instrument operating at law, for the opinion of the court of law as to the construction of the words of the instrument ; and where the question could not be so moulded, the assistance of some of the judges might be called in. But even where a question as to the construction of an instrument operating at law arose in a suit in chancery, it was fully competent to the court to decide it upon its own autho- rity, and it was not bound to give effect to the decision of the common law court upon a case stated (c). The Chancery Thepra Amendment Act, which gave the Court of Chancery full power to determine any questions of law necessary to be decided pre- viously to the decision of the equitable question at issue, has (a) Per Lord Mansfield, in Burgess (<•) See per Bayley, J., Houston v. v. Wheate, 1 Eden, 223. Hughes, 6 B. & C. 120; Wilson v. Eden, (/;) 1 Sanders, Uses, 280; Butler's 11 Beav. 237 ; 11 Beav. 317; 16 Beav. note to Co. Lit. 290 b, s. xiv. ; Olivant 153; and see -per Cranworth, I.. <'.. v. Wright, ( J Ch. D. 04(5; 47 L. J. C. Roddam v. Morley, 1 De G. & J. 1 ; 26 66L L. J. C. Ui. 108 PART I. CHAP. IV. TRUSTS AND EQUITABLE ESTATES. Utiles of tenure have no application to equitable estates. Doctrines peculiar to freehold have no applica- tion. Equitable limitations of copyholds follow the custom. Trust estate not subject to fines and other inci- dents of the legal tenancy. The lord's rights are not affected by trusts unless entered upon the rolls. been superseded by the Judicature Act, 1873, which merged the chancery and common law courts into one Supreme Court, by which all former common law and equitable jurisdictions are concurrently administered. But the rules of tenure have no application to the equitable estate; for the trustee is equally recognised to be the legal tenant, bound by the duties of tenure, in equity as at law. So, also, the legal doctrines concerning the seisin, requiring the tenancy to be always full, and excluding all future or shifting limitations except by way of remainder, as they are peculiar to the quality of freehold, have no application to the equitable estate; and an equitable estate may be limited to arise at a future time, or upon future or contingent events, or by ap- pointment under a power, with all the freedom of springing and shifting uses, and in some respects even with greater freedom (d). Upon the same principle that equity follows the law, a declara- tion of trust of copyholds, as to the estates admissible, the limitation of estates, and construction of the limitations, follows and is regulated by the custom of the manor. Accordingly, the equitable interest cannot be limited for an estate tail in manors which have nq special custom that the legal tenancy may be entailed (e). But the equitable estate in copyholds is independent of the claims of the lord incident to the legal tenure ; as fines, fees, heriots, escheat, forfeiture and the like (/). If a surrender is made upon express trusts, the lord is not bound to notice the trusts or to enter them upon the court rolls; nor is he bound by notice of any trusts which do not appear upon the rolls (r/). If a surrender upon terms expressing or referring to trusts be accepted and enrolled, the lord may be bound by the trusts as against his own rights ; and in case of an escheat or forfeiture of the tenancy, he would then hold as trustee, and might be compelled to regrant according to the trusts (//). It seems that there may be a custom in a manor to surrender lands upon trusts declared in the surrender, but without a custom the lord cannot be compelled to accept a surrender burdened with trusts (/). (d) Ante, pp. 33, 88. (e) Pullcn v. Middleton, '.» Mod. 483. (/) J,', v. Hendon, 2 T. R. 484; Peachy v. Somerset (JDuke), 1 Stra. 454; Copestohe v. Hover, I L9081 2 Ch. 10 ; 77 L. J. Ch. 610. (,?) Peachy v. Somerset (Duke), 1 Stra. 154. (/<) Weaver v. Afaule, 2 Puss. & M, :»7 ; Gallard v. RawJtins, 27 Ch. D. 298 ; 53 I,. .1. ('. 834. (/) Snook v. Southwood, 5 A. & E. 23'J ; Flack v. Dowiuikj Coll., Camb., 13 C. 13. 945; 22 L. J. C. P. 229. SECT. III. LIMITATION OF EQUITABLE ESTATES. 109 Equitable estates arising from constructive trusts without any Equitable ,,...,,,,.,,. c ,, ,. ' estates arising express declaration follow the intention of the parties or ar< ,,„,,. regulated by the circumstances of the case. Thus, a contract tive trust. for the sale of land without expressing the interest intended is construed as referring to and importing the whole interesl of the vendor, which he is therefore bound to convey ; and the contract may thus create an equitable estate in fee simple with- out any technical words of limitation (k). So, a resulting trust carries all the equitable estate undisposed of, without any words of limitation (/). In the transfer of equitable estates and interests by con- Conveyance veyance inter vivos, it is the ordinary practice to use the same estates, formal assurances as are required in law for the corresponding legal interests, but such formal assurances are not absolutely necessary. Any instrument which expresses an intention to transfer the beneficial ownership to another is effective in equity ; with a few exceptional occasions, as in the case of a tenant in tail, who is required to employ the same formalities as at law (>»)• By the Statute of Frauds, 29 Car. II. c. 3, s. 9, "all grants Writing re- or assignments of any trust or confidence shall be in writing g^^rf signed by the party granting or assigning the same "(n). Frauds. Equitable estates and interests in copyholds may be created Equitable and assigned without surrender or admittance, or any of the boMpass forms appropriate to the legal tenancy, and without any other without formality than is required for trusts in general. So, the equitable admittai estate might have been devised without a surrender to the use of the will, before such surrenders were dispensed with by statute (o). But by the Fines and Recoveries Act, 1833, s. 50, Equitable a disposition of an equitable estate tail in copyhold land may be made either by surrender, or by a deed as therein provided (p). estate tail barred. Equitable estates are devisable by will with the forms required Devise of for making a valid will (q). In case of intestacy an equitable ^^t estate of inheritance descends to the heir according to the legal Descent of rules of descent, including the variations of special customs to equitable . estate. which the land is subject; while an equitable estate for a term (Jt) Bower v. Cooper, 2 Hare, 408. L. J. Bk. 79. Ami -(•(•(////<■. \>. 105, post, p. 221. (o) Tnffnellv, Page, 2 Atk. 37 ; see (/) Ante, p. 101. ' ante, pp. 54, 65. (w) See Fines and Recoveries Act, (p) 3 k, 1 Will. IV. c. 71. ss. 50—53 ; 1833 ; Carpenter v. Carpenter, 1 Vein. Reg. v. Ingleton, 8 Dowl. 1'. C. 693. 410; North v. Way, 1 Vern. 13; 1 (q) Wills Act. ls;S7 (1 Vict. c. 2(1), s. 2 ; Sanders, Uses, 280. Lewin, Trusts, 908. 00 Re p. Hall, 10 Ch. D. 615 ; 48 110 PART I. CHAP. IV. TRUSTS AND EQUITABLE ESTATES. of years or chattel interest passes to the executor or adminis- trator as personal estate ; but, although a husband was entitled to an estate by the curtesy, a widow was not dowable out of an equitable fee in lands until the Dower Act(r). Estate of trustee. The trust follows the legal estate. § 2. Estate and Office of Teustee. Estate of trustee — trust follows the estate. Purchaser for value without notice — purchaser without value — purchaser with notice. Purchase under trust for sale — power of trustee to give receipts— statutory power. Power to appoint new trustees — jurisdiction of Court of Chancery to supply the want of trustees — statutory power of court to appoint new trustees — statutory power without the aid of the court. Liability of trustee to account — remuneration for time and services — expenses — employment of agents — indemnity. Liability for breach of trust or negligence — default of agent — default of co-trustee. Profits of trust — purchase of trust property by trustee — purchase of incumbrance — renewal of lease by trustee —purchase from cestui que trust — persons in fiduciary position. The land, remaining at law the property and at the disposal of the trustee, was formerly subject, in his hands, to all the incidents of legal ownership. In former times it passed by his conveyance or devise, or descended to his heir (a). Since 1881 a trust estate vested in a sole trustee devolves upon his personal representatives notwithstanding any testamentary disposition of the same except the property be of customary tenure, in which case it devolves upon the customary heir in the case of an intestacy or is transferred to the devisee if devised (b). Since 1882 a tenant for life of settled land may dispose of and convey the property settled without the concurrence of the trustees in the conveyance, but there is nothing in the Settled Land Acts, 1882 to 1890. to prevent a purchaser taking a conveyance of the legal estate from the trustees of the settlement. But the trust or equitable title is, for the most part, independent of the casualties affecting the legal ownership, and, as a general rule, follows and attaches upon the land through all the devolutions of the legal title. All persons who take through (;■) Watts v. Ball, 1 P. Wms. 108 ; Norfolk (Unite) v. Ball, 1 Vein. 163 ; Fordrrx. Wade, 4 Pro. C. C. 521. And see Batiks v. Sutton, 2 P. Wms. at p. 713. (//) Lewin, Trusts, 211 et seq. (/;) Conveyancing and Law of Pro- perty Act, 1881, s. 30 ; Copyholds Act, 1894, s. 88. SECT. III. § 2. ESTATE AND OFFICE OF TRUSTEE. Ill •or under the trustee, as his grantee (except a purchaser for value without notice of the trust), devisee, heir, executor or adminis- trator, are equally hound hy the trust (c). Also creditors of the trustee, obtaining execution against the property held in trust in exercise of their legal right, would he restrained in equity, or would themselves be declared to be trustees (d). And the Bankruptcy Act, 1883, has confirmed the old rule that a trustee in bankruptcy has no claim against property held by the bankrupt upon trusts (e). An exception occurs with a purchaser acquiring the legal Purchaser for estate from the trustee for a valuable consideration and without no ti C e of the notice of the trust. The parties having an equal claim to the trust - assistance of the court, it remains neutral, and the purchaser retains the beneficial enjoyment which a court of law would have adjudged to the owner of the legal estate. In the result the trust is thereby displaced and extinguished as to the land, and the former equitable owner is compensated by being allowed to follow the proceeds realised by a breach of trust, and a personal remedy against the trustee for any wrongful act (/). The purchaser for value without notice can convey a good title, Purchaser discharged of the trust, even to a purchaser with notice, except ^ m , n ur ! ce to the trustee who committed the breach of trust ; in whose chaser with- hands the land, though purchased for value, would be restored to the trust, in order to meet his original breach of trust (g). A purchaser, or person acquiring the trust property from a Purchaser trustee, without giving any value or consideration for it, as by a voluntary gift or devise, is charged with the trust and all equities affecting the property to the same extent as the trustee from whom he took, whether he had notice of the trust or not (A). A purchaser taking the trust property from a trustee with Purchaser notice of the trust, though he paid full value for it, is subject to ' vith uotlce ' the trust ; but if he paid value, it will be presumed that he had no notice, and the onus of proving notice will lie upon the party (r) Basset v. Noseworthy, Rep. t, 70 L. J. C. 177. See Lewin, Trusts, Finch, 102 ; 2 Wh. & T. L. C. Eq. 150. 1074. {d)l Sanders, Uses, 390; Lewin, (gr) Lowtlter v. Carleton, Cas. t. Talb. 202. 186 : Sweet v. X mthcote, 2 lira. C. C. 66 ; (c) Bankruptcy Act, 1883, s. 4-t (1). Bovey v. Smith, 1 Vein. tin. si. 114. See Ben.net v. Davis, 2 I'. Wms. 315. See Boles and British Land Co.'s Co)tt., (/) Basset v. Nosewortliy, Pep. t. [1902] 1 Ch. 211; Delves v Gray Finch. 102; 2 Wh. & T. L. C. Eq. [1902] 2 Ch. 006 ; 71 L. J. C. Mis. 150; Bailey v. Barnes, [1894] I Ch. (/<) Huguerim v. Baseley, II Ves. 43; 63 L. J. C. 73 ; Taylor v. London 273 ; 1 Wh. &T. L. C. Eq. 247. anl County Bank, [1901] 2 Ch. 231; 112 PART I. CHAP. IV. TRUSTS AND EQUITABLE ESTATES. alleging it against him (/'). Notice received before paying the purchase money, or taking a conveyance of the legal estate, is sufficient to charge a purchaser with the trust, though he had no notice at the time of contracting for the purchase (A). Purchase under trust of sale. Implied power to give receipt for purchase money Express pmver to give receipt. Statutory power to give receipts. Where the property was sold and conveyed by the trustee in execution of the trust, a purchaser with notice was so far bound by the trust, according to the general rule, that he became responsible for the sale being a proper one, and for the proper application of the purchase money; upon the principle that the cestui que trust, as being the equitable owner, alone could discharge him. But an exception was made with trusts for general purposes, which the purchaser had no means of inquiring into, as a trust to sell for the payment of debts generally, or for the payment of debts and legacies, or other kinds of trust which imply the power of selling the property discharged of the trust. Trusts for the payment of specified debts, or of legacies only, are within the general rule (/). Hence trusts requiring a sale or disposal of the property, in order to facilitate the execution of the trust, were usually framed with an express power of giving receipts to the purchaser, and discharging him from the obligation of seeing to the proper application of the purchase money. The purchaser was then discharged from all responsibility upon payment of the money to the trustees, and obtaining their receipts ; for the equitable owners are bound by the terms and conditions of the trust. Such a clause, however, does not exempt the purchaser from the consequences of the power of sale not being duly exercised, upon a proper occasion and in a proper manner (m) ; and it may happen that notwithstanding such clause, the power is made conditional, as to its due execution, upon the proper application of the money (h). It is now provided by sec. 20 of the Trustee Act, 1893 (which replaces and extends a series of earlier enactments to the same effect), that "the receipt in writing of any trustee for any money, securities, or other personal property or effects payable, (/) Le Neve v. Le Nete, Amb. 436 ; 2 Wh. & T. L. C. Eq. 175; Corser v. Carttvright, L. li. 7 H. L. 731. See R. S. C. 1883, 0. 19, r. 23. (/.■) Tourville v. Naish, 3 1*. Wms. 307 ; Jackson v. Howe, 4 Russ. 514 ; Bailey v. Barnes, [1894] 1 Ch. 43 ; Taylor v. London and County Bank, [1901] 2 Ch. 231; 70 L. J. C. 477. See S/tarjJev. Foy, L. R. 4 Ch. 35 ; Life Int. and Her. Securities (Corp.) v. Hand in Hand Life and Fire Ins., [1898] 1 Ch. 230. (P) Elliot v. Merriman, Barn. 78 ; 2 Wh. & T. L. C. Eq. 896 ; see post, pp. 200 et tea. (in) Dunn v. Flood, 28 Ch. D. 586. See as to the actual decision, Trustee Act, 1893, s. 14. (m) Doe v. Martin, 4 T. R. 39 ; Ilouijhain v. Sandys, 2 Sim. 95 ; see Sugden, Powers, 852 et seq. SECT. III. § "2. ESTATE AND OFFICE OF TRUSTEE. 113 transferable, or deliverable to him under any trust or power shall be a sufficient discharge for the same, and shall effectually exonerate the person paying, transferring, or delivering the same from seeing to the application or being answerable for any loss or misapplication thereof" (<>). Powers of sale expressly given to trustees by any instrument may be exercised according to the provisions of sect. 13 and the ancillary sections of the same Act, unless those provisions are negatived or varied by the instrument. Power was usually given to appoint new trustees and to convey Power to the property to them as occasion required for the purpose of con- **2* tinuing the trust ; such power being generally made exercisable with the consent of the cestui que trust. In the absence of such express power the trustee could only retire from the trust with the consent of all the beneficiaries, being sui juris, or an order of the court (/>). But the cestui que trust is entitled to have, at all times, proper Jurisdiction trustees to hold the estate and support the trust, and the Court f Cham of Chancery has a general jurisdiction to execute trusts, and to supply the order conveyances of the trust property, which will be exercised tras as occasion requires. It being a maxim of equity that " a trust shall not fail for want of a trustee," the court will supply the want of them when necessary (//). The appointment of new trustees upon occasions of difficulty Statutory has been facilitated by statute. Sect. 25 of the Trustee Act, rourtto 1893 (the statute now in force), enacts, " The High Court may, appoint new whenever it is expedient to appoint a new trustee, or new trustees, and it is found inexpedient, difficult, or impracticable so to do without the assistance of the court, make an order appointing a new trustee or new trustees, either in substitution for, or in addition to any existing trustee or trustees, or although there is no existing trustee." The court may also make an order vesting the lands in the new trustees, which shall have the same effect as a conveyance made by the former trustees for the same purpose (r). The court will not, in general, exercise the power given by this enactment, where there is an existing power of appointing new trustees, which the donee is willing to exercise (s). (o) Hockey v. Western, [1898J 1 Ch. (>•) As to the application of these 350^ 67 L.J. C. 166. enactments, see Lewin, Trusts, si, {p) See Wilkinson v. Parry, 4 Russ. et seq.; and Carson's Real Prop. 272 ; Re CJietioynd's Settlement, [1902] Statutes, pp. 763 et seq. 1 Ch. 692 ; 71 L. J. C. 352. C) /•'<' Gadd, 2:; Ch. D. 131: 52 ( Y ) Bennet v. Davis, 2 1'. Wins. : J ,1C> ; L. J. C. 396 ; /•'■■ Hlgginbottom, [1892 Eldon, I.. C. Brown v. Biggs, 8Ves. 570. 3 Ch. 132 ; 62 I.. -1. »'. 74. L.P.L. l Ill PART I. CHAP. IV. TRUSTS AND EQUITABLE ESTATES. Statutory power to appoint new trustees with- out the aid of the court. The court may also make appointments of new trustees under the provisions of the Judicial Trustees Act, 1890, and the Public Trustee Act, 1907 (t). A general statutory power of appointing new trustees, and of transferring to them all the powers and property of the trust, without the aid of the court, is given by the Trustee Act, 1893. The Act applies to instruments executed before, as well as after, the passing of the Act, and its application may be negatived or varied by the instrument creating the trust (a). Sect. 11 of the same statute empowers a trustee to retire from the trust if there are more than two trustees. This gives "quasi-legislative sanction " to the jurisdiction exercised by the Court of Chancery to discharge a trustee from the trust provided there be continuing trustees to administer the property (x). Trustee bound to account. Claim for time and services. Claim for expenses, — of agents, etc. A trustee may be compelled to give an account of the execution of the trust (i/). He is not allowed to charge any remuneration for giving his time or services, — a rule which extends to all persons rilling a fiduciary character, as executors, and the like ; notwithstanding he may have rendered the services in a profes- sional capacity. But the trust may expressly direct the allow- ance of a remuneration for time and services, professional or otherwise (z). A trustee may charge the expenses actually incurred by him in the protection and maintenance of the trust property and in the execution of the trust. He is entitled in a proper case, and where the nature of the case requires it, to appoint bailiffs, collectors of rents, solicitors, brokers, or the like (a). The appointment of these agents is the appointment of the trustee, for it is not obligatory upon him to appoint a person named in the instrument creating the trust (b). It follows that the claim of the agent for his remuneration is a claim against the trustee personally (c), but for this liability the trustee is entitled to reimbursement out of the trust estate and has a lien on it for the amount (d). Although the agent has no direct claim against the (t) See Lewin, Trusts, pp. 685 et seq. ; Carson, Real Prop, statutes, 806. («) See Carson, Real Prop. Statutes, pp. 753 et seq. ; Lewin, Trusts, pp. 788 et sea. O) Be Chetwynd's Settlement, [1902] 1 Ch. 692 ; 71 L. J. C. 352. (y) See Re Fish, [1893] 2 Ch. 413 ; Be Dart-nail, [1895] 1 Ch. 474 ; Camp- bell v. Gillespie, [1900] 1 Ch. 225 ; 69 L. J. C. 223. («) Robinson v. Rett, 3 P. Wins. 251 ; 2 Wh. & T. L. C. Eq. 606 ; Re Fish, [1893] 2 Ch. 413. («) See Lewin, Trusts, pp. 768 et seq. ; Trustee Act, 1893. s. 17. (V) Shaw v. Lawless, 5 CI. & F. 529 ; Finden v. Stephens, 2 Ph. 142 ; 17 L. J. C. 342 ; Foster v.Elsley, 19 Ch. 1). 518 ; 51 L. J. C. 275. (/•) Staniar v. Evans, 34 Ch. D. 470 ; 56 L. J. C. 581. See Bli/th v.Fladgate, [1891] 1 Ch. 337 ; 60 L.* J. C. 66. (d) Re Weall, 42 Ch. D. 674 ; Re SECT. III. § 2. ESTATE AND OFFICE OF TRUSTEE. 115 .rent. Liability for default of co-trustee. trust estate, he might make his claim available, upon the doctrine of subrogation, to the same extent as that of the trustee (e). Where the trust fund is insufficient to satisfy the right of indemnity of the trustee, he is prima facie entitled to Claim to be indemnified by his cestui que trust personally against any loss im,emmt }'- or liability arising in the proper execution of the trust (/). A trustee is chargeable with loss occasioned by breach of trust Liability for or by negligence : and a trustee is bound to the same care on ofnegligence. behalf of his cestui que trust as a reasonable person would take on behalf of himself (//). A trustee is not liable for the default, fraud, or negligence of Default of agents employed by him of necessity, and in the ordinary and regular course of business, and without any personal negligence in the trustee ; but he cannot delegate to them matters over which he ought to exercise discretion (Ji). But one of joint trustees is not chargeable with the neglect or default of another. Each is bound to join in all acts in execu- tion of the trusts, and therefore upon a joint receipt he can be charged only with so much of the trust property or its produce as has come to his hands ; unless fraud or negligence can be charged against him personally (/'). It is a general principle of equity that a trustee shall not Trustee must acquire to himself any profit from the trust. Whatever profit pi-ofitT of f ° l or benefit may accrue from the trust or trust property is tmst - impressed with the same trust, and must be accounted for to the cestui que trust (k). Accordingly, a trustee who employs the trust property for any Profits made business or purpose of his own, while he is liable for all losses, property "^ may be compelled to account to the cestui que trust for all the profits actually made by such use of the property, or, at the option of the beneficiary, to interest at 5 per cent. (/). Fish, [1893] 2 Ch. 413: Trustee Act, 1893, s. l'4. See Re Turner, [1907] 2 Ch. 126, 539 ; 76 L. J. C. 492. (V) See Re Blundell, 40 Ch. D. 370; 57 L. J. C. 730 ; Be Raybould, [1900] 1 Ch. 199 ; C,'.) L. .1. ('. 219 ; Jennings v. Mather, [1902] 1 K. B. 1 ; 70 L. J. K. B. 1032; lie Turner. [1907] 2 Ch. 126, 539 ; 76 L. .1. ('. 492. (/■) Hardoon v. Belilios, [1901] A. C. 118 ; 70 L. J. P. C. 9 ; Wise v. Perpetual Trustee Co., [1903] A. C. 139 ; 72 L. J. P.O. 31. (//) Jones v. Lewis, 2 Ves. sen. 210 ; Massey v. Banner, 1 J. & W. 2 11; CItalleiL v. Shippam,4 Ha. 555 ; Wiles v. Gresham, 5 De G. M. & G. 770 ; 24 L. J. C. 2*,4. (/<) Speight v. Gaunt, 9 App. ("as. 1 ; 53 L.J. C. 419: Learoyd v. Whiteley, 12 App. Cas. 727 : 57 L. J. C. 390 : lie Weall, 42 Ch. D. 674 : 58 L. J. C. 713 : Jobson v. Palmer, [1893] 1 Ch. 71 ; 62 L. J. C. 180 : Shepherd v. Harris, [1905] 2 Ch. 310: 74 L. J. C. 574. (?) lownley V. Sherborne. Bridg. 35 ; 2 Wh. & T. L. C. Eq. 629 ; Briee v. Stokes, 11 Ves. 319 ; 2 Wh. ,-c T. L. C. E ]. 633. See Shepherd v. Harris. 1905 ; 2 Ch. 310. (/,•) Keerh v.Sand/ord, Sel. ('as. Ch. 61 ; 2 Wh. & T. L. C. B |. 693. (/) Burdiclt v. Qarrick, L. R. 5 Ch. 233 ; Vyse v. Foster, L. H. 8 Ch. 309 ; i 2 110 PART I. CHAP. IV. TRUSTS AND EQUITABLE ESTATES. Purchase of trust properly by trustee. Purchase o) incumbrance by trustee. Renew; 1 1 of lease by trustee. Purchase from cestui que trust. Persons in fiduciary position. Upon the same principle if a trustee for sale purchase the trust property for himself (unless by leave of the court), the sale may be set aside at the suit of the cestui que trust, who is entitled to fix the trustee with the price he proposed to give in the event of the property not fetching more upon a resale (in). If he has resold at an advance, he may be compelled to account for the excess above what he himself gaveO' >. So, if a trustee buy in an incumbrance or charge upon the trust property for less than is due upon it, he will be deemed to hold it as trustee, with a lien or charge for his own benefit only to the extent of his purchase money (o). Upon the same principle the trustee of a renewable leasehold who takes a renewal in his own name, will be compelled to hold it upon the trusts of the former lease (p). A tenant for life, though not bo and to renew leaseholds, if he does, is considered as a trustee, and holds the renewed interest upon the trusts of the settlement (q). A trustee may purchase the interest of his cestui que trust ; but the burden of proving the fairness of the transaction, if it be called in question, lies upon him, which if he fail in doing, the sale may be set aside (r). The doctrines above stated as to trustees apply generally to all persons standing in a fiduciary position relatively to the person by or on behalf of whom the property is sold, as execu- tors, solicitors, or agents (s). But a tenant for life is not in a fiduciary position relatively to the remainderman, as regards a purchase from their trustees under a power of sale ; although his own consent be required for an exercise of the power (t). And a mortgagee may buy from the mortgagor or from a prior mortgagee (u). Parker v. McKenna, L. E. 10 Ch. 96 ; Re Davis, [1902] 2 Ch. 314 ; 71 L. J. C. 539. See Xno-v v. Gye, L. R. 5 H. L. 656 : 42 L. J. C. 234. (m) Fox v. Mackreth, 2 Bro. C. C. 400 ; 2 Wh. & T. L. C. Eq. 709; Ex p. Lacey, 6 Ves. 625; Delves v. Gray, [1902] 2 Ch. 006; 71 L. J. C. 808; Campbell v. Walker, 5 Ves. 678. O) Fox v. Mackreth, 2 Bro. C. C. 400 ; 2 Wh. & T. L. C. Eq. 709 ; Ex p. Morgan, 12 Ves. C>. (o) See Williams v. Springfield, 1 Vera. 476. ( //) Kerch v. Sandford, Sel. Cas. Ch. 61 ; 2 Wh. & T. L. C. Eq. 693. See Bevan v. Webb, [1905] 1 Ch. 620 ; 74 L. J. C. 300 ; Griffith v. Owen, [1907] 1 Ch. 195 : 76 L. J. C. 92. (7/) Pickering v. Vowles, 1 Bro. C. C. 197 : Giddings v. Giddings,3 Russ. 241. See Be Biss, '[1903] 2 Ch. 40 : 72 L. J. C. 4 73. O) Fox v. Macltreth, 2 Bro. C. C. 400 ; 2 Wh. & T. L. ('. Eq. 709. O) Ex p. Lacey, 6 Ves. 625 ; Dent v. Bennett, 4 M. & Cr. 269. See Guest v. Smythe,!,. R. 5 Ch. 551. (f) Reward v. Ducane, T. & R. 81 ; Dicconson v. Talbot, L. R. 6 Ch. 32. (?/■) Knight v. Marjoribanl&s, 2 .Mac. & G. 10 ; Kirkwood v. Thompson, 2 De G. J. & S. 613 ; Melbourne B1uj. Corp. v. Brougltam, 7 App. Cas. 3<)7. See Be Alison' 11 Ch. D. 284. ESTATES IN LAND. 117 PART II. ESTATES IN LAND. Chapter I. The Limitation of Estates as to quantity. II. The Limitation of Future Estates. Property in land is divided into estates or interest?, measured ■ Est< ? tes n \ . . land,— as to by the quantity or duration of the use and enjoyment ; and such quantity, estates, in regard to the time of commencement, may be either — as t0 time „ . of commence- Ill possession or future. me nt. Accordingly this part is divided into two chapters treating respectively, — of the limitation of estates as to quantity or duration, — of the limitation of future estates (a). Estates are defined and ascertained by the terms of limitation The hinlta - J lion ore-' in which they are legally expressed and conveyed. — " It is the / / /■ 3 province of a limitation to mark the period or event for the com- ^* ' mencement, and the time of continuance or duration of an 'Kir^^oJS- , estate, either by years, lives, or the series of heirs; also the determinable qualities of an estate ; as for twenty-one years, if A. should so long live," etc. (/;). The use of words in limiting or denning an estate requires to Distinction be carefully distinguished in practice from the use of words in wordsof appropriating the estate to the purchaser, as the person is com- wor< jg f pur . monly called to whom the estate is destined. Many words, as chase. "heirs," "issue," "children," etc., are capable of a double import, as words of limitation and words of purchase ; and they are often used ambiguously, especially in wills. The rules of construction occasioned by such cases of ambiguity form a con- siderable part of the law of limitation of estates, and will be found in the proper places in the following pages. The word purchase (perquisitio) is applied in law to any lawful prochase mode of acquiring property by the person's own act or agree- ment, as distinguished from acquisition by act of law, as descent, escheat and the like. A purchase in the above sense includes («) See ante, Introduction, pp. 5, 7. (i) Preston's Shepp. Touch. 117. 118 PART IT. ESTATES IN LAND. acquisition not only under a contract of sale for a valuable consideration, but also by gift or without consideration, and by devise (c) . The various estates which may be limited or created in land may be conveniently treated in the order of their magnitude or duration, and accordingly will form the subjects of the sections into which the first chapter of this part is divided. Variations of limitations. Standard rule of the com- mon law. But the terms of limitation vary in construction and effect as applied under the different systems of common law and customary law, of uses executed by the statute and trusts administered in equity. They also vary with the occasion of use, as employed in contracts, conveyances inter vivos, and wills. Therefore, to complete the view of estates, it is necessary to collect the rules and doctrines of limitation as they appear in the above systems and as they are applied in different instruments. The common law of freehold tenure is adopted, generally, as the standard rule of limitation and construction, and is followed in the other systems of estates, but with the modifications, if any, allowed or required by the quality of the estate and the occasion of application ; and upon this principle the contents of the following sections are for the most part arranged. The rules there laid down may be considered of general application, unless qualified by the context, or unless some exception or modification be expressly noticed (d). (0 Co. Lit. 18 a, b ; 2 Blackst. Com. 241 ; see the meaning of the term dis- cussed in Axltew v. IlootJi, L. R. 17 Eq. 426 ; 43 L. J. C. 368. (77) As to customary estates, see ante, p. 52 ; as to limitations of uses, ante, p. 78 ; as to equitable estates, ante, p. 97. SECT. I. FEE SIMPLE. 119 CHAPTER I. THE LIMITATION OF ESTATES AS TO QUANTITY. Section I. Fee simple. II. Fee tail. 7,1%^. . III. Estates for life. IP, l4^ t r^ IV. Estates for years, f. J *4- 4 ; 73 L. J. C. 832; Re Ti'ingliam's Trusts, [1904] 2 Ch. 487; 73 L. J. C. 698; Re Oliver's Settlement, [11)05] 1 Ch. 191 ; 73 E. J. C. 62. (./') Mallory's ('use, 5 Co. 112 a ; Co. Lit. 8 7/ and note (5). (//) Hardwicke, L. C, WrigM v. Wright, 1 Ves. sen. 411. But tin's is by force of the habendum: Goodtitle v. Gills, :> V.. & C. 709. (//) Hargrave's note (4) to Co. Lit. 8 // ; per Eyre, C. J., Dubbery. Trollope, Amb. at p. 457. (/') Co. Lit. 20 b ; also in releases of certain kinds to a person already seised in fee. as by one joint tenant to another. Co. Lit. '.» h. 272 /'. et seq. The word " heirs " as a word of purchase imports a fee without adding, and to their heirs. Co. Lit. 10 a. (;') Bunting v. Lepingwell, 4 Co. 29 b. SECT. I. § 1. FEE SIMPLE IN CONVEYANCES. 121 The limitation " to A. for life " and the limitation " to A." Rule in being equivalent, a limitation "to A. for life and afterwards to his heirs," or " with remainder to his heirs," or any like expres- sion importing that after the decease of A. his heirs are to take according to the rules of inheritance, is construed as equivalent to the limitation " to A. and to his heirs," and conveys to A. an estate in fee simple. This is the simplest application of the rule in Shelley's case (k). The word "heirs" or " heir" may be used, not as a word of Limitation to limitation of estate, but as a word of purchase or designation ^2^ pui of the purchaser; as, where a limitation is made to the " heirs" of a person without any preceding estate being given to the ancestor to which the word can be referred as a term of limitation, it must be taken as a term of purchase (/). The construction of the limitations "to A. and to his heirs " Limitation to or "to A. for life with remainder to his heirs" or to the like heirs 1 A. being effect, is not altered by the fact of A. being dead at the time of dead. making the limitations ; they import a fee simple in A., and are then merely void of effect by reason of his non-existence, and his heirs take nothing (m). The word "heirs" used as a word of purchase, imports an Limitation to ,„,..,,. "heirs im- estate in fee simple without any superadded words of limitation. p orts a fee According to Coke, — " where the remainder is limited to the sin ?^ le J^ t J 1 " riofht heirs of B. it need not be said, and to their heirs; for limitation. being plurally limited, it includeth a fee simple, yet it resteth but in one by purchase " («). The word " heir " in the singular, as a designation of the pur- chaser, has not the same effect in a deed and requires further words of limitation to pass the fee (<>). By the Inheritance Act, 1833, s. 4, it is enacted "that when Descent to be any person shall have acquired any land by purchase under a t J ii 1 .' ' lU( .^1'', . limitation to the heirs of any of his ancestors, contained in an assurance executed after 31 December, 1833, — such land shall descend, and the descent thereof shall be traced as if the ancestor named in such limitation had been the purchaser of such land " (p). (Jt) Ante, p. 21 ; the rule will be (m) Goodright v. Wright, 1 P. Win-, more fully stated ami explained iu 397 ; Doe v. Kett, i T. R. 601 ; Elliot v. treatingof remainders, see post, Chap. II. Daren port, 1 P. Wins. 83; Tud. L. C. Sect. 1.. p. 247. Conv. (I) Wills v. Palmer, 5 Burr. 2615; (h) Co. Lit. 10 a. Seepost,?. 122. Roe v. Quartley, 1 T. R. 630 ; Cholmon- (o) C/iambers v. Taylor, 2 ME. & Cr. deley v. Clinton, 2 Mer. 171. Bee Evans 387. See Evans v. Evans, [1892] 2 Ch. v. Evans, [1892] 2 Ch. 173; 61 L. J. C. 173 ; 61 L. J. C. t56. 450. (p) See post, p. 132. 122 PART II. CHAP. I. THE LIMITATION OF ESTATES. Limitation to heirs of grantor. A person could not by any common law assurance make his own heir a purchaser ; the limitation of a remainder to his own heirs was inoperative, and he remained entitled as of his former estate. By the last-mentioned statute, s. 3, such limitation (in any assurance executed after 31 December, 1833) has the effect of vesting the estate in him as a purchaser and not as his former estate (q). Meaning of " heir ' ' as word of pur- chase. Heir pre- sumptively means heir at law. Heir qualified by descrip- tion. Heir male. Heir now living. The designation of a person as "heir" is necessarily uncertain until the death of the ancestor ; for there can be no heir to a living person ; as expressed in the maxim, nemo est lucres viventis (/•). But if there be an assisting context, the word " heir" may be read as descriptive of an heir apparent or heir presumptive (s). It presumptively means the heir at law, and not the customary heir, even where the land conveyed is subject to gavelkind or other customary rule of descent (£). Additional words of description may further particularise the heir intended as purchaser, as heir male, under which designation in a deed, it is doubtful whether the purchaser mast answer the condition of being the very heir and a male ; and in the case of a limitation to an heir female, whether a daughter can take if she be not also heir (»). The additional description may, how- ever, qualify the meaning of the word "heir," as in the designation of " heir now living," which in the life of the ancestor can only mean the heir then apparent or presumptive (x). The purchaser under such restrictive descriptions of heir will take only an estate for life unless there be further words of limitation to give him the fee (x). ((/) Cholmondeley (Marq.) v. Clinton, 2 B. & Aid. 625. See ante, p. 37 ; as to uses limited to the heir of the grantor, see ante, p. 8!), and see post, Chap. II. Sect. II. "'Future Uses." (/■) Archer's disc, 1 Co. (i(> /; ; Chal- loner and Bowyer's Case, 2 Leon. 70 ; Co. Lit. 8 b, 22 b. See lie Parsons, 45 Ch. D. 51 ; lie Mlenborough, [1903] 1 Ch. 607 ; 72 L. J. C. 218. (*) Darlison v. Beaumont, 1 P. Wms. 22'.i ; Wilder v. Perratt, 9 CI. & F. 606. (0 Garland v. Beverley. Ch. D. 213; 17 L. J. C. 711. (>/) See Wills v. Palmer, 4 Burr. 2615, as expl. Fearne, Cont. Hem. 45 ; Winter v. Perratt, 9 CI. & F. 606 ; Viner, Ab. tit. Heir (G 3), (G 4), pp. 253 et seq. ; Co. Lit. 24 b ; Hargrave's nute (3), ib. ; Co. Lit. 164 a ; Hargiave's note (2), ib. (x) Chambers v. Taylor, 2 M. & Cr. 376 ; 6 L. J. C. 193. SECT. I. § 2. LIMITATION OF FEE SIMPLE IN WILLS. 123 § 2. Limitation of Fee Simple in Wills. Devise to " heirs '' as word of limitation. Rule in Shelley's case applied to wills. Devise to "heirs" as devisees — imports fee simple — descendible from ancestor — devise to testator's own heir. Meaning of "heir," as designation of devisee — "heir" with additional description — "heir" qualified by description. Devise without words of limitation under the Wills Act, passes fee simple — not under the Wills Act, passes estate for life, unless contrary intention appear. Devise without words of limitation, passing fee simple by apparent inten- tion — devise of estate, property, etc. — in fee simple, for ever, etc. — devise of power of disposition — fee simple implied from devise over — implied from charge on devisee. Devise to trustees passes fee simple, unless definite estate limited — estate limited by purposes of the trust. A devise " to A. and to his heirs" receives the same construc- tion as a limitation in like terms in a deed, and confers a fee simple (a). A devise to A. and to his "heir" (in the singular) has the like effect, the word "heir" being construed as nomen collectivum to include the heirs of such heir (6). A devise " to A. or his heirs" is read as " to A. and his heirs," and gives a fee simple to A., and no substitutional gift to his heirs ; consequently, upon the death of A. in the lifetime of the testator the devise would lapse, and the heirs would take nothing (<■). A devise " to A. and his heirs, during their lives " creates a fee simple, the words " during their lives " expressing rnerel} 7 the fact that the enjojmient of an estate of inheritance can only last during life (d). Devise to '•heirs " as word of limi- tation, to A. and his heir ; to A. or his heirs ; to A. and his heirs during their lives. The rule in Shelley's case applies to limitations in wills ; Rule in accordingly, if a devise be made to A. for life, and be followed '" by a devise by way of remainder to the heirs of A., the word "heirs" is construed as a word of limitation, and not as a designation of the devisee, and is referred to the estate of the ancestor (e). O) Ante, p. 119. (V) Blackbvm v. Stables, 2 V. & B. 367; Britton v. Twining, :i filer. 1 7 < "» . (c) Harris v. Davis, 1 Coll. 416 \ Greenway v. Greenway, 2 D. F. & J. 128. (d) Doe, v. Stenlake, 12 East, 515; Reece v. Steel, 2 Sim. 233 ; lhujo v. Williams, 41 L. J. C. 061 ; L. R. 14 Eq. 224. (e) Van Grutten v. Foxwell, [1897 A. C. 658 ; 66 L. J. Q. B. 745. S< e ante, pp. 24, 121. See further as to the application of the rule to wills, post, Chap. II. Sect. HI. " Future Devises." 124 PART II. CHAP. I. THE LIMITATION OF ESTATES. Devise to " heirs" as devisees. Imports fee simple. Descendible from the ancestor. Devise to testator's own heir. Heir takes as devisee. The word " heir " or " heirs " may be used as a word of purchase designating the devisee; as where there is no previous devise to the ancestor to which it can be referred as a term of limitation (/). A devise to the " heirs " of A. or to the " heir " of A. (in the singular) confers a fee simple without further words of limitation ; "heir" being generally construed in a will as nomen collect) nun embodying the heir and his heirs {g). The Inheritance Act, 1833, s. 4, enacts, to the same effect as above stated with deeds, " that when any person shall have acquired any land by purchase under a limitation to the heirs of any of his ancestors, or under any limitation having the same effect, contained in a will of any testator who shall depart this life after 31st December, 1833, — such land shall descend, and the descent thereof shall be traced as if the ancestor named in such limitation had been the purchaser of such land " (h). A devise to the testator's own heir or heirs of land which the heir would have taken by descent, was considered at common law to be merely descriptive of his title by descent, and the heir took the land in fee simple by descent and not as devisee. But by the statute 3 & 4 Will. IV. c. 106 (the Inheritance Act), s. 3, it was enacted " that when any land shall have been devised by any testator who shall die after the 31st December, 1833, to the heir or to the person who shall be heir of such testator, such heir shall be considered to have acquired the land as a devisee and not by descent " (/). Meaning of "heir" as designating the devisee. Heir with additional description. The word "heir " as used in a will to designate the devisee, is to be construed, in general, according to its strict technical meaning as the person who would take an inheritance of free- hold tenure by the rules of common law ; and that, though the land devised be of customary tenure with a different rule of descent (k). The word " heir " may be used to designate the devisee with some additional description, and in such case also the general (/) Archer's Case, 1 Co. 66 h ; Willis v. Hiscox,\ M. & Cr. 197. See ante, p. 121. (:;-. (7) Wrightson v. Macaulay, 14 (p) James v. Ric/tardson, 1 Vent. 334 ; M. & W. 214; Pearee v. Vincent, 2 T. Raym. 330; Bwchett v. Durdant, Keen, 230. 2Vent.311. See Darbison v. Beaumont, (m) Goodtitle v. Pugh, Fearne, Cont. 1 P. Wms. 229; 3 Bro. P. C. 60. S> Rem. App. 573; 3 Bro. P. C. 454: 3 ante,?. 122. Mer. 348, described as " an extraordinary (j;) Brodkman v. Smith, L. R. i> Ex. decision,"' in which "we trace hut very 291 : 7 Ex.271 ; 40 L. J. Ex. ltd ; 41 faintly t he anxiety generaUy imputed L. J. Ex. 114. to judicial expositors of will-, id res («/) Denn v. Slater, ~> T. 1!. :;:',.".. in, i, /is nil,;// ,/i/iiui pereat" 2 .human, ante, p 122. See a devise to " the first Wills, 922. heir male" of A. and the various c (ji) Beaulieu {Lord) v. Cardingham structions made by the judges upon it, (Lord), Amb. 533 : Carne v. Roch, 7 Winter v. Perratt, :» CI. ,v_ F. 606. Bing. 226. (>•) See post, pp. 132, 137. 12(3 PART II. CHAP. I. THE LIMITATION OF ESTATES. Under the Wills Act, 1837. Construction according to apparent in- tention. Words de- scriptive of the testator's interest. land without technical words of limitation passes only an estate for life, unless there were a context from which it could be inferred that a larger estate was to be enjoyed (s). By sect. 28 of that Act, a devise without any words of limitation is to be construed to pass the fee simple, or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a contrary intention appear by the willtf). But prior to the passing of the Wills Act, 1887, the want of technical words of limitation in a will might be supplied by other modes of expressing the intention that the devisee should take an estate in fee simple. A devise in terms which denoted the estate and interest of the testator in the land, and not merely the land itself, passed an estate of inheritance, without the word " heirs " or other expres- sions of limitation. Thus the words " inheritance" 0), "rents and profits" or "income" of land {x), "estate" (ij), " property " 0), "my interest " (a), "my moiety " (b), "my part "(c), "my undivided quarter "(d), "reversion," or "remainder"^) were sufficient to carry the fee simple of lands. But the words must occur in the operative part of the will, or be incorporated by reference, and may be modified by the context (/). A residuary gift has always received an enlarged construction, it being presumed that a testator does not desire to die intestate (g). Conversely, words primarily applicable to personal estate, as " effects " or "personal estates," might be applied to real estate, if there were a context showing that the testator employed the 0) Wild's Case, 6 Co. 16 b ; Tud. L. C. Conv. 3til ; Peiton v. BanJts, 1 Vein. 65; Pococh v. Lincoln (Bp.~), 3 Br. & B. 30 ; Bvwen v. Seowcroft, 2 Y. & C. Ex. 640 ; Sdumares v. Saumarez, 4 M. & Cr. 331 ; Hill v. Broum, [1894] A. ('. 125; 63 L.J. P. C. 46. (0 The statute does not apply to the creation of a new subject of property out of the land ; thus a devise of a rent or annuity charged upon the testator's real .state, without words of limitation, creates such charge only during the life of the devisee, and is not extended by the enactment beyond the terms of its creation: Nichols v. Hawkes, 10 Hare, 342 ; 22 L. J. C. 255. O) Widlahe v. Harding, Hob. 2 ; Trent v. Trent, 1 Dow. 102.' (./•) Stewart v. Garnett, 3 Sim. 308 ; Clin rit a tile Banations [Commissioners) v. Be Clifford, 1 Dr. & War. 245. See Mannox v. Greener, L. K. 14 Eq. 456. (//) Fletcher v. Smiton, 2 T. R. 656 ; Boe v. Chapman, 1 H. BI. 223 ; Randall v. Tutchin, 6 Taunt. 410 ; Longley v. Longley, L. R. 13 Eq. 133 ; 41 L. J. C. 168. (z) Bue v. Langlands, 14 East, 370 ; Coltsman v. Coltsman, L. R. 3 H.L. 121. («) Cole v. Rawlinson, 3 Bro. P. C. 7 ; Be Be la Hunt \ Pennington, 57 L. T. 874. (V) Boe v. Faierett, 3 C. B. 274. (r) Montgomery v. Montgomery, 3 Jo. & L. 47. (d) Man/tin// v. laylor, L. R. 1 Ex. 235. (?) Norton v. Ladd, 1 Lutw. 755 ; Bailis v. Gale, 2 Ves. Sen. 48. (/) Boe v. Buckner, 6 T. R. 610 ; Hill v. Brown, [1894] A. C. 125; 63 L. J. P. ('. 46. (//) Sau-marez v. Sawnarez, 4 M. & Cr. 331 ; Kirby .Smith v. Parnell, [1903] 1 Ch. 483 ; 72 L. J. C. 468. See Lang- dale, M. R., Lindgren v. Lindgren, 9 Beav. 358, 361. SECT. I. § 2. LIMITATION OF FEE SIMPLE IX WILLS. 127 words in that sense (/<). The words "tenements" and " here- ditaments " were taken to refer to the suhject of property only(i). A devise of land to a person "in fee simple" or "for ever" Devise "in fee imports a gift in fee simple (/,). Bat the limitation "forever" »fo?ev^« following a limitation to a special line of heirs, as an estate tail, imports no more than the indefinite continuance of that especiul line of heirs, and has no effect in enlarging the estate (I). A devise to a person in terms importing that he may dispose Devise of of the land at his absolute discretion will confer the fee simple, a ]^]! te j di unless there be qualifying words showing that the testator position, intended to confer a power of appointment, or to create a trust for particular objects(m). But the addition of the words Devise to "to his assigns" after a devise to a person has, in general, no hteassi! effect in enlarging the estate devised, for such words are taken to be merely descriptive of the power of alienation incident to the estate (»)• Upon a devise of land to a person without words of limitation, Devise in fee with a devise over if he dies under twenty-one or other specified dCTiseover. 1 ™ age, it is implied that he takes the fee simple subject to the devise over. So where the devise over is, — if he die under age and without issue ; — or if he die without issue living at his decease (o). Where a devise is made to a person until a certain age, with a devise over in the event of his death under that age, there would in general be implied a gift to him absolutely in the other event not mentioned, namely, of his attaining that age, and he would take the fee simple subject to the devise over (j)); but if the first devise be expressly limited to his life, the devise over only in the event of his dying under a certain age would raise no such implication, as the alternative event is provided for by his life interest (q). Where lands are devised without words of limitation, but w T ith Devise in fee (It) Doe v. Tofield, 11 East, 246 ; Doe Eames, L. R. 6 Ch. 597. See Comiskey v. J)rinf the body as purchasers — rule in Mandeville's case — meaning of " heir male of the body " as words of purchase. Limitation of estates tail in copyholds. A fee tail is an estate of inheritance restricted in descent to a Fee tail, particular line of issue ; there are different kinds of fee tail according to the differences of restriction : — a fee tail general is General heritable by all the issue ; — a fee tail special is heritable only by Special, the issue by a specified person ;— a fee tail male is restricted in ji a i e or descent to issue of that sex ; and the descent must be traced female - wholly through males, so that the male issue of females are excluded, as well as all female issue ; — so likewise with a fee tail female [a). Thus, land may be limited to a man for an estate in tail male with remainder to him for an estate in tail female; — or it may be limited in tail male, with remainder to him in tail general ; — and under the latter limitations all his issue may inherit ; under the former limitations all the female issue of males and all the male issue of females would be excluded (b). In conveyances at common law a fee tail general is limited by Words of the words " to A. and to the heirs of his body," whether the limita- mhcntance J ' necessary to tion be in express words, or incorporated by words of reference, create estate tail — heirs. («) Challenger v. Shepherd, 8 T. E. Knightly, 8 Ch. D. 73G ; 17 L.J. C.874. 597; Doe v. Nicholls, 1 B. & C. 366; (a) Co. Lit. 18 b et seq., 377 a. Blag race v. Blagrave, I Ex. 550; iy (b) Co. Lit. 25 b, 377 a. See ante, L. J. Ex. 411 ; Baker v. White, L. R. p. 28. 20 Eq. 160 ; 44 L. J. C. 651 ; Yarrow v. L.P.L. K 130 PART II. CHAP. I. THE LIMITATION OF ESTATES. Limitation to issue, etc. "Words of pro- creation — •• heirs of the body." Heirs " begot- ten," or " to be begotten." Heirs of the body " begot- ten," or •• to be begotten." To -'heirs" with limita- tion over upon failure of " heirs of the body." The limitation to the " heirs " is necessary to create an estate of inheritance whether in fee tail or in fee simple; "for every estate tail was a fee simple at the common law, and at the common law no fee simple could he in feoffments and grants without the word " heirs " (c). The limitation to A. and to the " heir " of his body would it seems have the same effect as if the word "heirs," in the plural, were used {d). " If a man give lands or tenements to a man and to his seed, or to the issue or children of his body, he hath but an estate for life ; for that there wanteth words of inheritance." So, where a man covenanted to stand seised to the use of his daughter and to the issue of her body, it was held that she had not an estate tail, but for life only (e). And in the limitation of a fee tail it is necessary to add " of the body," in order to denote and restrict the inheritance by the issue ; but those words may be supplied by other equivalent words of procreation. " If lands be given to a man, and to his heirs which he shall beget of his wife, or to a man ct haredibus de came sua, or to a man et lueredihus de se ; in all these cases these be good estates in tail, and yet these words de corpore are omitted" (/). A limitation to a man and to his "heirs lawfully begotten," it is said, creates a fee simple for want of restriction to the issue, the words "lawfully begotten" not being referred to the ancestor ; but to a man and the " heirs of him (i.e. by him) lawfully begotten" would create an estate tail [g). The con- struction of the words "heirs of the body " as words of limita- tion, is not restricted by adding the word "begotten" in the past tense, or " to be begotten " in the future tense (h). The limitation "to A. and to his heirs," with a limitation over " upon failure of the heirs of the body of A.," or of his issue, to B. creates an estate tail in A. ; the word heirs in the limitation to A. is construed according to the limitation over to mean " heirs of the body," and the limitation over operates as a remainder (i)- 0") Co. Lit. 20 a. 20 b. See ante, pp. 24, 119. (77) Co. Lit. 22 a ; Richards v. Bergavenny {Lady'), 2 Vern. 324. (e) Co. Lit. 20 b ; Mahepiece v. Fletcher, Comyn, 457, and see per Kenyon, C. J., Due v. Chilis, 4 T. It. at p. 299. As to limitations to issue in wills, see post, p. 137. (/) Co. Lit. 20 b ; Beresford's Case, 7 Co. 41 a. (g) Hargrave's note (2) to Co. Lit. 20 b. See Mathews v. Gardiner, 17 Beav. 254. (70 Doe v. Halldt, 1 M. & S. 124 ; Locke v. Dunlop, 39 Ch. D. 387 ; 57 L. J. C. 1010. (0 Morgan v. Morgan, L. 1\. 10 Eq. 99 ; 39 L. J. C. 493. As to the meaning of "issue," ace post, p. 137. SECT. II. § 1. FEE TAIL IX CONVEYANCES. 131 The limitation to A. and to the heirs of his body by B. his wife, or to his heirs by B., creates an estate in special tail restricted to the issue of A. by B. ; and if B. be not his wife, it is an estate in special tail by reason of the possibility of her becoming so (k). The limitation "to A. and to his heirs males of his body " creates an estate tail male. So, a limitation to A. and to his heirs females of his body creates an estate tail female (/). Gifts to a man and to the heirs of his body, or in tail general, and gifts in special tail to a man and his wife and the heirs of the bodies of the same are specified in the statute De don is, by which estates tail are constituted ; other estates tail as the above in tail male or female are taken to be so by the equity of the statute (/»)• A limitation " to A. and to his heirs males," or " to A. and to his heirs females," creates an estate in fee simple, because it contains no restriction to a particular line of issue ; it is not limited by the gift of what body the issue male or female shall be. Inheritance by heirs general cannot be restricted to one sex, therefore the words males and females, having here no legal import, are rejected, and all the heirs, female as well as male, may inherit (n). By sect. 51 of the Conveyancing and Law of Property Act, 1881, the words "in tail," " in tail male," or " in tail female" may now be substituted in a deed for technical expressions. Limitation of estate in special tail. Limital in tail male, etc. Limitation to A. and to his litjirs mali'. Statutory equivalents. The- rule in Shelley's case, already noticed in its application to To A. for life ,..,,. with remain- limitations " to the heirs, applies also to limitations to an (ler t0 neira of ancestor for life followed bv limitations "to the heirs of his his body.— " Kale in body," or " to the heirs male of his body" or other like terms, Shelley's case, signifying that his issue are to take in the succession of an entail ; the words " heirs of the body," or other words of succession are then referred to the estate of the ancestor as words of limitation, vesting in him an estate tail (o). But if an estate be limited in terms to the " heirs of the body " Limitation to ., . . , . ,, , , ,, „ ... " heirs of the or "heirs male of the body, etc., ot a person, without any body."' etc.. as preceding estate being given to the ancestor to which those terms Purchasers, can be referred as words of limitation, they must be taken as (/.•) Co. Lit. 20 b et scq. (/) Co. Lit. 24 b et seq. See Har- grave's note (I) Co. Lit. 25 a. (in) Co. Lit. 24 a et seq. As to the limits of the equity of the statute, see Co. Lit. 27a. CO Co. Lit. 27 a, b ; Doe v. Martyn, 8 15. & C. 497. " For no man can institute a new kind of inheritance not allowed by law." Co. Lit. 13 a. (<0 See a/ifr. pp. 24. 121 ; Fearne, C. It. 28 ; Philips v. Brydges, 15 Ves. 120, the like with limitations of equi- table estates. K 2 132 PART II. CHAP. I. THE LIMITATION OF ESTATES. Bole in Mandevilleh case. Meaning of •' heir male of the body " as words of purchase. General rale that heir means the very heir. words of purchase, or a designation of the purchaser ; they then convey an estate of inheritance in tail to the person answering the description of heir of the body or heir male of the body of the ancestor named without further words of limitation (p). By a rule of law laid down in Mandeuille's case, the words have a further special effect in rendering such estate descendible as if the ancestor named had been the purchaser and had taken the estate tail {q). Thus, a devise in the terms " to the right heirs of my grandfather deceased by his second wife also deceased for ever " was held, according to the above rule, to create an estate in tail special descendible from the grandfather (/■). The Inheritance Act, 1833, s. 4, enacts " that when any person shall have acquired any land by purchase under a limita- tion to the heirs or to the heirs of the body of any of his ancestors (in an assurance executed after 31st December, 1833,) — such land shall descend, and the descent thereof shall be traced as if the ancestor named in such limitation had been the purchaser of such land." This enactment, so far as it extends to limitations to "heirs of the body," seems to be merely declaratory of the common law as laid down in Mandeuille's case ; it extends the same rule to limitations to "heirs," rendering the estate of the heir as purchaser descendible as if the ancestor had been the purchaser (s). The words " heir male of the body" or "heir female of the body " used in deeds as words of purchase mean the heir in special tail male or female, that is to say, the heir of the body traced through males or females exclusively^)- The doctrine laid down by Coke was that such expressions describing a purchaser should be construed (according to the general doctrine that " heir " means the very heir,) in the strict meaning of heir of the body, that is, heir in tail general, with the superadded condition of being a male or female ; and accord- ingly he puts the case, " if A. have issue a son and a daughter, and a lease for life be made, the remainder to the heirs females of the body of A. A. dieth, the heir female (daughter ?) can take nothing, because she is not heir ; for she must be both heir and heir female, which she is not, because the brother is heir " («)• O) See ante, p. 121 ; Co. Lit. 26 b. (•) Vernon v. Wright, 7 H. L. C. 35 ; 28 L. J. C. 198. (V) Moore v. Simhin, 31 Ch. D. 95 ; 55 L. J. C. 305. See ante, p. 121 (Y) See ante, p. 122. («) Co. Lit. 24 a. SECT. II. § 1. FEE TAIL IN CONVEYANCES. 133 But this doctrine is inconsistent with the well acknowledged Not applied . , ... . ., to heir male rule in Mandeville s case as applied to the like expressions, and it f the body. has been conclusively rejected. Tims, under a limitation to the heirs female of the body of A., a daughter being the heir in tail female was held to be entitled as against the daughter of a deceased son who was very heir of the body and a female ; and the objection that the former did not answer the description in toto was clearly overruled (.r). The general rule has been broken in upon only with respect to words descriptive of heirs in tail ; and the words " heirs male " or " heirs female " used in deeds to designate the purchaser are construed strictly to mean the person answering the double description of very heir and a male or female (y). Copyholds in some manors may be entailed by special custom, Limitation of and, subject to the custom, limitations to a person and to the copyholds. heirs of his body or in like terms, would be construed to create estates tail corresponding to the estates created by the like limita- tions of lands of freehold tenure. Such limitations, if applied to copyholds in manors wherein there is no custom of entail, are construed according to the rules of common law, under which, as the statute De donis does not apply to lands of customary tenure, they create fees simple conditional upon issue (z). The trust or equitable estate of a copyhold follows the legal estate, and cannot be entailed where the legal estate cannot (a). (.,•) Goodtitle v. Burtenslmw, Fearne, (//) Ante, p. 122 ; per Parke, B., Cont. .Rem. Ap. 570 ; and see Wills v. Wrightson v. Macaulay, 14 M. & W. Palmer, 5 Burr. 2627 ; 1 W. Bl. r life fol- by referring the limitations to the heirs to the preceding devise devise to to the ancestor according to the rule(i). So a devise to A. for £ he™ of the life followed by a devise to the " heir of his body," in the singular, is construed to create an estate tail in A. (k). So, a devise to A. for life, with a devise over upon failure of To A. for 'life the " heirs of his body " or the " heirs male of his body " or his jj* J "heirs male," creates an estate tail, general or male, in A.; tai'meof • i- • t j t -j j- ,i i C ,1 heirs of his there is implied an intermediate limitation to the heirs ot the body, body, or the heirs male of the body, which is referred to the pre- ceding devise to A. under the rule in Shelley's case (/). "Where words of limitation which merely express the course of "Heirs of the descent involved in the previous limitation to the heirs of the J^J 1 * body are added to a limitation in tail, they are inoperative, limitation . . .... superadded. according to the maxim expressio eorum quae tacite insunt nihil operator. Thus, a limitation to the heirs of their bodies would create an estate tail (m). So also words importing a fee simple in the heirs of the body ; as a devise to A., or to A. for life, and to the heirs of his body and their heirs limits an estate tail in A.; or the addition of the words "for ever" will be referred to the indefinite continuance of the heritable issue lief ore mentioned (n) A devise to A. and to the heirs of his body " for their Additional respective lives " is an estate tail, the limitation for their lives SmitatSou rejected. (,/) Benn v. Slater.'b T. R. 335. (7) 1 Jarman, Wills, 520 : Hawkii s, (h) Nottingham v. Jennings, 1 Wills, 200. See Grimson v. Downing, P. Wins 23; Tyte v. Willis, Cas. t. i Drew. 12.">. Talb. 1 ; II are v. Gmn, 10 B. ->c C. 43:5 ; (///) Roe v. Bedford, A M. & S. 362 ; Be Waugh, [1903] 1 Ch. 744 ; 72 L. J. Douglas v. Congreve, i Bing. N. C. 1 ; C. 586. ' 1 Beav. 59. (i) Shelley's Case, 1 Co. ) Pierson v. Victors, 5 East, 548 ; Doe v. Goldsmith,, 7 Taunt. 209. See Jordan v. Adams, 9 C. B. N. S. 483 ; 30 L. J. C. P. 161. () : Wills v. Palmer, 5 Burr. 2615. See Roe v. Quartley, 1 '1'. R. 630. 0) Archer's Case, 1 Co. 66 ; Willis v. Hiscox, 4 .My. & Cr. li»7 ; Chamberlayne v. C/tamberlayne, 6 E. & B. 625; 25 L. J. Q. B. 187, 357. (0 White v. Collins, Com. 289; Pedder v. Hunt, 18 Q. B. D. 565. SECT. II. § 2. FEE TAIL IN WILLS. 137 qualifying the meaning of the term heirs, or by expressions showing the intention to use it in a particular sense ; — as heir male of the testators name, heir of the body now living (u). And "heirs of the body " have been construed to mean children by reason of the will referring to the ancestor as their " father" ix). Tbe designation of the devisee as " heir male of the body," or Meaning of " heir male " points to the heir male of the body in the course of the body," entail, i.e., the heir of the body traced through males, and not to et f c '' u ^ 1 ^[" i> the heir general of the body being a male iy). §§ 2. Limitations to "Issue," "Children," etc. Devise to " issue," as word of limitation— to A. and his issue— to A. for life and after his death to his issue. Devise to A. and his heirs with devise over upon failure of issue— to A. for life with devise over upon failure of issue— upon failure of issue at death — to testator's heir, upon failure of issue of A. Meaning of phrases "die without issue," etc., in wills made before 1838 — construction under the Wills Act. 1837. Devise to " issue " as devisees— devise to issue with words of limitation and distribution superadded— meaning of "issue" as devisees- application of the rule in Mandeville's case. Devise to " children " as word of limitation — rule in Wild's case — " sons " as word of limitation — " family." The word " issue " in its general meaning extends to all lineal descendants indefinitely, without any reference to inheritance. The only mode of giving legal effect to the word in this indefinite Devise to extension, is to construe it as a word of limitation equivalent to oTihnitaUom the words " heirs of the body," which include all issue, but as taking successively by descent. Hence a devise to A. and " his issue " is so construed, and creates an estate tail general in A. ; unless it appear from the context to be restricted to issue of a certain degree, as children, or to issue existing at a given time, as at the death of a person, or to have some other meaning inconsistent with an estate tail ; in which cases it must be taken as a word of purchase designative of the devisees intended (a). (u) Burehebt v. Durdant, 2 Vent, Beav. 38, S. C. nom. Lywood v. Warwick, 311; WrigrUson v. Macanlay, 14 M. & 30 L. J. C. 507. Coke's rule to the W. 214 ; 15 L. J. Ex. 121 ; heir male of contrary is, so far, not law. See antr, the body begotten of an European p. 132. woman, see Willis v. Hiseox, 4 M. & C. (a) See various definitions of the word 197 , 201. " issue." Lees v. Moseltsy, 1 Y. & C. Ex. (x) Jordan v. Adams, 9 C. B. N. S. 5*9 ; Slater v. Dangerjield, 15 .M. & W. 483; 30 L. J. C. P. 161. See Bight v. 263; Woodhouse v. Herrick, 1 K. & J. Creber, 5 B. ,v C. Sfifi. 352 ; Allguod v. Blake, L. K. 7 Ex.339 ; (//) Doe v. Angell, 9 Q. B. 328; 15 Morgan v. Thomas, 9 y. B. D. 183; 51 L. J. Q. B. 193 ; Lywood v. Kimber, 29 L. J. Q. B. 556. 138 TART II. CHAP. I. THE LIMITATION OF ESTATES. To A. and his issue living at his death. To A. for life and after his death to his issue. The construction is quite independent of the fact of there being or not being issue of the devisee living at the date of the will, or at any other period (b). A devise to A. and his issue living at Jiis death was held to create an estate tail, because by such construction only could the issue become entitled, the devise purporting to be immediate. Had the devise been to A. for life, with remainder to the issue living at his death, they would have taken a contingent remainder by purchase as devisees (c). A devise to A., or to A. for life, followed by a devise in remainder or after his death " to his issue," gives A. an estate tail according to the rule in Shelley's case (d). To A. and his heirs with devise over on failure of issue. Devise over upon failure of issue of heir of testator. To A. for life with devise over upon failure of Devise over upon failure of issue at death. A devise to A. and his heirs, with a devise over upon failure of the issue of A. indefinitely, that is, at any time, creates an estate tail in A. ; the word heirs being explained by the devise over to mean issue or heirs of the body (e). Upon the same principle a devise over upon the indefinite failure of issue of the heir of the testator creates an estate tail in the heir, as it imports that the inheritance is to be restricted to his issue (./). A devise to A., or to A. expressly for life, with a devise over upon the indefinite failure of his issue created an estate tail in A. ; an intermediate limitation to the issue of A. being implied, and the devise over taking effect as a remainder (7/). A devise over upon the failure of issue at the death of A. has no effect in enlarging his estate for life to an estate tail, because it accords with the determination of such an estate tail only in the event of A. dying without leaving issue, and not in the event of his leaving issue ; but it may, perhaps, be held to imply a devise in the latter event to the issue living at his death, in the absence of any express disposition, otherwise the issue would be unprovided for and the property undisposed of (//). The circum- stance of the issue being unprovided for is, at least, a ground for construing the devise over on failure of issue, if possible, to . (b) Per Hale, C. J., King v. Netting, 1 Vent, at p 22!). It is otherwise with a devise to A. and his children. See Wild's Cane, port, p. 142. (>) University of Oxford v. Clifton, 1 Eden, 473. See 2 Jarman, Wills, 1259, questioning the decision ; and see Wild's Case, post p. 142 (rf) Ant p. p 135 ; Ruddy v. Fitzgerald, f) H. L. ('. 823 ; Pelham Clinton v. New- castle (Dulte), [1903] A. C. Ill ; 72 L. J. C. 424 (e) Fitzgerald v. Leslie, 3 Bro. P. C. 154 ; Dansey v. Dansey, 4 M. & S. 61. (/") Does. Walker, 2 Man & G. 113. (}/) Sunday's Case, 9 Co. 127 b ; Mitchell v. Weeding, 8 Sim. 4 ; Doe v. Owens, 1 B. & Ad. 318. (//) Coltsmann v. Coltsmann, L. R. 3 H. L. 121. See per Hardwicke, L. C, Lethieiillicr v. Tracy, 3 Atk. at pp.784, 796 ; Ex p. B-ogers,2 Madd. 449. SECT. II. § 2. TEE TAIL IX WILLS. 130 mean an indefinite failure of issue, in order to imply an estate tail in A. (/). It has been suggested that a devise, upon the indefinite failure Devise to heir of issue of A., to the heir apparent or presumptive of the testator f a ii ure ' f would create an estate tail in A. by implication, in the absence issue of a. of any express devise to him, upon the ground that, in the analogous case of a devise to the heir after the death of A., A. takes an estate for life by implication (k). In wills made before 1st January, 1838, such phrases as "if Meaning of . . . . phrases " die A. die without issue, or without having issue, or without leaving without issue," or "for want or in default," or "on failure of issue J^JJJ " h ^;.' e m of A.," presumptively import failure of issue indefinitely or at 1838. any period, and give ground for the above constructions (/). The meaning of such phrases, however, as importing Restrictive ° . L . . expressions, — indefinite failure of issue is only presumptive, and yields to failure at other expressions in the will restricting the meaning to a failure deatb - of issue at the death of the ancestor or other definite tirne(w). Where the words in question follow a devise to children, sons, or Failure of ,, . . , ,. "such ' issue, a particular class of issue, they may be construed, according to the prior objects, as meaning " such " issue only (>/). By the Wills Act, 1837, s. 29, (not extending to wills made Construction J ° . under the before 1st January, 1838, see sect. 34,) it is enacted, " That m any wnis Act. devise or bequest of real or personal estate the words ' die without issue,' or ' die without leaving issue' or ' have no issue,' or any words which may import either a want or failure of issue of any person in his lifetime, or at the time of his death, or an indefinite failure of his issue shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of such person and not an indefinite failure of issue ; unless a contrary intention shall appear by the will by reason of such person having a prior estate tail, or of a preceding gift being, without any implication arising from such words, a limitation of an estate tail to such person or issue or otherwise : provided that this Act shall not extend to cases where such words as aforesaid import if no issue described in a preceding gift shall be born, or if there shall be no issue who shall live to attain the age or otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue." (/) Blington v. Warlnrton, 2 K. & J. (»/) Porter v. Bradley, 3 T. K. 143 400 ; 25 L. J. C. 468. Doe v. Frost, 3 B. & Aid. 546. See Colts- (/■•) 1 Jannan, 520. See Gardiner v. mann v. Coltsmann, L. R. 3 II. L. 121. Sheldon, Vaugh. 259. [n) Morgan v. Thomas, 9 Q. B. D. (I) forth x. Chapman, 1 P. Wms. 663 ; 183 ; 51 L. J. C. 55G ; Bowen v. Lewis, Tud. L. C. Conv. 371. 9 App. Cas. 890 ; 54 L. J. Q. B. 55. 140 PART II. CHAP. I. THE LIMITATION OF ESTATES. Effect of enactment. Devise to issue as devisees. " Issue" with words of limitation superadded. 1; Issue" with words of dis- tribution superadded. Words of distribution only. This enactment only applies to ambiguous expressions, and makes no change in the law, as to the implications arising from limitations over upon an indefinite failure of issue (o). Where a devise is made to the " issue " of a person without any prior devise to the ancestor to which it can be referred as a term of limitation, the word " issue " must be taken as a word of purchase, designative of the devisee intended (p). And though there be a devise to the ancestor to which the limitation to the issue is presumptively to be referred, yet it may appear from the context of the will that the word " issue " is used with a meaning inconsistent with an estate tail, so that it must be taken to be a word of purchase, according to the following rules of construction. A devise to A., or to A. for life, and after his death to his issue and the heirs of the body of such issue, or the heirs of such issue, creates an estate tail in A. notwithstanding the superadded words of limitation of estate ; such words being taken as merely an amplification of the word "issue" and included in it, and therefore not inconsistent with an estate tail in the ancestor (q). But if to a devise in the above terms there be superadded words of distribution of estate importing that the issue are to take concurrently in shares or as tenants in common, and not in succession to the entirety, the word issue is then to be taken as a word of purchase designating the devisees ; and this construc- tion is not restricted or affected by a subsequent devise over upon failure of-issue (which generally implies a preceding estate tail), for the devise over would be taken to refer to such issue only as would take under the prior devise as purchasers (r) And if there be no superadded words of limitation, but there be sufficient apparent intention for the issue to take the fee by implication (as is now constructively the case with all wills made on or after 1st January, 1838, by the operation of sect. 28 of the Wills Act, 1837), the words of distribution of estate require the word issue to be taken as a word of purchase (*). (o) Dawson v. Small, L. R. 9 Ch. 651 ; Be Edwards, [1894] 3 Ch. 641. (p) Cook v. Cook, 2 Vein. 545. (#) Roe v. Grew, Wilm. 272 ; Denn v. Put-key, 5 T. 11.299 ; Frank\.Stovin, 3 East. 548. See Parker v. Clarke, 8 De G. M. & Gr. 104 : Morgan v. lliomas, 9 Q. B. D. 643 ; 51 L. J.Q. B. 556. (r) Slater v. DaTigerjield, 15 M. & W. 273, and cases there cited. See Clifford v. Koe, 5 App. Cas. 447. (s) Bradley v. Cartwriyht, L. R. 2 C. P. 511, 522 ; as to the devises in fee without the technical limitation to the heirs, see ante, p. 125. In Bradley v. CartwrigM the fee was implied in the issue from a power of appointment amongst them, as to which see post, Chap. II. ' Powers. 1 Contrast the effect of words of limitation or distri- bution superadded to the words " heirs of the body," and the superior technical effect of the latter expression, as stated ante, pp. 13~>, 136. SECT. II. § '2. FEB TAIL IX WILLS. 141 Issue, as a word of purchase, prima facie designates all Meaning of descendants existing at the time or of the kind referred to ; devisees. and they take concurrently per capita and not per stirpes (t). " And although the devise is to the issue begotten, that makes no difference ; the words begotten and to be begotten are the same, as well upon the construction of wills as settlements, and take in all the issue after begotten " (u). The testator may give his own explanation of the meaning of Meaning ex- the word issue by the context of the will ; — as by a subsequent [.', nt "xtof reference to the objects of the gift, as being children or sons ; wffl. thus, in a will devising to the issue of A., "the eldest of such By reference to ctiiKirtji]. sons to be preferred before the youngest," it was held that issue e tc. was explained by the will to mean sons (x) ; — so by reference to the objects of a prior gift to children, sons, etc., as " such issue," the term issue may be restricted to the objects referred to (g) ; — so where there is a devise to a class of persons, with a devise over to the issue of any of the class dying before a certain period, and a direction that the issue should take the share of their parents, the reference to parents is held to restrict the meaning By reference . •,.,-, , ,1 • -i • • ■ i to parents. of issue to children ; so where there is a devise to issue m such manner as their father or parents shall appoint {z). The testator may show by the context of his will that he Iss « G to tak e in succession* intends all the issue indefinitely to take in succession, as " heirs of the body," and then the word issue, as a word of purchase, like heirs of the body so used, gives to the first heir in tail an estate tail descendible from the ancestor according to the rule in Mandeville's case. Thus, where land was devised, after estates Rule in tail male to sons, " in default of such issue to all and every other c .^'"' ' the issue of my body,' with a devise over in default of such issue to the testator's right heirs, it was held to give an estate tail in remainder to the heir in tail general at the death of the testator ; such intention being inferred from an expressed wish of the testator " to prevent the dispersion of his estates," and from the gift over in default of issue (a). But the word " issue " alone will not bear this construction (0 Bradshaw v. Melting, lit Beav. v. Boyle, 13 Q. 1'.. 100; Be Pollard's 417. See also Davenport v. Haniury, Estate, '6 De G-. J. & S. 541; 32 L. J. C. 3 Ves. 257 ; Lywood v. Kimber, 29 Beav. 657 ; and the reference may be inferred 38; S. C. nom. Lywood v. Warwick, 30 without the use of the word "such." L. J. 0. 507. Goymour v. Pigge, 7 Beav. 475 ; Baker {h) Conk v. Cook, 2 Vernon, 545. v. Tucker, 3 H. L. C. 100. See aide, p. 130. (z) Heasman v.Pearse, L. It. 7 Cli. (%) Mandemile v. Lackey, 3 Ridgw. 275. See llalj>h v. Carr ick, 11 Ch. I». P. C. 352. See Boddy v. tHtzgerald, 6 873 : IS L. J. C. 801. H. L. C. 823. 0/ ) Allgood v. Blake, L. R. 7 Ex. 339 ; (y) Doe v. Perryn, 3 T. R. 484 ; Doe 8 Ex. 100 ; 42 L. J. Ex. 101. 142 TART II. CHAP. I. THE LIMITATION OF ESTATES. without aid from the context of the will. Accordingly, under a devise to the issue of J. S. .simply, it was held that all the children and grandchildren (if any) took concurrently an estate for life {b). In wills now under the operation of the Wills Act, they would take the fee, which removes one argument in favour of the above construction. Devise to '• children " as word of limitation. liule in Wild's case. The word " children " is presumptively a word of purchase, meaning issue in the first degree ; but it may be explained by the context of the will to be used- as a word of limitation, meaning "heirs" or "heirs of the body" (c). Wherever a sentence in which the words "child" or "children" occur imports a succession of the inheritable blood, as in devises " to A. and his children in succession," — "to A. for life and after his decease to his children and so on for ever," — " unto my daughter M., to her and her children for ever," the gift will be construed to create estates tail (d). A rule of construction was laid down in Wild's case, that a devise to A. and his children, if A. has no child at the time of the devise, creates an estate tail in A. ; the word children is to be taken as a word of limitation, because in that way only the children can take. But if A. has children, he and his children take jointly in fee, for life if the devise was made before the Wills Act, 1837 (e). A devise to children as devisees prima facie includes all the children in existence at the testator's death, and is not restricted to those existing at the time of making the devise ; but, with reference to the rule in Wild's case, it has been decided that a child en ventre sa mere is not an existing child (/), but this ruling is questionable. It has been settled by the highest authority that a child is to be treated as in existence from the moment of conception for all purposes where it would be for his benefit, but not where it would be to his detriment (//). If treated as born, the child would take as joint tenant in fee; but if treated as unborn, the parent would take an estate tail, and have it in his power to defeat the expectation of the child as his successor. (7/) Cook v. Cook, 2 Vernon. 545. 584. (c) See Doe v. Webber, 1 B. & AM. (/) 713; Byng v. Byng, 10 H. L. C. 171 ; Conv, Powell v. Dames, l'Beav. 532. C. P. (d) Broadhurst v. Mori-is, 2 B. & Ad. 171 ; 1; Tyrone [Earl) v. Waterford (Marq), 5 Ap| 1 De'G. F. & J. 613 ; Trash v. Wood, (/") 4 M. & Or. 324 ; Roper v. Roper, L. R. 37 L. 3 C. P. 32 ; 37 L. J. C. P. 7 ; Re (_g~) Bucktoh, [1907] 2 Ch. 406 ; 76 L. J. C. 139 ; See Powell v. Davirs, 1 Beav. 532. Wild's Case, 6 Co. 17 a; Tud. L. C. 361 ; Roper v. Roper, L. R. 3 32 ; Byng v. Byng, 10 H. L. C. 31 L. J. C. 470 ; Clifford v. Koe, ). Cas. 447. Roper v. Roper, L. R. 3 C. P. 32 ; J. O. P. 7. Villar v. GUley, |"1907] A. C. 76 L. J. C. 339. SECT. II. § 2. FEE JAIL IX WILLS. 143 If a devise be made to A., and after his decease to his children, or with remainder to his children, although he have no child at the time, yet every child which he shall have after, may take by way of remainder, for the intent appears that the children shall not take immediately, but after the decease of the parent (//). The word "sons" or "son" is capable of being construed as "Sons ''or a word of limitation, equivalent to "heirs male of the body," ' so "" *J S 1 J words of Jinn- giving an estate tail male, in order to effectuate the manifest tation. general intention of the will (/). Thus, a devise in the terms " to A. for life, and after his decease that the eldest son of A. should inherit the property during his life, and so on, the eldest son of the family to inherit the same for ever," was held to create an estate tail in A. ; the words clearly indicating a series of inheritances and constituting words of limitation (Jc). A devise to A. and his "family" is capable of being construed " Family.'' as a limitation, conferring an estate in fee or an estate tail ; but the meaning of the word "family" seems in all cases to depend upon the context of the will, and may be altogether void for uncertainty (/). The word "descendants" prima facie means "heirs of the "Descen- body," and is less flexible than the word " issue," and requires a stronger context to restrict its meaning as the equivalent of "children" (in). (/;) Wild's Case, 6 Co. 17 a. See as Wright v. Atkyns, lit Ves. 299 ; G. Coop, to the construction of future limitations 111 ; Lucas v. Goldsmid, 29 Beav. 657 ; to children, post, Chap. II. ' Contingent 30 L. J. C. 935; Lambe v. Eames, Remainders,' and ' Executory Devises.' L. ft. 6 Ch. 597; Burt v. Hellyar, (/) Mellish v. Mellish, 2 B. & C. 520 ; L. It. II Eq. 160 ; 41 L. J. C. 430. ' Doe v. Garrud, 2 B. & Ad. 87. (/«) Mannox v. Greener, L. R. 11 Kq, (A-) Forsbruok v. Forsbrook, L. R. 3 Ch. 456 ; Ralph v. Carrick, 11 Ch. D. 873; 93. 48 L. J. C. 801. (/) Counden v. ClerJte, Hub. 29 ; 144 PART II. CHAP. I. THE LIMITATION OF ESTATES. Section III. Estates for Life. Estate for life — for life of the tenant — pur autre vie — for several lives — for joint lives — for lives of the tenant and others. Limitation of estates for life — grant to A. without words of limitation — to A. for life without expressing whose life — lease for several lives — for joint lives. Devise of land without words of limitation, under the Wills Act — in wills not under the Wills Act — devise for life by implication. Occupancy of estate pur autre vie — limitation of estate pur autre vie to special occupant — to the heirs — to the heirs of the body — to the executor or administrator — occupancy by statute. Occupancy of copyholds — special occupant by designation — by custom — by statute. Discovery of death of persons on whose lives estates depend — presumption of death. Estate for -A- 11 estate for life is limited for the term of the life either of life of tenant, ^ ie tenant himself or of another person. In the former case the - — f)iw u utvc vie. tenant is commonly called tenant for life ; in the latter case he is distinguished as tenant pur autre vie {a). For several An estate may he limited for the lives of several persons named llves - in the grant or lease, to continue until the death of the survivor ; For joint or an estate may be limited for the joint lives of several persons, in which event it determines upon the death of any of the persons named (b). For lives of An estate may be limited for the lives of the tenant himself seif ant | nm " an( * °* an °t ne1 ' or others, and is then, in respect of the other life others. or lives, an estate pur autre vie. Coke specifies this as a third branch, in addition to the two branches into which Littleton, as above, divides tenant for life, viz., into tenant for term of his own life and into tenant for term of another man's life. " To this," he says, "may be added a third, viz., into an estate both for term of his own life, and for term of another man's life. As if a lease be made to A. to have to him for term of his own life and the lives of B. and C, for the lessee in this case hath but one freehold, which hath this limitation, during his own life and during the lives of two others. And herein is a diversity to be observed between several estates in several degrees, and one estate with several limitations. For, in the first, an estate for a man's own life is higher than for another man's life, but in the second it is not" (c). (a) Lit. s. 56 ; Co. Lit, 41 b. 3 Ch. 159. (ft) BrudneVs Case, 5 Co. da ; Rouse's (c) Co. Lit. 41 ft. Case, 5 Co. 13 a ; Be A mo*, [1891] SECT. III. ESTATES FOR LIFE. 145 According to the technical doctrine here referred to, that as Doctrine that between several estates an estate for a man's own life is higher ^l'^l'^'own than for another man's life, an estate pur autre vie is extinguished life is g , . , . „ . . , . , than tor life or merged by surrender to a tenant tor his own life ; so a lease to of another, a person for the life of another with remainder to the same person for his own life operates to merge the prior limitation, and is a lease for his own life only and not for several lives (d). But this doctrine, as Coke says above, does not prevent the creation of one estate in a person with the several connected limitations, both for his own life and the lives of others ; and if he dies before the other persons on whose lives the estate depends, the estate continues, as in the ordinary case of an estate pur autre rie (e). A grant or lease of land at common law, in a form sufficient Limitation of to pass a freehold estate, made to a person without words of ^granUoA? limitation, as "to A." or "to A. for ever," or "to A. and his without words e ■■ ■... of limitation. assigns tor ever, gives only an estate tor lite; the limitation " to his heirs," or the statutory equivalent, being necessary to make an estate of inheritance (y). A limitation in the above terms may be followed by a limitation of the remainder to B., or to B. and his heirs ; and if there be no subsequent limitation, the reversion is left in the grantor (g). If "A., tenant in fee simple, makes a lease of lands to B. to Limitation have and to hold to B. for term of life, without mentioning for foi l llfe W1,h " o out expressing whose life it shall be, it shall be deemed for term of the life for whose life. of the lessee, for it shall be taken most strongly against the lessor, and, as hath been said, an estate for a man's own life is higher than for the life of another. But if tenant in tail By tenant in make such a lease without expressing for whose life, this shall ' be taken but for the life of the lessor ; for when the construction of any act is left to the law, the law will never so construe it as to work a wrong " ; and tenant in tail cannot lawfully make a lease beyond the term of his own life, unless he execute a disentailing assurance, under which he may dispose of the land for an estate in fee simple absolute or for any less estate (//)• (//) Lewis Bowies' Case, 11 Co. 79 b ; See«/tf<\ p. 119. Tud. L. C. Conv. 80. See Snow v. Boy- () Seymor's Cum, 10 Co. 95 b ; Doe (7) See Atkinson v. Baker, 4 T. R. Steele, 4 Q. B. 663 ; Mrthen v. 22<> ; Ripley v. Waterworth, 7 Ves. 448. Carnegie, 4 Drew. 587. L 2 148 PART II. CHAP. I. THE LIMITATION OF ESTATES. Occupancy of copy holds. Special occu- pant. By statute. Discovery of the deaths of persons on whose lives estates de- pend. distributed in the same manner as the personal estate of the testator or intestate" («). This enactment applies to equitable estates pur autre vie, notwithstanding the legal estate be vested in trustees and their heirs (a;) —An estate for the lives of the lessee and others is an estate pur autre vie within the statute iy). — The estate passing to the executor or administrator by special occupancy or under the Act, being made assets applicable in the same manner as personal estate, is thereby rendered liable to legacy duty, but is not made personal estate for the purpose of following the person and domicil of the deceased tenant ; it is immovable property as regards jurisdiction notwithstanding his domicil be foreign (z). There could be no general occupant of a copyhold or customary tenancy; because the freehold title remaining in the lord pre- cluded a vacancy, and the lord became de facto occupant (a). But a special occupant may be expressly designated in the grant or surrender, to the exclusion of the occupancy of the lord; as by extending the estate "to the heirs."— And by special custom, in the absence of limitation, the heir or devisee or the cestui que vie may be entitled as special occupant (b). The Wills Act, 1837, s. 6, is expressly extended to lands of customary and copyhold tenure, and under that statute, if there be no special occupant, the estate will go to the executor or administrator of the tenant to be applied and distributed as personal estate (c). The special occupant by custom or under the statute must be admitted and pay a fine ((?)• In order to prevent frauds by the concealment of the deaths of persons on whose lives estates depend, a statute 6 Anne, c. 18, provides that a person claiming a remainder, reversion, or expectancy, after the death of any person may obtain an order of the Court of Chancery for the production of such person, and upon failure to produce such person, may enter upon the land as if such person were dead (e). O) Be Slieppard, [1897] 2 Ch. G7 ; 66 L. J. 0. 445 : Be lnman, [1903] 1 Ch. 241 ; 72 L.J. C. 120. (x) Bei/nolds v. Wright, 2 De G. F. & J. 590 ; Be lnman, [1903] 1 Ch. 241 ; 72 L. J. C. 120. (//) Chatjield v. BercMoldt, L. E. 7 Ch. 192 ; 41 L. J. C. 255. (-) Chatfield v. BcrchtoJdt, L. R. 7 Ch. 192 ; 41 L. J. C. 255. (a) Zmivh v. Forse, 7 East, 186 ; Doe v. Scott, i B. & C. 700. See Hargrave's note (2) t.) Co. Lit. 59 h. (//) Doe v. Martin, 2 W. Bl. 1148; Bight v. Jiaicdcn, 3 East. 2*10; Doe v. Goddard, 1 B. & C. 522 ; Dm- v. Scott, supra. (c) See ante, p. 147. (//) Co. Cop. s. 5(5; Wills Act, 1837, s. 6. 0) Be Owen, 10 Ch. D. 166 ; Be Stevens, 31 Ch. D. 320 ; Be PopU, 40 Ch. D. 589. See Be St. John's ffosp., 18 L. T. 317. SECT. IV. ESTATES FOR YEARS. 1-49 Proof that a person has been absent and not heard of for seven Presumption years raises a presumption of his death, but no presumption as to the time of his death. The ordinary presumption of life continues in the absence of any evidence respecting it (/). Section IV. Estates for Years. Estate for years—" term"—" lease "—requisites of lease— pap. 1 Lease. Limitation of term. as to duration— certainty required— lease for successive periods— lease "from year to year" notice to determine— implied tenancies from year to year. Limitation of term, to A. and to his executors— to A. and to his heirs— to A. ami to the heirs of his body. Lease with covenant for renewal— covenant runs with the land — condition of observing covenants, etc., in the lease. Chattel interests of uncertain duration. An estate for years is an estate limited by a certain term or Estate for duration of time. An estate for a term of half a year, or for a years - quarter of a year, or for a smaller portion of a year, as being for a term certain in time, is classed in law with an estate for a term of years, although it cannot be so defined, and is subject, in general, to the like rules and incidents (ft). The word "term " may be used to signify not only the limits "Term." of time, but also the estate and interest that passes for that time ; and it is a cpiestion of construction in which sense the word is to be understood {!>). The grant of an estate for years is commonly called a lease or "Lease." demise, the words "grant," "demise," and " lefc," being com- monly used, though any words expressing the intention to transfer the possession for a certain time are sufficient (c). The term " lease " is applied also to the grant of an estate for Meaning of life. The term " grant " is a general term, though used also in J^ gnmt * a special sense as applying to estates and rights in land which lie in grant in contrast to those which lie in livery. The term " feoffment " was used generally to denote a transfer of the seisin or immediate freehold estate ; but it was applied also in a special sense to a trans- fer for an estate in fee simple ; and the term " gift " to an estate (/") Nepean v. Doe, 2 M. .V W. 89J ; (a) Lit. ss. 58, 67 ; Co. Lit. 54 b. 2 Smith, L. < '. 558; Wing v. Angrave, See Lloyd v. Rosbee, 2 Camp. 453; ; 61 L. J. 1". (<•) Co. Lit. 45 J : Bacon's .Mr. I 133. (K) ; Shepp. Touch, by Preston, l'72. 150 PART II. CHAP. I. THE LIMITATION OF ESTATES. in fee tail ; — the corresponding terms applied to the parties being feoffor ami feoffee, — donor and donee, — lessor and lessee (d). Interesse With the exception of leases operating under the Statute of termini. jj^ ^ ^ Q f -g^ of ft i essee f or y ears before entry is called an interesse termini. It is a right, and not an estate, a circumstance which has not entirely lost its importance at the present day (/). An interesse termini is assignable (//), and if a smaller interest is created, the person taking by sub-demise upon entry is terre- tenant and entitled to maintain ejectment (//). In the older books it is said that a lessee before entry could not accept a release, or surrender his right so that he might claim an interest, or extinguish his right (i). In the present day, however, where more consideration is had for " the substance, namely the passing of the estate according to the intent of the parties, than the shadow, namely the manner of passing it," the purported release or surrender would be treated as an immediate conveyance and operative to extinguish the rents and services as between the immediate parties (A). As between third parties, the old rule would be applied in its original strictness where to do otherwise would work injustice (I). If a lease be granted to commence at a future day, the entry of the lessee before that day does not convert his right into an estate, although his possession be continued until after the date fixed for the commencement of the term (m). The principle upon which this case rests is that the prior entry is a disseisin, which confers a freehold title (n), and consequently one superior to that of a lessee. Formalities— All leases (excepting leases not exceeding three years from the anting. making and at a rent of two-thirds at least of the value) are required by the Statute of Frauds (ss. 1, 2) to be in writing ; and Deed. by the Eeal Property Act, 1845, s. 3, (with the same exception,) Parol lease. they must be by deed. A parol lease within the above exception, when perfected as an estate by the entry of the lessee, was valid at law as a lease, and conferred all the rights and remedies incident to such lease ; but if the lessee refused to effectuate it (d) Lit. s. 57 ; Shepp. Touch. 22S. per Parke, B., ib. at p. 516 ; 6 L. J. See ante, pp. 32, 37, 38. Ex. 176; Cottee v. Richardson, 7 Ex. (e) 21 Hen. VIII. c. 10, s. 1. See 143 ; 21 L. J. Ex. 52. ante, p. 81. (0 Doe v. Walker, 5 B. & C. Ill ; (/) Lewis v. Baiter, [1905] 1 Ch. 46 ; Lewis v. Baker, [1905] 1 Ch. 46; 74 74 L. J. C. 39. L. J. C. 39. (7/) Bruerton v. Rainsford, Cro. El. O) Hennings v. Brdbason, 1 Lev. 15 ; Wfieeler v. Tharoughgood, Cro. El. 45. See Neale v. Mackenzie, 1 M. & W 127. 747 ; 6 L. J. Ex. 263. (//) Doe v. Bay, 2 Q. B. 147 ; 12 («) Rosenberg v. Cook, 8 Q. B. D. L J. Q. B. 86. 162; Perry v. Clissold, [1907] A. CV 0) Co. Lit. 46 b, 51 h, 270 a, 338 a. 73 ; 76 L. J. P. C. 19. (A-) Doe v. Buries, 2 M. & W. 503, SECT. IV. ESTATES FOR YEARS. 151 by entry, no action could be brought upon it (o). In a court of equity, an instrument which was void at law by reason of the omission to comply with the statutory requirement of a deed might operate as an agreement to grant a lease (p) ; and the formality of writing might be dispensed with, and a verbal agreement proved, where the contract had been part performed (g >. And now by the provisions of the Judicature Act, 1873, s. 25, a contract of which the court would grant speciiic performance is to be regarded as if completed (r), so that the provisions of the before-mentioned statutes are in part abrogated, but it is to be observed that the necessity for an actual entry to complete the title is not dispensed with. The term must be limited, as to duration, by a certain time Limitat: either in express terms or by reference,— " For regularly in Jg^SIL* every lease for years the term must have a certain beginning and a certain end— yet if by reference to a certainty it may be made certain it sufficeth, quia id cerium est quod cerium reddi potest. For example, if A. leaseth his land to B. for so many years as B. hath in the manor of Dale, and B. hath then a term in the manor of Dale for ten years, this is a good lease by A. to B. of the land of A. for ten years." — " So, if a lease be made to another during the minority of J. G., and he is of the age of ten years, now this is a good lease for eleven years, if J. G. shall as long live " (s). " It is here to be understood that the years must be certain, Certainty re- when the lease is to take effect in interest or possession. For quu before it takes effect in interest or possession, it may depend upon an uncertainty." — " For example, if A. seised of land in fee grant to B. that when B. pays to A. twenty shillings, from thenceforth he shall have the land for twenty-one years, and after B. pays the twenty shillings, this is a good lease for twenty- one years from thenceforth." — So, " if a man maketh a lease to J. S. for so many years as J. N. shall name, this at the beginning is uncertain ; but when J. N. hath named the years, then it is a good lease for so many years " it). (o) Edge v. Strafford, 1 C. & J. 391. Ch. D. 248 ; 58 L. J. C. 482. See Swain See Wright v. Stavert, 2 Ell. & Ell. 721. v. Ayres, 21 Q. B. D. 289 ; 57 L. .1. Q. B. And see Leake, Contracts, pp. 15,") 428. et seq. 00 Bishop of Bath's Case, »'> Co. 34 h ; (y<) Parker v. Taswell, 2 De G. & J. Kirsley v. Duck, 2 Vera. 684 ; Suther- 559; Zimbler v. Abrahams, [1903] 1 land v. Briggs, 1 Ha. 26; Dolling v. K. B. 577 ; 72 L. J. K. B. 103. Ekans, 36 L. J. C. 474 ; .Marshall v. (7/) N-wn v.Fabian, L. K. 1 Ch. 35 ; Berridge, 19 Ch. D. 233: 51 L. J. C. Mi! Icy and Aldworth, Lim. v. Sharp, 329. [1899] 1 Ch. 622 ; 68 L. J. C. 322. (0 Bishop of Bath's Case. 6 Co. 34 J; ( r) Walsh v. Lonsdale, 21 Ch. D. 9 ; and it seems that if the number of years 52 L. J. C. 2 ; Lowthcr v. Heaver, 41 be named after the commencement of 152 PART II. CHAT. I. THE LIMITATION OF ESTATES. Lease for successive terms, — 7, 14, or 21 years. Implied tenancies from year to year — from a general letting at a fixed rent. Notice re- quired to determine tenancy. A lease for so many years as a person may live is a freehold estate by reason of the uncertainty of the term (/<)• But if " a man maketh a lease for twenty-one years if J. ft. live so long, this is a good lease for years, and yet is certain in uncertainty"; it has a certain limit notwithstanding the uncertainty of reaching it(.r). A lease may he limited to continue for successive periods at the option of one or other of the parties : — as for a term of 7, 14, or 21 years, which continues for those successive periods, unless the option to determine it at the end of one of the periods is duly exercised ; and such option rests presumptively with the lessee, if no intention to the contrary he expressed (//). Y\ T here the term limited is uncertain, but imports a general occupation, as a lease " from year to year," it is a term for one year certain, continuing for successive years, unless due notice have been given to determine it at the end of the first or any subsequent year (z). If there be a general letting at a yearly rent, it is none the less to be treated as a tenancy from year to year, although the rent be payable b}' instalments by the quarter, or some other aliquot part of the year (a). A lease " for one year, and so on from year to year," is a term for two years certain, continuing for successive years, unless due notice have been given to determine it (b). The notice required by law to determine a tenancy from year to year, in the absence of agreement to the contrary, must be given one year before the expiration of the current year of the tenancy in the case of an agricultural holding, unless the tenant be adjudged bankrupt, or file a petition for a composition or arrangement with his creditors {<■). In all other cases a notice given half a year before and terminating at the same period is sufficient (d). A tenancy from year to year is determinable by the lea--e (in the life of the lessor), the lease will be made gooil ex post facto. lb. O) Brewer v. Hill, 2 Anstr. 413 ; Zimbler v. Abrahams, [1903] 1 K. B. 577 ; Co. Lit. 42 a, 45 b. Or) Co. Lit. 45 h. See Wright v. Cartwright, 1 Burr. 282. This is a term of years with a conditional limitation, as to which, seepost, p. 166. {y) Bop v. Dixon, 'J East, 15; Dunn v. Spurrier, 3 B. & P. 399 ; 7 Ves. 231 ; Bon-ell v. Smith, L. R. 14 Eq. 85; 41 L. J. C. 734. (z) Might v. Darby, 1 T. R. 159; Dixon v. Bradford, etc., Supply Sac, [19041 1 K. B'. 44 1; Lewis v. Baker, [1906] 2 K. B. 599. See Kenvon, O. J., Doe v. Watts, 7 T. R. 83, 85. (<•/) Mansfield, C. J., Richardson v. Langridge, 4 Taunt. 128, 131 ; Parke, B., Doe v. Wood, 14 iM. & W. (182, 687. See Bastings Union v. St. James, Clerkenwell, L. R. 1 Q. B. 38; Doe v. G rat ton, 18 Q. B. 496 ; 21 L. J. Q. B. 270. (7/) Den/i v. Cartwright, 4 East, 29 ; Johnstone v. 1 1 milestone, 4 B. & C. 922 ; Doe v. Green, 9 A. & E. 65K. (e) Agricultural Holdings Act, 1883, ss. 33, 54 ; Bartow v. Teal, 15 Q. B. D. 501 ; 54 L. J. Q. B. 564. (V) Right v. Darby, 1 T. R. 159 ; Doe v. Jhibeli, 1 Q. B." 80f> ; A/organ v. J>arie,s;3 C. P. D. 2(10; S'webotham v. J lot land, [1895] 1 Q. B. 378 ; 64 L. J. Q. B. 2t0. SECT. IV. ESTATES FOR YEARS. 153 cither party giving the proper notice (e). Where the term is determined hy force of an express limitation, the lease itself supplies sufficient notice; both parties are equally apprised of the determination of the term, and no further notice is required (/). Payment of rent in respect of a tenancy is pnmd facie evidence Payment of of a tenancy from year to year, with the usual incidents of such r a tenancy (7/). A tenancy from year to year is, in general, implied from the Under an payment and acceptance of a yearly rent under an agreement for '^i ea ^ a lease not amounting to an actual demise (h) ; but mere occu- pation, without payment of the rent, will not raise the same implication (i). A tenancy from year to year would also be After expira- implied from the payment of rent by the tenant in respect of a lease _ continued occupation after the expiration of a lease (k) ; but a continued occupation or holding over alone is not sufficient to imply a tenancy (/). The tenancy thus implied will include all the terms of the Terms of agreement or previous lease which are applicable to such a tenancy from tenancy, as conditions of re-entry, stipulations as to notice, y car to . ve:u - etc. (m) : — thus, it will expire without notice at the end of the term limited in the agreement (».) ; and a stipulation that the tenant shall paint in the last year of the term limited will apply, if the tenancy so long continues (o). A lease or agreement which did not comply with the provisions of the Statute of Frauds or the Real Property Act, 1845, might be upheld in a court of law as a tenancy from year to year after entry and payment of rent (p) ; but by force of the Judicature Act, 1873, a lease or agreement which would not have been enforceable at law must in all jurisdictions be upheld as an actual demise according to the 0) Doe v. Browne, 8 East, 1(J5 ; v. Dobell, 1 Q. B. 806 ; Dougal v. King's Leaseholds, L. R. 16 Eq. 521. McCarthy, [1893] 1 Q. B. 736; 62 (/") Bight v. Darby, 1 T. R. 159. L. J. Q. B. 462. 0/) Doc v. Watts, 7 T. R. 83; Doe v. (/) Waring v. King, 8 M. & W. .".71 ; Crago.G C. B. 90 ; Smith v. WidlaJte, 3 Elliott v. Johnson, L. R. 2 Q. 1'.. 120; ('. P. 1). 10; Serjeant v. Nash, [1903] 36 L. J. Q. B. 41. As to the remedies 2 K. B. 304 ; BattenrPooil v. Kennedy, of the landlord in such case, see [1907] 1 Ch. 256 ; 76 L. J. 0. 102. 1 Geo. II. c. 28, s. 1. (A) Coxy. Bent, 5 Bing. 185; Chap- (/«) Doe v. Powell, 5 B. & C. 312; man v. Towner, 6 M. & W. 100; Doe v. Amey, 12 A. & E. 476 ; Doe v. Braythwayte v. Hitchcock, 10 M. & W. Bell, 5 T. R. 471. 494. See Warr \ Co. v. London C. C, («) Tress v. Savage, 4 E. & B. 36 ; 23 [1904] 1 K. B. 713 ; 73 L. J. K. B. 362. L. J. Q. B. 339. (0 Waring v. King, 8 M. & W. 571 ; (o) Martin v. Smith, L. R. 9 Ex. 50 : Anderson v. Midland By., 3 E. & E. 43 L.J. Ex.42. 614; 30 L. J. Q. B. 94; see " Tenancy (//) Doe v. Bell, 5 T. R. 471 : 2 at Will." post, p. 156. Smith, L. C. 119; flat/ton v. Wake,/, (/.•) Doe v. Weller, 7 T. R. 478; 8 T. R. 3; 2 Smith, L. C. 127. See Bishop v. Howard, 2 B. & C. 100 ; Doe ante, p. 150. 154 PART II. CHAP. I. THE LIMITATION OF ESTATES. Express terms exclude implication. Limitation of term, — to A. and to his executors. To A. and to his heirs. To A. and to the heirs of his body. agreement of the parties, if prior to that statute a court of equity- would have compelled specific performance of the agreement (q). An express stipulation to a different effect excludes the implication of a tenancy from year to year, as where it is expressly agreed that the tenancy shall he determinable at will (?•). The words, " so long as both parties shall please," are not incon- sistent with a tenancy from year to year (s). A lease for years is sometimes limited in the form " to A. and to his executors and administrators," in analogy with the limita- tion of an estate of inheritance " to A. and to his heirs." But the additional words of limitation in this case are quite super- fluous ; they merely denote the rule of law respecting the devolution of the term, as personal estate, which would apply without the addition of those words (0- If a lease be made to a person for life, with remainder to his executors for a term of years, it is apparently doubtful whether the term of years rests- in the lessee himself as well as if it had been limited to him and to his executors, or whether the executors take the term after his. death as purchasers (u). If a lease be made to a man and " to his heirs " for a term of years, it will pass as personal estate, to the executor of the lessee and not to the heir ; the limitation to the heirs, being wholly inapplicable to personal estate, is rejected (x). If a lease be made to a man and " to the heirs of his body ,r for a term of years (or in any other terms which expressly or impliedly would raise an estate tail in the inheritance), the whole term vests absolutely in the immediate donee in tail(y). — And it is the same with bequests by will : " where personal estate (including terms of years of whatever duration) is bequeathed in language which, if applied to real estate, would create an estate tail, it vests absolutely in the person who would be the immediate donee in tail, and consequently devolves at his death to his personal representative and not to his heir in tail" (z). 497 ; Shepp. Touch, by Preston, 76. O) Co. Lit. 54 b. and see cases there cited ; Well v. Sadler, L. R. 8 Ch. 419 ; 42 L. J. C. 498. (./•) Co. Lit. 388 a ; Shepp. Touch, by Lreston, 76. (y) Fearne, Cont. Rem. 461 ; and see Lovies's Case, 10 Co. 87 b, there com- mented upon. (-) Ware v. Polhill, 11 Ves, 257 ; Waiter v. Warter, 2 Brod. & B. 349 ; 1 B. & C. 721 ; Cliristie v. Gosling, L. R. 1 H. L. 279. ((f) Walsh v. Lonsdale,2\ Ch. D. 9 : 52 L. J. C. 2 ; Lowtlier v. J fearer, 41 Ch. D. 248 ; 58 L. J. C. 482 ; Zimbler v. Abrahams, [1903] 1 K. B. 577 ; 72 L. J. K. B. 103 ; Wan- Sf Co. v. London C. C, [1904] 1 K. B. 713; 73 L. J. K. B. 362. (f) Richardson v. Langridge, 4 Taunt. 128 ; Morton v. Woods, L. R. 4 Q. B. 293 ; 38 L. J. Q. B. 81. (.v) Doe v. Smaridge, 7 Q. B. 957. See Doe. v. Cox, 11 Q. B. 122, per Coleridge, J. (7) Anderson v. Martindale, 1 East, SECT. IV. ESTATES FOR YEARS. 15; A term of years may be attended with the right of renewal by Lease with . i i i.i & i- \ covenant tor virtue of a covenant inserted in the lease to that ettect.— A ,. CIiewa i. covenant to renew a lease, with all the covenants and articles contained in it, does not import that the renewed lease shall contain a covenant for renewal ; but the covenant may in express terms give the right of perpetual renewal of successive leases (a). \ covenant for renewal runs with the land in favour of assignees < lovenani E . renewal runs of the lease, and against grantees of the reversion (o). witii the land. The covenant for renewal may be expressed to be conditional Renewal upon the observance by the lessee of all his covenants in the J{J^viSe5 lease, and then by breach of the covenants his right of renewal covenant. will be forfeited. Equity will not relieve the lessee in such case; nor will equity relieve the lessee in case of neglect to renew within the appointed time, unless caused by fraud of the lessor, or unavoidable accident, or ignorance (c). Some estates, the duration of which is measured by the raising Chattel m of money or by the satisfaction of debts out of the profits of the ^certain' land, although uncertain in duration, yet being of the nature of duration, chattel interests, in that respect, may be classed with estates for years. — As if a man devised land to his executors or trustees for Devise for payment of his debts, and until his debts were paid ; or to pay )j; 1 ^'" legacies, or raise a sum of money for portions or the like ; in this case the executors and trustees took a chattel interest, — for if they should have it for their lives, then by their death their estate would cease, and the debts and legacies might be unpaid, and the portions unsatisfied ; but by treating it as a chattel interest it devolved upon the executors of executors or trustees for the payment of the debts or other sums (d). But now by the Wills Act, 1 Vict. c. 26, s. 30, applying to Devise to trn^toG or wills made on or after 1st January, 1838, it is enacted "that execut0 r where any real estate shall be devised to any trustee or executor, ^nder \ hc J •in Wills Act. such devise shall be construed to pass the fee simple or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a definite term of (a) Iggulden v. May, 7 East, 237 ; 2 Job v. Banister, 2 K. & J. 374; 26 B. & P. N. II. 449 ; 9Ves. 325; Swin- L. J. C. 125; Bastin v. Bidwell, L8 burne v. Milburn, 9 App. Cas. 844. Ch. D. 238: Nicholson v. Smith, 22 (&) Anon., Man. 159, pi. 300; Slid- Ch. D. 640 ; 52 L. J. C. 191. burne v. Biddulph, 6 Bro. P. C. 356 ; (rf) Corbet's Case, 4 Co. 83 h ; Doe v. Simpson v. Clayton, 4 Bing. N. C. 758. Simpson,^ East, 162 ; Acklandv.Lutley, As to covenants running with the land, it A. i: K. 879; 8 L. J. Q. B. 164 ; see Leake, Contracts, 858. As to the Aekland v. JPring, 2 Man. & G. 937 ; L0 renewal of a lease by a trustee, see ante, L. J. C. P. 2'.>7. See Carter v. Bar- p. llti. nardiston, 1 P. Wms. 505. (/•) Harries v. Bryant, 4 Puss. 89 ; 156 PART II. CHAP. I. THE LIMITATION OF ESTATES. Right of entry for arrears of rent. Tenant by elegit. Tenant by statute mer- chant and statute staple. years, absolute or determinable, or an estate of freehold, shall thereby be given to him expressly or by implication " (e). A grant of a rent out of land with a clause entitling the grantee, if the rent be in arrear, to enter or take the profits until the arrears be satisfied, gives, upon entry, a chattel interest, though of uncertain duration (/). Tenant by elegit holds the land until the debt is satisfied, and has a chattel interest and no freehold (g). So, in former times, the estates of tenant by statute merchant and tenant by statute staple were considered merely as chattel interests, being a security provided for personal debts, to which the executor is entitled ; the law so directed their devolution, that the security should be vested in him to whom the debts, if recovered, would belong (It). Section V. Tenancy at Will. Tenancy at will — of both lessor and lessee — of lessee only — creates no tenure or reversion. Creation of tenancy at will — with reservation of rent — possession of cestui que trust — possession under agreement to purchase — customary tenancy at will. Determination of tenancy at will — by the lessor — by the lessee — by death of lessor or lessee — under the statute of limitations. Tenancy at sufferance— distinction between tenancy at sufferance and at will. Statutory remedies against tenants holding over. Tenancj" at will. Of both lessor and lessee. A tenancy at will is where a person is in possession of land let to him to hold at the will of both lessor and lessee, or of the lessor only, for the law imports from a demise expressed to be at the will of the lessor that it may be terminated also at the will of the lessee (a). Of lessee only. A lease or grant purporting to limit the estate to hold at the will of the lessee only, that is, for so long a time as the lessee pleases to continue tenant, is a freehold or estate for life deter- minable at the will of the lessee ; but the formality of livery of (e) See ante, p. 128. ( /') Jemott v. Cowley, 1 Wms. Saund. 132. Qf) Co. Lit. 42 a, 43 b ; Corbet's Case, 4 Co. 81 b. See Underliill v. Devereux, 2 Wms. Saund. 197, and note at p. 202 ; Johns v. Pink, [1900] 1 Ch. 29G ; 69 L J C 98 (A) Butler's note to Co. Lit. 208 I ; 2 Blackst. Com. 162 ; Corbefs Case, 81 b ; note to Underhill v. Derereu.v, 2 Wms. Saund. at p. 217. Abolished by 26 & 27 Vict. c. 125. (a) Richardson v. Langridge, 4 Taunt. 128 ; Ball v. Oullimore, 2 Cr. M. & R. 120; Doe v. Daries, 7 Ex. *92. See Davis v. Waddington, 7 Man. ) Doe v. Browne, 8 East, 165; Smith v. Wldlake, 3 C. P. D. 10; 17 Zlmbler v. Abrahams, [1903] 1 K. B. L. J. C. P. 282. .'.7 7: 72 L. J. K. B. 103. See Beeson v. (7) Ricfbardson,v.lJangridge,iTa.wat. Burton, 12 C. B. (547 ; 22 L. J. C. P. 33. 128 : Doe v. Co.,-. 1 1 Q. B. 122 : Doe v. (/•■) Co. Lit. 63 a, 93 b. See per Best, Davies, 7 Ex. 89 ; Anderson v. Midland ('. .!., Garland v. JeJtyll, 2 Bing. 273, Ry., 3 Ell. & Ell. 614 ; 30 L. J. Q. ]'.. 94. 293. (//) Freeman v. Barnes, 1 Vent. 80; (d) Co. Lit. 270 h ; 1 Roll.Abr. 292 a, Garrard v. Tack, 8 C. 15. 231 ; 18 L. J. pi." 9. C. P. 338. (r) Co. Lit. 7-7 h. (i) Zimbler v. Abraliams, [1903] 1 (/') Doe v. Booh, 1 .Man. & G.30 ; 11 K. 15. 577 ; 72 L. J. K. B. 103. L. J. C. P. 194 ; Doe v. Turner, 7 M. & (&) Lit, ss. 462, 163. W. 226 ; Turner v. Doe, 9 M. & W. 643 ; (I) RigM v. Beard, 13 East, 210; 11 L. J. Ex. 453 : Doe v. Carter, 9 Q. B. Bull v. Cullimore, 2 Cr. M. & R. 120 : 863; 18 L. J.Q.B.305; Doev. Coombes, Doe v. Rock, I Man. & (i. 30. See 9 C. B. 714; 19 L. J. C. P. 306. See Winterbottom v. Ingham, 1 Q. 15. 611. 158 PART II. CHAP. I. THE LIMITATION OF ESTATES. Customary tenancy at will. equity he is considered as owner according to the terms of the contract (m). Under the law of freehold tenure, the possession of a customary tenant is regarded as a tenancy at will to the lord, though the will of the lord as to the duration of the tenancy is regulated by the custom ; and the rights of possession and enjoyment incident to the tenancy, in the absence of special custom, are the possessory rights of tenants at will at common law (n). Determina- tion of tenancy at will by lessor. The lessor may determine the tenancy at will expressly, as by a demand of possession (o), — or impliedly, by doing any acts of ownership inconsistent with the continuance of the tenancy ; as entering and cutting down trees, or cutting and carrying away stone without the consent of the lessee, or executing a conveyance or a fresh lease to a third party (p). — The lessor may maintain an action of ejectment without a formal notice to quit (q). Determina- The lessee may determine the tenancy at will by express notice tion by lessee. aQ( j q U itting possession ; but a mere notice without quitting possession would not be sufficient as against the lessor (r). Transfer of the possession to another with notice to the lessor is a determination of the tenancy, and operates as a disseisin at the election of the lessor (s). "A tenant at will cannot as against the landlord to whom he is tenant constitute another person tenant at will ; but he can make a tenant at will as against himself "(0- — Any acts of ownership by the lessee inconsistent with the mere tenancy at will, as cutting down timber trees or voluntarily pulling down houses, may be treated, as against him, as a determination of the tenancy (■«.). Determina- A tenancy at will is determined by the death of the lessor or tion by death f t i ie i essee ( x \ And though the lease be made to the lessee to of lessor or lessee (///) Rose v. Watson, 10 H. L. C. 672 ; Whitbread $ Co. v. Watt, [1902] 1 Ch. 835 ; 71 L. J. C. 424. See London and Count 1/ Hank v. Lewis, 21 Ch. D. 490. (n) 'Keyse v. Powell, 2 E. & B. 132 ; 22 L. J. Q. B. 305 ; Bowser v. MacLean, 2 De G. F. & J. 415 ; 30 L. J. ('. 273. See ante, pp. 53, 66, 157. (o) Locke v. Matthew*, 13 C. B. X. S. 753 ; 32 L. J. C. P. 98 ; Doe v. Price, 9 Bmg. 356 ; Roe v. Street, 2 A. .V E. 32!) ; Pullen v. Brewer, 7 C. B. N. S. 371. (j>) Bull v. Cullimore, 2 Cr. M. & R. 120 ; Turner v. Doe, 9 M. & W. 643 ; 11 L. J. Ex. 453 ; Wallis v. Delmar, 2'J L. J. Ex. 276. (S ' upon the death of the lessee, his executor has the same right ; but if the lessee determine the tenancy by his own act, he has no such right (a). And upon the determination of the tenancy Andtore- by the lessor, the lessee has an implied licence to enter for a 1110ve '- , reasonable time to remove his goods (b). By the joint effect of sect. 7 of the Real Property Limitation Determina- Act, 1833, and sect. 1 of the Real Property Limitation Act, 1874, ti,,n of the title of a tenant at will to the land becomes absolute as wmunder against his immediate lessor and those claiming under him after the sta * ute of ,. . ,. . , , " , limitations. the expiration ot twelve years from the determination of the tenancy, or, if not formally determined, at the expiration of thirteen years next after the commencement of the tenancy ; with a proviso that no mortgagor or cestui que trust shall be deemed to be a tenant at will, within the meaning of the clause, to his mortgagee or trustee (c). If a new tenancy at will be created by agreement of the parties, express or implied, before the title of the lessee has become absolute, then a fresh period of twelve years from the determination of the new tenancy, or thirteen years from its commencement, must elapse before the statutory title of the lessee is complete (d). The proviso has been extended to constructive trusts where the justice of the case so required (e). "A tenant at sufferance is he that at first came in by lawful Tenancy at demise, and after his estate ended continueth in possession and sufferance - wrongfully holdeth over" (/') . A tenant at sufferance differs from (//) Co. Lit. 62*. (V) Day v. Day, I.. R 3 p .• --, . (.-) Co. Lit. 63 a. See ante, pp. 71, 7'.». 40 L. J. P. ('. 3:,. ' (a) Co. Lit. 55 a, & 56 a. f» Warrm v. Murray, [T8941 ., (&) Co. Lit. 56 a. See Doe v. M l Keag, Q. B. 648; 64 L.I Q i; {•> J l^VS/*!* r*w? p fno &fel L - iL U) Ca Lit " ; ' 7 *'' A mortgagor who 5 Ui?.iWj ; 2J L. JO. P. 202. continues in possession after con revance [e) Bobbett v. S. E. Ry., 9 Q. B. D. of the legal estate to the ra ZS 424 ; Day v. Day, L. 11. 3 P. 0. 751 ; at law in the position S teS at 40 L. J. P. C. 3». See Brighton (Corp.) sufferance, unless the morteaee deed v. Brighton Guardians, 5 C. P. D. 368 ; provide to the contrary Sep „„,/ Midland Ry. v. Wright, [1901] 1 Ch. Sect. VII. " Mortgage," dd 211 212 738; 70 L. J. C. 411. ~ ' ' '' ' - 1 "' 160 PART II. CHAP. I. THE LIMITATION OF ESTATES. a disseisor in that his original entry is lawful, and from a tenant at will in that his holding over, after the determination of his original term, is wrongful (g). The principle that it is competent to a person to waive a tort is applicable to this branch of the law, and it is open to the landlord by the acceptance of rent as rent, or other acts, to convert the tortious holding into a lawful one (h). The landlord, however, is permitted to explain his acts, and the acceptance of rent is not conclusive to bind him (t). The position of the tenant is different. To allow him to plead that he was merely tenant at sufferance would be to allow him to plead his own wrong or default, which the law never allows, and it would seem that unless the landlord has elected to treat the holding over as a trespass, he is entitled at any time to affirm a new tenancy (/.•). If the tort is waived, the tenant at sufferance becomes tenant from year to year, the term being deemed to commence upon the day corresponding with that upon which the former term com- menced (/). Prima facie the other incidents of the original demise remain in force so far as they are applicable to a tenancy from year to year, but this is not necessarily the case, and the actual terms of the new tenancy may be given in evidence (??i). If either party could maintain an action for specific performance for a new term, and not merely a tenancy from year to year, the agreement in this respect would now be given effect to in all courts 0). The landlord may rightfully enter or maintain an action of ejectment against a tenant at sufferance without any demand of possession, but he must enter before he can maintain an action of trespass (o). After the lapse of twelve years without payment of rent a claim to the land by the landlord or by those claiming under him would be barred as against a tenant at sufferance (p). in) Co Lit. 57 b, 270 b ; Butler's cote L. J. Ex. S7 : Cornish v. St abbs, L. R. to Co. Lit. 270 b. 5 C. P. 334 : 39 L. J. C. P. 202 ; Marfin ., [1904] 1 Ch. i; C. B. '.hi ; 17 L. J. C. P. 263. 774 ; 73 L. J. C. 411. (/••) Per Lord Esher, M. B., JDougal v. (o) Co. Lit. 57 b : Thunder v. Belc/ier, McCarthy, [18931 1 Q. I'.. 736, 741 ; 62 3 East, 449; Doe v. Quiglev, 2 Camp. L .!.<>. B. 4U2. 505 ; Doe v. Day, 2 Q. B. 147 ; 12 L. J. (0 Kelly t. Patterson, L. B. 9 C. P. Q. B. 8(5. 681 ■ 43 L. J. C. P. 320 ; Dovgal v. ( p) Real Property Limitation Act, McCarthy, [1893] 1 Q. B. 730; 02 1833, s. 8; Heal Property Limitation L J Q B 402. Act, 1874, s. 1 ; Archbold v. Scully, 9 Un) Hyatt v. Griffiths, 17 Q. B. 505 ; H. L. C. 300 ; Be Jolly, [1900] 2 Ch. Oaldrif v. Monck, L. B. 1 Ex. 159 ; 35 616 ; 09 L. J. C. 661. SKCT. VI. CONDITIONAL LIMITATIONS AND CONDITIONS. 1C»1 Remedies have been given by statute against tenants holding Remedies by over, besides the ordinary remedies for the recovery of possession. ^~^ hold . By the statute 4 Geo. II. c. 28, s. 1, any tenant for term of life ingover — ,. ,, ... -li double value, lives or years, or other person coming into possession under such tenant, who shall wilfully hold over after the determination of such term, and after demand made and notice in writing given for delivering the possession, is made liable to pay to the person kept out of possession double the yearly value of the lands for the time they are detained. And by the 11 Geo. II. c. 19, s. 18, Double rent. any tenant who shall give notice to quit, and shall not accord- ingly deliver up possession at the time in such notice, is made liable to pay to the landlord double the rent during the time he shall continue in possession (q). Section VI. Conditional Limitations and Conditions. § 1. Conditional limitations. § 2. (' Lit ions, § 3. Construction and application of co iditions. Estates in fee simple, fee tail, for life and for years are Estates deter- distinguished, as above explained, by the limits prescribed for conditions! their duration, and they regularly determine upon attaining their respective limits, namely, failure of heirs or of issue, death of the person by whose life the estate is limited or lapse of time. They may, however, be subjected to conditions by force of which, without losing their distinctive character, they may be determin- able without attaining their regular limits of duration. Estates thus made conditionally determinable form the subject of this section. Estates may also be limited to arise upon conditions ; and Estates according to their effect as giving rise to or determining the conditions. estate, conditions in general are distinguished as conditions precedent and conditions subsequent (a). But conditions precedent Conditions do not affect the limitation of the estate in respect of quantity or duration ; they relate only to the time of commencement or vesting of the estate, and therefore belong to the second chapter of this part, which treats of the limitation of future estates. 0/) Cobb v. Stoltes, 8 East, 358 ; Soulsby v. Neving, 9 East, 310 ; Ander- son v. Midland lit/., 3 Ell. ,V Ell. id 1 : 30 L. J. Q. B. 94. L.P.L. O) Co. Lit. 201 a. See Be Green- wood, [1903] 1 Ch. 749 ; 72 L. J. C. 281. M 162 PART II. CHAP. I. THE LIMITATION OF ESTATES. Conditions subsequent. Conditions precedent giving rise to future estates occur in con- tingent remainders at common law, in limitations by way of springing and shifting uses, and in executory devises (/;). It may be observed that conditions precedent giving rise to future estates may operate indirectly as conditions subsequent relatively to the preceding estate by defeating it ; upon the happening of the conditional event they displace the preceding estate, and are substituted for it. But they are not on that account brought within the scope of the present section, because they are altogether extraneous to the limitation of the preceding estate(c). Those conditions only which enter into the limitation of the estate as to quantity or duration, and render it determinable, or conditions subsequent, have here to be considered. With respect to these it may be further incidentally observed that they may be annexed to future estates, vested or contingent ; so that they may operate upon estates in remainder and determine them before they become vested in possession (rf) 5 an d they may operate upon contingent estates before they become vested in interest (e). Conditional limitations. Conditions of re-entry. The conditions subsequent, wdiich are the subject of this section, appear in the two forms of conditional limitations and conditions of re-entry, or conditions strictly so called at common law, which forms of condition, as they differ essentially in their respective modes of operation, require to be treated separately. A conditional limitation operates to determine the estate by the intrinsic force of the limitation ; in the event prescribed by the terms of the condition the estate ceases. A condition operates by reserving a right of re-entry (or in some cases it may be some other mode of defeating the estate) to the grantor and his heirs ; in the event prescribed, the estate becomes defeasible by entry, but until entry the estate continues (/). Accordingly this section is divided into sub-sections, treating (§ " 1) of conditional limitations and (§ 2) of conditions of re-entry, or conditions strictly so called ; and there will remain to be noticed some rules and doctrines of law relating to the (/;) See ante, pp. 33, 50, 88. (c) See Due v. Eyre, 5 C. B. 713 ; Robinson v. Wood, 27 L. J. C. 726. And see Fearne, Cont. Rem. 272, on the effect of executory devises as condition- ally determining the preceding estate. (d) Lambarde v. Peach, 4 Drew. 553 ; 28 L. J. C. 569 ; Murjgeridge's Settle- ment, Johns. 625 ; 29 L. J. C. 288. (e) Egertdn v. Brownlow, 4 H. L. C. 1 : ltr Greenwood,, [1903] 1 Ch. 749; 72 L. J. C. 281. See Re Exmouth {Vise), 23 Ch. D. 158; 52 L. J. C. 420. (/) See the distinction explained, post, p. lt)8. SECT. VI. § 1. CONDITIONAL LIMITATIONS. 163 construction and application of conditions in general which may be conveniently treated separately and which will constitute the matter of the third suh-section. § 1. Conditional Limitations (a). Fee simple conditional. Fee ta 1 with proviso for erne?'— proviso for partial cesservoid -proviso for cesser may be barred. Estate for life with con litional limitation — proviso for cesser on alienation — estate for life terminable at will. Estate for years determinable upon life or lives — term determinable by notice— proviso for cesser of satisfied term- — cesser by statute- assignment . 1 17. see Re Dugdale, ;;s Ch. D. 176; Sug- (/ ) Co. Lit. 1 A, I8«, 19 * ; JUlmard den's note to liilb., Uses, p. 173 ; Fearne, Seymor's Case, 10 Co. 97 b ; see ante, ("lit. Hem. e. i. s. 3, an I Butlers p. 24. i. lb. ; Butler's note (1) to (Jo. (c) lb.; see ante, pp. 25, 26. La. 2o3 b ; Fearne, Cont. Kern. 272; 07) See ante, p. 25 ; Collier v. Walters, Sanders. Uses, ^50 ; Preston, Shep. L. it. 17 L [. 2:>2 ; ±.i L. J. 0. 2 Hi. -s-Si M 'I 164 PART II. CHAP. I. THE LIMITATION OF ESTATE!*. certain specified event the estate tail ceases, and the reversion or next vested estate in remainder takes effect in immediate possession (e). Examples of Instances occur in settlements in which estates tail are limited pro^so for w j t j J tlie p rov j so that if the tenant in tail in possession shall refuse or neglect to take the name and arms of the settlor, the estate tail shall cease and determine as if he were dead and there were a failure of issue inheritable under the entail (/). Alike proviso is sometimes used to determine the estate tail, if the tenant in possession shall neglect to reside upon the land (//), or if he shall become entitled to some other settled estate (//). Proviso for A proviso that in a certain event an estate tail shall cease as- void! 31 CCSSei if tne tenant in tail were dead is void ; because an estate tail does not determine on death of the tenant in tail, but on death without issue, and because the proviso is uncertain in effect as to the intended destination of the property at his death. An estate tail cannot be limited to cease as to a tenant in tail only or during his life only, and to continue as to the other issue in tail ; for such a limitation would be repugnant to the estate to which it is annexed (0- In the case of a will, the Court would probably supply the words " without issue " in order to effectuate the intention (A). A mere direction in a will that devisees shall take the name and arms of the testator or the like, without words divesting the estate in case of non-compliance, will not operate as a conditional limitation, unless it must be necessarily so construed in order to effectuate the testator's intention (/). Proviso may The power of disposition of a tenant in tail, extending to the creation of a fee simple absolute as against all persons claiming under or after the determination of the estate tail, is not restricted by a proviso for cesser ; but such a proviso, in common with all other limitations operating subsequently upon the estate, may be barred by a disentailing assurance executed in the proper form (/»)• be barred. rrc^.hpf^- ^rt^tr{jl> ejQrfrx&r . (e) Portington's Case, 10 Co. 36 j/ Be 6h-eenwood, £ 1903] 1 Ch. 749. See ~ rx ^ rvj " jj vc y Scarborough {Karl), 3 A. & E. Fearne, ContRem. 254, n. (e). 2 ; 4 L. J. K. B. 172. As to limitations (0 Corbet's Case, 1 Co. 83 I ; Mild- over in such cases, see post, Chap. II., may's Case, 6 Co. 40 a : Gulliver v. Sect. II., " Shifting Uses." Asliby, 4 Burr. 1929 ; Bradley v. (/•) Meyrich v. Laws, L. R. 9 Ch.AkLPei.roto, 3 Ves. 324 ; Tud. L. C. Conv. 237"; 43 L. J. C. 521. See Law UJiwh^T Ml. and Crown lnsce. v. Hill, [1902] A. C. 00 See 1 Jarman on Wills, 862. 263 ; 71 L. J. C. 602. (0 Gulliver v. Ashby, 4 Burr. 1929 ; (//) Johnson v. Fouides, L. R. 5 Eq. 1 W. Bl. 607. 268 ; 37 L. J. C. 260. (»») See ante, p. 27. See Doe v. (/*) Doc v. Yates, 5 B. & Aid. 544 ; Scarborough (Earl), 3 A. & E. 897. SECT. VI. § 1. CONDITIONAL LIMITATIONS. 1G5 Ail estate for life may be made determinable by a conditional Estate for life . . , . , . , with con- hmitation; — as, if an estate be granted to a woman so long as jitional limi- she is unmarried, or until marriage, or during widowhood; tatura. or to a husband or wife during the coverture ; or for any like uncertain duration included in the life which determines the estate upon the happening of the event mentioned, the next vested estate in remainder then takes effect, and intervening (contingent remainders, if any, are excluded (n). An estate for life may be limited to determine on alienation ; Proviso for or upon charging or attempting to charge the estate, or the rents aUenation.etc. and profits; so it maybe limited to cease upon bankruptcy or insolvency (o). But while a provision contained in a settlement •of the settlor's own property determining his interest upon alienation by him is valid (/>), a provision in a similar settlement determining his interest upon his bankruptcy is invalid {q). An attempt to fetter the right of a tenant for life to exercise his statutory powers of alienation is invalid by force of sect. 51 of the Settled Land Act, 1882 (r). Conditions in restraint of aliena- tion cannot be annexed to an estate tail or an estate in fee simple, and in such cases they are void and inoperative, as being repugnant to an inseparable incident of the estate (s). A lease for an uncertain term determinable at the will of the Estate for life ,. n i i j • determinable lessee only, executed m a manner to convey the freehold, is an at wilu estate for life determinable accordingly (t). A lease for an uncertain term purporting to be determinable at the will of the lessee, but not conveying the freehold, as where there was no livery of seisin or other sufficient conveyance of the freehold, was determinable also at the will of the lessor, and created at law only a tenancy at will («). A lease determinable at the will of the lessor is necessarily not a freehold ; and in the absence of any other limitation it is a tenancy at will, and is determinable by the lessee also (#). O) Jones v. Jones, 1 Q. B. D. 279 ; Re Detmold, 40 Ch. D. 585 ; 58 L. J. 45 L. J. Q. B. 166 : Re Hope Johnstone, C. 495. p9il4] 1 Ch. 470; 73 L. J. C. 371 ; ('/) Higinbot/iam v. Holme, 19 Ves. Co Lit. 42 a, 214 a ; Dickson's Trusts, 88; Wilson v. Greenwood, 1 Swanst. I Sim N S. 37; see Cliapman x. Per- 171. See Mackintosh v. Pogose, [1895] Itins [ 1905] A. C. 106 ; 74 L. J. C. 331. 1 Ch. 505 ; (54 L. J. C. 274. ks to the validity of limitations over (r) Be Ames, [1893] 2 Ch. 479; 62 upon marriage, see Morley v. Rennold- L. J. C. 685; Re Smith, [1899] 1 Ch. son 2 Hare, 570; [1895] 1 Ch. 419; 331; 68 L. J. C. 198. Allen v. Jackson, 1 Ch. U. 399; Re (*) Re Machu, 21 Ch. D. 838; Be Whiting's Settlement, [1905] 1 Ch. 96 ; Dugdale, 38 Ch. D. 176 : 57 L. J. C. 634. 7 1 I.. J. C. 207. (0 See ante, p. L56. to) Brandon v. Rohinson, 18 Ves. (it) Co. Lit. 55 a -; but it may give an 429- Wilkinson v. Wilkinson, 1 Swanst. interest in equity. See King's Lease- 515' See Craven v. Brady, L. R. 4 Ch. holds, L. R. Hi Bq. 521: Zimbler y. 296 ; 38 L. J. C. 345. Abrahams, [1903] 1 K. B. 577; .2 (//) Brooke v. Pearson, 27 Beav. 181 ; L. J. K. B. 103. Xnight v. Browne, 30 L. J. C. G49 ; (.<•) See ante, p. 156. 166 PART II. CHAP. I. THE LIMITATION OF ESTATES. Lease for years deter- minable upon life or lives. Lease during minority. Term deter- minable by notice. Proviso for the cesser of satisfied terms. Aii estate for years may he made determinable by a conditional limitation, as the continuance of a life or lives or other uncerta a event. Thus, a lease for 100 years, if A. shall so long live, creates a term of years determinable upon the death of A. ; and upon the death of A. there is no residue of the term, though there may be a residue of the years, so that a limitation over for the residue of the term is void, unless by term is meant the time and not the interest (//). A lease for so many years as A. shall live, not being limited by any certain period, is not an estate for years, but a freehold or an estate for life {z). — An estate for 100 years, if A. and B. shall so long live, determines upon tire death of either of them ; but an estate for the lives of A. and B. continues until the death of the survivor (a). A lease during the minority of A. is a lease for the number of years A. wants of twenty-one, if he shall so long live (fe). An estate for years certain may be made determinable by notice to be given by either party (c) ; but a lease for so long as the lessee pleases to continue tenant, being otherwise unrestricted, is an estate for life terminable at the will of the lessee (d). A proviso for cesser is often applied to long terms of years created for various purposes, with the object and effect of making the terms to cease when the purposes of their creation have been satisfied. The terms referred to are used for the purpose of securing the payment of sums of money, as debts upon mort- gage, or the sums to be raised for the jointures of widows and the portions of children in family settlements. The term is vested in trustees upon trust to raise and pay the charges imposed, and, subject thereto, upon trust for the owners of all other estates in the land in the order of their limitation, or, as it is called, upon trust to attend the inheritance. A term settled in this manner does not interfere with the beneficial ownership of the land until the occasion of the charge arises, and it then affords the ready means of raising the sum charged by an actual receipt of the rents and profits, or, if necessary, by a sale or mortgage. The efficacy of the term for this purpose by reason of the length, which is sometimes extended to 500 or 1000 years, is equivalent to the fee simple, while, being only a chattel interest, it in no way interferes (y) Wrigltt v. Cartwright, 1 Burr. 282; Co. Lit. 45 b. (-) Breirrr v. Hill, 2 Anstr. 413 ; Co. Lit. 42 a, 45 b. (a) BrvdneVs Case. 5 Co. 9 a. (V) Bath's (Bjj.) Case, Co. 35 b ; see Bora stori 's Case, 3 Co. 19 a. (c) Doe v. Baker, 8 Taunt. 241. See ante, p. 152. {^ distinguished from condi- tional limita- tion. Distinction in construction. ditional limitation . An estate upon condition is not void, but voidable only by entry or claim under the condition; and unless the right of avoidance is exercised the estate continues. A con- ditional limitation determines the estate ipso facto by mere force of the terms, leaving, in the case of particular estates, the next vested remainder, or the reversion, to take effect in immediate possession (a). Hence it may be observed that a condition annexed to an estate with a conditional limitation, purporting to defeat the estate in the same event which determines it by the express limitation, as in the case of a gift to a man in tail, and if he die without heirs of his body, that then the donor and his heirs shall re-enter, would be inoperative and therefore a void con- dition (I)). It has been said that the distinction between words of limita- tion and words of condition lies in the terms used ; but it is, perhaps, more correct to say that it depends rather upon the intention and effect than upon the exact letter of the words (c). O) Co. Lit. 214i; Shepp. Touch, by Preston, Ch. vi. As to the acceleration of the remainder, see Lambarde v. 1'rurh, 4 Drew. 553 ; 28 L. J. C. 569 ; a remainder which is contingent at the time the conditional limitation takes effect, fails altogether, unless saved by the Contingent Remainders Act, 1877; see ante, p. 34. (J)) Co. Lit. 224 b. But a condition may have a more extensive effect than a conditi< nal limitation, by defeating all the estates in remainder limited under the same feoffment or grant, see post, p. 173. (c) Partington's Cane, 10 Co. 41 ; Shepp. Touch, by t J reston, p. 121 ; 1 Sanders, Uses, 155. SECT. VI. § 2. CONDITION-. 109 Apt words of limitation are: — " durante, as durante viduitate Words of . . i 7 7 c -l 7 t limitation. or durante vita, etc. — aitwi, as <<><»( sola juent, — aummodo, as dummodo solveret talem redditum, — quamdiu, as quamdiu se bene gesserit, quamdiu the grantor shall he dwelling upon the manor, — and so by these words, donee, quousque, usque ad, tamdiu, ubicunque " (d). Words of condition are, sub condition*', proviso, ita quod, si Words of con- contingat, etc. (e). And " it is to be observed that many words in a will do make a condition in law, that make no condition in a deed " (/). There is a difference in the operation of a condition annexed Condition an- 1 nexed to free- to a freehold, and a condition annexed to a lease for } r ears, holdrequirea arising from the difference in quality of those estates. A free- jf'^ Sy £j hold estate commencing, at common law, by livery cannot be ^ "'^J^y^ divested under a condition without a resumption of the seisin'*^ 1 -*' />a v. Mayo, 1 only "as regards the conveyance of the Wms. Saund. 441. immediate freehold," and though it dis- (Ji) Co. Lit. 218 a. A freehold may penses with livery to commence au -2. C 77. Vol . jCox^ ^w/ f ^^ 170 BART II. CHAP. I. THE LIMITATION OF ESTATES. Condition annexed to lease for years does not re- quire entry unless so stipulated. Construction of conditions in leases. Proviso operating as a condition. "A lease for years may begin without ceremony, and so may end without ceremony," being tit common law a mere matter of contract. Therefore a condition to defeat it does not require an actual entry, unless expressly stipulated for (k). According to the older cases, a condition that in a certain event a lease should cease or be void was construed as a conditional limitation, and the term treated as ipso facto void ; but the later cases show that in these circumstances the condition is construed to render the lease voidable at the option of the lessor, who must give notice, or do some other act showing his intention to avoid it(Z). If the view expressed in the earlier casts had prevailed, it would have permitted the lessee to put an end to the term by his own default. And where a right of re-entry is expressed to be given upon an antecedent notice, the election of the lessor to resume possession is finally exercised by notice given, and it is unneces- sary to make an actual entry (in). " In a lease for years no precise form of words is necessary to make a condition. It is sufficient if it appear that the words used were intended to have the effect of creating a condition. They must be the words of the landlord because he is to impose the condition " (n). — " And so it is if a man by indenture letteth lands for y ear B, provided always, and it is covenanted and agreed between the said parties, that the lessee shall not alien, and it was adjudged that this was a condition by force of the proviso, and a covenant by force of the other words " (o). — And it is laid down as " a general rule that where a proviso is that the lessee shall perform or not perform a thing, and no penalty to it, this is a condition, otherwise it would be void ; but if a penalty is annexed, it is otherwise" (})). Condition can A condition can be reserved in a conveyance at common law be reserved only to the grantor and his heirs. only to the grantor or lessor of the estate and to his heirs, and to no other person (q). If a devise be made by will upon con- dition, the heir of the testator would be entitled to enter upon breach of the condition (/). A condition may be reserved upon estate of freehold, it does not affect the rule requiring an actual entry to revest the freehold under a condition. See ante, p. 36. (It) Doe v. Baker, 8 Taunt. 241 ; Co. Lit. 214 /'. See Liddy v. Kennedy, L. R. 5 H. L. 134, 151, 154. (I) Rede v. Farr, 6 M. & S. 121 ; Eartshorne v. Watson, 4 Bing. N. C. 178 ; Moore v. Ullcoats Mining Co., [1908] 1 Ch. 57.'. : notes to Dvppa v. Mayo. 1 Wins. ISaund. 442. (in) Liddy v. Kennedy, L. R. 5 H. L. 134. O) Doe v. Watt, 8 B. & C. 308, 315 ; Doe v. Phillips, 2 Bing. 13; Doe v. Kennard, 12 Q. B. 244. O) Co. Lit. 203 b ; Doe v. Wait, 8 B. & C.308. (;/) Doe v. Watt, 8 B. & C. 316, and see the dses there cited. (q) Co. Lit. 214 a, 379 a ; Fitchet v. Adams, 2 Btra. 1128. (r) See Doe v. Pearson, 6 East, 173. SECT. VI. § '2. CONDITIONS. 171 a conveyance in fee simple, leaving no reversion ; or upon an assignment of a term of years, leaving no reversion (s). A condition was not assignable at common law, either with Condition not or without a reversion ; but it was made to pass with a rever- ^!1^* , *' ' i common law. sion in certain cases by 32 Hen. VIII. c. 34 (<) ; and by 8 & 9 Vict. c. 10G, s. 6, " a right of entry, whether immediate or future, and whether vested or contingent, may be disposed of by deed." Hence arose a diversity, as stated by Coke, " between a con- Distinction as dition that requireth a re-entry, and a limitation that ipso facto [[[J^'^^. determineth the estate without any entry. Of this first sort no tional limita- stranger shall take any advantage, as hath been said. But of limitations it is otherwise. As if a man make a lease quousque, that is, until J. S. come from Borne, the lessor grant the rever- sion over to a stranger ; J. S. comes from Rome, the grantee shall take advantage of it and enter, because the estate by express limitation of it was determined. So it is if a man make a lease to a woman qiiamdiu casta vixerit, or if a man make a lease to a widow, si tamdiu in purd viduitate viveret. So it is if a man make a lease for 100 years if the lessee live so long, the lessor grants over the reversion, the lessee dies, the grantee may enter, causa qua supra " (u). The forfeiture under a condition is waived and dispensed with, Waiver of if the grantor or lessor, after having knowledge of the grounds of forfeiture, does any act unequivocally affirming the con- tinuance of the estate or tenancy ; as by accepting, suing for, or claiming rent subsequently accruing due (r). Distraining for rent may have the same effect of affirming the tenancy, because it is only justifiable during the continuance of the tenancy or (by the statute 8 Anne, c. 14, s. G,) within six months after its determination (x). Such acts of waiver of the forfeiture operate as an election Cannot be re- not to avoid the estate, which when once made and duly expressed cannot be retracted ; according to the maxim "quod seinel placuit in electionibus amplius displicere non potest" (y). But they operate 0) Co. Lit. 202 a, 202 b ; Doe v. Bate- Nieholl, 4 C. I'.. X. S. : i 7 1 ; ; Croft v. man, 2 B.&Ald. 168. Immley, 6 E. & B. "Us. Bee notes to (*) As to this statute and when it Dumpor's Case, 1 Smith. L. C. 32, and applies, see Spencer's Case, "> Co. 10: J>///>/>'2 ; notes to Duppa v. p. 444 ct set]. Mayo, 1 Wms Saund. I4'.» ; Leake, (./•) Ward v. Day, i B. & S. 337 ; 33 Contracts, 858. L. J. Q. B. 3; Grimwood v. Moss, L. K. (?/■) Co. Lit. 214 h ■. Manning's Case, 7 C. P. 360. See Cox v. Leigh, L. II. 9 8 Co. 95 b. Q. B. 333 ; 43 L. J. Q. P.. 123. (c) Doe v. Allen. 3 Taunt. 78 : Doe v. (//) Jones v. Carter, 15 M. ,v: W. 718 ; Birch, 1 M. & W. 4"i> ; Dendy v. Croft v. Lumley, 5 E. & B. 648; 6 172 PART II. CHAP. I. THE LIMITATION OF ESTATES. Waiver can- not operate after avoid- ance of the estate. Effect of ejectment as ■election to .avoid. Entry avoids the estate of t he grantee, and revests it in the grantor. Cannot avoid it in part only. only upon past breaches or forfeitures ; and if the breach be a continuing one, a subsequent breach will give a new right of entry (.?). On the other hand, where the election is duly made by entry or otherwise to avoid the estate, or where it becomes ipso facto void under the condition or limitation, no acceptance of rent or other act of waiver can afterwards revive or continue it (a). But such acts may be evidence of a new tenancy (b). The service of a writ of ejectment, by treating the tenant as a trespasser, operates as a conclusive election to avoid a lease, and it may be referred back to the earliest breach or ground of forfeiture upon which the plaintiff relies in support of the action. It therefore precludes the lessor from suing for subsequent rent or subsequent breaches under the lease. And, on the other hand, it prevents any subsequent act, as distraining for or accepting the rent in arrear, from operating as a waiver of the forfeiture upon which the ejectment is founded (c). Upon entry the estate to which the condition is annexed is avoided, and the original estate of the grantor or lessor is revested in him or in his representatives so far as the circum- stances permit. " Eegularly it is true that he that entereth for a condition broken shall be seised in his first estate, or of that estate which he had at the time of the estate made upon condi- tion, but yet this faileth in many cases: — 1. In respect of impossibility, — 2. In respect of necessity, — 3. In respect of some collateral qualities " (d). But the right of action remains on covenants in a lease for arrears of rent or breaches committed before re-entry ; and it was so held notwithstanding the proviso expressed that the lessor upon re-entry should have the premises again " as if the indenture of lease had never been made " (e). A condition, like a conditional limitation, must in general defeat or determine the whole estate to which it is annexed. It cannot avoid the estate in part only, and continue it in part. H. L. C. G72 ; Ward v. Day, 5 B. & S. 359. (z) Doe v. Peek, 1 B. & Ad. 428 ; Doe v. Gladwin, 6 Q. B. 953 ; Doe v. Jones, 5 Ex. 498 ; Thomas v. Lulhmn, [1895] 2 Q. B. 40(i. Seepost, p. 180. (//) Co. Lit. 215 a ; Pennant's Case, 3 Co. 64 h. See Toleman v. Portbury, L. K. 6 Q. B. 245 ; L. R. 7 Q. B. 344 ; 41 L.J. Q. B. 48. "A confirmation may make a voidable or defeasible estate good, but it cannot work upon an estate that is void in law." Co. Lit. 295 b. (b~) See Blyth v. Dennett, 13 C. B. 178 : 22 L. J.'C. P. 79. (r) Jones v. Carter, 15 M. & W. 718 ; Grim-wood v. Mos, L. R. 7 C. P. 360 ; 41 L. J. C. P. 239 ; Serjeant v. Nash, Field $ Co., [1903] "2 K. B. 304 ; 72 L. J. K. B. 630. See Moore v. Ullcoats Mining Co., [1908] 1 Ch. 575. (V) Hoddy v. Hoddy, 2 Kolle, 60 ; Co. Lit. 201 a ; and see 202 a, where the instances are given. («) Hartshorne v. Watson, 4 Bing. N. C. 178. SKCT. VI. S 2. CONDITIONS. 173 Thus a proviso for the cesser of an estate tail, during the life of the tenant in tail only, is repugnant and void (/). Entry also avoids all mesne estates and incumbrances created Avoids mesne out of or charged upon the estate (g). But conditions implied in law, as the conditions of tenure, do not affect the estates and incumbrances created before the act of forfeiture (// ). At common law if the land be limited for a particular estate Avoids estates with remainders, subject to a condition, the re-entry defeats all the estates in remainder, as being dependent upon the seisin of the particular estate (>'). But where a particular estate is limited subject to a condition, and a remainder is limited over indepen- dently of that condition, as the entry would defeat the remainder, the condition, unless it can be construed as a limitation deter- mining the preceding estate without entry so as to support the remainder, is repugnant and void (k). A condition of re-entry has no effect upon springing uses and Dies not executory devises which operate in substitution of the estate to fngusesand" which the condition is annexed ; for these limitations arise quite executory dc vis6s independently of the preceding estate (7). At common law the services and duties of the tenure consti- tuted an implied condition of the continuance of the estate ; a refusal of the services or a denial of the tenure was visitable with forfeiture, and entitled the lord or reversioner to re-enter and resume possession. Other conditions might be annexed in express terms to the grant of an estate with the like effect of giving to the grantor or his heirs the right to re-enter and resume possession upon breach of the condition (in). By the common law, it was a condition in law annexed to the estate of tenant for life or for years or other particular estate, that if he made a tortious alienation of the seisin it was a forfeiture of his estate, and the reversioner or remainderman might enter ; so if he claimed a greater estate in a court of record. But conveyances have no longer any tortious operation (n). ( londitions implied in tenure. Conditions ex- pressed in the grant. Condition in law against tortious con- veyance. (/) Corbet's Case, 83 I; Mildmay's Case, (> Co. 40 a. See Jones v. Hancock, 4 Dow, 145. (//) Simonds v. Lanmd, Cro. El. 239 ; Creswell v. Davidson, 5(> L. T. 811. See O. W. Ry. v. Smith, 2 Ch. D. 235 ; and see Mayow's < use, 1 Co. 1 16 b. (/() Co. Lit. 233 b, where see the dis- tinction as to conditions by statute; Archer's Case, 1 Co. 67 a. (i) Fearne, Cont. Rem. 261, 262; 1 Sanders, Uses, 152. See ante, p. 33. (It) Fearne, Cont. Rem. 270; Shepp. Touch, by Preston, 120, 121. See Kinnersley v. Williamson, 39 L. J. C. 788, when' it was held that a remain- derman has no equity to compel the truant for life to perform a condition. In a devise by will a condition may be annexed to the particular estate only without affecting the remainder. Warren v. Lee, Dyer, 126 b. (7) See ante, pp. 50, 88. (m) Butler's note (1) to (.'...Lit. 201 a : Co. Lit. 233 b : Butler's note to Fearne. Cont. Rem. p. 382. O) Co. Lit. 233 b. See ante, pp. I" 41. 174 PART II. CHAP. I. THE LIMITATION OF ESTATES. Exjire>> con- ditions lint affected by statute Quia emptores. Condition in mortgage at common law. Equity of re- demption. Conditions in leases for pay- ment of rent. Demand necessary at common law. Statute enabling ejectment without de- mand or entry. Entry was necessary on the part of the lessor to avoid the estate, whether it was a freehold or leasehold, in respect of the conditions implied in the tenure (o). The right of entry for breach of the conditions implied in the tenure could not be reserved upon an alienation in fee after the statute Quia emptores, for that statute prohibited the creation of a sub-tenure and the grantee held only of the chief lord of the fee ; but a right of entry upon positive conditions expressed in the grant, may be reserved to the grantor and his heirs notwith- standing the statute Quia emptores (p). Express conditions of re-entry were employed at common law in mortgages of land. The mortgagor conveyed the land to the mortgagee by feoffment, or other appropriate legal assurance, upon condition that if he paid at a certain day the amount of the debt he might re-enter and resume his former estate (q). On failure to perform the condition by payment at the day appointed, the estate of the mortgagee became absolute and indefeasible at law ; but the Court of Chancery, regarding the transaction merely as a pledge of the land for the debt, allowed to the mortgagor a right or equity of redemption, giving the mortgagee at the same time the right of applying to the court to bar the equity of redemption in default of payment by an appointed day (?'). A condition of re-entry is frequently applied to secure the payment of rents reserved, in addition to the other remedies by action or distress (*). At common law a condition of re-entry simply "if the rent be in arrear " implies several subordinate conditions, which must be strictly complied with at all points in order to maintain a forfeiture and re-entry. These may be summed up in the requirement that a demand must be first made of the precise sum due, and at the exact time and place required by law under the various circumstances of the case (/). By sect. 210 of the Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76), which replaces an earlier enactment to the same effect, in all cases between landlord and tenant, the landlord may recover in ejectment upon proof that half-a-year's rent was due before the writ was served, and that no sufficient distress (2 ; 54 h. J. C. 102. See 255 : 29 I- J. C 856. ante, p. L64. (/.•) Sheppard's Touch, by Preston, (w) Catt's Trust*, 2 II. & M. 46 : 33 128; Fearne, Cont. Item. 255; Filling- L. J. C. 495; Musgrave v. Brooke, 29 ham v. Bromley, Turn. & Russ. 530; Ch. D. 792 ; 54 L. J. C. 102. Doc v. Carew, 2 Q. B. 317; Clavering («) Co. Lit. 218 a. L.P.L. N 178 PART II. CHAP. I. THE LIMITATION OF ESTATES. Condition against alienation. Condition against taking the profits. simple or tenant in tail shall not alien the land is repugnant and void, because the power of alienation is an inseparable incident of such estates (o). So a condition annexed to an estate pur- porting to dispose of it in case of intestacy is repugnant to an absolute interest and void ())). A condition that if a devisee take any proceedings at law or in equity his estate shall go over will be held limited to groundless and frivolous litigation, and to this extent upheld {q). A condition annexed to an estate in fee simple or fee tail that the tenant shall not take the profits of the land is repugnant and void (r). So, a condition that the land shall be let for ever at a definite rent (s). vj Construction of conditions. Condition construed as subsequent rather than precedent. Words of con- tingency re- ferred to the limitation over. Conditions construed strictly in favour of vesting and against divesting. It is a general principle of construction that conditions are not favoured, that is to say, limitations of estates in terms importing conditions are to be construed generally in favour of vested and indefeasible estates (t). Hence the rule that ambiguous expressions, imposing a condition annexed to an estate, are to be construed as a condition subsequent rather than a condition precedent (w). In the next place, words of contingency are referred, if possible, to the limitation over ; thus, a devise to A., " if he should live to attain twenty-one," or "when he attains twenty-one," with a devise over in case he should die before attaining that age, is construed as giving to A. an immediate vested estate, subject to be divested by the devise over taking effect upon his death under twenty-one (x). Hence also the rule that a condition precedent is construed strictly in favour of vesting the estate, and slight circumstances will be seized upon to excuse an exact compliance with its terms; (o) Mild may's Case, 6 Co. 41 a ; Partington's Case, 10 Co. 36. Sec King v. Bnreliell, 1 Eden, 42-1; Hayes v. Foorde, 1 W. Bl. 698. (p) Holmes v. Godson, 8 De G. M. & G. 152 ; 25 L. J. C. 317. See Conn sltey v. Bowing Banbury. [1905] A. C. 84; 74 L. J. C. 263. (<7) Rhodes v. Muxwell Hill Land Co., 29 Beav. 560 ; 30 L. J. C. 509 ; Adams v. Adams, [1892] 1 Ch. 369 ; 61 L. J. C. 237. (r) Co. Lit. 206 b ; Perkins, s. 731 ; Sheppard Touch, by Preston, 131. (*) Att.-Gen. v. Catharine Hall, Jac. 381. See Tihbetts v. Tibbetts, 19 Ves. 656 ; Jac. 317. (0 This principle of construction finds its chief application in construing future limitations ; as remainders which are to be taken as vested rather than contingent, and executory limitations and devises which are to be taken as referring to the time of possession rather than the vesting of the interest, see post, Chap. II. Sects. L, III. (//) Egerton v. Brownlow, 4 H. L. C. 1 ; Woodkouse v. Herrick, 1 K. & J. 352 ; 24 L. J. C. 649 ; Be Greenwood, [1903] 1 Ch. 749 ; 72 L. J. C. 281. (./•) Bromfield v. Crowder, 1 Bos. &; P. N. R. 313 ; Doe v. Moore, 14 East, 601 ; Phipps v. Ackers, 9 CI. & F. 583 ; MuskeU v. Eaton, 1 Ch. D. 435. See Be Francis, [1905] 2 Ch. 295, and see post, Chap. II. Sect. III. " Executory Devise." SECT. VI. §3. COXSTItrCTlOX OF CONDITIONS. 179 and conversely that a condition subsequent is construed strictly against divesting the estate, and restricted to cases falling within the language of the condition (//). Upon the above principles of construction a condition of re- entry reserved to a grantor or lessor, without any express exten- sion to heirs, executors, etc., is restricted to the person of the grantor or lessor, and the heir or executor cannot take advantage of it(,r). — And for analogous reasons in an action of ejectment founded on a condition of re-entiy, the burden of proving all the circumstances divesting the estate, though involving negative matter, is cast by law upon the person maintaining the for- feiture {a). According to the same principles, a condition of re-entry in a lease upon assignment without licence was held at the common law not to be apportionable; and a licence once given dispensed with the condition altogether, so that no subsequent alienation without licence could break the condition or give cause of entry to the lessor. And a licence given to assign to one particular person, or in one particular instance, had the same effect, in dispensation and determination of the condition, as a licence given to assign generally (b). But by the Law of Property Amendment Act, 1859 (22 & 23 Vict. c. 35), s. 1, a licence to do any act which without such licence would create a forfeiture, or give a right to re-enter, under a condition or power reserved in any lease, extends only to the permission actually given, or to any specific breach of any proviso or covenant made or to be made, or to the actual assign- ment, underlease, or other matter thereby specifically authorized to be done, but not so as to prevent any proceeding for any sub- sequent breach (unless otherwise specified in such licence) : — and the condition or right of re-entry remains in force in all respects as if such licence had not been given, except in respect of the particular matter authorized to be done. Section 2 restricts in like manner the operation of a licence to assign or underlet or do any other act given to one of several lessees, or given in respect of part of the property. A waiver of a breach of the condition against assignment had Condition of re-entry. Burden of pro\ ing for- feiture. Condition against ;i— iirnment determined by licence. Effect of licence re- stricted by statute. (//) Fraunces 1 Case, 8 Co. 'JO h ; Clawing v. Ellison. 7 H. L. C. 7o7 ; 29 L.J.C-. 761 : Kiallmarh v.£iallmark, 26 I, ,1. C. 1 ; Radford v. Willi*, L. R. 7 Ch. 7 ; 41 L. J. C. 19 ; Yates v. Univ. Coll., London, 1,. R. 7 H. L. 438 : Re Exmoubh (Fmc), 23 Ch. I>. 158; 52 L. J. C. 42U ; lie Wrujht, [1907] 1 Ch. 231 ; 7(5 L. J. C. 89. (.-) Shepp. Touch. 133. (a) Doe v. WMteliead, 8 A. & E.57] ; Toleman v.Portbury, L. It. 5 Q. B. 288. See 8. C. L. R. 7 Q. B. 311. (Jj ) Uuin/ior'.t Case, 4 Co. 119; 1 Smith, L. C. 32 and notes. N 2 180 PART H. CHAP. I. THH LIMITATION OF ESTATES. Waiver re- stricted to the specific in- stance or breacli waived. the same effect as a licence in dispensation of the condition altogether (c) ; but since the Law of Property Amendment Act, 18G0 (23 & 24 Yict. c. 38), s. 6, an actual waiver of the benefit of any covenant or condition in any lease in any one particular instance does not extend to any instance or any breach of covenant or condition other than that instance or breach of covenant or condition to which such waiver shall specially relate, and is not a general waiver of the benefit of any such covenant or condition, unless an intention to that effect shall appear. Relief against forfeiture. — By the couit. By statute. Courts of common law disclaimed any jurisdiction to relieve against a forfeiture, but courts of equity exercised an original jurisdiction in some cases to relieve against forfeiture at law for conditions broken in cases admitting of a monetary compensa- tion, or where parties could be restored to their original rights(d). But courts of equity gave no relief against forfeitures arising from breach of a condition not to assign without licence, or from breach of a covenant to repair, or to insure against fire, or the like specific matters (e). Courts of equity have, in general, no jurisdiction to relieve against conditions imposed by a testator in his will ; thus it was held that a gift was divested under a con- dition, though the person to whom it was given was not informed of the condition in time to comply with it (/). The Legislature invested courts of common law with power to relieve against forfeitures in the case of mortgages by the Com- mon Law Procedure Act, 1852 (15 & 16 Vict. c. 7(5), s. 219, which reproduced an earlier enactment, in the case of forfeiture for non-payment of rent by the Common Law Procedure Act, 1852, s. 212, and the Common Law Procedure Act, 1860 (23 & 24 Yict. c. 126), s. 1, and in the case of forfeiture for non-insurance by sect. 2 (now repealed) of the last statute. By the Judicature Act, 1873 (36 & 37 Yict. c. 66), s. 24, the jurisdiction of the Court of Chancery was vested in the Supreme Court thereby constituted. The Supreme Court is now invested with a large discretionary power to relieve against forfeiture by the Con- veyancing and Law of Property Act, 1881 (44 & 45 Yict. c. 41), s. 14, which is expressed in the most general terms, and applies not only to a condition properly so called, but also to a lease (/•) Goodright v. Davids, Cowp. 803. See Roe v. Harrison, 2 T. R. 425. (77) Peachy v. Somerset (Duke), 1 Stra. 447 ; 2 Wh. °" terms of years, in strict analogy to the legal estates already legal estates. (/ (Lord) v. Bosville, Cas.f. Talb. 3 ; 2 Wh.'ic T. L. C. 763, and notes ; SackvUle- West v. Holmesdale (Vise), L. K. 4 II. L. 543 ; 39 L. J. C. 505. See per Eldon, L. C, as to the in- accuracy of the expressions, executory and executed trusts, in Jervoise v. Northumberland (Duke), 1J. & W. 570. The word "directory" has been sug- gested instead of " executory." See 2 Spence, Eq. Jur. 131. SECT. VII. S 1. EQUITABLE ESTATES. 183 Technical terms of limitati"]). Executory trusts are here distinguished, as regards the Construction „ , t -,,- f ' ,• i i- of the limita- hmitation of estates, by admitting of an exceptional construction tionsin of the limitations expressed. They are often expressed in com- executory pendious terms by way of instructions for the limitations directed to be made, without setting out the limitations at length, as by directing or agreeing that property shall be settled "in strict settlement," " entailed," settled " with usual or proper powers," or the like; in which cases the construction consists in developing the limitations involved in such expressions in the form best suited to carry out the general intention of the trust (./'). And even where an executory trust is expressed in technical terms of limitation, effect will be given to the general object required to be carried out. Accordingly the court refuses to apply the rule in Shelley's case to the limitations of an executory settlement, expressing that the estate is to be settled on the parent for life with remainder to the issue or heirs of the body, if it appear to be an object of the settlement to secure a provision to the issue ; for the application of the rule would enable the parent to defeat that object (g). Instances of executory trusts occur in marriage articles, agreeing that a settlement shall be made upon an intended marriage (//)• A covenant in marriage articles by the intended husband " to settle an estate upon his issue " of the marriage, was construed to require successive estates tail to the children of the marriage after a life estate in the husband, but not to admit of portions for younger children (/). Instances of executory trusts occur also in wills leaving pro- perty to trustees with directions for future settlement ; but in this case the parties claim as volunteers, and in contradistinc- tion to marriage articles, full effect will be given to the rule in Shelley's case unless it appear from other parts of the will that descendants are to take as purchasers (A). It seems necessary here to notice, for the purpose of distin- Equitable guishing them, those equitable rights to the recovery of property "J^y ^ Executory trusts in marriage articles. Executory trusts in wills. (/) Graves v. Hicks, 11 Sim. 536 ; 10 L. J. C. 185 : Roohfort v. Fitzmaurice, 2 Dr. & War. 1 : Stanley v. Cotthurst, L. II. 10 Eq. 259 ; 39 L. J. C. 650; and see notes to Glenoi'chy {Lord) v. Bosville, 2 Wh. & T. L. C. 763. (//) Trevor v. Trevor, 1 P. Wins. 622 ; 5 Bro. P. C. 122 ; Streatjield v. Streat- fir!,!, ('as. t. Talb. 17(1 ; 1 Wh. & T. L. C. 416; Stonor v. Curwen, 5 Sim. 264; Grier v. Grin: L. R. 5 H. L. 688. (A) See notes to Glenorchy ( Lord) v. etc Bosville, 2 Wh. & T. L. C. 763; 2 Spenc :, Eq. Jur. 130. (/') Grier v. Griei', L. It. 5 H. L. 688. (A) Stoeetapple v. Bindon, 2 Vera. 536 : Samuel v. Samuel, 14 L. J. C. 222; Magrath v. Morehead, I.. R. 12 Eq. 491 ;' 41 L. J. C. 120. See Saek- ville-West v. Holmesdale [Vise'), L. It. 4 H. L. 543 ; 39 L. J. C. 505. 184 PART II. CHAP. I. THE LIMITATION OF ESTATES. Distinguished from equit- able estates. The remedial jurisdiction of equity. which are not founded in any trust, strictly so called, either express or constructive. Such rights arise where the legal estate is acquired or retained under circumstances against conscience and equity, which a court of equity will redress ;— as the right to cancel a conveyance obtained hy fraud and have a re-conve} T - ance, — the right to correct mistakes, and the like. "The jurisdiction of the Court of Chancery in regard to specific property, ranges itself under two great heads or divi- sions ; — in the cases which range themselves under the first division, the court recognises and preserves a legal estate or title, as well as an equitable title ; indeed, in most cases, the legal estate or interest has been devised or conveyed to the person in whom it is vested expressly for the purposes of the trust, and the legal title is only so far interfered with as to make it sub- servient to the enjoyment of the co-existent equitable interests, — the cases which range themselves under the second division, are those in which the legal title has not been conveyed to the party in whom it is vested by way of trust, but has been acquired, or is retained against conscience and equity ; and the equitable doctrines which govern this branch of the jurisdiction are put in force for the purpose of having the legal title to the property transferred to the person who, according to honesty and conscience, in the view of the Court of Chancery, is entitled to the property. There is no object to be attained, as in the cases which come under the first division, which requires* that the legal estate shall be kept outstanding : the claimant seeks to enforce an equitable right, not to secure an equitable estate : so that the doctrine of constructive trusts is applied in these cases only for the purpose of effecting an immediate transfer of the beneficial interest to the person who is entitled in equity to the legal interest " (/). The rights here referred to form an important branch of the remedial jurisdiction of equity, giving specific redress in cases of fraud, mistake, and the like, upon equitable principles ; but they do not enter into the scope of the present work, which is restricted to the substantive law 7 , and does not refer to the occasions and remedies of infringements, or wrongs, further than may be sometimes necessary or useful to do so for the purpose of explanation (m). (7) 2 Spence, Equitable Jur. 1, 2. (■»/) See ante, p. 104. SECT. VII. § 2. TRUSTS TOR CONVERSION. 185 § 2. Trusts for Conversion. Trusts for conversion— of money into land— of land into money. Absolute conversion — conditional conversion— discretion of trustees. Resulting interest under a conversion by deed is personal estate— where Ihe whole interest results there is no conversion. Proceeds of conversion by will, undisposed of, results to the heir — when included in residuary bequest— in residuary devise— heir takes the proceeds as personalty, unless conversion unnecessary. Election against conversion— election by owner of share— by tenant in tail — what constitutes election. Conversion of real estate of partnership. In this and the following sub-sections are treated those equit- Estates and • ■ i n t (_■ i ' ■ able estates and interests in land which are peculiar to equity, peC uiiarto not only in respect of the mode of creating them, but also in e^ty. respect of the kind and quality of the interest, and which have no correspondence with legal estates (a). " Money directed to be employed in the purchase of land, and Trusts for J , i -i -i j i • j i conversion of land directed to be sold and turned into money are to be con- money intl , sidered as that species of property into which they are directed 2'.°*° f to be converted ; and this in whatever manner the direction is money. given ; whether by will, by way of contract, marriage articles, settlement, or otherwise; and whether the money is actually deposited or only covenanted to be paid, whether the land is actually conveyed or only agreed to be conveyed. The owner of the fund, or the contracting parties, may make land money, or money land "(/>). Trusts for conversion of money into land belong to the law of personal property, and are therefore noticed only so far as applicable to chattels real. The conversion takes effect according to the terms prescribed Absolute con- ,,,.•, • version. in the trust. If the trust is in terms absolute the conversion takes effect from the execution of the deed declaring the trust (<•), —or, if created by will, from the death of the testator (d). If the trust is discretionary, or to be executed at a future date, Conditional or with the consent of certain parties, or upon certain other O) See ante, p. 181. L. .1. C. 5G7. (//) Fletclier v.Ashburner, 1 Bro.C.C. (>/) Beauclerli v. Mead, 2 Atk. 167; 497 ; 1 Wh. & T. L. C. 327. Ward v. Arch, 15 Sim. 389 ; Robinson (r) Bayden v. Watson, 12 L. J. C. v. Robinson, 19 Beav.494. See Spencer 277 ; Griffith v. Rickett, 7 Hare, 299 ; v. Wilson, L. R. 16 Eq. 501 ; 42 L. J. C. Clarke V. Franklin, 4. K. & J. 257 ; 27 754. conversion. 180 PART II. CHAP. I. THE LIMITATION OF ESTATES. Conversion at discretion of trustees. events and conditions, there is no conversion until and except so Ear as the discretion is properly exercised, or the time has elapsed, or the required consents have been given, or other con- ditions satisfied ; and the beneficiaries until the conversion take the property in its actual state (<■). The conversion may be absolute and immediate, as to the disposition of the property, but with a discretion in the trust) es as to the time of selling (/). The court will not control a discretion given to trustees for the purpose of conversion (i) Aehroyd v. Smithson, 1 Bra. C. C. (p) Fitcli v. Weber, 6 Hare, 14.".: 503; 1 Wh. & T. L. C. 372. Conversely, Robinson v. London Hospital, 10 Hare, it' personal estate be bequeathed upon 19 ; 22 L. J. C. 7.">1. trust for conversion into land, any O) 1 Jartnan on Wills. 562, 566 : interest undisposed of , or disposed of in Byam v. Munton, 1 Russ. & M. 503; a manner which fails, results to the next Singleton v. Tomlinson, 3 App. Cas. 404. of kin of the testator and not to his (i49 ; Steward v. Blake way, L. J. C. 282. L. R. 4 Ch. 603 : Att.-Gen. v. Hubbuck, (7/) Mutlow v. Bigg, 1 Ch. D. 385; 13 Q. B. D. 275. See Davis v. Davis, 45 L. J. C. 282. [1894] 1 Ch. 393 : Re Wilson. [1893] 2 (ft) See Be Stewart, 1 Sm. & G. 32 ; Ch. 340 ; 62 L. J. C. 781. 190 PART II. CHAP. I. THE LIMITATION OF ESTATES. § 3. Charges of Money upon Land. charges of money for portions— debts— legacies— mortgages. Charge of debts by deed — trust for debtor— for creditors. Liability of land to debts of deceased— charge of debts by will. Charge of debts creates equitable assets— priority at law corrected in equity. Primary liability of personal estate to pay debts— mixed fund— application of realty — rights of creditors not affected. Charge of legacies on real estate— in aid of personal estate— on real and personal estate rateably — on real estate exclusively — as against devisees— charge of legacies implied from residuary gift. Interest upon charges— of debts— of legacies. Power to raise charges — statutory power in devisee or executor. Power to raise charge by sale or mortgage— by "rents and profits"— charges of annuities. Power to discharge by receipts— express— implied— power in executors. Discharge of, by Court. Charges of Under the general doctrine of conversion, land may be money upon j m p resse d with a trust for raising a certain sum of money, or a sum required for certain specified purposes. Such a charge operates as a conversion and alienation pro tanto ; but it does not interfere with the limitation and disposal of the land, as real estate, subject to the charge. For portions. Charges of this kind are used in settlements of land to provide portions for persons (generally younger children) who will not come into the actual enjoyment of the settled land. The ordinary mode of making the charge for this purpose is by vesting a long term of years in trustees upon trust to raise the intended portions or charges, when required, by sale or mortgage, or by receipt of the rents and profits (a). The law of portions relates chiefly to the times of vesting and payment, that is, to the limitation of portions as future interests, and therefore belongs more appropriately to the next chapter on " The Limita- tion of Future Estates " (6). For debts and Charges of money upon land are also used for the payment of legacies. debtg . ancl foey ma y be created for this purpose by deed or by ^ ill ;— they are also of common use in wills for the payment of Mortgages. legacies. Mortgages also are a special form of charge in common use for securing debts upon land.— These forms of charges will here be considered \c). (a\ 9 Hayes Conv. 61 ; 2 Prideaux, as to the doctrine of satisfaction of Conv 281 • 2Spence, Eq.Jur. 390. See portions by advancement before the amte "n 166 time °^ P a y raent - (J) See pod, p. 343, where see also («) See § i, " Mortgages," post, p. 202. SECT. VII. ^ 3. CHARGES OF MONEY CJPON LAND. 191 A deed conveying land to a trustee for the payment of the Charge of debts of the grantor, to which the creditors are not parties, doi e" con- not alone raise a trust for the creditors. It creates an agency or avarice for trust on behalf of the grantor himself only, which is voluntary creditors, and revocable. But if communicated to the creditors and assented to by them, it may then create a valid trust in their favour (d). "A voluntary conveyance of property upon trust to pay creditors, not parties to the transaction, has been very reasonably held to create a trust for the author of the deed, and not for his creditors. — On the other hand, it is equally clear that a voluntary conveyance of property to trustees upon trust for a third party, may create an indefeasible trust in favour of that party. The difference in principle between the two*classes of cases is marked and obvious; but to decide to which of the two classes a given trust deed belongs is often a task of difficulty ; it depends upon the intention of the author of the deed, to be collected from the deed itself, and such surround- ing circumstances as may be admissible in aid of the interpreta- tion of the deed " (e). Land was first made generally liable to satisfy the debts of a Liability of deceased person by the Administration of Estates Act, 1833 la n ? tode !? ta of deceased, (3 & 4 Will. IV. c. 104), sometimes known as Sir John Romilly's Act (/). This statute imposed upon land of any tenure the liability to pay the just debts (//) of a deceased, as well debts due on simple contract, as by specialty in which the heir was not bound. The estates of deceased persons who were traders within the meaning of the bankruptcy laws had been subjected to a similar liability in 1807 by the statute 47 Geo. III. c. 74. The Administration of Estates Act, 1833, required the creditor to resort to proceedings in courts of equity to establish his right (//), and contained provisions (since repealed) respecting the priority of the creditors inter se. The effect of the Administration of Estates Act, 1833, is peculiar. Until administration proceedings are taken, and a judgment obtained, creditors have no title to the land, but after judgment the land is charged, and their right (77) Walwyn v. Contts, 3 Mer. 707 ; :i Garrard's [Trustee) v. Hunting, [18971 Sim. It; Garrardv. Lauderdale {L>rd), 2 Q. B. 19 : 66 L.J. C. 554. A.ffd.nom. 3 Sim. 1 ; 2 Russ. & M. -151 ; Acton v. Sliarp v. Jackson., [1899] \ C ll't • 68 Woodgate, 2 M. & K. 4'.).-) ; Harland v. L. J. Q. B. 866. Jiinkx, IS Q. B. 713 ; Johns v. James, 8 (/) Carson, Real Prop. Stats, p. 398. Ch. D. 744. ( y ) Bring v. Greetham, 23 L. J. C* (e) Per Wigram, V.-C, Griffith v. 156. Iihkrtts,! Hare, 299,303; Godfrey v. (/,) Ball v. Harris. 4 My & Cr 261 Porte, 13 App. Cas. 497 ; Nevo Prance and 263 ; 8 L. J. C. 114. 1 ( ^2 PART II. CHAP. I. THE LIMITATION OF ESTATES. relates back to the death of the testator (A). Creditors by bond or other specialty in which the heirs were bound, as where a man covenanted on behalf of himself and his heirs, could enforce their debts against the heir to the extent of lands descended upon him, but not against a devisee. This state of things was remedied by a series of statutes, commencing with 3 & 4 Will. & M. c. 14 and ending with the Debts Eecovery Act, 1830, enabling these creditors to recover from the devisee to the value of the lands devised (/). An effective provision for the payment of debts, including portions for children raisable under the provisions of an antenuptial contract, is excepted from the purview of the Acts (m) . Now by Part I. of the Transfer of Land Act, 1897 (60 & 61 Vict. c. 65), real estate vested in any person without a right in any other person to take by survivor- ship, notwithstanding any testamentary disposition to the con- trary, devolves upon his personal representatives, impressed with a general liability to discharge the debts of the deceased, according to existing rules of priority of application of assets (n). Charge of Real estate might, however, be made available for the pay- debts by will. men £ f debts by the act of a testator, by means of an express devise in trust for the payment of debts or a charge of debts (o). " Where there is a direction that the executors shall pay the testator's debts, followed by a gift of all his real estate to them, either beneficially or on trust, all the debts will be payable out of all the estate so given to them. The same rule applies whether the executors take the whole beneficial interest, or only a life interest, or no beneficial interest at all " (p). But if it appears upon the construction of the will that it was not the testator's intention to charge his realty with payment of his debts, effect will be given to that intention (7/). A general direction that debts shall be paid is sufficient to raise a charge of debts by implication, unless there be words restricting the charge to a particular fund or estate (r). (70 Brans v. Brown, 5 Beav. 114 : 11 Willaume and Landau, 20 Ch. D. 463. L. J. C. 349 ; Re Hyatt, 38 Ch. D. 609 ; 476 ; 51 L. J. C. 434 ; Re Dp Burgh 57 L. J. C. 777 ; Re Moon, [1907] 2 Ch. Lawson, 41 Ch. D. 568 ; 58 L. J. 0. 561 ; 304 : 76 L. J. C. 535. Re Broolte, [1894] 1 Ch. 43 ; 63 L. J. C. (I) See Re Atkinson, [1908] 2 Ch. 307 ; 159. 77 L. J. C. 768 ; and notes to Jeffreson (y) Warren v. Davies, 2 My. & K. 49 ; v. Morton, 2 Wins. Saund. pp. 16 et sea. Re Bailey, 12 Ch. D. 268 ; 'Re Head's (/«) See Bailey v. Eltins, 7 Ves. 319, Trustees and Maedonald, 45 Ch. D. 310 ; 323. 59 L. J. C. 604. (■«) Re Kempster, [1906] 1 Ch. 566 ; (r) Clifford v. Lewis, 6 Madd. 33 ; 75 L. J. C. 286. See Carson, Real Prop. Palmer v. Graves, 1 Keen. 545 ; Harding Stats, pp. 417 et seq. v. Grady, 1 Dr. & War. 430 ; Wisden v. (o) See King v. Denison, 1 Ves. & B. Wisden, 2 Sm. &: G. 396 ; Wrigley v. 272 ; Burke v. Jones, 2 Ves. & B. 275. Sykes, 21 Beav. 337 ; 25 L. J. C.458. QO Jessel, M. R., Re Tanqueray- SECT. VII. §3. CHARGES OF MONEY UPON LAND. 193 A devise of land for payment of debts, or a general charge of debts by will renders the land affected equitable assets (s). The distinction between legal and equitable assets depends upon the nature of the remedy of the creditor against the estate, not upon the nature of the remedy of the executor on behalf of the estate. Tims, whatever property the personal representative can recover virtute officii, though by means of a suit in equity only, is included in the legal assets; which the creditor can charge against him by proceeding in a court of law. And whatever cannot be reached through the executor, but is available to the creditor by means of proceedings in equity only, constitutes equitable assets (t). Accordingly, as the right of the creditor against the land given by the Administration of Estates Act, 1833, could only be enforced in a court of equity, the land was thereby made equit- able assets (m). On the other hand, it would seem that land by force of Part I. of the Transfer of Land Act, 1897, must now be regarded as legal assets. In the administration of legal assets a creditor may in some cases obtain a preference; thus, the executor may pay one creditor before another of equal degree ; also the executor may retain for his own debt. These rights he did not possess in a court of equity, for the maxim there was, " Equality is equity." And, in case of a deficiency of assets, the creditor who has been preferred out of legal assets is not allowed any claim against equitable assets until the other creditors have been brought to equality with him by payment of their debts to a proportionate amount (x). Effect will be given to the expressed intention of a testator that land, or its proceeds, shall be applied in exoneration of his personal estate 0/). But unless it is clear that the testator intended not only to charge the real estate, but to discharge the personal estate, the personal estate remains the primary fund applicable to the discharge of the testator's debts (z). 0) Silk v. Prime, 1 Bro. C. C. 138, n. ; Bailey v. Ekins, 7 Ves. 319 ; Bain v. Sadler, L. R. 12 Eq. 570: 40 L. J. ('. 791. (t) Cook v. Gregson, 3 Drew, 517; 25 L. J. G. 70(5 ; Att.-Oen. v.Bmnninq, 8 H. L. C. 243; 30 L.J. C. 379. C«) Re Illidge, 24 Ch. D. 654 ; 53 L. J. C. 991 ; Walters v. Walters, is Ch. D. 182 ; 50 L. J. C. 819. (./•) Vane {Earl) v. Rig den, L. R. 5 Ch. 66a; 39 \, J. C. 707; Bain v. Sadler, I,. R. 12 Eq. 570; 40 L. J. (!. 491 ; Walters v. Walters, 18 Ch. D. 182; 50 L. J. C. 819; Re Illidge, 24 L.r.L. Char^r creates equitable assets. Priority at law corrected in equity. Primary liability of personal estate to pay debts. Ch. D. 054 ; 53 L. J. ('. 991. On the principle of marshalling the assets, see post, Chap. II. Sect. VI. (y) Bootle v. Blimdell, 1 Mer. 193 ; Bit in, if v. Hipkins, 7 Sim. 43; i L. J. C. 13; Lance v. Aglionby, 27 Beav. •'>:.; Forrest v. Prescott, L. R. 10 Eq. 545. See Kilford v. Blaney, 31 Ch. D.56 ; 55 L.J. C. 185. (z) Ancaster (LhtJie) v. Mayer, 1 Bro. C C. 454; 1 Wh. & T. L. ('. 1 ; Re Banks, [1905] 1 Ch. 517: 71 L. J. C. 33d. See Re Ih' J>'/m//t Lawson, 11 Ch. D. 568 ; 58 L. J. C. 561 ; Re Hart- ley, [1900] 1 Ch. 152 ; 69 L. J. C. 79. O 194 PART II. CHAP. I. THE LIMITATION OF ESTATES. Mixed fund. Application of realty. Rights of creditors not affected. Charge of legacies on real estate. A direction, either absolute or discretionary, to convert real estate for the purpose of providing with the personalty a mixed fund for the discharge of debts and liabilities, charges the real and personal estates rateably in proportion to their relative values ; but unless there be a direction to convert the realty, the primary liability of the personalty remains (a). "Where the land is applicable to the payment of debts, it is applied in the following order : (1) real estate devised or ordered to be sold for the payment of debts, but not lands which are simply charged will) the payment of debts {b) ; (2) real estate descended (c) ; (3) real estate specifically devised or passing under a residuary bequest, the latter still being a specific gift notwithstanding the Wills Act, 1833 (t). The real and personal estate may be charged with the payment On real and of pecuniary legacies rateably by a sufficient expression of inten- es/ate'rate- tion to that effect in the will ; as by the testator creating a mixed ably. fund of the real and personal estate out of which the legacies are directed to be paid {<>). A pecuniary legacy may be charged upon real estate exclu- On real estate sively ; for it has no existence but by the will and must come e isive y- out of the fund the testator points out, unlike debts which have a separate and independent claim by operation of law (_/;). Thus the devise of an estate upon trust to pay a certain sum to a person, or to pay certain legacies, charges such legacies exclusively upon that estate (q). So, a direction that legacies shall be paid out of a certain estate, or out of the real estate generally, as distinguished from a charge of the legacies upon the real estate, creates an exclusive charge (;•). The nature of the legacy may also show the intention of charging it exclusively or primarily upon the real estate. As where a testator charged his real estate with sums for his children and directed that interest should be raised out of the real estate for their maintenance, it was held that the sums were intended to be raised only in the same manner (s). So a bequest of an annuity charged upon an estate with a power (/,•) Tower v. Rous (Lord), 18 Yes. 236 : 32 L. J. C. 686. 132; Mirehovse v. Scai/e, 2 M. & Cr. (o) Allan v. Gott, L. R. 7 Ch. 439 ; 695; Ecans v. Ecans,- 17 Sim. 86; 41 L. J. C. 571. See ante, p. 194. Grecille v. Browne, 7 11. L. C. 689; f» Heath v. Heath, 2 P. Wms. 366 ; Farquharson v. Floyer, 3 Ch. I). 109 : Jones v. Bruce, 11 Sim. 221 ; Burrellv. Be Boards, [1895] 1 Ch. 491). See Egremont (Earl), 7 Beav. 205. Robertson v. Broadbent, 8 App. Cas. (y) Spurway v. Glynn, 9 Ves. 483; 812. As to marshalling, see post, Evans v. Em us. 17 Sim. 86; Kilford v. Chap. II. Seet. VI. Blaney, 31 Ch. D. 56 ; 55 L. J. C. 1S5. (Z) Davies v. Ash-ford, 15 Sim. 42; (/•) Heath v. Heath, 2 P. Wms. 366; 11 L. J.C. 473; BougMonv. Bougliton, Amesbury v. Brown, 1 Ves. sen. 482 ; 1 H. L. C. 406. Davies v. Ashford, 15 Sim. 42; 11 (///) Richardson v. Morton, L. R. 13 L. J. C. 473. Eq. 123 : 41 L. J. C. 8- (*) Jones v. Bruce, 11 Sim. 221. 1/0 Howard v. Chaffers, 2 Dr, « II. L. C. 672; 33 L. J. C. 385 ; Torrance v. Bolton, L. R. 14 Eq. 124 ; affd. L. R. 8 Ch. 1 18 ; 42 L. J. C. 177 ; lie Hargreaves and Thompson's font.. 32 Ch. I). 454 ; He Marshall and Suits ('out., [1900] 2 Ch. 202 ; 69 L. J. C. 542 : Whibbread Jf- Co. v. Watt, [1902] 1 Ch. 835 ; 71 L. J. C. 424. (e) He Arnold, 14 Ch. D. 270, 285. (7/) lie Kerr's Policy, L. It. 8 Eq. 331. [e) Lippard v. Richetts, L. R. 14 Eq. 291. See Eardley v. Knight, 41 Ch. D. 537 ; 58 L. J. C. 622. (/) Edwards v. Martin, L. R. 1 Eq. \'1\ ; Sargood's Claim, L. It. 15 Eq. 43 ; Ex p. Alison, L. R. 15 Eq. 394 ; Aijles- ford {Earl) v. Morns, L. R. 8 Ch. 484 ; 42 L. J. C. 548 ; Exp. Furber, 17 Ch. D. 191. SECT. VII. § 3. CHARGES OF MONEY UPON LAND. 197 •simple contract debts interest will only be payable if express provision be made for payment, and will be payable only from the time when the charge or trust becomes effective (g). A pecuniary legacy given in general terms, without any time Interest upon fixed for payment, if charged immediately upon land, carries cgac int ;rest from the death of the testator ; but if charged by a trust for sale, or as charging the personal estate, it is not, in general, payable, and therefore does not carry interest, until a year after Hie death (h). A legacy payable at a fixed time carries interest from the time of payment only, unless expressly payable with interest, or unless a gift of interest is to be implied under the circumstances (i). A legacy to an infant child of the testator, or to a child to whom a testator has placed himself in loco parentis, is held to carry interest from the death of the testator, even where the gift is future or contingent (j). — A specific legacy carries all the interest or dividends actually accruing upon it from the death of the testator (A). Charges on land are regulated, as to the person to raise Power to them and as to the mode of raising them, by the provisions of lals e charges, the instrument creating the charges ; or, in the absence or failure of such provisions, they are left to the remedies given by the Court of Chancery. Formerly intricate questions frequently arose as to the proper person to raise the charge and as to the mode in which it should be raised. In the case of testators dying after the 31st December, 1897, there will be no difficulty as to parties, for the legal estate is vested in the personal repre- sentative, as well in the case of land as of personalty, by Part I. of the Land Transfer Act, 1897 (60 & 61 Vict. c. 65). A general charge of debts upon real estate, not followed by a devise of the real estate to the executors, conferred upon them an equitable power of sale, and a good title could not be made without the (7/) Shirley v. Ferrers, 1 Bro. C. C. (i) Re Gardner, 67 L. T. 552; lie 11 ; Tart v. NbrthwicJt [Lord), 4 Ves. Moody, [181)5] 1 Ch. 101; Re ('nine, 81(5; Pearce v. Slocombe, 3 T. & C. Ex. [1908] 1 Ch. 379 ; 77 L.J. C. 212 ; si : Jenldns v. Perry, 3 Y. & C. Ex. MilUown {Karl) v. Trench,! CI. ,t F. 178 ; Bate man v. Margerison, 16 Beav. 27(1. 477. See Askew v. Tltompson, 1 K. & J. (./) Hill v. Hill, 3 Ves. & B. 183; (520. Leslie v. Leslie, LI. & /-ll illaume and Landau, 20 Ch. D. 485 ; 51 L. J. C. 434. («) Corier v. ('a it a: right, L. R. 7 H. L. 731 ; 45 L. J. C. 605 (see also the report of the case below, L. R. 8 Ch. 971) ; W. of Eng. and S. Wales Bh. v. Murclt, 23 Ch. D. 138 ; 52 L. J. C. 784. (V) Bentham v. Wiltshire, 4 Madd. 44 ; Pcnttm v. Randall, 1 J. & W. 189 ; Forbes v. Peacock, 11 M. & W. 630 ; 12 L. J. Ex. 460 ; 12 Sim. 528 ; Allum v. Fryer, 3 Q. B. 442. And see Sugd., Powers, 119 et seq. (/>) Bridqes v. lliiu-man, 16 Sim. 71. See Be Hyatt, 38 Ch. D. 609 ; 57 L. J. C. 777. (//) Law of Property Amendment Act, 1851) (22 & 23 Vict. c. 65), ss. 14, 15, 16. SECT. VII. § 3. CHARGES OF MONEY UPON LAND. 109 prescribing any particular mode of raising it, in general, autho- Power to raise rises a sale (r). And a power to sell implies a power to niort- or'mort' gage; but if the terms of the power show that an absolute sale and conversion was alone contemplated, a mortgage is not authorised (s). A power to mortgage imports a mortgage with a power of sale(i). A charge upon or trust to raise money by "the rents and By rents and profits" of land is not, in general, restricted to the annual rents pr0 and profits, and will authorise a sale or mortgage of the land (//)• A trust to raise a charge out of rents and profits by leasing for lives at the accustomed rent was held to be restricted to that mode of raising the charge and not to authorise a sale or mortgage (x). An annuity may be charged generally upon the land, or Charges of upon the annual profits only, without resort to the land ; also in the latter case it may be charged upon the profits of the current year only, without any continuing charge for arrears, or arrears may also continue charged upon the annual profits. The incidence of the charge in these respects depends upon the construction of the instrument creating the annuity, and the remedies against the land are restricted accordingly (y). In the case of instruments coming into operation after 3 1st December, 1881, a person " entitled to receive out of any land, or out of the income of any land, any annual sum, pa.yable half- yearly or otherwise, whether charged on the land, or on the income of the land, and whether by way of rent-charge or other- wise, not being rent incident to a reversion," may distrain for arrears, or enter and take the profits in satisfaction of the arrears, or demise the land charged to a trustee for a term of years, on trust by mortgage, sale, or demise to raise the arrears ; hut these powers may be excluded or modified by the terms of the instru- ment (z). These powers were formerly expressly conferred as a (/•) Wareliam v. Brown, 2 Vern. 153 ; estate, Page v. Leapingwell, 18 Ves. IS tit em 11 v. Anstey, 1 De G. M. & G. (x) Icy v. Gilbert, 2 1'. Wins. 13. 635 ; Me Bellinger, [1898] 2 Ch. 534; See as to the restricted construction of 67 L. J. C. 580. a charge on profits, Wilson v. Halliley, (t) Cmilishank v. Duflin, L. R. 13 Eq. 1 Russ. & M. 590; Playters v. Abbott, 555. See Thome v. Thome, [18U3] 3 2 M. & K. 110 ; lie Green, 40 Ch. D. Ch. 196; 63 L. J. C. 38. 610. (u) Allan v. Backhouse, 2 Ves. & B. (,//) Camiicliael v. Gee, 5 App. Cas. 65; Jae. 6.>1 ; tootle v. Blundell, 1 588; 49 L. J. C. 829; Woi'inald v. Mer. li>3 ; Metcalfe v. Hutchinson, 1 Muzeen, .".0 L. J. C. 77ti; Re Bigge, Ch. 1). 591 ; 42 L. J. C. 210 ; lie Green, [1907 J 1 Ch. 714 ; 76 I.. J. U. 113. 40 Ch. D. 610 ; 58 L. J. C. 157. So an (:) Conveyancing and Law of Pro- unlimited gift of income -prima facie perty .ict, 188) (_H & -45 Viet. c. 41), imports a gift of the capital of personal s. 44. See Copyhold Acts, 1887. s. 16, 200 PART II. CHAP. I. THE LIMITATION OK ESTATES. Tower to dis- charge by receipt. Express. Implied in charge to pay debts. Charge to pay specified debts. general rule, and where conferred the court would refuse to appoint a receiver (a), but since the Judicature Act, 1873, the court may, in the exercise of its statutory power, appoint one wherever it maybe <: just or convenient" (b). The court may also order a sale to satisfy the arrears, but the order is dis- cretionary (c), and the annuitant will generally be restricted to those remedies which have been appointed for securing payment (. 206 ; 55 L. J. C. 607 ; Re Prytkerch, 42 Ch. D. 590 ; 59 L. J. C. 79.' (jb) Cupit v. Jackson, 13 Trice, 721 ; Hambro v. Hambro, [1894] 2 Ch. 564 ; 63 L. J. C. 627. (//) Hall v. Hurt. 2 J. & H. 76; Blacltburne v. Hope-Edwardes, [1901] 1 Ch. 419 : 7(i L. J. O. 99. (e) See Elliot v. Merr'vman, Barnard. 78 ; 2 Wl). & T. L. C. 897, and notes. (/) See Keon v. Magawley, 1 Dr. & War. 401 ; StrougJull v. Anstey, 1 DeG. M. & G. 635 '; 21 L. J. C. 130. (?) Trustee Act, 1893 (56 & 57 Vict, c. 53). s. 20. >ee also Settled Land Act, 1882 (45 ,v 46 Vict. c. 38), s. 40. (A) Smith v. Ghuyon, 1 Bio. C. C. 186 ; Shaw v. Borrer, 1 Keen, 559 ; Ball v. Harris, i M. >*c Cr. 264 ; Robinson v. Lowater, 5 De G. M. & G. 272. SECT. VII. § 3. CHARGES OF MONEY UPON LAND. 201 the money was rightly applied (i). And so also if the trust or Or legacies. charge were for the payment of legacies to certain persons (A). If the trust or charge were for the payment of debts and Charge to pay legacies, including annuities, the purchaser was not bound to see i e( ^ c i e8 . to the application of the purchase money, for the debts were indefinite and took priority of the legacies. And it seems that it was not material in such case that the purchaser knew that there were no debts, or that all the debts had been paid, leaving the legacies as the only charge ; for the implied power to give receipts arises upon the construction of the will, independently of the circumstances (/). The Administration of Estates Act, 1833, making the real estate of a deceased person assets for the payment of all his debts as against the heir or devisee, does not create a charge of the debts upon the land, so as to exempt a purchaser from seeing to the application of his purchase money in payment of legacies or other specific charges (w). If the trust directs an immediate sale for purposes not imme- Saleforpur- diately ascertainable, there is an implied power in the trustee to ascertained, give receipts, and which is independent of subsequent events (//). So where the proceeds of the sale are payable to infants who are not capable of signing receipts (o). So where it is required that the trustees should hold the proceeds for the purposes of the trust (p) ; or should re-invest the proceeds (q). In all cases, though there be a power in the trustees selling Notice of the land to give receipts to the purchaser, if the purchaser have tr r ^ notice that the sale is made improperly or for the purpose of misapplying the money, he may become chargeable as participating in the breach of trust (r). Executors take the personal estate of the testator, including rower in the leaseholds and chattels real, virtuie officii, with an absolute ^erUvh.t'*, power to sell, mortgage or pledge it for the payment of debts and the general purposes of the will ; and a purchaser or mortgagee from the executor is not bound to see to the application (0 Spalding v.Shalmer, 1 Vera. 301 ; («) Balfour v. Welland, 16 Ves. 151- Cotterel v. Hampson, 2 Vera. ">. (o) Suwarsby v. Lacy, 4 Madd. 1-12 ; (Jt) Dickinson v. Dickinson, 3 Bro. Lavender v. Stanton, 6 Madd. 4(5. <'. C. 19; Horny. Horn, 2 Sim. & St. (y>) Doran v. Wiltshire, 3 Swanst. 448 ; per Lyndhurst, L. C, Johnson v. 699. Kennet, 3 M. ..V K. 630. (y) Locke v. Lamas, 5 De G. & S. (0 Johnson v. Kennet, 3 M. & K.624 ; 329 ; 21 L. J. C. 5U3. Forbes v. Peacock, 1 Thill. 717 ; Stroug- (>•) Strong hill v. Anstey, 1 De GL 61. hill v. Anstey, 1 D. M. & ci. 635; 22 kG. 635 ; Howard v. Chaffers, 2 Dr. «!c L. J. C. 130; Me Henson, [TJU8] 2 Ch. Sm. 236 ; 32 L. J. (.'. 686 ; Carlyon v. 356 ; 77 L. J. C. 598. Truscott, L. R. 20 Eq. 348 ; 1 1 1- J. C. Qni) See Horn v. Horn, 2 S. & S. 448 ; 186. and see ante, p. 191. 202 PART II. CHAP. I. THE LIMITATION OF ESTATES. Notice that sale improper. Discbarge of charge by court. of the money (s). But if the sale or mortgage is a fraud upon the estate, or made for the purpose of misapplying the money, to the knowledge of the purchaser or mortgagee, as a sale or mortgage to a creditor of the executor for his own debt, the person so acquiring the assets will be chargeable with the full value to the creditors and legatees (t). The fetters which charges imposed upon the free alienation of land were in a large measure removed by sect. 5 of the Con- veyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), which enables the court to order a sale of land free from incumbrances upon proper provision being made for satisfying the charge. § 4. Mortgages. Moitgage by conveyance with proviso for redemption — redemption — fore- closure — power of sale — covenant to pay debt and interest — right of mortgagee to pursue all his remedies. Moitgage by conveyance upon trustJor sale. Estate of mortgagor — mortgage in fee — mortgage of term of years — special reservation of in mortgage deed — surplus proceeds of sale under the moitgage. Liability of the personal estate for the mortgage debt — Statutory amend- ments making the land primarily liable. Mortgagor in possession at law — tenant under mortgagor — redemise to mortgagor or attornment — possessory rights. Charge of mortgagee for the debt — legal estate in the land — devise by mortgagee — statutory amendment of the law. Mortgagee in possession bound to account — annual rests — costs of repair, etc. — receiver — insurance. Distinction between a mortgagee and a trustee. Equitable mortgage by deposit of deeds— agreement as to the deposit — remedy of equitable mortgagee. Equitable mortgage by agreement without deposit. Mortgage of copyholds— of leaseholds — of equitable estates and interests — notice to the trustee. Mortgage by conveyance with proviso for redemp- tion. A mortgage is a charge upon land created for the security of money lent. The ordinary form of a mortgage is by an absolute conveyance at law to the mortgagee ; subject to an express proviso for redemption, that upon payment of the debt and interest at an appointed day, the mortgagee shall reconvey to the 0) Ewer v. Corbett, 2 P. Wms. 148 ; Miles v. Dunijord, 2 De G. M. & G. 641 ; Gray v. Johnston, L. R. 3 H. L. 1 ; Berry v. Gibbo?ts, L. R, 8 Ch. 747 ; 42 L. J. C. 897 ; Graham v. Drum maud, [1896] 1 Ch. 968; 65 L. J. C. 472. S.ee Ihorne v. Thome, [1893] 3 Ch. 196; 63 L. J. C. 38. (t) Bonneij v. Ridgard, 1 Cox, 145 ; Hill v. Simpson, 7 Ve's. 152 ; McLeud v. Urummond, 17 Ves. 152. SECT. VII. § 4. MORTGAGES 203 mortgagor (a). An earlier form by way of conveyance upon condition at common law defeating the estate in the event of payment at an appointed day has been obsolete for many years (/>) . At law if the money were not paid at the appointed day the Equii ,,,,,• i. e •>. 11 redemption, title of the mortgagee was absolute, but in a court ot equity the mortgagor was entitled to come in, within a reasonable time (which varied according to the circumstances) after the period fixed for redemption had expired, and obtain a reconveyance of the property upon terms, which were generally the payment of the principal not repaid, all arrears of interest, and the costs of action, but might include other matters (c). This right is known as an equity of redemption, and is an equitable estate {d). This right has sometimes been rested upon the principle that in a court of equity time was not generally considered as of the essence of the contract where land was being dealt with, but it is to be observed that, in the case of a mortgage, by no express terms could the right be restricted, whereas, in the case of a contract for the sale and purchase of land, the agreement of the parties to make time of the essence of the contract was always respected (e) ; and the rule that time was not essential does not seem to have been extended to other contracts (/). But there is another ground upon which the interference of the Court of Chancery may be rested, namely, relief against forfeiture where money afforded an adequate compensation (g). An absolute conveyance, which reserves to the seller the right to repurchase the property, is valid ; and in this case the right can only be exercised within the time appointed, and if the day be allowed to pass there is no relief in equity (h). Evidence is admissible to show that a transaction ostensibly an absolute conveyance 00 See Butler's note (1) to Co. Lit. L. J. C. 361. 205 a; 1 Prideaux Con v. 525; Davidson (e) Howard v. Harris, 1 Vein. 190; Conv., Tart II. 2 Wh. & T. L. C. 11 ; Seton v. Slade, 7 (J) See objection to this form stated Ves. al p. 273; Hudson v. Temple, 29 by Chitty, L. J., DurJiam Bros. v. Beav. 536; 30 L. J. C. 251; Sojper v. BobeHson, [1898 J 1 Q. B. at p. 772 ; 67 Arnold, 11 App. Cas. 129 ; 59 L. J. C. L. J. Q. B. 484. The Eorm was some- 211. times used as Late as 1840, see Rogers v. (/") Cotton, L. •!.. Renter v. Sala, 4 Grazebrooh, 8 Q. B. 895. C. P. D. 239, 249. The case of 00 SeeGrant, M. E., Jonesv. Gibbons, Patrick v. Milner, 2 C. 1". D. 342, 9 Ves. lt>7 ; Farwell, J., Powell v. stands alone. Brodhnrst, [1901] 2 Ch. 160 ; 70 L. J. C. (g) Peachy v. Somerset {Duke), I 587 ; Hill v. Rowlands, [1897] 2 Ch. Stra. 447 ; 2 Wh. & T. L. C. 250 : Sloman 361; 66 L. J. C. 689. Sue Pearce v. v. Walter, 1 Bro. C. C. 418; 2 Wh. & Bullard, King ,v Co., [1908] 1 Ch. 780 ; T. L. C. 257. See ante, p. 180. 77 L J. C. 340. 00 Williams v. Owen, 5 My. & Cr. Of) Casborne v. Scar/e, 1 Atk. 603 ; 3U3 ; 12 L. J. C.207; Perry v. Meddow- 2 Wh. &T. L. C. 6 ; Tarn v. Turner, 39 croft, 4 Beav. 197 ; affd. 12 L. J. C. Ch D. 45U; 57 L.J. C. 1085; Main- 104. See Salt v. Nortliampton {Marq.), land v. Upjohn, 41 Ch. U. 126: 58 [1892] A. C. 1 ; 61 L. J. C. 49. 204 PART II. CHAP. I. THE LIMITATION OF ESTATES. Notice to re- deem. Mortgagee re fusing tender liable for costs of redemption. Redemption at law by statute. is, in fact, a mortgage, but the burden of proof is upon the party disputing the apparent effect of the deed (i). Where the mortgage is by deed, if the mortgagor allow the time appointed for payment to pass, he must give six months' notice before he can redeem ; and if he do not then exercise his right, he must renew the notice ; or he may pay six months' interest in lieu of notice (A). The foundation of this rule is that a mortgage by deed is a permanent investment, and it is only equitable to give the mortgagee sufficient time to find another suitable permanent investment for his money. Conversely, if the mortgage is by deposit of title deeds, which is the usual form employed in the case of loans of a temporary character, the mortgagee is not entitled to notice of intention to pay off, unless he makes an express stipulation to that effect (I). So, too, if a mortgagee shows by his conduct that he is prepared to receive immediate payment, as by instituting proceedings to recover his debt (m), or by carrying in a proof in an action to administer the estate of a deceased mortgagor (n), or by consenting in an action to the sale of the estate in mortgage (o), or by exercising his power of sale (p), he dispenses with the obligation to give him notice. If the mortgagee refuse the tender of payment at the expira- tion of the notice, the amount tendered being sufficient, he will be liable for the costs of a suit for redemption (q). Courts of common law were empowered by statute in actions brought by mortgagees for the debt or an action of ejectment for the land to stay proceedings and compel a reconveyance, on payment of the principal, interest, and costs (•/■)• — By the Supreme Court of Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 24, any division of the High Court has full power to give effect to every equitable ground of relief or defence to which the (/') Langton v. LTorton, 5 Beav. 9 ; Holmes v.' Mathews, 9 Moo. P. C. 413. Bouglds v. Culverwell, 3 Giff. 251, 4 I)e G. F. & J. 20, is of questionable authority, for not only was the plain- tiff, a particeps criminis, allowed to plead affirmatively that the transaction was illegal — see Ayerst v. Jenkins, L. It. 16 Eq. 275— but 'also that the legal effect of the deed was misrepresented to him. See Howatson v. Webb, [1908] 1 Ch. 1 ; 77 L. J. C. 32. (/.-) Ban v. Dai/, 31 Beav. 270; Spencer-Bell to L. # 8. W. By., 33 W. K. 771 ; Smith v. Smith, [1891] 3 Ch. 550. See Hill v. Rowlands, [1897] 2 Ch. 3G1 ; 66 L.J. C. 689. (I) Fitzgerald's Trustee v. Mellersh, [1892] 1 Ch. 385 ; 61 L. J. C. 231. See post, p. 216. O) Letts v. Hutchins, L. R. 13 Eq. 176 ; Be Aleoelt, 23 Ch. D. 372. (n) Matsmix. Swift, 5 Jur. 645. 00 Be Moss, 31 Ch. D. 90 ; 55 L.J. C. 87. (/>) Banner v. Berridge, 18 Ch. D. 254 ; 50 L. J. C. 630. (7/) Banner v. Priestly, 16 Beav. 569 ; 22 L. .). C. 1041 ; Greenwood v. Svtcliffe, [1892] 1 Ch. 1 ; 01 L.J. C. 59. As to tender by a stranger or by a person having a partial interest only in the equity of redemption, see Pearee v. Morris, L. R. 5 Ch. 227 ; Tarn v. Turner, 39 Ch. D. 456 ; 57 L. J. C. 1085. (/•) 7 Geo. II. c. 20; Common Law Procedure Act. 1852 (15 & 16 Vict.c. 76), s. 219. SECT. VII. § 4. MORTGAGES. 205 mortgagor may be entitled against the claim of the mortgagee. But by sect. 34, sub-sect. 3, of the statute, actions for redemption or foreclosure are primarily assigned to the Chancery Division. The mortgagee, on the other hand, after default in payment Foreclosure. may take proceedings to enforce his security and make his title complete in equity by foreclosing the mortgagor. It is customary now to embody in one order the relief which the mortgagee could formerly obtain in several actions. The mortgagee has an immediate judgment for payment of the mortgage debt ; an account is directed of what is due to the mortgagee upon his security after deducting the amount recovered from the mortgagor under the immediate judgment for payment of the mortgage debt ; that in the event of payment within a limited time (usually six months) of the amount found due on taking the account the mortgagee is to reconvey the mortgaged property, and in default of payment the mortgagor is to stand foreclosed, or barred, from his right of redemption (s). The order for fore- closure absolute vests a new estate in the mortgagee (/), his title accruing from the date of the order, and not from the date of the judgment (u). An order for foreclosure absolute is not final, but the mortgagor may upon applying within a reasonable time re-open the foreclosure, and redeem the property (.r). If there be a charge simpliciter, and not a mortgage, or an Alternate agreement for a mortgage, then the right of the parties having ^l^ ^fore- such a charge is a sale and not foreclosure (y). The court is closure. now invested with power to order a sale in the case of a mortgage (z). It was usual in a mortgage deed to give to the mortgagee an rower of sale express power of sale (a) ; but it did not supersede or affect the remedy of foreclosure (b) ; but after the judgment in foreclosure, and before the order was made for foreclosure absolute, the power could only be exercised by leave of the court (c). A power to mortgage imports a mortgage with a power of sale (d). (s) Farrer v. Lacy, Uartland ,V Co., [1894] 3 Ch.220; 63 L. .1, C. 749. See 31 Ch. D. 42; 55 L. J. C. 149. See Carter v. Walte, I Ch. D. 605; 16 Pouletl (AW/7) v. Hill {Vise), [1893] L. J. C. 841. 1 Ch. 277 : 62 1, J. C. 166. (z) Seepost, p. 206. (0 Pugh v. Heath, 7 App. Ca9. 235 ; {«) See Colsonv. Williams, 58 L. J. C. 51 L.J. Q. B. 3i;7 : Harlock v. Ashberry, 539. 19 Ch. D. 539 : 51 1.. .1. C. 394. (//) Wayne t. Hanham, ;> Hare, 62; O) Thompson v. Grant, i Madd. 438. 20 L. J. C. 530. (./•) Wichalse v. Short, :i Bro. P. I'. (6) Stevens v. Tfteatres, Ltd., [1903 558 ; Campbell v. Holyland, 7 Ch. D. 1 Ch. ,s.'>7 ; 72 L. .1. C. 764. 166 ; 47 L. J. C. 145. (,/) C/taumer's 117//. L. 11. 8 Eq. 569 ; (y) Tcnntmt v. Trencftard, L. R. 4 38 L. J. C. 72C Ch. 537 ; 38 L. J. C. 6iU ; Re Owen. 206 PART II. CHAP. I. THE LIMITATION OF ESTATES. Statutory power of sale. Court may direct a sale instead of foreclosure. The power of sale was preferably made exercisable, after the death of the mortgagee, by his executors and administrators, in order that it might accompany the debt which passed to them as being personal estate (e). A mortgage by deed has now incident to it a statutory power of sale. In form it follows the older express power, but may be modified or excluded by the parties. The earlier statute — the Trustees and Mortgagees Act, but better known as Lord Cran- worth's Act — applies to deeds executed after 28th August, 1860, and before 1st January, 1882; the later statute— the Con- veyancing and Law of Property Act, 1881 — applies to deeds executed after 31st December, 1881 (J ). Prima facie foreclosure was the proper remedy of a mort- gagee, and the Court of Chancery would only direct a sale in a suit for foreclosure under exceptional circumstances (g). The court was first invested with a discretionary power of sale by the Chancery Procedure Act, 1852 (15 & 16 Vict. c. 86), s. 48, and the statutory provision now in force is contained in sect. 25 of the Conveyancing and Law of Property Act, 1881 (44 & 45 Viet. c. 41) (/<). Covenant to It is also usual for the mortgagor to covenant in the mortgage pay mortgage ( j eec ] t0 re p a y the money ; which gives the mortgagee a personal remedy by action and constitutes the loan a specialty debt (i). — A covenant to secure a loan by a mortgage deed to contain usual covenants has a like effect in converting the debt into a specialty (j). The covenant is usually extended to the payment of the interest; but unless the covenant for payment of interest extends beyond the period fixed for repayment of the principal, interest will only be recoverable as damages, and the rate will not be measured by that expressly fixed (A). This personal security may be given by a separate instrument, as a bond, instead of the covenant in the mortgage deed ; which And interest. Separate bond for the debt. fe) See T/iornbrovgli v. Baiter, 1 Ch. Cas. 283 ; 2 Wh.& T. L. C. 1. ( f) 23 & 24 Vict. c. 145, ss. 11, 13, 14, 24, 32, 34 ; 44 & 45 Vict. c. 41, ss. 19, 20, 21. (7/) Sampson v. Pattison, 1 Ha. 533 ; Cockburn v. Ankett, 3 W. R. C41 ; Sutton v. Sealy, 27 L. J. C. 263. (//) See Carson, Real Prop. Stats. p. 581. (i) Afathew v. Blacltmore, 1 H. & N. 762 ; 2G L. J. Ex. 150. This covenant and that for payment of interest is now implied in the statutory mortgage under the Conveyancing and Law of Property Act, 1881, sect. 26. O) Saunders v. Milsowe, L. E. 2 Eq. 573. (jt) Be Roberts, 14 Ch. D. 49. See, as to the amount of arrears of interest recoverable, Hunter v. Nucleoids, 1 Mac. & G. 640 ; 19 L. J. C. 177 ; Dingle v. Coppen. [1899] 1 Ch. 726 ; 68 L. J. C. 337 : Re Lloyd, [1903] 1 Ch. 385 ; 72 L. J. C. 78 SECT. VII. § 4. MORTGAGES. 207 has the advantage of enabling the mortgagee, upon a sale of the land, to deliver over the mortgage deed to a purchaser, and retain the bond for the purpose of his personal remedy, in case the proceeds of the sale should prove insufficient. — Where trustees raise money on mortgage, it is usual for the equitable owners only and not the trustees to execute the personal covenants required, and, as against the trustees, the land is the only security (/). With the divided jurisdictions of the courts prior to the Rightofmort- Judicature Act, 1873, it was competent to the mortgagee to f U g all his enforce all his remedies concurrently and in different courts (m) ; remedies, but since that statute the practice is to give in one action all the relief to which a mortgagee was formerly entitled in several proceedings (»). A mortgagee may limit his claim to particular items of relief (o), and would perhaps not be held to have waived his rights by this line of conduct (_/>) ; but the court would probably discountenance any attempt to enforce his remedies in court piecemeal. The remedies available to the mortgagee are so connected as that whatever is realized from the one must be allowed in discharge of the other. Thus, if he exercises the power of sale and does not realize the amount of his charge, he may still proceed upon the covenant for the balance; so, if he Proceeding forecloses, he may proceed upon the covenant ; but in either case a f ter f ore . he opens the foreclosure, that is he gives to the mortgagor a closure, renewed right to redeem. Hence in order to proceed upon the covenant after a foreclosure, he must remain in a position to give redemption ; and if he sells the estate, though for less than the amount of the debt, or otherwise puts it out of his power to reconvey, he can no longer pursue any remedy for the deficiency (q). A mortgage is sometimes made in the form of a conveyance to Mortgage by the mortgagee or his trustee upon an express trust to sell, after foP^ default in payment, and out of the proceeds to pay the debt, interest and costs to the mortgagee, and the surplus to the mortgagor. This is strictly a mortgage in that the mortgagor has only the ordinary right to redeem before the trust for sale is (0 1 Prideaux, Conv. (559, ».; 2 David- Ch. 726 : 68 L. J. C. 337. son, Conv., Part II., 461, n. (^>) See and dist. Laming v. Gee, LO (w) Bees v. Parkinson, 2 Anstr. 497 ; Ch. D. 715 ; 48 L. J. C. L96. Colby v. Gibson, 'A Smith, ">1(!. (y) Lockhart v. Hardy, 9 Beav. :>t'." ; («) Farrer v. Loci/, Hartland S> Co., Palmer v. Hendrie, 27 Beav. 349; 28 31 Ch. D. 42 ; 55 L. J. C. Hit. Beav. 341; Kinnaird v. Trollope, 39 («) See Dhujle v. Copprn, [l.S'.Hi] 1 Ch. I). f,.V> : 58 L. J. C. 566. 208 PART II. CHAP. I. THE LIMITATION OF ESTATES. executed (r) ; but he cannot enforce a sale (a). A security by way of trust for sale does not convert the mortgagee into a trustee for the mortgagor (t). Estate of mortgagor. Mortgage in fee. Equity of re- demption made assets in equity. Mortgage of term of years. Effect of reservation of equity nf re- demption in mortgage deed. In equity, the mortgagor is still considered as the owner of the land, subject to the charges secured to the mortgagee (u). The equity of redemption of land mortgaged in fee is regarded as part of the original beneficial ownership, and of the nature of real estate. It may be conveyed and limited in various estates, or devised by will, or left to descend to the heir ; and the person or persons becoming entitled by conveyance, descent or devise may exercise the right to redeem, and have a reconveyance according to their respective estates and interests (v). The equity of redemption of a mortgage in fee was held not to be assets by descent in the hands of the heir for payment of the specialty creditors of the deceased ancestor, within the Statute of Frauds, 29 Car. II. c. 3, s. 10, which enacted that trusts in fee simple should be assets by descent. But it was made equitable assets by the Court of Chancery, upon the principle that if a specialty creditor applied to redeem, the court would grant redemption only in favour of all the creditors equally without distinction as to priority (w). The Administration of Estates Act, 1883, was held to extend to an equity of redemption in fee, thus putting it in the position of legal assets by descent (x). An equity of redemption would now be legal assets by force of Part I. of the Land Transfer Act, 1897 (//). The equity of redemption of a term of years, or chattel interest in land, retains the original quality of personal estate and passes to the executor, virtute officii, and is legal assets, although the right can be enforced only by suit in equity {z). Difficulties have sometimes arisen where the reservation of the equity of redemption has not strictly followed the devolution of the property according to the original title. The later cases allow a formal reservation of the equity in variance of the former ()•) Bell v. Carter, 17 Beav. 11 ; 22 L. J. C. 933. (s) Locking x. Purlin; L. R. 8 Ch. 30 ; 42 L. J. C. 257. (0 KirkwooA v. Thompson, 2 De G. J. & S. 613; Re Alison, 11 Ch. D. 284. 37 («) Fairclovgh v. Marshall, 4 Ex. D. . See Van Gelder, Apsimon ,v Co. v. Sowerby Bridge United Dist. Flow Soc, 44 Ch. D. 374; 59 L. J. C. 292. (v) Casborne v. Scarfe, 1 Atk. 603; 2 Wh. & T. L. C. 6 ; and notes. («■) Solley v. Gower, 2 Vern. 61 ; Plunhet v. Penson, 2 Atk. 2'jO ; Butler's note to Co. Lit. 208 b. (./•) Foster v. Handley, 1 Sim. X. S. 200. See ante, p. 191. (//) Re Harrowby and Paine, [1902] W.N. p. 137. (;•) Cool; v. Gregson, 3 Drew. 547 ; 25 L. J. C. 706. See ante, p. 193. SECT. VII. § 4. MORTGAGES. 209 title as sufficient evidence of an intention to resettle the equity of redemption (a). A mortgage, though attended with an absolute power of sale Surpluspro- or trust for sale, has no constructive effect in equity as a Dnder conversion of the land into personalty beyond the amount of the mortgage. debt charged upon it. A sale would effect a conversion if made in the lifetime of the mortgagor, but not if made after his death ; and in determining whether a conversion has been effected it is immaterial whether the surplus is expressed in the deed to be payable to the real or to the personal representatives of the mortgagor (/>). Until the passing of the statutes hereafter mentioned the Liability,! Court of Chancery adjusted the rights of the parties claiming es \ C at p e ei S f° n beneficially as representatives of a deceased person, according to mortgagor for mort t7 n cr e a presumed intention of the deceased. Where a mortgage debt c lebt. c had been contracted by the deceased, the heir or devisee was entitled to have the amount of the charge made good out of the personal estate -which had been increased in value to that extent; but if the mortgage debt had not been created by the deceased himself (as where he purchased land subject to a mortgage debt) the right to have it paid off out of personalty was negatived, unless the deceased had by subsequent acts adopted the charge as his own, as was also the case where it could be shown that the personal estate had not in fact been increased in value (c). By the Real Estate Charges Act, 1854 (17 & 18 Yict. c. 113), statutory the mortgaged land, every part thereof, according to its value, ^yneTtTe 3 bearing a proportionate part of the mortgage debts charged on mortgaged the whole thereof, is made primarily liable in the hands of the ifable fo™ the* heir or devisee to satisfy the charges thereon unless the deceased debt - shall, by his will, deed, or other document, have signified any contrary or other intention (//). The Eeal Estate Charges Act, 1867 (30 & 31 Yict. c. 69), effected two amendments. By sect. 1 a general declaration that the debts or that all the debts of a testator shall be paid out of personal estate is not a sufficient expression of intention to exonerate the property charged. If I Dawson v. Whitehaven (Bank), 8 v. Bush, i BH. X. S. 305, and note ; 209- 57 [1891] 3 Ch. 525; 60 L. J. C. 098; John Brothers* Abergarw Brewery v. L. J. Q. B. 129. p 2 212 PART II. CHAP. I. THE LIMITATION OF ESTATES. Re-demise to mortgagor or attornment. The relation of landlord and tenant may, however, he con- stituted between the mortgagee and mortgagor, as where the mortgage deed contains an express provision that the mortgagor may remain in possession until default in payment on the day appointed («) ; or where the mortgagor attorns to the mortgagee as his tenant at a rent(r). "Where a tenancy is in fact created, the mortgagee may distrain the goods of a stranger ; but unless a tenancy is in fact created, extending beyond a mere personal licence to take the goods of the mortgagor in satisfaction of arrears of interest, the goods of a stranger cannot be so seized (w). A mortgagor who has attorned to a first mortgagee may give a valid power of distress by attorning to a puisne incumbrancer (•<■). Attornment clauses require to be registered as bills of sale to render a seizure of chattels valid, unless a mortgagee having previously taken possession, subsequently demises the premises to the mortgagor (//). Both in a court of law and in a court of equity an attornment clause was considered as intended to secure the mortgage debt as well as the interest (z). It afforded no answer to an action of ejectment brought without notice (a) ; and was avoided by a change of interest, as on the assignment of the mortgage, or the death of the mortgagor (&). Possessory- rights. In equity the possession of the mortgagor is referred to his equitable title, and he is 'prima facie entitled to do any acts incident to a beneficial ownership, as cutting timber, or the like acts, unless the result will be to impair the sufficiency of the security (c). And the mortgagor will be restrained from exercising this right in an unusual or destructive manner (d). (>,) Wilkinson v. Hall, 3 Bing. N. C. 508. (»■) Morton v. Woods, L. R. 4 Q. B. 298 ; 38 L. J. Q. B. 81 ; Ex p. JacJtson, 14 Ch. D. 725; Ex p. Voisey, 21 Ch. D. 442; 52 L. J. C. 121. See Jolly v. Arlnitlmot. 4 Dc G. & J. 224 ; 28 L.J. C. 547 ; Clowes v. Hughes, L. R. 5 Ex. 160 ; 39 L. J. Ex. 62. (;r) Freeman v. Edwards, 2 Ex. 732 ; Kearsley v. Philips, 11 Q. B. D. 621 ; 52 L. J. Q. B. 621. (.,■) Ex ]>. Punnett, 16 Ch. D. 226 ; 50 L. J. C. 212. (//) Bills of Sale Act, 1878 (41 & 42 Vict. c. 31), s. 6 ; Ex p. Kennedy, 21 Q. B. D. 384 ; Green v. Marsh, [1892] 2 (>. 15. 331 ; 61 L. J. Q. B. 111'. See Mwnford v. Collier, 25 Q. B. D. 279 ; 59 L. J. Q. B. 552. (.) Ex p. Harrison, 18 Ch. D. 127 ; 50 L. J. C. 832. (a) Don v. Olley, 12 A. & E. 181; Doe v. Tom, 4 Q. B. 615 : 12 L. J. Q. B. 264 ; Doe v. Goodier, 10 Q. B. 957 ; 16 L. J. Q. B. 43-"> ; Metrop. Counties and Gen. Life Assce, v. Brown, 4 H. >.V; N. 42S ; 28 L. J. Ex. 340. (//) Brown v. Metrop. Counties and Gen. Life Assce., 1 Ell. & E. 834 ; 28 L. J. Q.B.236 ; Seobie v. Collins, [1895] 1 Q. B. 375; 64 L. J. Q. B. 10. (c) Humphreys v. Harrison, 1 J. & W. 581 ; King v. Smith, 2 Hare. 239. See Wrhjht v. Atkins, 1 V. & B. 313 ; Goodman v. Kine, 8 Beav. 379; Bagnall v. Villar, 12 Ch. D. 812 ; 48 L. J. ('. 69"). As to leases by a mortgagor in possession, see ante, p. 211. (// ) Humphreys v. Harrison. 1 J. A: W. 581; Huddei-sjield Bltg. Co. v. Lister 4" Co., [1895] 2 Ch. 273; 64 L. J. C. 523. SECT. VII. § 4. MORTGAGES. 213 The mortgagor is not bound to account for the rents and profits received by him while he remains in possession, notwith- standing the security may have become insufficient. " He receives the profits of the land for his own use, and not as agent or bailiff of the mortgagee, and when he has once received them, is absolutely entitled to keep them as his own "(f). Where a receiver has been appointed under the power contained in sect. 1!) of the Conveyancing and Law of Property Act, 1881 (44 & 45 Yict. c. 41), the mortgagor apparently ceases to be in possession (/*). By the Supreme Court of Judicature Act, 1873 (36 & 37 Yict. Mortgagor in c. G6), s. 25, sub-s. (5)— "A mortgagor entitled for the time ^y^hi being to the possession or receipt of the rents and profits of any his own name, land, as to which no notice of his intention to take possession or to enter into the receipt of the rents and profits thereof shall have been given by the mortgagee, may sue for such possession, or for the recovery of such rents or profits, or to prevent or recover damages in respect of any trespass or other wrong relative thereto, in his own name only, unless the cause of action arises upon a lease or other contract made by him jointly with any other person" (#). Until final order of foreclosure, the mortgagee though absolute charge of owner at law, is entitled in equity only to a charge upon the land ^m interest to the amount of the mortgage debt, interest, and costs. This and cost, includes not only the ordinary charges and expenses usually provided for by the instrument, but also the costs (if any) incident to realising the security, as those properly incurred in a fore- closure or redemption suit. The mortgagee is allowed all such costs in account, and the mortgagor cannot redeem without paying them (//). The mortgage debt and charges, thus constituting the Is personal mortgagee's interest in the land in equity, is of the nature of personal estate, and passes on death to his personal representa- tive (i). The legal estate in the land, upon a mortgage in fee, Legal estate in laud. (e) Per Alderson, 1?.. Trent v. Hunt, 44 Ch. D. 374 : 59 L. J. C. 63. 9 Ex. 1 I ; 22 L. J. Ex. 318 : Oilman v. (Ji) Cotterell v. StraUon, L. 1!. 8 Ch. St. Albans [Duke), 3 Ve*. 25; Ex p. 295; 42 L. J. C. 117: Cottrell v. Wilson, 2 V. .V B. 252 ; Garfttt v. Allen, Finney, L. R. 9 Ch. 541 : 4.S L. J. C. 37 Ch. 1). 48 ; 57 L: J. C. 420. See Be 562; Nat. Bk. of Australasia v. United Anglesey (Alai'q.), L. R. 17 Eq. 283 ; 43 Hand in Hand and Band of Hope L. J. C.437. Co., I App. Cas. 391; Be Watts, 22 (/") Woolston v. Boss, [1900] 1 Ch. Ch. 1). 1. 7SS ; 69 UJ. C. 363. (/') Tliornbrough v. Baiter, 1 Ch. Ca. (cf) Fairclough v. Marshall, 4 Ex. D. 283; 2 Wh. & T. L. C. 1. See Be 37. See Van Gelder, Apsimon \ Co. v. Loveridge, ["1902] 2 Ch. 859 ; 71 L.J.C. Soweroy Bridge United l)hl. Flour Soc., 865. 214 PART II. CHAP. I. THE LIMITATION OF ESTATES. passed to the heir or devisee of the mortgagee, who became a trustee for the personal representative or person beneficially entitled to the debt and charges, but subject always to the equity Devise by f redemption of the mortgagor (J). In practice the complication which ensued from the devolution in different directions of the debt, and of the land upon which it was secured, was prevented by an express devise of mortgage estates to the personal represen- tatives of the mortgagee; and a general devise of real estate passed estates held in mortgage, unless a contrary intention was expressed, or to be inferred from the purpose of the disposition (/r). statutory Sect. 4 of the Vendor and Purchaser Act, 1874 (37 & 38 Vict. amendment of c ^ yg^ em p 0Tvere( | the personal representative of a mortgagee of a freehold estate, or of a copyhold estate to which the mort- gagee should have been admitted, to re-assure the mortgaged estate upon redemption. This provision was repealed and replaced by sect. 30 of the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), which enacts that an estate of inheritance, or limited to the heir as special occupant, in any tenements or hereditaments, corporeal or incorporeal, vested by way of mortgage in any person solely, on his death, notwith- standing any testamentary disposition, devolves upon his personal representatives. Copyholds were excluded from the operation of the last-mentioned section by sect. 45 of the Copyholds Act, 1887 (50 & 51 Vict. c. 73), the provisions of which are now embodied in sect. 88 of the consolidating statute the Copyholds Act, 1894 (57 & 58 Vict. c. 46), and they devolve upon the customary heir. The Trustee Act, 1893 (56 & 57 Vict. c. 53), s. 29, empowers the High Court, where a mortgagee of land (including copyholds) has died without taking possession, to make an order vesting the land in a person who has paid off the mortgage debt to the person entitled to receive the same, where the heir or personal repre- sentative or devisee of the mortgagee is out of the jurisdiction, or cannot be found, or refuses to reconvey the property, or where it is uncertain who is the proper person to reconvey ; or the High Court may (under sect. 33 of the same statute) appoint a person to execute a conveyance of the land instead of making a vesting order. There is power to make a similar order in the case of an infant by sect. 28 of the same statute, and in the case of a lunatic by sect. 135 of the Lunacy Act, 1890 (53 Vict. c. 5) (/). (y) See Thorribrmigli v. Baiter, 1 Ch. Yes. 417 ; Tud.L. C. 322. Seeifr farter, Ca. 283 ; 2 Wh. & T. L. C. 1. See [1900] 1 Ch. 801 ; 69 L. J. C. 420. report, 3 Swanst. 628. (I) See Carson, Eeal Prop. Stats. (/■-) Brayhrodke (Lord) v. InsMj), 8 pp. 774, 778, 797. SECT. VII. § 4. MORTGAGES. 215 A mortgagee who takes possession under his legal title is Account bound to account for all the rents and profits actually received g^ee^n™ by him, or which he ought to have received (m). In general, if possession. the mortgagee takes possession, without any sufficient cause for Annual entering, he must account with annual rests ; that is to say, the surplus receipts after payment of interest will be applied annually in discharge of principal, leaving interest to run only on the balance. But if he enters because the interest is in arrear, or for the protection of his security, or other sufficient cause, he is not bound to receive payment in this mode, and he may continue to charge interest in full until the whole debt is discharged (n). On the other hand, a mortgagee is entitled to charge in account May charge the costs of all necessary repairs as a matter of right, and he is Repairs, etc. also entitled, upon making a proper case for the allowance, to an account of the sums expended in permanent and lasting improve- ments (<>). He is also entitled to the costs of perfecting his title or rendering it available, or of defending the title to the property, but the costs of defending his mortgage he can only charge against the party impeaching his title (j>). He may employ all necessary Receiver, agents or receivers and charge for their payment; — but he is not entitled to charge any profit or remuneration for his personal services or trouble {q). By sect. 19 of the Conveyancing and Law of Property Act, 1881 (41 & 45 Yict. c. 41), which replaces an earlier enactment to the same effect, a mortgagee whose mortgage is by deed executed after 31st December, 1881, may appoint a receiver when the mortgage money has become due ; but this power may be excluded or modified by the deed itself. A mortgagee could not, apart from a contract to that effect, (/») Alio//.. 1 Vern. 45; Mayer v. 150. Murray, 8 Ch. D. 425 ; 47 L. J. 0. 605. (p) Ramsden v. Langley, 2 Vern. See Nat. Ilk. of Australasia v. United 536; Peers v. Ceeley, 15 Beav. 208; Handin Hand and Band of Hope Co., Blackford v. Davis, I-. R. 4 Ch. 304 ; 4 App. Cas. 391. Parker v. Watltins, 1 Johns. 133 : Owen (//) Scholejield v. Ingham, C. P. C. v. Crouch, 5 W. l;. 545; Rees v. Met. ■177; Wilson v. Cluer,. 3 Beav. 136; Bd. of Wks., 14 Ch. D. 372 ; Nat. Prov. Patchy. Wild, 30 Beav. 99 ; Dobsonv. Jilt, of England, v. Games, 31 Ch. U. Land, I De G. & S. .".7:.; Ashworth v. 582; 55 L. J. C. 570: Wales v. Can-. Lord,36 Ch. D. 545 ; 57 J.. J. C. 238 ; [1902] 1 Ch. 860; 71 L. J. C. 183. Wrigley v. Gill, [1905] 1 Ch. 241 ; 74 See Ward v. Barton, 11 Sim. 534 ; L. j. ('. 160; Ainsworth v. Wilding, BolingbroTte v. Hind, 25 Ch. D. 795 ; 53 [1905] 1 Ch. 135 : 74 L. J. C. 256. L. J. C. 704. (o) Sandon v. Hooper, 6 Beav. 246; (//) Langstaffe v. FenwicJt, 1" Ves. 14 L. J. C. 120; Powell v. Trotter, 1 405; Davis v. Bendy, 3 Madd. 170; Dr. & Sin. 388; Tipton Green Coll. v. Union BJt. of London v. Ingram, 16 Tipton Moat Coll., 7 Ch. D. 192; 47 Ch. D. 53; 50 L.J. C. 74. See ante, L.J. C. 152 ; Shepard v.Jones, 21 Ch. D. p. 114. 469 ; Henderson v. Astwood, [1894] A.C. 216 PART II. CHAP. I. THE LIMITATION OF ESTATES. Power to in- sure and charge pre- miums. charge in account the premiums for insuring the property (r), but in the case of a mortgage by deed, unless the power is excluded or modified by contract, he may by sect. 19 of the last- mentioned statute, which replaces sect. 11 of the 23 & 24 Vict. c. 145 (Lord Cran worth's Act), insure the mortgaged property from loss by fire, and add the premiums paid for any such insurance to the principal money secured at the same rate of interest. Distinction between a mortgagee ami a trustee. Between mortgagee and mortgagor there is nothing analogous to a trust, until the whole mortgage debt has been paid and satisfied ; from which moment, and not until then, the mort- gagee becomes a trustee for the mortgagor (s). — The mortgagee may therefore, in general, purchase from the mortgagor or from a prior mortgagee exercising power of sale ; and that whether he be in possession or not (t). — There is no trust to prevent the Statute of Limitations from operating in his favour (u). — Nor is the mortgagee constituted a trustee for the mortgagor by his mortgage being framed in the form of a conveyance upon trust to sell (v). Equitable mortgage by deposit of deeds. Deposit is presumptive evidence of mortgage. A deposit of the title deeds to secure a sum of money will create an equitable mortgage without any further formality. The agreement may be proved by parol evidence, notwithstanding the Statute of Frauds (29 Car. II. c. 3), s. 4, which requires a contract of any interest in land to be in writing signed ; the fact of the adverse possession of the deeds admitting of explanation independentl} 7 of the statute (/c). The fact of depositing the deeds in the hands of a creditor is evidence between the parties of an agreement to secure the debt due or then contracted ; but the depositee must establish affirmatively that a charge was " intended " to be created (.<). The delivery of title deeds for the purpose of preparing a legal (r) Bobxon v. Land, 8 Hare. 21<; ; 4 De (i. iV Sin. ."i7.~> ; Bellamy v. Bricken- den, 2 ■). & H. 137 ; Brooke v. Stone, 34 L. J. C 251. (.v) Bobson v. Land, 6 Hare, 216, 220 ; Kirkwood v. Thompson, 2 De Gr. -I. & S. 61b : 34 L. J. C. 305 ; 2 II. & M. 402. See Cholmondeley v. Clinton, 2 J. & W. at p. 182 ; Banner v. Berridge, 18 Cli. D. 254 ; Warner v. Jacob, 20 Ch. D. 220 ; 51 I.. J. C. 642; Taijlor v. Russell, ! 392] A. 0. 211 ; 01 L. .1. ('. (157. (O Knit/Id v. Majoribanks, 2 Mac. k <;. In : Shaw v. Bunny, 2 De r,. J. ,v S. 468; 34 L. J. C. 2.">7 ; Kirhwood v. Thompson, 2 De G. J. & S. 013; 34 L. J. C. 305. O) Locking v. Parker, L. R. 8 Ch. 30; 42 L. J. C. 257; Re Alison, 11 Ch. 1). 284 ; lie Loceridge, [1904] 1 Ch. 518 ; 73 L. J. C. 15. (c) Re Alison, 11 Ch. D. 284. (w) Russel v Russel, 1 Bro. C. C. 2(i'J ; 2 Wh. & T. L. C. 7»i. (./•) Featlierstone v. Fenwick, 1 Bro. C. O. 270, n. \ llui-ford v. Carpenter, 1 Bro. C. C. 27n. n. ; < hapman v. Chapman, 13 Beav. 308 : 20 L. J. C. 465 ; Lucas v. Borrien, 7 Taunt. 278 ; Ashton v. Balton, 2 Cull. 565. SECT. VII. § 4. MORTGAGES. 217 mortgage constitutes an equitable charge for the money advanced, until a legal mortgage is executed, unless it be made to appear that no charge was intended to be created until the deed was executed (y). Where a legal mortgage has been executed, a charge for further advances cannot be created without writing (,r); but if an equitable mortgage by deposit be first created, whether accompanied by writing or not, it may be extended, by a subse- quent verbal agreement, to future advances, or it may be limited to an actual or past advance (a). Evidence contradicting the terms of a written agreement accompanying a deposit of title deeds is inadmissible {!>). To establish the equitable title to an original mortgage there must be an actual deposit of the deeds, failing which the provisions of the Statute of Frauds requiring evidence in writing must be observed (c). It is doubtful if an advance upon a promise to deposit deeds will be a sufficient act of part performance to exclude the Statute of Frauds (d). It is not necessary that all the deeds relating to the depositor's title should be handed over to the mortgagee, but an equitable mort- gage by deposit will be created if the deeds actually deposited are material documents (c). In the case of land registered under the Land Transfer Acts, 1875 and 1897, the deposit of the land certificate, office cop} r of the registered charge, or certificate of charge creates an equitable title in the holder (/). The remedy of an equitable mortgagee by deposit of deeds is Remedy of prima hide by foreclosure upon the usual terms, with a convey- mortgagee bv ance at the expense of the mortgagor ; and not by sale (//). The foreclosure. remedy for a mere equitable charge on land, without deposit, is prima facie by sale Qi). (//) Edge. v. Worthington, 1 Cox, I'll ; Exp. Coombe, 4 Madd. 249. Ex p. Bulteel, 2 Cox, 243 ; Hockley v. (d) See Kebell v. Philpott, 7 L. .1. C. Eantock, 1 Russ. 141 ; Keys v. Williams, 237 ; Selbome, L. < '.. Maddison v. Aider- 's Y. & C. Ex. 55 : 7 L. J. Ex. Eq. 59 : son, 8 App. Cas. 167 : 52 L. J. Q. B. 737. Lloyd v. Attwood, 3 De G. b. J. (ill ; 29 (<•) Goodwin v. \Yaghorn, 1 L. .1. ('. L. J. C. '.)7. 172; Lacon v. Allen, 3 Drew. 579 ; 2 ! (.-) Ex p. Hooper, 19 Ves. 477 : 1 L. J. C. 579. See Dixonv. Muckleston, Mer. 7. L. R. 8 Ch. 155 ; 12 L. J. C. 210. (a) Ex p. Mbuntford, 11 Ves. 606 : (/) 38 & 39 Vict. c. 87, s. 81 ; 60 & Gl Ex p. Langston, 17 Ves. 227; Ex p. Kensington, 2 Ves. & B. 79 ; Mov/nbforl v. Scott, T. & R 271 ; Ede v. Knowles, 2 Y. &C. C. C. 172. (fj) Exp. Coombes, 17 Ves. 369. See BuHon v. Gray, L. R. 8 Ch. 932 : 43 L. J. C. 229; Cairns. L. J.. Sltaw v. the court may order a sa See ante, Foster, L. II. 5 11. I.. 321. \>. 206. (c) Fector v. Philpott, 12 Price, 197 ; (/<) Tennant v. Vrencltard, I.. II. I Fenurick v. Potts, 8 De G. M. & G. 506; Ch. 537; 38 L. .1. C. L69 ; R Owen, Ex p. Broderich, 18 <.». I'.. I ». 7iit; ; 56 [1894 3 Ch. 22" ; 63 I.. .1. C. 71'.'. > - L. J. Q. B. !;:!."> : Jared v. Clements, Carter v. Wake, 4 Ch. D. 605; 46 [1903] 1 Ch. 42S ; 72 L. J. C. 291. See L. J. C. Ml. Vict. c. 65, s. 22. sub-s. 6 (f). (c/) James v. James, L. li. 16 E [. 17)3 ; 12 L. .!. C. 386 : Pryce v. Bury, I;. R. 16 Eq. 153, in note ; Backhouse v. Charlton, 8 Ch. 1'. Ill ; Lees v. Fisher, 22 Ch. D. 283. In a suit tor Eorec 218 PART II. CHAP. I. THE LIMITATION OF ESTATES. Specific per- formance of agreement to give mort- gage, etc. Equitable mortgagee not compellable to take the legal estate. Equitable mortgage by- agreement without de- posit, must be proved by- writing. If the deposit be accompanied by an agreement to give a legal mortgage with usual powers, it will be specifically enforced according to its terms ; and the court will decree specific per- formance of an agreement to execute a mortgage with an absolute and immediate power of sale(i). And where it appears to have been the intention that a formal deed should not be executed, the depositee will only be entitled to have a memorandum signed stating the purpose of the deposit (k). And, if necessary, the court will restrain the mortgagor from parting with the legal estate in the premises equitably charged (I). On the other hand, an equitable mortgagee by deposit cannot be compelled to accept a legal mortgage whereby he might incur liability as tenant of the legal estate ; as by the assignment of a lease subject to rent and covenants; nor does he by taking a deposit of the lease as security incur any liability under it to the lessor, nor although he may have entered into possession of the land ; the relation of landlord and tenant being purely legal and not equitable (m). An agreement in writing to execute a mortgage, or an agree- ment in writing to deposit deeds as security for a debt, without actual deposit, gives the right in equity to specific performance, and so creates an equitable mortgage. But a mere agreement for a mortgage or for a deposit, without actual deposit, must be proved by writing signed by the party to be charged therewith, under the Statute of Frauds (»). Mortgage of copyholds. The above doctrines concerning mortgages have been stated generally with reference to freehold estates ; but they are appli- cable for the most part to mortgages of any other subjects of property ; though the form of the mortgage must necessarily vary in some degree according to the subject, whether freehold, copyhold or leasehold, or a merely equitable estate or interest. A mortgage of copyholds usually takes the form of a conditional surrender. A surrender is made to the use of the mortgagee, but subject to the condition that on payment of principal and (/') Matthews v. Goodday, 31 L. J. C. 282 ; Hermann v. Hodges, L. 1!. 1<> Eq. 18; York Union BJtg. Co. v. AHley, 11 Ch. D. 205. (/.') Sjforler. Whayman,2QBe&V. 607 ; 21 L. J. C. 789. {I) London and County Bank \. Lewis, 21 Ch. D. 490. (m) Moores v. Choat, 8 Sim. 508 ; Moore v. Greg, 2 De G. k. S. 301 ; 2 Ph. 717. See Cox v. Bishop, 8 D. M. & G. 815 ; 26 L. J. C. 389. («) Tela v. Hodge, L. R. 5 C. P. 73 ; Ex p. Broderich, 18 Q. B. D. 766 ; 56 L. J. (}. B. 635 : cp. Ex p. Coombe, ± Madd. 210. As to priority between an equitable mortgage without the deeds and an equitable mortgage with deposit of deeds, see Dixon v. Mucltleston, L. R. S Ch. 155 ; 42 L. J. C. 210. And see post, Chap. II. Sect. VI., p. 347. SECT. VII. § 4. MORTGAGES. '219 interest on a certain day the surrender shall he void. The mortgagee does not take admittance, except upon foreclosure, and therefore incurs no fine or liability for the rents and services. Upon redemption, satisfaction of the condition is entered upon the rolls and the surrender is thereby vacated, leaving the mort- gagor in admittance as before. A separate deed of mortgage is executed covenanting to surrender as above, and in other respects in the form of a usual mortgage deed adapted to the copyhold security (o). An equitable mortgage of copvholds mav be made by deposit Equitable . niort° , a rr e of of the copies of the Court Eolls relating to the title (p). copy ] r A mortgage of leaseholds may be made by an assignment of Mortgage of the whole term and interest of the mortgagor, subject to the proviso for redemption and other conditions of a mortgage, in strict analogy with a mortgage in fee simple. — Or it may be made in the form of an underlease by the mortgagor to the mortgagee for a period less than the whole term ; in which form the mortgagee avoids incurring the liability, as assignee of the lease, for the rent and covenants contained in it (q). A mortgage of equitable estates and interests in land is Mortgage of commonly effected by conveyance or assignment in the form Jtatesand applicable to the analogous legal estate or interest, and with interests. the same terms and conditions as a legal mortgage, so far as the same are applicable (>■).— An equitable interest created by a contract may be mortgaged by a deposit of the contract, in analogy with a mortgage by deposit of title deeds, as by deposit of a contract for the purchase of an estate or for a lease ; and such mortgage is subject to the same rules and incidents as an equitable mortgage by deposit of deeds (s). With respect to assignments of equitable interests, it is to be Notice of observed, that if the subject of property be of the nature of J^f^ee. personal chattels, passing by transfer of possession, it is neces- sary to do what is tantamount to obtaining possession, that is, to give notice of the assignment to the trustee and thus convert him into a trustee for the assignee, in order to perfect the assignment as against unknown or subsequent claimants, who by giving a prior notice might obtain priority. Such is the case with an assignment or mortgage of money charged upon (0) Elton on Cop. C>7. 79 ; 1 Prideaux, 153, n. Conv. 525. ( j>. Warner, li> Ves. I'm'; \r) [ See ante, p. 109. Whitlread v. Jordan, 1 Y. & < '. Ex. \s) Goodtoinv. Waghom, 4L.J. N. S. 303; i L. J. Ex. Eq. 48 : see Pryce v. C. 172. See Unity Banking Assce. v. £ur>j, 23 L. J. C. 07(J : L. R. 16 Eq. King, 25 Beav. 72 : 27 I.. .1. 0. 585. 220 PART II. CHAP. I. THE LIMITATION OF ESTATES. Notice not necessary with equitable estate in the land. land, or the proceeds of land under trust for conversion, which interests are of the nature of personalty ; notice must be given to the trustee in order to perfect the title as against other claimants (t). But if the subject of assignment be an equitable estate or interest in the land itself, corresponding with a legal estate or interest, though the legal estate be outstanding, no notice is necessary to be given to the trustee or legal owner in order to complete the assignment, for assignments of such equitable estates, in analogy with legal conveyances, take priority accord- ing to the time of execution. Thus, with the equity of redemption of a mortgage in fee, a subsequent mortgagee obtains no priority over an intermediate one, by giving notice to the legal mortgagee; but the mortgagees, in the absence of special circumstances, rank in order of time (u). § 5. Equitable Estates and Interests arising out of Contracts of Sale. Vendor trustee for specific performance— equitable estate of purchaser. Lien of vendor for unpaid purchase money — discharge of lien by taking other security. Lien of purchaser for deposit- — claim to return of deposit. Conversion of the land by contract of sale — depends upon liability of vendor to specific performance — devise of land contracted to be sold — effect of compulsory sale. Conversion of the purchase money by the contract — depends upon liability of purchaser to specific performance — purchase money primarily charged upon the land purchased under Locke King's Act. Vendor be- comes trustee for specific performance. A contract of sale, of which a court of equity would decree specific performance, gives rise to various equities. The vendor from the time of executing the contract holds the land upon trust sub modo for the performance of it according to its terms and conditions, but although compellable to assign the estate according to the directions of the purchaser, is not so bound at the suit of a stranger not privy to the contract (a) ; and the (t) Dearie v. Hall, Loveridge v. Cooper, 3 Russ. 1 ; Foster v. Cockerel!, 3 CI. & F. 456 ; Re Hughes 1 Trusts, 2 H. & M. 89 ; 33 L. J. C. 725 ; Lee v. Howlett, 2 K. & J. 531. See Arden v. Arden, 29 Ch. D. 702 ; 54 L. J. C. 655 ; HopMns v. Hemsworth, [18'J8] 2 Ch. 317 ; 67 L. J. C. 52(5. (u) Jones v. Jones, 8 Sim. 633 ; Wilmot v. Pilie, 5 Hare, 14 ; Wiltshire v. Rabbits, 11 Sim. 76 : Taylor v. London and County Bank, [1901] 2 Ch. 231 ; 70 L. J. C. ' 477. See post, Chap. II. Sect. VI., p. 350. ( E. .1. C. (FarV) v. Smith, 6 Ch. I >. 469; 4ii 683. L. J. C. 356. And see Holroyd v. Mar- (e) Bower v. Cooper, 2 Hare. 108; shall, 10 II. L.C. 19] ; 33 L. J. C. 193 ; Hughes v. Parker, 8 M. .V W. I'll ; 10 where the same principle was extended E. J. Ex. 2H7 : Barnes v. II 'ood, • ;> to after-acquired property. I.. .1. C. 683; E. II. 8 Eq. 124. See (b) Spiller v. Spiller, 3 Swanst. 556. ante, pp. 120, 182. See Hadley v. London Bank of Scotland, ( /') Exp. Minor. 11 Ves.559; Hodder 3De(i. J. & S. 63. v. Ruffin, Taml. 343 ; Holroyd \. II yatt, (c) Phillips v. Silvester, I,. It. 8 Ch. 2 Coll. 327. 173; 42 L. .1. ('. 225; Egmont(EarV) O) Paine v. Meller, 6 Ves. 349; v. Smith, 6 Ch. D. 469 ; 16L.J.C.356; Rayner v. Preston, 18 Ch. 1'. 1: 50 Boyal Bristol Perm. By. Soe. v. L. J. C. 472. Bomash. 35 Ch. 1>. 390; ClarJte v. (/>) Kenney v. Wexliam, 6 Madd. Ramuz, [1891] 2 Q. P.. 456; 60 E. .1. 355; Strickland v. Turner, 7 Ex.208; Q. 11. 679 : Jones v. Gardiner, 1902] 1 22 1.. .1. Ex. 115. Ch. 191 ; 71 E. .1. C. 93; Plews v. 0*) Bryant v . Busk, 1 Russ. 1. SawweZ, [1904] ICh. 464; 73L.J.C.279. (/*) Mackreth v. Symmons, 15 Ves. (,/) Ferrars v. Clierry, 12 Vern. 383 ; 329 ; 2 Wh. ,V T. I.. C. '.»:.'<•,. Field v. Boland, I It. & Wal. 37; (V) Kettlewell v. Watson, 26 Ch. I>. Potter v. Sanders, t'. Hare, 1 ; Barnes 501 ; 53 L. J. C. 717. 222 TAUT II. CHAP. I. THE LIMITATION OF ESTATES. Payment by annuities. Lien under compulsory sale. Lien against sul (purchaser ■with notice. Lien of pur- chaser for deposit. Claim to re- turn of deposit. time of the purchase or afterwards, in substitution for it ; but it depends upon the circumstance of each case whether the court is to infer that the lien was intended to be reserved, and the lien is not necessarily lost by the vendor merely taking a bond or note or a real security for the purchase money ; or by his taking a security for payment at a future day (in). "Where the consideration for the sale is to be paid in the form of an annuity for life or lives, though the lien is not necessarily excluded, yet the presumption is against any intention to create a permanent charge on the estate for the periodical jmyments during the continuance of the annuity ; and the vendor is pre- sumptively entitled only to the bond, covenant, or security for the annuity as provided in the contract (n). The lien extends to lands taken by a railway company under the compulsory powers of purchase given by the Lands Clauses Act ; — and the deposit required to be made and the bond to be given under the Act, as security for the purchase money of the land taken, does not discharge the lien of the vendor (o). The lien for unpaid purchase money charges the land, not only as against the purchaser himself, but also as against a subsequent purchaser from him, except a purchaser for value of the legal estate without notice that the money was unpaid (/>). Upon the like principle, upon payment of a deposit or purchase money before conveyance, the purchaser prima facie acquires a lien for the amount upon the land in the hands of the vendor, in the event of the contract being subsequently rescinded, or failing without any default on his part (5). The claim to a return of the deposit stipulated to be paid by the contract of sale may be expressly provided for in certain events by the terms of the contract ; and it may be forfeited if the contract so provide (r). "Where the contract is rescinded by agreement, the claim to the deposit must be referred to the terms of that agreement ; and failing agreement, the purchaser is (■/«) MackretTi v. Symmong, 15 Ves. 329: Grant v. Mills' 2 V. & B. 307 ; Cood v. Pollard, 10 Price, 109 ; Winter v. Anson {Lord), 3 Puss. 488. («) Dixon v. Gat/fere, 1 De G. & J. 655; 27 L. J. C. 148. (o) Munns v. Isle of Wight lh/., L. P. 5 Ch. 414 ; 39 L. J. C. 522 ; Allgood v. Merrybent and Darlington Ry., 33 Ch. D. 571 ; 55 L. J. C. 743. (p) MacJtreth v. Symmons, 15 Ves. 329 ; 2 Wh. & T. L. C. 926 ; Frail v. Ellis, 16 Beav. 350 ; 22 L. J. C. 467 ; Dryden v. Frost, 3 M. i: Cr. 670 ; 8 L. J. C. 235. (?) Rose v. Watson, 10 H. L. C. 672 ; Whitbread % Co. v. Watt, [1902] 1 Ch. 835 : 71 L. J. C. 424. See Aberaman Iron Works V. WicTtenS, L. 11. 4 Ch. App. 101, where it was held that a sub-pur- chaser might establish a lien for pur- chase money advanced to the extent of the lien of the original purchaser. (?•) Palmer v. Temple, 9 A. & E. 508 ; Hinton v. Sparltes, L. R. 3 C. P. 161 ; 37 L. J. C. P. 81 ; Essex v. Daniel, L. R. 10 C. P. 538. SECT. VII. § 5. CONTRACTS OF SALE. 223 presumptively entitled to a return of his deposit unless he is in default (s). Where a contract is rescinded by the court it is within the jurisdiction of the court to order the deposit to be returned, and to declare it to be a lien upon the land, with interest (/). On a sale made by order of the court, which failed by reason of the bankruptcy of the purchaser and the refusal of his assignees to complete, an order was made by the court declaring the deposit to be forfeited, although the conditions of sale contained no provision as to forfeiture (u). The lien charges the land as against a subsequent purchaser or mortgagee from the vendor having notice of the payments made (x). Jiirisdiotii.ii of Court to order return ofde[' Lien as against pur- chaser with notice. A contract of sale of which a court of equity would decree specific performance further operates in equity as a conversion, according to the terms of the contract, of the land into mone} r on the part of the vendor, and of the amount of purchase money into the land on the part of the purchaser (*/). If the vendor die before completion, his personal representa- tive may enforce the contract in an action for specific perform- ance against the purchaser ; in which suit the real representative must be joined, and may be compelled to execute a convey- ance (z). The conversion depends upon the contract. If the contract is such as a court of equity would decree to be specifically performed against the vendor at the time of his death, the conversion is then absolute as between his real and personal representatives. And it is immaterial that afterwards the contract is not in fact completed — as where the purchaser subsequently lost his right to specific performance by delay (a). If at the time of the death of the vendor the contract is in terms future or conditional as to completion, the conversion is not absolute until the time has elapsed or the condition has Conversion by contract of sale. Of the land into monev. Conversion absolute at death of vendor. Future and conditional conversion. (*) Gosbell v. Archer, 2 A. & E. 500 ; Howe v. Smith, 27 Ch. D. 89 ; Soper v. Arnold, It \pp. Cas. 429; Smith v. Butler, [1900] 1 Q. B. 694 ; 69 L. J. Q. B. 521. (r) Aberaman Iron Works v. Wiokens, L. It. 4 Ch. Ml : Torrance v. Bolton, L. R. 8 Ch. 118 ; Re Hargreaves and Thompson, 32 Ch. D. 454. As to the claim for interest, see ante, p. 196. (w) Depree v. Bedborough, 4 Giff. 479 ; 33 L. J. C. 134. (./■) Rose v. Watson, 1" II. L. C. 672 ; see ante, pp. Ill, 222. (y) FletcJier v. Ashburner, 1 Bro. C. C. 497 : 1 Wh. & T. L. C. 327. (.-) Farrar v. Winterton (Earl), '< Beav. 1 : Roberts v. Man-hunt, 1 l'hill. 370; Moddel v. Pugh, 33 Beav. 189; Att.-Gen. v. Brunning. 8 II. L. C. 243 ; 30 L. .1. C. 379 ; Be Clowes, 1893 1 Ch. 214. («) Curre v. Bowyer, ."> Beav. 6, n. ; Hartley v. Hawkshaw, 12 Beav. 552. 224 PART II. CHAP. I. TIIK LIMITATION OF KSTATKS. Xo conversion unless specific performance can be en- forced. Devise of land revoked by contract of sale. Devise of land under con- tract for sale. Conversion by compulsory sale. been fulfilled (&). A uniform series of decisions extending over upwards of a century had established that where an option to purchase real estate was given by a contract, and not exercised until after the death of the giver of the option, the property was thereupon converted as between the real and personal repre- sentatives of the original freeholder (c) ; but it has now been held that this is not a right which runs with the land, and it is difficult to see how the earlier decisions can now be supported on the ground of adoption of the contract or otherwise (d). If a court of equity would not enforce specifically the per- formance of the contract there is no conversion, and the heir or devisee of the vendor may retain the land (<;). But in the case of a parol contract a conversion may be effected if the real representative adopts the contract, for the Statute of Frauds (-29 Car. II. c. 3) does not affect the validity of the contract (/). Accordingly, a devise of the land is revoked, as to the beneficial interest by a subsequent contract to sell it, though not completed at the testator's death ; and the devise will not apply to the purchase money, or to the lien of the vendor upon the land which is merely a security for the purchase money (g). If the contract is conditional upon an option in the purchaser, the devise takes effect only until the exercise of the option, and is then revoked in favour of the personal representative, unless provision is made by the will that the devisee is to have the proceeds of sale (It). A devise of land, after a contract of sale made which is not completed at the testator's death, operates, like a devise of land of which the testator is only trustee, in conveying the legal estate only, unless the intention to pass the purchase money by it appear in the will (i). A statutory notice by a company to take lands under their compulsory powers of purchase has not alone the effect of a contract of sale by way of equitable conversion (J) ; but when (//) Gaskarth v. Lowther (Lord), 12 Yes. 107. (c) Lawez v. Bennett, 1 Cox, 167 ; lie Isaacs. [1894] 3 Ch. 506; 63 L. J. C. 815. (,/) Woodall v. Clifton, [1905] 2 Cb. 257 ; "4 L. J. C. 555. (e) Be Thomas. 34 Ch. P. 166 : 56 L. J. C. 9. See Roberts v. Marchant. 1 Bare, 547; 1 Pbill. 370. (/) Frayne v. Taylor, 33 L. J. C. 228; Be Harrison. 34 Cb. D. 214; 56 L. J. C. 341. (j)) Tebbott v. Voiles, 6 Sim. 40 ; Moor v. Raisbech, 12 Sim. 123 ; Farrar v. Winterton [Earl), 1 Beav. 1 ; Re Cloo-rs. [1893] 1 Ch. 214. (//) Weeding v. Weeding, 1 J. & H. 424 ; 30 L. J.'C. 680 ; Re Pyle, [1895] 1 Ch. 724 ; 64 L. J. C. 477. See Woodall v. Clifton, [1905] 2 Ch. 257 ; 74 L. J. C. ' '(;') Wall v. Bright, 1 J. & W. 494 ; Brant v. Vaiuse, 1 Y. & C. C. 580 ; Emms v. Smith, 2 De G. & S. 722. Sec LtjsagM v. Edwards, 2 Ch. D. 499 (y'j Saynes v. Haynes, 1 Dr. & Sm. 426 : 30 L. J. C. 578.' SECT. VII. § 5. CONTRACTS OF SALE. 225 followed by a contract settling the price and terms of sale, the conversion in equity is complete from the date appointed for the completion of the sale (k). The contract operates on the part of the purchaser as a Conversion of conversion of his personal estate to the amount of the purchase money into money into the land, according to the terms of the contract ; the lan ' 1 - and if he die before completion his heir or devisee becomes entitled to have the purchase completed as against the personal representative, and was formerly entitled to have the purchase money paid out of the personal estate (/). The conversion in favour of the heir or devisee depends upon Depends upon whether the contract is such as a court of equity would specifi- ofthepur- cally enforce against the purchaser (m). And where a purchaser chaser to has an option to complete, which he has not exercised before his formance. death, his real representative takes nothing («). By the Eeal Estate Charges Acts, 1867 and 1877, any lien for Purchase unpaid purchase money upon any lands or hereditaments must charged pri- be discharged by the heir or devisee, unless the testator shall maril y u i )on ° J land pur- have signified a contrary or other intention (o). chased by a testator. (It) Ex p. Hawkins, 13 Sim. 569; Be v.Acton,28 Beav. 333; Hudson v. Cook, Manchester and Southport By., V.) Beav. L. R. 13 Eq. 417 ; 41 L. J. C. 306 ; Be 365; Be Lowry's Will, L. R. 15 Eq. 78 ; Harrison, 34 Ch. D. 214; 50 L. J. C. 42 L. J. C. 509; Watts v. Watts, L. R. 341. 17 Eq. 217 ; 43 L. J. C. 77. («) Badnor (Earl) v. Sftafio, 11 Ves. (7) Green v. Smith, 1 Atk. 572. 448. O) Broome, v. Monch, 10 Ves. 597 ; («) Be CocJtcroft, 24 Ch. D. 94 ; 52 Collier v. .Jenkins, Younge, 295 ; Garnett L. J. C. 811. See ante, p. 210. L.P.L. 22G CHAPTER II. THE LIMITATION OF FUTUKE ESTATES. Section I. The limitation of future estates at common law. II. Future Uses. III. Future Devises. IV. Powers. V. The Rules against Perpetuities and Accumulations. VI. Future Equitable Estates and Interests. The present chapter treats of the limitation of estates in regard to the time of commencement, that is to say, as com- mencing at a future time, whether as regards the coming into possession or the vesting in interest (a). The limitations of future estates may he distinguished primarily according to the sources of the law to which they are to he referred : — at the common law, by way of reversion and remainder ;— under the Statute of Uses, admitting, besides the future limitations of the common law, springing or shifting tises ; — and in wills, admitting executory devises ; — these form respec- tively the subjects of the first three sections of this chapter. Powers may also be distinguished as a special mode in which future estates, whether by way of use or under wills, may be limited and created ; they are treated separately in the fourth section. The Rule against perpetuities by which the limitation of future estates is restricted forms the subject of the fifth section ; together with the law restricting the accumulation of rents and profits. There will then remain to be treated in the sixth and last section the doctrines of equity by which future equitable estates and interests, whether created by express declaration or construc- tive trusts, are regulated and ranked in order of priority. («) See ante. pp. 5, 117. SECT. I. § 1. REVERSIONS. 227 Section I. The Limitation of Future Estates at Common Law. § 1. Reversions. § 2. Remainders. § 3. Contingent remainders. § 4. Rule in Shelley's case. § 1. Reversions. Rule that freehold cannot be limited in futuro — reversion and remainders of freehold. Reversion in fee upon creation of particular estate — limitation of reversion to the grantor or his heirs void at common law — creates title by purchase under statute 3 & 4 Will. IV. c. 106. Reversion in particular estate upon creation of less estate — in estate tail — in estate for life — in term of years upon underlease. Tenure of particular estate to reversion. It was a principle of the common law that the seisin or free- Estate of hold could never be put in abeyance ; that there must always be not )je H m ited a present tenant to answer to the requirements of tenure. Whence *° commence the rule that an estate of freehold cannot be limited to commence at a future time {h). But the freehold may be distributed into a particular estate Reversion and n . . , n . . . . i remainder of and reversion or remainders ; and the reversion or remainders, freehold. though vested in interest, are deferred or future estates in regard to the possession. Moreover, a remainder may be limited upon Contingent a contingency so as to defer also the vesting until the determina- remamder - tion of the particular estate, consistently with the rule that the freehold shall not be in abeyance, as the tenancy is full during the continuance of the particular estate (c). Reversions and Remainders, vested and contingent, as the future estates ad- missible at common law, form the subject of this section, and as supplementary to the treatment of remainders, the doctrines of limitation embodied in and connected with the rule in Shelley's case, have to be considered. Accordingly, these matters form the subjects of the several sub-sections. It may here be observed that leases and limitations of terms of Lease may be years, which deal with the possession only and not with the free- f years hold interest, may be made to commence in possession at a future commence in (b) Buclilei's Case, 2 Co. 5~> a ; Co. (<■) See ante, p. 33. Lit. 217 a. See ante, p. 33. Q 2 228 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Future uses of copyholds. time, giving merely an interesse termini or right to have the possession when the time arrives, but no estate in the land (] 2 Ch. 631 : 76 L. J. <\ 78. See Carson, Real Prop. Stats. 274. 282. (/>) WrigM v. Cartwright, 1 Burr. (/) Co. Lit. 45 b, 46 b ; Lit. s. 606. 282 ; Co. Lit. 15 b. See ante, p. 115. (s Case, L0 Co. 95 b ; Tud. Hole v. Esfott, 1 -My. & Cr. 187. L. 0. Conv. 158. Seeante,?. 28. Alike ( /") Tilburgh v.* Barbut, 1 Ves. sen. result may be produced by a power in a 89 ; Ware v. Cann, 10 B. .ic C. 433. settlement which may be operative over (#) Co. Lit. 22 a. See Martin v. an estate tail, but extinguished a- to Strachan, 5 T. R. 507, n. ; Roe v. Bald- the remainders. 1 Sanders, Dses, 179. u-ere. ."> T. R. 104. See as to barring the remainders. :i7 & 38 (Ji) Stafford {K>ir!) v. Buckley, 2 Vict. c. 57, s. 6. Ves. sen. 170 ; Doe v. Simpson, 3 Man. 232 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. freehold takes immediate effect, as regards the seisin or legal possession, though it is commonly described as in remainder as regards the de facto possession, which is deferred until the expiration of the term of years (k). Hence a limitation subject to a term of years, as it deals with the immediate freehold, cannot be made upon a contingency, but must give a vested estate (I). Remainders in particular •estates. Term of years does not admit of remainder. Underlease of term. Executory be- quest of term. Future trusts of term. Tenant of a particular estate of freehold may, in general, convey the land for a less estate with remainder over (m). A term of years, being personal estate, does not admit of limitation, at common law, into a particular estate and remainder (n). — If tenant for term of years assign the term to a person for life, it operates as an absolute assignment of the whole term ; however long the term may be (o). — Tenant for term of years may make an underlease for a less number of years, thereby creating a new term in the underlessee with the reversion of the original term in himself ; and he may make a further underlease to another person commencing at the expiration of the prior one (p). Where a lease was made to A. for ninety-nine years, if he should so long live, and if he should die within the term, the remainder thereof to B. for the residue of the term, it was construed as a lease to B. for so many of ninety-nine years as should be unexpired at the death of A. ; the word term being construed, for the purpose of supporting the limitation, to mean the time or number of years mentioned (q). By means of an executory bequest in a will a term may be bequeathed to a person, with a bequest over to another, to take effect upon the death of the former or other specified event ; the effect of which is to divest the term primarily vested in the first legatee (r). — Also, by vesting the term in a trustee, the trust or equitable estate may be disposed of with the same freedom and according to the same rules of limitation as executory bequests in wills (s). (7«) See ante, pp. 30, 35. (1) See ante, p. 35 ; post, p. 236. (///) See Low v. Burron, 3 P. Wms. 262 ; Derby (Earl) v. Taylor, 1 East, 502 : Pickersgill v. Grey, 30 Beav. 354 ; Co. Lit. 46 a. («) Hargrave*s note (5) to Co. Lit. 20 a ; Fearne, Ex. Dev. by Butler. 402, 567. (V) Lilley v. WJiitney, Dyer. 272 a ; Co. Lit. 46 a. O) Holfonl v. Hatch, Dougl. 183; South of England Dairies v. Baker, [1906] 2 Ch.'631 ; 76 L. J. C. 78. (?) Wright v. CartwrigM, 1 Burr. 282. (>•) Bradshaw v. SkilbeeJt, 2 Bing. N. C. 182. And see post, p. 260. (*■) Hargrave's note (5) to Co. Lit. 20 a ; Fearne. Cont. Rem. 470; JIasscn- burgh v. Ash, 1 Vera. 234, 304. SECT. I. § 3. CONTINGENT REMAINDERS. 233 Upon the grant of a particular estate with remainder or Tenure of remainders, leaving a reversion in the grantor, the relation J^^nd re- of tenure is created between the successive tenants of the par- mainder. ticular estate and remainders and the reversioner. But if the ultimate remainder is granted in fee leaving no reversion, no new tenure is created, and the tenants in succession hold of the ehief lord by the statute of Quia emptores (t) . There is no tenure between the tenant of the particular estate and the remainderman ; for the one does not derive title from the other, but both from the same source. § 3. Contingent Remainders. Vested remainder — contingent remainder — distinction of contingency as to the person and as to the interest — examples. Contingent remainder must be supported by a particular estate of free- hold. Contingent remainder must vest before or at the determination of the particular estate — exception as to posthumous child. Destruction by forfeiture or merger of the particular estate — Preservation of contingent remainders — trustees to preserve — statutes. Contingent remainder of copyholds. Remainder to unborn child — remainder to child of unborn child — strict settlement — Cy pres doctrine of construction of wills. Contingent remainder for life or in tail with vested remainder — contingent remainder in fee — contingent remainder in fee with vested remainder. ( instruction of remainders as vested or contingent — words of contingency referred to possession rather than vesting — remainder construed to vest as soon as possible — remainder to class, as children — remainder to children who shall attain twenty-one. A remainder which is certain as to the owner and absolute as to his estate or interest is a vested remainder ; the remainderman is presently invested with a portion of the seisin or freehold, the whole fee being divided into a particular estate and remainder or remainders (a). But a remainder may be limited to a person not yet ascer- Contingent tained, or to a certain person upon a condition precedent which may not happen until after the determination of the particular estate ; and whilst such uncertainty lasts, as to the person or the interest, it is described as a contingent remainder. — A con- tingent remainder becomes changed into a vested remainder by the owner becoming certain or the condition happening during the continuance of the particular estate (b). remainder. (0 Co. Lit. 112 b ct seq. («) See ante, pp. 33, 34, 37 (&) See ante, pp. 37. 161. 234 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Classification of contingent remainders. Reducible under one head. Distinction between con- tingency of ownership and of in- terest. Examples. According to Fearne, — " A contingent remainder is a remainder limited so as to depend on an event or condition which may never happen or be performed, or which niay not happen or he per formed till after the determination of the preceding estate" (<■). — And, as he afterwards explains, — " It is not the uncertainty of ever taking effect in possession that makes a remainder contingent ; for to that every remainder for life or in tail is and must be liable ; as the remainderman may die or die without issue before the death of the tenant for life. The present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, universally distinguishes a vested remainder from one that is contingent" (d). Fearne distinguishes four sorts of contingent remainders which may be shortly exhibited in the following scheme : — Eemainders limited, 1. Upon an uncertain event, which also determines the particular estate by conditional limitation ; — 2. Upon an uncertain event, which does not affect the particular estate ; — 3. Upon a certain event which may not happen until after the determination of the particular estate ; — 4. To a person not ascertained or not in being ( Co. 19 a ; Tud. L. C. Conv. 427 : Weale v. Lower, Bollex. 54. (w) Price v. Hall. L. R. 7. Eq. 399 : 37 L.J. C. 191. (o) Coltsmann v. Coltsmann, L. R. 3 H. L. 121 ; and see ante, pp. L38, et sea. (//) See Doe v. Elvey, 1 East, 313 ; and see Butler's note to Fearne, Cont. Rem. 7. -230 PART II. CHAP. II. THE LIMITATION OP FUTURE ESTATES. would operate to divest the fee and would not be a remainder ; it would be void at common law, but might be good as a shifting use or as an executory devise (q). — So if land be limited to A. in tail male, and if he die without issue to B., the remainder to B. is contingent upon the failure of issue general concurring with the failure of issue male, whereby the particular estate is deter- mined (y). So if land be limited to A. in tail, and if he die under twenty-one and without issue to B., the remainder is contingent upon the determination of the estate tail by death without issue under twenty-one, and if A. attain that age, though he die without issue it fails (s). Contingent remainder must have a particular estate of free- hold. Limitation of term of years with re- mainder of freehold. To A. for years with remainder to heirs of A. The principle of the common law that the seisin of the freehold can never be in abeyance, but must always be vested in some determinate person imposed two rules upon the limita- tion and operation of contingent remainders : — The first of which rules was that a contingent remainder of freehold must always have a particular vested estate of freehold to support it (t). A lease for a term of years does not interfere with the limita- tion or vesting at the same time of the freehold estate, subject to the term, as it deals only with the de facto possession. Therefore, if land be limited to A., for a term of years, with remainder to B. for life or in fee, the limitation to B. is a remainder only in regard to the de facto possession ; but as regards the seisin of the freehold it is an immediately vested estate (x). And if the remainder to B. were limited upon a contingency, as if he should survive A., the limitation would purport to dispose of the freehold infuluro leaving it in abeyance until the contingency occurred ; it would, therefore, be void at common law, and the next limitation of the freehold (if any), or the reversion of the lessor would take immediate effect (x). So also, if land be limited to A. for years with remainder to the heirs of A., the limitation to the heirs of A. is void, as of a freehold in futuro (j/). — But if limitations be made to A. for years, with remainder to B. for his own or A.'s life or for any other freehold estate, with remainder to the heirs of A., there is 0/) See post, pp. 253, 257. (?•) Cole v. Sewell, 4 Dr. & War. 1 ; 2 H. L. C. 186. See Re Ashforth, [1905] 1 Ch. 535 ; 74 L. J. 0.361. (.«) Grey v. Pearson, H. L. C. 61. See post, p. 261. {t) White v. Summers, [1908] 2 Ch. 25C) ; 77 L. J. C. 500 ; Fearne, Cont. Rem. 281. (w) Co. Lit. 40 a. See De. Grey v. Biehardson, 3 Atk. 469. (./■) Co. Lit. 217 rt ; see ante, p. 33. (//) Goodright v. Cornish,! Salk. 226 ; Co. Lit. 217 a. SECT. I. § 3. CONTINGENT REMAINDERS. 237 a vested freehold in B. which will support the contingent remainder (z). If land be limited to A. for a term of years, if he shall so long To a. for live, with remainder, after the death of A., to B., such remainder ^all so Ion - is contingent, because the death of A. may not happen until after live - remain- . . . . Boraston's Case, 3 Co. 19 a ; Tud. 506: Fearne, Cont. Rem. 307. L. C. Conv. 427; Goodtitle v. Bwrten- (?) Ztoev. Jlfiw#a«,3T.R.763; Co.Lit. Shaw, Fearne, Cont. Rem. App. I. ; Doe 378 a. See Winter v. Perratt, 9 CI. & v. Morgan, 3 T. R. 763; Vwnliffe v. F. 606. Brancker, 3 Ch. D. 393 : 46 L. ' J. C. (il) Pi-ice v. Hall, L. K. 5 Eq. 399 ; 128 ; Fearne, Cont. Rem. 8, 21 ; Sugden's 37 L. J. C. 191. note, Gilbert, Uses, pp. 164 et sea. (?) Doe v. Morgan, 3 T. R. 763. (h) Arclter's Case, 1 Co. 66 i ; Chud- (/) Fearne, Cont. Item. 310. 238 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. right heirs of B., the death of B. determines the particular estate and at the same time vests the remainder by ascertaining the heir (r/). — So, if land be limited to A. and B. for their joint lives with remainder to the survivor, or to the survivor in fee (h). — Or if land be limited to A. and B. during their joint lives, with remainder to the heirs of him who shall die first (i). — So to A. in tail, and if he die without issue living at his death, to B. (k). Exception as An exception to the rule occurs in favour of posthumous ciiii) Doc v. Bumsall, 6 T. R. 30 ; SECT. I. § 3. CONTINGENT REMAINDERS. 239 But the law leans against a forfeiture, and where an assurance might transfer an interest without working a forfeiture, that intention was presumptively imputed to the parties (q). A tenant for life might also destroy the contingent remainders expectant upon his estate hy surrendering his estate to the next vested estate in remainder (r) ; or hy acquiring to himself by purchase the next vested estate in remainder (s) ; by which means his estate which supported the remainders would become merged and extinguished. And a merger might also be effected, and the contingent remainders destroyed by the union of the particular estate and the next vested remainder hy conveyance to a third person (t) ; or by the descent of the freehold reversion upon the devisee of the particular estate unless he claimed by descent immediately from the testator (u). And contingent remainders might be effectively interposed between a particular estate and the inheritance limited to the same person by one conve} r ance (x). Whilst contingent remainders were liable to fail by such Preservation premature determination of the particular estate, it was the remainders- practice, where it was required to settle a particular estate for life trustees to with contingent remainders, (as is usual in family settlements of tingent re? n " land on parents for life with remainders to their future children,) maiuders - to limit an estate to trustees and their heirs by way of remainder upon the determination of the estate for life by forfeiture or otherwise in the lifetime of the tenant for life, such estate to continue during the life of the tenant for life (y). This estate of the trustees, being a vested remainder by reason of the possibility of the particular estate for life determining during the lifetime of the tenant for life, though uncertain as to ever coming into possession, was sufficient to support the contingent remainders (z). And it was declared to be held upon trust for the prior tenant for life and to preserve the contingent remainders ; therefore any alienation or dealing with the estate tending to the destruction Burnsall v. Davy, 1 Bos. & P. 215; 338. Doe v. Howell, 10 B. >S: ('. 191 : Doe v. (u) Plunket v. Holmes, T. Raym. 28; Gatacre, 6 Bing. N. C. 608. 1 Lev. 11. See nu. (1) and (J) to (y) Loyd v. Brooking, 1 Vent. 188; Parefoy v. Rogers, 2 Wins. Saund. Smith v. dyfford, 1 T. R. 738. See 769 774 ; Fearne, Cont. Rem. 341. Jerritt v. Weare, 3 Price, 575 ; Francis (x) Fearne, Cont. Rem. 345; Lewis v. Minton, L. R. 2 C. P. 543 ; 36 L. J. Bowles's Case, 11 Co. 7!> i ; Tu II C C. P. 201. Con\r. 86. (>•) Thompson v. Leach, 2 Balk. 427; Qy) See per Cur. Loyd v. Brooking 2 Vent. 198. 1 Vent, at p. 189. (*) Parefoy v. Rogers, 2 Wms. Saund. (z) Fearne, Cont. Rem. 217, 326; 768. Parkhurst v. Smith, Willes, 327. (0 Egerton v. Massey, 3 C. B. X. s. 240 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. of the remainders was a breach of trust for which the trustees were responsible, and which might also affect those claiming title through them (a). In the absence of an express trust for pre- serving contingent remainders, such a trust could not be implied,, even in a will, and the remainders were destructible without breach of trust (6). Statutes. The limitation to trustees to preserve contingent remainders- against destruction by the forfeiture, surrender, or merger of the particular estate, was rendered unnecessary by sect. 8 of the Ileal Property Act, 1845 (8 & l J Vict. c. 106), which enacts in sub- stance that a contingent remainder may take effect as if the preceding estate had not been determined by forfeiture, surrender or merger. And by the Contingent Eemainders Act, 1877 (40' & 41 Vict. c. 33), it is enacted that every contingent remainder created by any instrument coming into operation after August 2nd, 1877, in tenements or hereditaments of any tenure, " which, would have been valid as a springing or shifting use had it not had a sufficient estate of freehold to support it as a contingent remainder, shall, in the event of the particular estate determin- ing before the contingent remainder vests, be capable of taking effect in all respects as if the contingent remainder had originally been created as a springing or shifting use or executory devise- or other executory limitation." This statute was passed to over- ride the decision in Cunliffe v. Brancker (c), and obviously does- not affect the rule of law that where a contingency is limited k> depend upon an estate of freehold which is capable of supporting a remainder, it shall never be construed to be an executory devise (or springing or shifting use), but a contingent remainder only {d). It seems to follow accordingly that the restrictions placed upon the operation of executpry limitations by sect. 10 of the Conveyanc- ing Act, 1882 (45 & 46 A^ict. c. 39), would not apply to a con- tingent remainder saved from destruction by the earlier statute. It has been suggested that a limitation to trustees might still be necessary where a contingent remainder was limited to a person not ascertainable within the limits of time prescribed by the rule against perpetuities (e), but it has been held recently that a con- tingent remainder of the legal estate is void if obnoxious to that O) Fearne, Cont. Rem. 326 : Mmisell 40 L. J. C. 128. v. Mansell, 2 P. Wms. 678 ; Cas. t. Talb. (d) Purefoy v. Buffers, 2 Wins. 252 ; Biscoe v. Perkins, 1 V. & B. 485. Saund. 768, 781 ; Doe v. Howell, 10 See Basset v. ClapJiam, 1 P. Wms. B. & C. 191 : Cole v. Seicell, 4 Dr. & 358. War. 1 ; 2 H. L. C. 180 ; JIuwes v. (/,) Collier v. Walters, L. E. 17 Eq. Hawes, 1 ! Ch. D. 014. 252 ; 43 L. J. C. 216. (e) See post, p. 316. (c) Cunliffe v. Brancker, 3 Ch. D. 393 ; SECT. I. § 3. CONTINGENT REMAINDERS. 241 rule (/). It appears, therefore, that a limitation to trustees to preserve can in no circumstances serve any useful purpose at the present day. A copyhold surrendered to uses in the form of a particular Contingent estate with a contingent remainder was governed by a similar e< ,V. vVi'.'.'i'V-- 1 ^ rule to that of the common law, and the remainder must have vested before or at the determination of the particular estate. But a contingent remainder of copyhold was never liable to fail by the premature determination of the particular estate by for- feiture, surrender, or merger; because, the freehold remaining in the lord, the copyhold estate was not subject to the rules peculiar to the freehold which caused the failure of contingent remainders, and the lord was bound to admit to the tenancy according to the limitations of the surrender. Hence trustees to preserve contingent remainders were not required or employed in the settlement of copyholds, as they were in freeholds, to guard against the like dealings or casualties affecting the particular estate (7/). A contingent remainder of copyhold may also be destroyed by Destroyed by an enfranchisement, conveying the freehold to the tenant of the enfr anchise- J ° ment. particular estate ; for the consequence is to extinguish that estate and destroy the tenure (/i). If land be limited to a person for life with remainder to his Remainder to unborn child or children, the land is thereby rendered inalienable, unborn cbild - by reason of the uncertainty as to the owner, until a child is born in whom the remainder may vest, or until the life estate is determined without such child coming into existence ; and if the remainder were limited to such child for life, it would, on becoming vested, support a contingent remainder to the child of such child, which would be inalienable until such latter child came into existence ; and thus by a series of contingent remainders for life estates to children of successive generations the land might be settled inalienably for an indefinite period, if no rule of law intervened to prevent it (i). (/) ReAs7iforth, [1905] 1 Ch. 535 ; common law ; but if limited to a certain 74 L. .1. ( '. :>til ; Whitby v. Von Lue- owner they might be released: Cliud- declie, [1906] 1 Ch. 783 ; 75 L. J. C. 359. leigh's Case, 1 Co. 120 a; Co. Lit. (g) Fearne, Cont. linn. 319, 320 ; 265 a, n. (1) ; or devised by will : Jones Pickersgill \. Grey, :V) Beav. 352. v. Roe, :; T. K. 88 ; and were assignable (//) Roe v. Briggs, Hi East, 106. See in equity: Crofts v. Middleton, 8 De G. Ex p. School It, I. /or London, 11 Ch. 1). .M. & G. 192. They were also alienable 547 ; "jS L. .1. C. ,.".!'. by way of estoppel, that is by a tine or (i) All contingent remainders were deed dealing with such interest as if inalienable by direct conveyance at vested, which the owner upon the L.P.L. R 242 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Remainder to child of unborn child. Remainder to unborn child for life. Strict settle- ment. Cy pres doctrine of construction of wills. A remainder may be limited within the limits of the rule against perpetuities to an unborn child of a living person, who must come into being during the continuance of the particular estate, but a further remainder limited by way of purchase to a child or more remote issue of such child is void (A). The remainder to the unborn child of a living person may be limited for life or other particular estate ; and the further remainder may be limited over subject to the restriction of the above rule (/). Hence it appears that the only mode of providing in a settle- ment of land for ren oter issue than unborn children is by including them in the estate limited to their parents, that is, by limiting remainders to the unborn children in tail, under which their issue will take, if not barred by a disentailing deed of their ancestor. This form of settlement, namely, to a person for life with remainder to his children successively in tail, is commonly known as a " strict settlement " (m). The remainder in tail may remain in contingency until the death of the tenant for life, arid in the case of a posthumous child, during the further period of gestation. If the tenant in tail be an infant at the death of the tenant for life, he will not have power to bar his issue until he has attained full age, and the land may thus be inalienable for a further period of twenty-one years. Therefore the extreme time during which a settlement of land may remain effectual under common law limitations is during a life or lives in being at the time of the settlement and twenty-one years afterwards, with a possible extension during the gestation of a posthumous child (»)• Under the doctrine of cy pres, the court has been able to give effect to the rule of construction Verba intelliganda sunt at res magis valeat quam jiereat. Where a will devises freehold lands in terms to the unborn child of a person for life, with remainder to the children or issue of such child, in terms which manifest a general intention that the land shall be descendible to the children and remoter issue in succession, it will be construed to give an estate tail, or an estate tail male, in furtherance of the remainder becoming vested was estopped from contradicting : Doe v. Oliver, 10 B. k. C. 181 ; 2 Smith, L. C. 724. Contingent remainders were made alien- able by deed by the statute 8 & 9 Vict. c. 106, s. 6. (Jt) He Front, 43 Ch. D. 246 : 59 L. J. C. 118 ; Whitby v. Mitchell, 44 Ch. D. 85; 59 L. J. C. 485; Re Ash- forth, [1905] 1 Ch. 535 : 74 L. J. C. 361 ; Whitby v. Von Luedecke, [1906] 1 Ch. 783 ; 75 L. J. C. 359. (1) Williams v. Teale, 6 Hare, 239 ; Re Dawson, 39 Ch. D. 155 ; Symes v. Symes, [1896] 1 Ch. 272; 65 L. J. C. 265. (in) See Douglas v. Congrere, 1 Beav. at p. 71 ; Fearne, Ex. Div. 502. («) See Butler's note to Fearne, Cont. Rem. 562 ; 2 I'rideaux Conv. 261 ; Davidson, Prec. Vol. III. Part I. SECT. I. § 3. CONTINGENT REMAINDERS. 243 general intention ; but the cy pres doctrine is not applied where the general intention appears of creating a succession of life estates to the issue of the unborn person in perpetuity, and not a descendible estate in such issue (o). — Words of distribution amongst the issue, as tenants in common, may be rejected in furtherance of the general intention of giving an estate tail(y/). It does not apply where the estate of the ancestor is limited Limits of for a term of years only, as for a term of ninety-nine years if SofSdo©- * he shall so long live (//) ; nor does it apply as to persons born trine - after the date of the will in the testator's lifetime, though as to others in the same class of unborn children, to whom and whose issue the devise is made, it may still apply (r);— nor does it apply where the remainder over is restricted to some only of the issue of the unborn tenant for life, as a first son onty exclusive of the rest, or is extended so as to include persons whom the testator did not contemplate as objects of his bounty (s). It does not apply to personal estate or chattels real < . / 1 : and it has never been applied to the construction of deeds («). The doctrine applies to appointments by will under powers; Applied to and under such appointments there is further occasion for by^n under applying the doctrine where the remainders are void, not on P ower s. the ground of perpetuity, but as being in excess of the power ('./•). The limitation of a contingent remainder for life or in tail, as contingent it conveys no estate, but only a possibility of an estate in a j-j'',',' 1 ."' 1 ' ' ',' future event, does not interfere with the limitation of a vested with vested estate of freehold in remainder ; and upon the contingent remainder becoming vested during the continuance of the particular estate, the vested remainder will be postponed in interest. As if land be limited to A. for life, with remainder to his first and other sons (persons unborn) successively in tail, with remainder to B., a person in esse, for life, with remainder over, under which gift B. takes a vested interest in remainder expectant upon A.'s life estate until the birth of a son to A., (V) Seaward v. Willock, 5 Kast, 198 ; (s) Monypenny v. Dering, 16 .M.vV W. Forsbrooli v. ForsbrooJt, L. R. 3 Ch. 93 ; U8 ; 2 De G. M. & G. 1 15 ; 22 I.. J. C. Be Richardson, [1904] 1 Ch. 332; 7:; 313; Ee Mortimer, [1905] 2 Ch. 502; L. J. C. \~>'l : Hampton v. Holman, 5 7! L. J. ('. 745. Ch. D.1S3; 46 L, .1. C. 248. (/) Routledge v. Dorril, 2 Ves. jmi. Q>) Pitt v. Jackson, 2 Bro. C. C. 51 : 357. Vanderplarikv.. 7w //;/.:> I Tare, 1 ; Parfitt (//) Brudetiell v. Elives, I East, 142; v. Hember, L. It. 1 Eq. I IM. 7 \ es. 390. (//) Somerville v.. Lethbridge, 6 T. R. (./•) Sugden on Powers, 198; Be 213; Beard v. Westcett, 5 Taunt. 393 ; Rising, [1904] 1 Ch. 533; 73 I.. .1. C. 5 B. >S: Aid. 801. 455. See post, p. 302. {>) V(t?ulcrpItiH.h 5r. K'ung, 3 Hare. 1. remainder. i; 2 244 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. ('mil indent remainder in fee. Contingent remainder in fee with vested re- mainder. whereupon it becomes expectant upon the intervening estate tail (//). Where there is a contingent limitation in fee absolute, no estate limited afterwards can be vested ; but two or more several contingent remainders in fee may be limited as substitutes or alternatives one for the other, so that one only take effect, and each subsequent limitation be substituted for a former if it should fail of effect (z) ; and the inheritance in the meantime, if not otherwise disposed of, remains in the grantor and his heirs, or in the heirs of the testator until the contingency happens to take it out of them (a). Upon a devise of a contingent remainder in fee, the fee subject to the contingency will pass as a vested remainder under the will by a specific or residuary devise (b). Limitations united subject to intervening remainder. Several con- tingent re- mainders. Contingency affecting sub sequent limitations. "Where the particular estate and ultimate remainder are limited at the same time to the same person, though they may become united by the doctrine of merger or under the rule in Shelley's Case for most purposes, they do not exclude intervening con- tingent remainders from taking effect upon the happening of the contingency during the particular estate ; — as if land be limited to A. for life, with remainder to the first and other sons of A. successively in tail, with remainder to A. in fee, the limitations unite in A. until the birth of his first son, when the contingent remainder becomes vested and divides them (c). So, if there be several contingent remainders, a subsequent one may become vested before a preceding one, but subject to giving place on the preceding one becoming vested during the particular estate which supports it (d). When a contingent remainder is followed by other limitations a question of construction may arise, whether the contingency affects the first estate only or extends to the subsequent limitations (e). (//) Chudleigli's Case, 1 Co. 120 a; Lewis v. Waters, (> East. 336 : Driver v. Frank, 3 M. & S. 25 ; 8 Taunt, 4(iS. See White v. Summer*, [1908] 2 Oh. 256. (z) Loddington v. Kimr, 1 Salk. 224 ; 1 L. Raym. 203 ; Doe v. Elvey, 4 East, 313 ; Doe v. Ford. 2 Ell. & B. 970 ; 23 L. J. Q. B. 53 ; Perceval v. Perceval, L. R. 9 Eq. 386. See the other cases cited Fearne, < !ont. Rem. 225, 373. And see lie Bowles, [1905] 1 Ch. 371 ; Sanders, Uses, 149. («) Fearne, Cont. Rem. 351, and cases there noted : Purefoy v. lingers, 2 Wm& Saund. 768, and notes. (//) Egerton v. Massey, 3 C. 1!. X. S. 338 ; 27' L. J. C. P. 10. (/■) Lewis Bowies' Case, 11 Co. 79 h ; Tad. L. C. Conv. 86. And see ante, pp. 238, 239. (7/) Uvedale v. Uvedale, ? Roll. Ab. 119. See Garth v. Cotton, 1 Dick. 183 : 2 Wh. & T. L. C. 970. (O Doe v. Ford, 2 Ell. & P». 970 ; 23 L. J. Q. B. 53. See Fearne, Cont. Rem. 233. SECT. I. § 3. CONTINGENT REMAINDERS. 245 The inconveniences which would follow from the adoption of a Construe! contrary rule have induced judges to adopt, as an established rule, that all estates are to be treated as vested, unless this con- contingent. struction would do violence to the language used (/).— Words of JJjjjJ^ ''""" futurity or contingency are prima facie referred to the com- referred to mencement or duration of the estate in respect of possession, J^hlxtbaii and not to the vesting ; as in the simple case of a limitation vesting, to A. for life and "from and after his decease" to B., the estate -of B. is not contingent upon B. surviving A., but is an imme- diately vested remainder (g). So, in the case of limitations expressed to be in default of, or Limitations for want of, or upon failure of, the objects of prior limitations, ^j /",■',,'.' such expressions are prima facie referred to the determination want, etc., of , • ob iccls of or failure of the prior estates limited and not to the failure of prior limita- the objects to whom they are limited, and are commonly tlon - employed merely to carry on the series of limitations in the sense of the word remainder ; — for example, if land be limited to A. for life, and after his decease to the first and other sons of A. for life or in tail, and in default o/'such sons or on failure of such issue to B., the estate of B. is not contingent upon A. not having a son or issue, but is a vested remainder expectant on the determination of the prior estates, by the death of the sons or failure of issue (h). — If in such case the remainder be limited in default of sons or failure of issue in the lifetime of A. or of B. or other definite period, it is then contingent upon such events happening and the consequent determination of the prior estate within the prescribed period (i). A strong example of this principle of construction occurs Devise to where a testator devises to his widow an estate for life, with a man .} age W jt a devise over if she shall mam/ again ; the devise over is construed devise oyer J . . upon mar- to give a vested remainder expectant upon the determination of riage. the widow's estate, whether by marriage or death, and not a remainder contingent only upon her re-marriage, unless the context shows that it was the testator's intention that the gift should be contingent upon the happening of one or other event (k). (/) Hawes v. Hawes, 14 Ch. D. 614. II. L. 121 ; Dawson v. Small, L. R. 9 See Best, C. J., Bu field v. Bujfield, 3 Ch. 651. Sa Fearne, Cont. Rem. 420 j Bli. N. S. ;it p. 331 ; 1 Dow. & CI. at ante, pp. 245 el s< /. p.. "511 ; Stuart, V.-C, Browne v. Browne, (Jt) Sheffield v. Orrery (Lord), 3 Atk. 3 Sin. & (i. at p. 58S. 282 ; Underhill v. Koden, 2 Ch. D. 194 ; (g) Doe v. Ewart,! A. & E. G3G ; 7 Scarborough v. Scarborough, 58 !.. T. L.J.Q.B.177. 851; Be Cane, 60 I.. J. C. 36; Be (h) Notes to Bordston's Case, 3 Co. Tmhc-U. [1891] 2 Ch. 640; 60 L. J. C. 19 a ; Tud. L. C. Couv. 427. 657. See Re Akeroyd's Settlement, [1893] (/) Colts ma/m v. Colts numn, L. 11. 3 3 Ch. 3(33; 63 L. J. C. 32. 246 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Remainder construe I to vest as soon as possible. Remainder to a class vests in all ascer- tained at de- termination of particular estate. Remainder to children who shall attain 21. Upon the same principle a remainder is construed to vest as soon as possible ; and if once vested cannot be divested under the same limitation so as to admit of another person in substitu- tion of the person in whom it has vested (I). Thus, a devise to A. for life, with remainder to his second and other sons succes- sively in tail (excepting the first or eldest son), A. then having no sons, was held not to give a contingent remainder to such person as should be the second son of A. at his death, but to the second son born, living an elder, who took on his birth an immediately vested and indefeasible remainder (m). — So, an ultimate remainder in a will to the testator's heir is construed as vesting at the death of the testator, and not as contingent to the person answering the description of heir at the determination of the particular estates (n). A modification of the above principle of construction occurs with a remainder limited to a class of persons, as children, grandchildren, issue, brothers and sisters, cousins and the like, which, though vested, as soon as an object of the limitation can be ascertained, in that object, admits of participation by other objects who become ascertained before or at the determination of the particular estate. Thus, if land be limited by settlement or will to A. for life, with remainder to his children, or to the children of B., the remainder is vested in all the children in existence when the instrument takes effect, or it becomes vested as soon as any come into existence ; but it is subject to divesting jpro tanto in favour of other children as they come into existence until the death of A., when the estate comes into possession, and no after born children can participate (o). If land be limited to A. for life, with remainder to such of the children of A. as shall attain twenty-one, the remainder is con- tingent upon children attaining twenty-one in the life of A. and vests in such children only {p). — In some cases the construction of the contingency as to age may be such as to render the estates of the children defeasible only if they do not attain the age (q). {I) Driver v. Fran!;. 3 M. cV S. 25 ; 8 Taunt. 4(j 4 ; Winter v. Perratt, 9 CI. & F. 606. O) Driver v. Frank, 3 M. & S. 25 ; 8 Taunt. 468 ; and see a like construc- tion in Adams v. Bush, 6 Bing. N. C. 164. («) Doe v. Maxey, 12 East. 589 ; Wriglitson v. Macaulay, 14 M. .*c W. 214 ; 15 L. J. Ex. 121. See ante, p. 124. (o) Sussex (Earl) v. Temple, 1 Ld. Raym. 311 ; Oates v. Jackson, 2 Stra. 1172 : Doe v. Perryn, 3 T. R. 484 : Doe v. Martin, 4 T. R. 39 : Mogg v. 3/ogg, 1 Mer. 654. See Ee Mervin, [1891] 3 Ch. 197; 60 L.J. C. 671. O) Festing v. Alien. 12 M. & W. 279 ; 13 L. J. Ex.'74 ; 5 Hare, 573; Holme* v. Presoott, 33 L. J. C. 264 ; Perceval v. Perceval, L. R. 9 Eq. 386 : Astley v. Mi eld 'eth wait, 15 Ch. D. 59 ; 49 L. J. C. 672. (?) Doe v. Mi well. 1 M. & S. 327. See Pearls v. Moseley, 5 App. Cas. 714 ; 50 L. J. C. 57. SECT. I. S 4. THE RULE IX SHELLEY'S CASE. 247 § 4. The Rule in Shelley's Cask. The Rule stated — application of the rule — where the remainders are contingent. Remainder to heir as purchaser — remainder to heir with additional words (if limitation. Estate of freehold in ancestor — estate pur autre vie — estate determinable by conditional limitation — estate for years. Limitations in separate instruments. Limitations of estate pur autre vie — of term of years — lease for life with remainder to executors for term of years. Limitations in the form of remainders to the heirs, or to the The rule in . . Sltelley g Case heirs of the body, or in other terms designating persons taking in stated, a course of descent, which taken alone would create a contingent remainder in the person answering to such designation, are modified in effect by the special rule of law known as the Rule in Shelley's Case. This rule, in its simplest form, has been already referred to ; it may be stated in more general terms as follows : — If an estate of freehold be limited to a person (a), and by the same deed or instru- ment an estate be limited in the form of a remainder, whether immediately expectant on the former estate or after other estates interposed, to "the heirs" or to "the heirs of the body" of the same person, the words " heirs " or " heirs of the body " are words of limitation of an estate of inheritance in the ancestor, and the heirs can take only by descent and not as purchasers (&). In the attempts to trace the origin of this rule, now entirely a matter of conjecture, it does not appear to have occurred to anyone that the explanation is to be found in this, that originally, as is now the case under the Inheritance Act, 1833 (3 & 4 Will. H . c. 106), descent was traced from a purchaser (c). Under this system the word "heir" must have represented a person claiming under another in a chain of descent, and not one who, by becoming the person last seised, himself represented a designated person from whom title was to be traced. Accordingly a grant to a man and his heirs could only mean an estate vested in him and those persons who could claim by descent from him. That the law attached the quality of alienability to this estate could no more govern the legal effect of these words, than that the (a) Pibus v. Mitford, 1 Vent. 372. Foxwell, [1897] A. C. 658. As to the Seepost, p. 254. aDplication of the rule to Uses, (&) S/telleifs Case, 1 Co. 93 b ; Tud. p. 252, and to Wills, see post, p. 2 - L. C. Couv. 332; Van Qrutten v. (r) Bee ante, pp. 23, i:'>. H. 248 PART II. CHAT. II. THE LIMITATION OF FUTURE ESTATES. Application of rule. Where there are inter- mediate re- mainders. Intermediate coutingent remainders. Contingent remainder to heirs. inheritance was not partible among his immediate descendants except in the case of gavelkind lands. It is doubtless because the court was dealing with the legal effect of the words— pro- bably this is all that is meant by the expression " rule in law " — that words attempting to qualify the result were generally rejected, although it must be admitted that the decisions are not uniform (d). Thus, limitations in the form, to A. for life and after his decease to his heirs, or with remainder to his heirs, are equiva- lent to the limitation to A. and to his heirs, which denotes a fee simple in A. ; — so a limitation to A. for life and after his decease to the heirs of his body, is equivalent to the limitation to A. and to the heirs of his body, and denotes an estate tail (<■ Grey v. Ricftardson, :> Atk. Fetherstonv. Fetherston,Z CI. & F. 67 ; 469; Co. Lit. 200 l> ; Butler's note (1) Doe v. Goldsmith, 7 launt. 209. And to Co. Lit. 330 J. see other instances given in Tud. L. C. (/>) Else v. Osbom, I P. Wms. ."'-7: Conv., notes to Shelley's Case, 1 Co. 93 b. Coape v. Arnold, I De G. M. & G. 574. (It) Shelley's Case, 1 Co. 93 b ; Tud. (>/) Feani ■. Cont. Rem. 281. See L. O. Conv. 332; Good right v. Wriglvt, Loijd v. Brooking, 1 Vent. 188. 1 P. Wins. 31)7. 250 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. the heirs of B., afterwards granted his estate to B., who thereby became tenant for the life of A. with remainder to his own heirs, and it was held that the remainder did not unite with the free- hold of B., but remained to his heir in contingency (r). So where a father, seised in fee, settled the land on his son for life, retaining the reversion in himself, and afterwards by his will, reciting that he had settled the estate on his son for life, devised the same after the son's death to the heirs of his body; it was held that the estate for life being by one instrument and the limitation to the heirs by another could not unite, and the latter took effect as an executory devise to the heir (s). — A will and a codicil or schedule to it are considered as one instrument within the rule (0 . An apparent exception to the rule requiring the limitations to be in the same deed or instrument occurs where uses appointed under powers may be taken as if inserted in the instrument creating the power (»). Rule not The rule only applies to the limitations of estates of inherit- apphedto ance . In limiting estates pur autre vie the words "heirs," or limitations or & 1 estate pur "heirs of the bod}'," must be construed according to the nature of the estate, and become merely a designation of the person to take as special occupant in case of a vacancy on the death of the grantee before the determination of the estate (x). Limitations of If a term of years be limited, by way of trust or executory term of years. De q Uest? to A. for life with remainder to his heirs or to the heirs of his body, these words are, in general, taken as analogous to words of limitation and not as words of purchase, and vest the whole term in A. ; for words which would create an estate tail in freeholds confer an absolute interest in personal estate (y). — So, if the limitation be to A. for life and after his death to his issue, A. takes the absolute interest (~~). To heirs, etc., But if the limitation over be made to heirs or issue of a as purchasers. res t r i c ted or particular kind or designation, or for particular (/•) Anon., cited 1 Ld. Raym. 37. Barber's Settled Estates, IS Ch. D. (124. (,v) Doe v Fonnereau.Bongl.487. And see Fearne, Cont. Rem. 495. (!) Hayes v. Foorde, 2 W. Bl. 698. (//) Webb v. Webb, 1 P. Wms. 132; >,,; Re Eraser, [ 1 90-i J 1 Ch. 720; 73 Ware v. Polhill, 11 Ves. 257; Mur- L. J. C. 481 : Dovglas-Menzles v. thwaite v. JenMnson, 2 B. & C. 357 ; Umplielby , [1908] A. C. 224; 77 L.J. Verulam [Em-l) v. BatJiurst, 13 Sim. p. c. 64 374 : Williams v. Lewis, 6 H. L. C. (u) Venables v. Morris, 7 T. R. 342, 1013 ; MaHelli v. Holloway, L. R. 5 438 : Fearne, Cont. Rem. 74 ; Sugden, H. L. 532. Powers. 4 71. (-) Chandless v. Price, 3 Ves. 99. (./■) Blake v. Luxton, <-. Coop. 178; See Ward v. Bevil, 1 Y. & J. 512; Allen v. Allen, 2 Dr. & War. 307. See Exp. Wyneh, ~> De G. M. & G. 188. Williams v. JeJtyl, 2 Ves. sen. G81 ; Be SECT. I. § 4. THE RULE IN SHELLEY'S CASE. 251 estates inconsistent with the import of such words as words of limitation, or if there be other sufficiently marked intention that they should take as purchasers, the rule will not applv ; and the limitation to the heirs or heirs of the body can operate only by way of a future trust or executory bequest of the term to them as purchasers ((f). By analogy to the rule in Shelley's case, " If a man make a Lease for life ,.„ , . -ill- r i - "with remain- lease for lite to one, the remainder to his executors tor twenty- der t0 cxecu _ one years, the term for years shall vest in him ; for even as tors for term . of years. ancestor and heir are coirelativa as to inheritance, (as if an estate for life be made to A. the remainder to B. in tail, the remainder to the right heirs of A., the fee vesteth in A. as it had been limited to him and his heirs), even so are the testators and the executors correlativa as to any chattel. And therefore if a lease for life be made to the testator, the remainder to his executors for years, the chattel shall vest in the lessee himself, as well as if it had been limited to him and his executors " (b). Where the beneficial interest in personal estate is limited to Gift by way one for life, and after his death to his " executors and adminis- |' n V. "xwutl ,U trators " (c) ; or if chattels real be limited to one for life followed and adminis- ...... i-ii >> / trators," by a limitation to his "legal personal representatives (4 b -. but see Cranmer's Sm. 216 ; 17 1.. .1. C. 167. Case, :; Leon. 20 ; Dy< r, 309 a, where a [e -1/;/. r v. Parrott, L. R. 3 Eq. 328 ; distinction was made as to limitations !><■ Best's Settlement, I.. 11. 18 Eq. 6s6 : in the above form by way of use, and it 4:> L. .1. C. 545., See Smith v. Barneby, was held that the executor (if any) took 2 Coll. 728. by purchase. The old 'case- upon the (/) Price v. Strange, 2; Sugden, Powers, 26. Springing v. Whittingham, I Taunt. 20. See or shifting uses, which are Left to future Sanders, Uses. \\2. appointment, are known as Powers, and (/,■) Davies v. Speed, Salk. 675 ; Sai are treated hereafter in a separate Uses. 142. 144. section; see post, p. 269, i Sanders, Uses, 142. See ante, (;/) Bacon, Uses, 63; Howe's note (•), p. 91. 254 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. On marriage. On failure of issue. On succeeding to other estates, etc. Resulting use until spring- ing use takes effect. uses limited to B. are good shifting uses, which arise and vest in defeasance of and substitution for the estate previously vested in A. (m). A common example of shifting uses occurs in marriage settle- ments, where the uses are declared to the settlor and his heirs until the marriage, and from and after the marriage to the uses of the settlement (n). Where the uses are declared to A. and his heirs, and in case of failure of his issue at his death, or if he should die without issue in the lifetime of B., or upon failure of his issue within any other definite period (not being too remote), then to other uses, the uses over are good shifting uses defeating the fee previously limited to A. But a limitation over upon the failure of issue of A. indefinitely would be void for remoteness, unless the limita- tion over could take effect as a remainder after the estate tail of A. (o). Where estates are limited in a settlement with a direction that in certain specified events, they shall cease and go over to the use of other persons ; as if the tenant in possession under the settlement shall become entitled or succeed to some other settled estate, or title (j } ) > — or ^ ne shall refuse or neglect to take the name and arms of the settlor (q) ;— or if he shall refuse or neglect to reside upon the estate (r) ; — the limitations over in all such cases operate by way of shifting uses (s). Where a future use is limited as a springing use without any preceding limitation of the use, whether in a conveyance operating with or without transmutation of possession, then until the springing use takes effect, the use results to or remains in the grantor for an estate commensurate with his original estate, and not for a particular estate only. The springing use thus operates upon the resulting use in the same manner as a shifting use does upon the preceding limitation, and does not operate by way of remainder (t). And accordingly, where a man seised in fee by (w) Sanders, Uses, 149 ; Fearne, Cont. Rem. 274. («) Hayes Conv. 55, n. (47) ; David- son. Conv. Vol. III., Part I., p. 271. See Chapman v. Bradley, 4 DeG. J. & S. 71. (,<) Fitzgerald v. Leslie, 3 Bio. P. C. 154 ; JDansey v. Dansey, 4 M. & S. 01 ; Morgan v. Morgan, L. R. 10 Eq. 99. See 'post. Sect. V. " Rule against Per- petuities," p. 31 G. (p) Cope v. Delawarr [Earl), L. R. 8 Ch. 982 ; 42 L. J. C. 370 ; Meyricli v. Mathias, L. R. 9 Ch. 237 ; 43 L. J. C. 521 ; Law Union and Crown Insce. v. Hill, [1902] A. C. 263 ; 71 L. J. C. 602. (q) Doc v. Yates, 5 B. & Aid. 544 ; Be Greenwood, [1903] 1 Ch. 749 ; Fearne, Cont. Rem. 254, n. (e). (/•) See Johnson v. Foulds, L. R. 5 Eq. 268 ; 37 L. J. C. 260. (.s-) As t" provisoes for cesser in such cases, see ante, p. 163. (7) 1 Hayes Conv. App. II. on the statute of Uses, 2, 465 ; Rowe's note (137) to Bacon, Uses, p. 63 ; 1 Sanders, Uses, 143 ; Sugden's note to Gilbert, Uses, 161 ; Sugden, Powers, 32. See ante, p. 83. SECT. II. FUTURE USES. 255 deed limits the use to the heirs of his body, without any express Limitation of preceding limitation, that does not create a springing use, but ^ h ? use *° tlie gives the grantor a vested estate in tail (u). This decision lias body of the sometimes been regarded as anomalous, but indeed it is a logical application of the foregoing rule, that the estate which results to the grantor is not a particular estate. For admitting that the words " heir of the body " primarily describe a person claiming under another in the chain of descent, and not by purchase (r), we have a limitation to a person who answers that description under the resulting use in fee simple to the grantor ; consequently the words are in this event redundant and inoperative. Upon a conveyance in fee to the use of the heirs of the body of Limitation of A. and for want of such issue to the heirs of A., it was held that heireof the* 6 no such limitation of the use for life could be implied in favour body of A. of A., not being the grantor; that the limitation of the use to the heirs of the body of A. being limited in presenti and not after the death of A. was void ; and that the ultimate limitation of the use to arise after the indefinite failure of issue was void as being too remote (//). Where a future use is limited after a preceding limitation of Limitation of the use, if the future limitation may take effect as a remainder, hl '"" "T •' ' cousi rued as it is to be so taken, and becomes subject, as a remainder, to the a remainder if rules of the common law ; and though in the event it fail as a pos remainder, it cannot be supported as a springing use (z). Thus where a settlement was made to the use of A. for life with remainder to the use of the children living at the death of the survivor of A. and B., it was held that as, if A. survived, the children would have taken by way of remainder, the limitation must be construed as a remainder and not as a springing use, and therefore, as B. in fact survived, the limitation, being still in contingency when the particular estate determined by the death of A., failed altogether {a). (>/) Plhm v. Mitford, 1 Vent. 372 ; 77 L. J. C. 506. Wills v. Palmer, 5 Burr. 2615. And see (a) Hole v. Escott, 2 Keen, 111:1 1 Sanders, Uses, 143. . M. & Cr. 187 ; the marginal note in the (.'•) See ante, p. 247. latter report does not state the limi- (//) Davies v. Speed, Show. P. C. 101 ; tations correctly. Ami see GoodtUlev. 2 Salk. 675; 12 Mod. 38. The reports Billington,T>ovig].7o'5,75$ ; Carwardine of this case are at variance and full of v. Carwardine, 1 Eden, 27: b'earne, errors, consequently the above statement Cunt. Kern. 388. But in the case "f of the decision is rather conjectural. Hole v. Escott it was further decided See the remarks on this case in Sugden's that a power of appointing uses, after a (iilhert, Uses, 102 ; Sugden, Powers, 33 ; use limited fora particular estate, might 1 Sanders, Uses, 144 ; Howe's note (130) be well executed after the determination to Bacon on Uses. And see post, p. 31(1, of the particular estate, and the uses " Pule against Perpetuities/' would take effect as springing uses from (:) JETawes v. Hawes, 14 Ch. D. (114; the time of appointment, see post, White v. Summers, [11)08] 2 Ch. 256; " Powers," p. 270. 256 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Limitation for life of grantor im- plied from limitations of the use at his death. Future use which cannot take effect as remainder. Upon this principle where lands were conveyed in fee to the use of the grantor for a term of years, if he should so long live, with remainder to the heirs of his body, the limitation to the heirs of his body was held void, as being a contingent remainder to the person answering that description, without an estate of freehold to support it (b) ; for the express limitation of the use to the grantor for a term of years excluded the implication of an estate to him for his life. But where upon a conveyance in fee the uses were limited to A. for a term of years, if the grantor should so long live, and after the death of the grantor to the use of others for freehold estates, it was held that the grantor had an estate for life by implication, in order to support the future limitations of the freehold as remainders, there being nothing in the express limitation of the term of years to another person to prevent such implication (c). So where the uses were limited to A. for life with remainder to the heirs of the body of the grantor, it was held that the grantor took a vested estate tail in remainder, by an implied limitation of the use to him for life after the determina- tion of A.'s life estate (d). If the future use, though following a particular estate, be not limited by way of remainder, nor could take effect in any event as a remainder, as if the use be limited to A. for life, and after his death and one year or one day to the use of his children or the children of B., it seems that such future limitation, though void at common law, might operate effectually as a springing or shifting use (e). Such limitations are good by way of executory devise (/). (h) Adams v. Savage, 2 L. Raym. 8.").") ; 2 Salk. 680. Rawley v. Holland, 22 Vin. Abr. 189. "In these cases it was solemnly decided that a use limited by way of remainder shall not be construed a springing use, although actually void in its creation if not so considered. Upon principle certainly it would seem that the limitations to the heirs of the body, in these cases, were good springing uses, unless indeed it be objected to them that they were limited per verba do preesenti." Sugden's note to Gilbert, Uses, 167 ; see ib. pp. 35, 176 ; Sugden, Powers, 36, 42 ; Rowe's note (130) to Bacon, Uses ; 1 Sanders, Uses, 147 And see ante, p. 236. (<:•) Penhdij v. Hwrell, 2 Vern. 370 2 Freeman, 23.">, 258; cited and ex plained in Sugden's note to Gilbert Uses, 169 ; Sugden, Powers, 37. (d) Wills v. Palmer, 5 Burr. 2615 2 W. Bl. 6S7, explained in Fearne, Cont Kem. 44. See ante, p. 254. (e) See ante, p. 230 ; 1 Spence Eq Jur. 482, adopting the opinion stated in Haves Convey. 120, 5th ed. (/) Fearne, Cont. Rem. 398 ; 1 Jarman, Wills, 823 ; post, p. 262. 257 Section III. Future Devises. Devises by way of remainder — application of the rule in Shelley's case. Executory devises. Executory devise not preceded by estate of freehold — examples— freehold subject to the executory devise passes to the heir or residuary devisee. Executory devise before determination of preceding estate — examples — effect in divesting preceding estate. Executory devise after determination of preceding estate. Alternative executory devises. Future devise construed as remainder, if possible — remainder or executory devise according to events at or after testator's death. Devise construed in favour of vesting — words of futurity referred to the possession rather than vesting — words of contingency referred to divesting rather than vesting — constructions restricting contingency — constructions extending contingency. Devise to children — to after-horn children — future devise to children — child en ventre so. mere — illegitimate children. Future esttites and interests in land taking effect under the Remainders and ex power of disposition by will are either by way of remainder as at common law or executory devise ; the latter having been defined as " a limitation by will of a future estate or interest in land, which cannot, consistently with the rules of law, take effect as a remainder " (a). As will hereafter appear, one and the same limitation may, according to the circumstances, operate as a contingent remainder or an executory devise (h). A devise by way of remainder is regulated by the rules of Devise of re- common law. Accordingly, the devise of a contingent remainder "^J must vest before or at the determination of the particular estate ; at common if it do not so vest, it fails altogether, and cannot afterwards be supported as an executory devise, unless saved by the Contingent Remainders Act, 1877, 40 & 41 Yict. c. 33 (c) — thus, where a devise was made to A. for life, with remainder to B. for a term of years if he should so long live, and after the deaths of A. and B. to the heirs of the body of B., it was held that the devise over to the heirs of the body of B., being a contingent remainder, failed by the death of A. before B., by which event the preceding freehold estate was determined before the remainder had become vested (d). — So, where the devise was to A. for life and after his (a) Jarman, Wills, 822 ; according to the power of disposition by will. Fearne, Ex. Dev. 386, "an executory ante,p. 50. devise is such a limitation of a future (ft) Seepost, p. 263. estate or interest in lands, as the law (c) Wltite v. Summers, [1908] 2 Ch. admits in the case of a will, though 2.')ti ; 77 I.. J. I contrary to the rules of limitation in (,/) fioev. Morgan, :5 T. R. 763, conveyances at common law." As to ante, p. 236. L.P.L. S 258 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Application of the rule in Shelley's case. The rule does not apply to executory devises. The rule is not depen- dent upon intention of testator. death to the children of A. who should attain twenty-one, it was held that the devise to the children failed upon the death of A., leaving a child who did not attain that age until afterwards {<•) ; and that a devise over if there should he no such child, being also a contingent remainder, failed under the same circumstances (/). The rule in Shelley's case applies to limitations of remainders to heirs, or heirs of the body (or similar expressions), of a person to whom an estate of freehold is devised, in the same manner as if the limitations were contained in a conveyance at common law ; and for this purpose a will and a subsequent codicil are regarded as one instrument (#). Accordingly, where land was devised to A. for life, with remainder to his first and other sons successively in tail, with remainder to the heirs of A., and A. died in the lifetime of the testator, it was held that the devise of the ultimate remainder lapsed and his heir took nothing, the word heirs being used as a word of limitation and not of purchase (h). The rule has a wider scope in wills than in deeds, because in wills many words are capable of being used as equivalents of " heirs " or " heirs of the body," such as " issue," " children," and the like, to which, when so construed, the rule equally applies (i). Also in wills the limitation to the heirs of the body is sometimes implied, as on a devise to A. for life with a devise over upon failure of heirs of his body (/c). But the rule does not apply to executory devises which are limited to take effect in substitution or independently of the preceding estate, and not by way of remainder (/). The application of the rule in Shelley's case to wills is indepen- dent of any expressions of intention which do not enter into and affect the limitations upon which it operates. Intention rules and controls the separate limitations ; but it cannot prevent or reach the legal consequences resulting from the limitations used. Accordingly where the will is construed as intending an estate of freehold to the ancestor, with a subsequent devise to his heirs in succession according to the regular course of descent, whether general or special, the rule applies and the heirs take only by descent, for the devise to the heirs cannot otherwise take effect in (e) Holmes v. Prcscott, 33 L. J. C. 261. See White v. Summers, [1908] 2 Ch. 250 ; 77 L. J. C. 506. (/') Perceval v. Perceval, L. R. 9 Eq. 386. (g) Hayes v. Foorde, 2 W. Bl. 098. See Douglas Menzies v. Umphelby, [1908] A. C. 224 ; 77 L. J. P. C. 64. And see ante, p. 247. (h) Doe v. ('oh/ear, 11 East, 548; Goodright v. Wright, 1 P. Wms. 397 ; Hodgson v. Ambrose, Dougl. 336. (0 Doe v. Kucastle, 8 C. 13. 876. And see ante, pp. 137 etsea. (/.•) Sec ante, p. 135. (/) See post, p. 260 ; as is the case with shifting uses, ante, p. 253. SECT. in. FUTURE DEVISES. 259 the course intended. And where the grounds for the application of Expressions the rule thus exist, no expression of an intention to exclude the r,s,liiti ' 1 -" 1 "' rule can prevail. Expressions to the effect that the ancestor shall ancestor. take for life only, or for life and not otherwise, and the like, or express restrictions of his power of alienation, are immaterial as regards the application of the rule, and are inoperative to exclude it (m). If to a devise in remainder to the heirs there he added words Devise to the of limitation, as a devise to the heirs of the body and to the heirs toids™* of the body of such heirs, or to the heirs of the body and to their limitation. heirs, or to the heirs of the body in tail, the superadded words of limitation will be treated as superfluous, and, so far as they are inconsistent with the course of descent imported by the prior words, will generally be rejected as repugnant, and do not exclude the application of the rule (»). So if the devise to the heirs be accompanied with words of With words of distribution or other expressions inconsistent with an estate by distribufcion - descent, as a devise to the heirs or heirs of the body in equal shares, or as tenants in common, or in such shares as the ancestor shall appoint or the like, such expressions are rejected as repug- nant (o). But if it appear from the context of the will that in devising Devise to to the heir, or heirs of the body, the testator does not use those Sninge*. words in their technical meaning of a succession of persons in placed bj the regular course of descent, the rule has no application. Thus, it may appear from the will that they are used to mean children or sons only(^) ; — so a devise to the heirs of A., "as if she had continued sole and unmarried," excludes all the lineal issue (q) ; — in such cases the conditions of the rule do not exist, and the persons designated by the word "heirs" take as devisees. If the devise over be to the " heir " or " heir of the body " in Devise to the singular number with words of limitation superadded ;— as to ^ords of"' the heir and to the heirs of such heir (r), — to the heir male and limitation, to the heirs of such heir male (s), — to the heir male and to the heirs male of the body of such heir male (t), — to the heir for (m) See Coulson v. Cbulson, 2 Atk. (0) See ante, p. 136, and the 245 : 2 Stra. 1125 ; per Cockburn, C. J., there cited. Jordan v. Adams, 9 0. B. N. S. at (p) Jordan v. Adams, 9 C. B.N. S. p. 197; per Ld. Macnaghten, Van 483 ; see ante, pp. 136, 137. Ghmtten v. Foxwell, [1897] A. C. at (q) Brookman v. Smith, L. B. 7 Ex, p. 667 ; Fearne, Cont. Rem. 188—199. 271 : 41 L. J. Ex. 114. And see ante, pp. 247, 248. (?•) Clark v. Bui/, Moor, 593. (w) Roe v. Bedford, 4 M. & S. 362 ; 0) Willis v. Hiscox, I M.& Cr. 197 ; Douglas v. Congreve, 1 BeaV. 59; 4 C/iamberlayne v. Chamberlay/ie, 6 K & Bing. N. C. 1. And see pp. 135, 247, 13. 625 ; 25 L.J. Q. B. 187, 357. and the cases there cited. (/) Archer's Cane, 1 Co. 66. s 2 200 PART n. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Executory de- vise. Executory de- vise not pre- ceded by estate of free- hold. Executory de- vise subject to term of years. Freehold sub- ject to execu- tory devise passes to heir or residuary devisee. life (k) ; — in all these cases the word heir becomes a word of purchase and the rule does not apply. An executory devise being the limitation by will of a future estate or interest in land, which cannot take effect as a remainder, it follows that " every devise of a future interest, which is notpre- ceded by an estate of freehold created by the same will, or which, being so preceded, is limited to take effect before or after and not at the expiration of such prior estate of freehold is an executory devise "(.r). Examples of executory devises not preceded by an estate of freehold occur ;— in a devise to A. to take effect six months after the death of the testator, or after the death of any other person living at the testator's death, — or a devise to A. when he shall attain the age of twenty-one years, such devises, though limiting a freehold to commence in futuro, are valid (y). The above devises are executory or future by the express terms of limitation ; but a devise may also be executory from the devisee not being ascertained, — as a devise to the children of A., A. having no child at the death of the testator, — or a devise to the heirs or heirs of the body of A. after the death of A. (z). The devise of a preceding estate not of freehold has no effect upon the construction or operation of an executory devise, which takes effect according to the terms of limitation, subject only to the term, if it be then existing. As a devise to A. for a term of years, if he shall so long live, and after his death to the heirs of the body of A. ; the limitation to the heirs, which would be void at common law as a contingent limitation without a vested free- hold estate to support it, is valid as an executory devise (a). Where there is an executory devise without any preceding disposition of the freehold, the inheritance descends to the heir, who will take the intermediate rents and profits until the executory devise takes effect if undisposed of (b) ; or it will pass under a residuary devise (c). Where, however, real and personal estate is given together, the person entitled under an executory gift («) White \. Collin*, Com. 289. (./■) 1 Jarman, Wills, 822 ; see ante, p. 257. '' Where a future interest with- out a preceding estate, or a contingent interest unsupported by any preceding freehold, or any estate after a preceding vested fee simple, is limited by devise ; such limitation, as it cannot be good as a remainder, may take effect as an executory devise." Fearne, Ex. Dev. 395. (//) See ante, p. 50 : Fearne, Ex. Dev. 395 : 1 Jarman, Wills. 823 ; Doe v. Button, 3 B. & P. 643. (z) See ante, p. 235; Jarman. Wills, supra ; Rogers \. Gibson, 1 Ves. sen. 485. {a) See ante, p. 23G ; 1 Jarman. Wills. 823 ; Gore v. Gore, 2 P. Wins. 28 : Harris v. Barnes, 4 Burr. 2157 ; 1 Bl. 643. The like limitation of a springing use is void, see ante, p. 255. (&) Hopkins v. Bopkins, Cas. t. Talb. 44 ; Doe v. Button, 3 B. & P. 643 ; Doe v. Timing, 1 B. & Aid. 530. (r) Stephens v. Stephens, < las. t. Talb. 228 ; Wealthy v. Bosville, ('as. t. Talb. 258 ; Eogers v. Gibson, 1 Ves. sen. 485. SECT. III. FUTURE DEVISES. 201 takes the intermediate rents and profits of the real estate upon becoming entitled in possession (d). Examples of executory devises preceded by a devise of the freehold, but taking effect before the expiration of the preceding ■estate and therefore divesting that estate, occur : — upon a devise to A. and his heirs, with a devise over if he die under twenty- one 0), — upon a devise to A. and his heirs, with a devise over if he die under twenty-one, or any other age, and without issue ; or with a devise over upon death under a given age, or without issue, in which case the word " or " is construed to mean " and " (/), — or upon a devise to A. and his heirs, with a devise over if he die without issue living at his death, or if his issue fail within any other definite time, not being too remote (//). So upon a devise to A. for life, or in tail, with a clause or proviso that in case A. shall become entitled to a certain other settled estate (//), — or in case A. shall neglect to take the name and arms of the testator (i), — or in case he shall neglect to reside upon the land, or the like, the estate shall go over to B.(k),~ the estate then shifts upon the event specified by executory devise. The devises over in the above cases are good executory devises, though limitations thus operating to defeat and shift the pre- ceding freehold are void in conveyances at common law (/)• The only difference between these executory devises and those before mentioned as not preceded by an estate of freehold, is " that in one case the property shifts, on the happening of the contingency, from the prior devisee, and in the other, from the heir of the testator, to the devisee of the executory interest " (m). The preceding estate is divested by the executory devise only to the extent of the estate thereby limited. Thus, if a devise be (//) Genery v. Fitzgerald, Jac. 468 ; Acker* v. Phipps, 3 01. & P. 665 : Re Burton's Will, [1892] 2 Ch. 38 ; Gl L. J. C. 702. («) Stephens v. StepJtens, Cas. t. Talb. 228. As to a devise to A. and his heirs, with a devise over " if he die." see post, p. 266. (/") Right v. Day, 16 East, 07; Fairfield v. Morgan, 2 Bos. & P. X. R. 38 ; Grey v. Pearson, i! 11. L. C. 61 ; 26 L. J. C. 473. And see Mortimer v. Hartley, 6 Ex. 17 ; S. C.3 De G. & Bm. 316. (//> Porter v. Bradley, 3 T. R. 113; Doc v. Webber, 1 B. .V: A. 713 ; Doe v. Frost, 3 B. >S: A. 546. See Doe v. Spratt, 5 B. & Ad. 731 ; and see jwst, p. 321. Executory de- resting ding estate. Devise over upon death under 21, and without issue. Devise over upon failure of issue. Devises with shifting clause. Effect in diverting pre- ceding Divesting pre- ceding estate in part only. (//) See Mon ii pen mi v. Derimj. 2 De G. M. & G. 14r, ; 22 L. J. C. 313 ; Harrison v. Round, 2 De G. M. & ti. I '.i' | : 22 L. J. C. 322. And see Meyriek v. Laws, L. R. 9 Ch. 237 ; 43 L. J. C. 521. (Q La in/dale {Lady) v. Briggs, 8 De G. M.' & (!. 391 ; 26 L. J. C. 27 : 111, hi rure v. Bradshaw, 4 Drew. 230. See Re Caffs Trust,2 II. & M. 46; 33 L. J. C. 4H5. (/.■) Dunne v. Dunne, 7 De • :. M.& <;. 207. See I),,,- v. Clarke, 8 East, 186 ; PaHridge v. Partridge, [1894] 1 Ch. 351 : 63 L. J. C. 122. (/) See ante, p. 33. («0 1 Jarmau, Wills, 824. 262 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Substitution of less estate. Devise over failing in effect. Effect of de- vise over as conditional limitation of preceding estate. made in fee, with a devise over in a certain event to another for life, the prior devise is divested only to the extent of the life estate ; but if the executory devise for life were limited to the same devisee to whom the fee is originally given, it would seem to he intended and to he construed as divesting the fee altogether and substituting a life estate, as where a testator devised to his daughter in fee, and that if she married without the consent of a certain person, she should have an estate for life only (»z). If the executory devise fail of taking effect or be or become void from any cause, as where the objects of such devise never come into existence, or where the event upon which it is limited to arise is too remote, or in fact never happens, or is or becomes- impossible, the preceding estate continues according to its original limitation or destination (o) ; but if the executory devise fail by lapse, or death of the object before the testator, all other conditions having been satisfied, the estate passes to the heir or residuary devisee (p). A devise over limited to take effect in a specified event may operate by construction as a conditional limitation of the pre- ceding estate determining it in the event specified, though it fail in effect in carrying the estate over by way of executory devise (q) . Executory- devise after determination of preceding estate. Alternative executory devises. A devise of a future estate limited to take effect after the determination of a preceding estate may operate effectually as an executory devise ; — thus upon a devise to A. for life, and after his death and one day (or any other period of time) to B., or to the children of B., the devise to B. or his children is a good executory devise, though such a limitation would be void at common law. A devise to A. for life and after his death to the children of B., B. as yet having no child, would be a contingent remainder.— The freehold, with the intermediate rents and profits, after the determination of the preceding estate until the executory devise takes effect, vests in the residuary devisee, if any, or if not, in the heir (?•). Several executory devises, though including the whole interest, may be made by way of alternative limitations, so that any one of («) 1 Jarman. Wills. 824 et seq. : Wright v. Wright, 1 Ves. sen. 409. (p) JacMon v. Noble, 2 Keen, 590 ; Gatenby v. Morgan, 1 Q. B. D. 685. Q;) Tarbuchv. Tarbuck, 4 L. J. N. S. Ch. 129 : O'Mahoney v. Burdett, L. R. 7 H. L. 388. See Brookvian v. Smith, L. R. 7 Ex. 271 ; 41 L. J. Ex. 114. ( as a remainder, vested or contingent, in one alternative, and as an executory devise in the other (/) . Devises of future estates are construed as remainders, if they Future a are capable of that construction, and not as executory devises ; JJJJJjjJjj and when so construed are consequently liable to fail by the capable. determination of the preceding freehold before they become vested (it). Thus, if there be a devise to A. in tail with a devise over, if he Devi- to A. , i • i ,i r -i r i • in tail with die without leaving issue at his death, or upon failure ot his issue d , . 3 within other definite time, the devise over is a contingent death w remainder, and not an executory devise, because the event on which it depends, namely, the failure of issue, determines the prior estate tail (x). — Upon a like principle, upon a devise to A. and to his heirs, with a devise over upon the failure of issue of A. indefinitely, the devise to A. is restricted to an estate tail, and the devise over takes effect as a remainder, and not by way of executory devise, for as such, being postponed until an indefinite failure of issue, it would be void for remoteness (y). So in the case of a devise to A. for life, with a devise over upon the failure of issue of A. indefinitely, A. takes an estate tail by implication, and the devise over is a remainder (z). In accordance with this rule of construction, where a devise To A. in tail was made to A. and to the heirs of his body, and it he die ver if he die. then over, the devise over was read as " if he die without issue," and was construed to be a remainder expectant upon the estate tail (a). As a will takes effect from the death of the testator a devise, Remainder or . , executory de- which in terms is a contingent remainder, by reason ot events vise according to < ■ (,) Fearne, Ex. Dev. 514, ami the (//) See ante, p. 138 ; post, p. 323. 2Lj££., cases there cited ; see Butler's note, ib.; (--) See ante, p. 235 ; as to wrhal ex- «m™ Stephens w Stephen*, ('as. f. Talb. 228. pressions in a will import an indefinite "•-• 1L1 - (/) SeeJEkersv. Challis, 7 H.L.C.5B1; failure of issue, and the effect oi the 29 L. J. Q. B. 121 ; Doe v. Fonnereau, statute 1 Vict. c. 26, s. 29, in restricting Dougl 4S7 ; Doe v. Howell, 10 B. & C. such express ite, p. 139. X death, then over, see post, (.r) See ante, p. 235. p. 265. 264 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. occurring in the lifetime of the testator since the date of the will, may hecome in the result an executory devise. — Thus upon a devise to A. for life with a devise over after his death to the children of B., the devise over is a contingent remainder whilst A. lives, and until B. has a child ; but if A. die in the lifetime of the testator, and B. have no child at the death of the testator when the will takes effect, the devise is executory to his future children, as if originally limited to them without the preceding estate. And conversely, a limitation in a will which at the time of making it could only have operated by way of executory devise, may by change of circumstances in the testator's lifetime operate at his death so as to give a vested estate in possession, or a vested remainder, or a contingent remainder (6). — Also " a change of circumstances after the testator's death, may change the character of a particular limitation, and make it operate at one time as a remainder, at another as an executory devise ; and c converse at one time as an executory devise, at another as a remainder." But a limitation which has once operated as a remainder can never, after the death of the testator, be changed into an executory devise (c). Devise con- Upon the general principle of construction in favour of vesting Btmed in estates, words of futurity are referred to the time of possession favour of ... -am vesting— rather than to the vesting in interest, — thus a devise to A. until futm ity re- B. shall attain twenty-one, and alien B. attains that age, or at or ferred to time from or after attaining that age to B. in fee, is construed as and not to the giving B. an immediately vested estate subject to the term of vesting. years in A. ; and not as an executory devise upon his attaining twenty-one, which would be the construction if the devise to him stood alone without the prior interest; and consequently if he die before attaining that age the fee descends to his heir (d). So, a devise after payment of debts is not executory or future until the debts are paid, but gives an immediately vested interest, subject to a charge created for the amount of the debts (e). Words of con- Upon the same general principle of construction, words of con- ferfed U) rG " tingency are referred to the divesting of the estate rather than father than (*) Hopkins v. Ho/din*. Cas. t. Talb. (e) Carter v. Barnardiston, 1 P.Wms. vestino- the ^ ; 1 Atk - ^81 > J)or v - l , '"" r/l < ~> M. & 505 ; and see cases ante, p. 155, n. (d). estate" ^ - '** 2 - ^ ee l' e '' Kenyon, C. J., in Doe Upon a devise in fee for payment of v. Morgan, 3 T. R. 765. debts, with a devise over to another (c) Hopkins v. Hopkins, Cas. t. Talb. when the debts are paid, the devise over 44 : 1 Atk. 5S1 : Mogg v. Mogg, 1 Mer. seems to be executory, at least as to the 654 : Doe v. Howell, 10 B. itogg v. Mogg, 1 Mer. 654 ; Doe (x) Jirookman v. Smith, L. Et. 7 Ex. v. Hallett, 1 M. & S. 124; Locke \. 271 ; 41 L.J. Ex. 111. Dunlop, 39 Ch. D. 387 ; .".7 L. J. 0. (/i Singleton v. Gilbert, 1 Cox. Ch.68; L010. 1 Bro. C. C. 542, n.\ Scott v. Harwood, ('/) Hebblethwaitev. Cartwright,Cas. 5 Madd. 332; Mogg v. Mogg, 1 Mer. £. Talb. 31. See Re Pickup's Trust,-, l 654. Sec Wliitbread v. St. John (Lord), J. & II. 389. 10 Ves. 152. I i Seeante, p. 246. (//) Shepherd v. Ingram, Ambler, I 18. (/') Baldwin \. Rogers, '■'< I'. Bi. & ,; - See note in Weld v. Bradbury, '2 Win. 649; 22 I.. .1. C. 665. 705; Harris v. Lloyd, Turn.' & Russ. b) Chapman v. Blisset, Cas. t. Talb. 310. 1 1.".. See ante, p. 237. 208 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Devise to A. and his children. Child en ventre sa mire capable of taking. Devise to ille- gitimate chil- dren. it is considered as immediate, and therefore does not let in after- born children (c). Upon the same principle a devise to A. and his children, piimd /.trie, is a gift to A. and all his children, including those, if any, born after the death of the testator (d)— If no children are then in existence, it is construed as an estate tail, in order that children may participate, according to the rule in Wild's case(e). — But the context of the will may require a devise to A. and to his children, he having no children at the testator's death, to be construed as giving a life estate to A. with remainder to his children (/). A child en ventre sa mere, who is afterwards born, is considered as existing for the purpose of taking by devise ; and will take under a devise to children " born " or "living" at the death of the testator or of the parent, or at any other stated period (g). A devise to children prima facie means legitimate children ; but it may appear from the express terms or the context of the will, or from the circumstances to which it is applied, to mean or to include illegitimate children, and persons answering to the description intended may take under it(/<). An illegitimate child cannot be designated by relation to the father, except as the reputed child, because no inquiry into the fact of paternity is legally admissible. The reputed relationship is a distinct matter of fact capable of being admitted by the father or otherwise established. Such child may be well designated by relation to the mother, and the maternity established by evidence. A gift by deed to future illegitimate children is, it seems, void as involving the illegal condition precedent of illicit cohabitation of the parents. So a devise to future illegitimate children of another person, at least as to such as are born after the death of the testator. But a devise to all the testator's illegitimate children or reputed children is good as to all persons answering such description at the death of the testator, though born after the date of the will (i). (<•) Singleton v. Gilbert, 1 Cox, 68 ; 1 Rro. C. 0. 512, n. (7/) Oates v. Jackson, 2 Stra. 1172. (e) Wild's Case, 6 Co. 17 a ; Tud. L. C. Conv. 361. (/) Res. in Wild?* ('use. 6 Co. 17 a ; Tud. L. C. Conv. 361 and notes. (g) Doe v. Clarke. 2 H. Bl. 399. See Villar v. Qilbey, [1907] A. C. 139 ; 76 L. J. C. 339 ; Re Salaman, [1908J 1 Ch. 4 ; 77 L. J. C. 60. (//) Uill v. Crook, L. R. 6 H. L. 265 ; 42 L. J. C. 702 ; Darin v. Dorin. L. R. 7 H. L. 568 ; 45 L. J. C. 652 : Re Horner, 37 Ch. D. 695 ; 57 L. J. C.291 ; Re Harrison. [1894] 1 Ch. 561 ; 63 L. J. C. 385. (/) Gordon v. Gordon. 1 Mer. 141 ; Oeeleston v. Fullalove, L. R. 9 Ch. 147 ; 43 L. J. C. 297 ; Dorin v. Dorin, L. R. 7 H. L. 568 ; Re Hastie's Trusts, 35 Ch. D. 728 ; Re Frogley, [1905] P. 137 ; 74 L. J. P. 72 ; Re Loreland, [1906] 1 Ch. 542 ; 75 L. J. C. 314. SECT. IV. POWERS. 2G9 Section IV. Powers. § 1. Powers distinguished. §§ ,1. As to their source and operation. 2. In connection with estates. 3. As to the objects. § 2. Construction of powers as to the estates to be appointed and pi of operation. § :*. Execution of powers. §§ 1. Time of execution. 2. Form and conditions of execution. 3. Construction and operation of instrument of execution. 4. Execution in excess of power. § i. Equitable jurisdiction over powers. §§ 1. Jurisdiction in aid of execution. 2. Jurisdiction to set aside or control execution The extensive subject of powers is with difficulty compressed into the space here allotted ; but it is not the purpose of the present work to do more than digest the principal heads of the subject, which has been done in the order given above. The last edition of Lord St.' Leonards' book on Powers is generally referred to throughout this section as sufficient authority for most of the propositions, supplemented by a reference to the leading cases and the more recent decisions. § 1. Powers distinguished. §§ 1. As to their source and operation. Power of appointing uses — power of revocation. Uses appointed take effect as if inserted in the original instrument — uses appointed upon a use— uses appointed in remainder — application of the rule in Shelley's case — of the rule against perpeti Uses vested in default of appointment. Powers created by will — at common law and under the Statute of Ut Tower to executors or trustees to sell — distinction between power and trust to sell — implied power in executors — statutory power in executors or tru Powers to lease, sell, charge, etc. — powers operating upon the beneficial interests — powers operating upon the subject of property. Future uses may be completely declared as to the time of Powers of ap- vesting, the event on which they are to arise, the persons to take P ointi "- and the estates to be taken, by the instrument raising the usi or they may be reserved for future declaration, as to all or some 270 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Power of re- vocation. Uses nii- pointed take effect as if inserted in the original in- strument. Uses ap- pointed upon a use, not executed by the statute. Uses ap- pointed as remainders. of these particulars, by a person to whom authority is given by the instrument for that purpose, and who is then said to have a power of appointing the uses, or power of appointment (a). The power necessarily operates to displace or revoke the uses previously vested, whether declared in the instrument or result- ing by operation of law ; it is therefore sometimes called a power of revocation and new appointment, and is sometimes expressly created in that form. The revocation, however, is implied in the appointment, to the extent to which the appointment of new uses is authorised (h). The uses appointed take effect, from the time of appointment, in the same manner and subject to the same rules, as uses expressly declared and limited in the instrument creating the power ; and they may, for most purposes, be read as if inserted therein in place of the power (e). Consequently, the uses appointed under a power will not be executed by the statute as legal estates, unless there be a seisin commensurate with such uses (d) ; nor if, when combined with the limitations in the deed, they appear to be uses limited upon a use ; as where the conveyance is made to and to the use of A. to such uses as he or any other shall appoint ; for in such case the uses appointed are beyond the operation of the statute, though they may be effectual as trusts in equity (e). So also if, under a power well created to appoint uses, the appointment be made to A. to the use of B., the statute executes the use in A., and the limitation to B. can only operate as a trust (/). Uses appointed, if they take effect as remainders after a par- ticular estate in the use declared in the original instrument, are subject to the rules concerning remainders, and if contingent are liable to fail by the determination of the particular estate before they become vested (g). — But the power of appointing uses after a particular estate, before any appointment is made, is not equivalent to a remainder in this respect, and it may («) See ante, p. 88 : t; This sort of power is a mode, which the owner of the estate reserves to himself, or gives to another person, through the medium of the Statute of Uses, of raising and passing an estate." Per Eldon, L. C, 10 Ves. 266, Mawndrell v. Mawndrell. (&) Butler's note to Co. Lit. 272 a, VII. 1 ; 1 Sanders, Uses, 160 ; Sugden, Powers, 200 ; Co. Lit. 237 a. A deed of appointment will be construed in law, first as a revocation and cesser of the ancient uses, and then a limitation or raising of the new : Diggers Case, 1 Co. 171 h. So a power of revocation reserved in a settlement to the settlor leaves him the power of appointing new uses: Sugden, Powers, 371. See post, p. 298. (r) 2 Sugden, Powers, 470. (d) Sugden, Powers, 149. See ante, p. 91. (e) Sugden, Powers, 119. See ante, p. 93. (/) Sugden, Powers, 190. 457. (7/) Sugden, Powers, 470. See ante, p. 237. SECT. IV. § 1. SOURCE AND OPERATION OF POWERS. 271 subsist and be well executed notwithstanding the particular estate has determined. Thus where land was settled to the use of A. for life, with remainder to the children of A. as A. and B. jointly or as the survivor, should appoint, and A. died, it was held that the power of appointment in B. the survivor was well created, and that the uses afterwards appointed under it were valid and operated as springing uses (//)• Limitations of the use in the original instrument, and limita- RuL , , . , . . , . /<■'/ s case ac- tions appointed under a power contained in the same instrument, plied tlJ ap . may unite under the rule in Shelley's case, although, as a general pointed rule, limitations contained in different instruments cannot unite under that rule. Thus, if land he limited to the use of A. for life, and after his death to such uses as B. shall appoint, and B. during A.'s life appoints to the heirs or to the heirs of the body of A., the limitation under the appointment is construed as if inserted in place of the power in the instrument creating it, and according to the rule in Shelley's case gives A. the inheritance in fee or in tail. So conversely, with a limitation to the heirs or heirs of the body in the original instrument and a limitation for life subsequently appointed under a power created by the same instrument (/). Also, the rule against perpetuities applies to the appointed ^JJgjJJ' uses, and the time for such uses to take effect is, in general. computed as if they had been inserted in the instrument creating the power (k). The uses of a conveyance may be expressly limited and Usesvesi J ' r . . default ot ap- declared in default of and until an appointment is made under a pointment. power given by the deed; and, if not expressly limited and declared, they will result to the grantor. The uses, whether expressly declared or resulting, are executed by the statute and become vested estates, but subject to be revoked and divested by the uses appointed under the power, which operate, when they arise, as shifting uses in substitution of the preceding estates {I). Powers may be created by will in the form of a common law Powers authority operating directly upon the legal estate to appoint and wM_o P erat- ing at com- mon law or (/;) Hole v. Mscott, 2 Keen, 4-14; 6 01. See ante, p. 247. under the L. J. ('. 355 ; I M. & Cr. L87 : 8 U J. C. (A-) As to the application of the rule st:Uute u f s3. See WiekJtam v. Wing, 2 B. & M. to powers, see post, p. 332. rj a 3 436; 34 L. J. C. 425 ; Aylwirts Trusts, (V) Fearne, Cont. Rem. 226, 232 ; L. R. If, Eq. 585 ; 42 L. J. ('. 745. Sugden, Powers. 152,622 ; //.»> v. Martin, (/) Fearne, Cont. Hem. 74 ; Sugden, 4 T. K. 39 ; -■ Eldon. 1.. C, Maun- Powers. 471 ; Venables v. Morris, 7 T. R. drell v. Maundrell, 10 Ves. 265. 342, 438 ; see Doe v. Welford, 12 A. & E. 272 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Powers to trustees or executors to sell. Devise upon trust for sale. Construction of wills as giving power or estate. Implied power in exe- cutor. limit it ; or in the form of a power to appoint uses of the legal estate to be executed by the Statute of Uses. The nature of the power in this respect depends upon the intention of the testator as shown by the terms of limitation employed in creating the power ; and the appointment under the power must be framed and construed according to the form of the power (m). A power given by will to appoint the legal estate may be exercised by appointing such estate, thereby raising a seisin at common law, with a declaration of uses upon which the statute will operate, and thus the legal estate may be disposed of under the power with all the freedom of limitation allowed to uses («). A common example of powers in wills occurs where executors or trustees are directed or authorised to sell real estate for various purposes, as for the payment of debts, legacies, etc. (<>). "Where such a power is given, without any estate in the land, it operates by way of executory devise in favour of the person to whom the land is sold ; and the purchaser takes as devisee under the will and not by way of conveyance from the trustee or executor. The fee descends to the heir until the power is executed. But where the land itself is devised to the trustee or executor for the purpose of the sale the purchaser takes by con- veyance from them(p). — This distinction is practically important with copyholds, to which the Land Transfer Act, 1897, does not apply (q), for by giving a mere power of sale, instead of devising the land, a purchaser takes directly under the will, and the admittance of the trustees for sale, together with the fine payable thereupon, is avoided (r). The distinction in the construction of wills appears to be this, — that a devise of the land to executors or others to sell passes the estate in the land to them for the purpose and upon trust for sale; — but a devise or direction that the executors shall sell the land, or that the land shall he sold hy the executors, or even a devise of the land to he sold by the executors, gives them only a power and no estate (s). Where a testator has directed his real estate to be sold without declaring by whom the sale shall be made, if the proceeds be distributable by the executor, he will have the power by impli- (_»/) Sugden, Powers, 45, 14(5, 196 — 199 ; see Butler's note to Co. Lit. 212 a, VIII. 1. See ante, p. 95. (//) Sugden, Powers, 197. (n) See ante, pp. 193, 197, \p) Co. Lit. 112 h ; 2'M'ui ; Warneford v. Thompson, 3 Ves. 513. ((/) See ante, p. 66. (/•) Bex v. Oundle, 1 A. & E. 283; Glass v. Richardson, 2 Be G. M. & U. 658 ; 22 L. .!. C. 105 ; Reg. v. Wilson, :5 B. & S. 2U1. See Be Naylor and Spendla's ('out.. 34 Ch. D. 217 ; Jloi! v . Bromley, ?>:> Ch. D. G42. 0) Sugden, Powers, 111—115, and authorities there cited and discussed ; Williams. Executors, 4'JO; Doe v. Shot' 'er, 8 A. & E. 905. SECT. IV. § 1. SOURCE AND OPERATION OF POWERS. 273 cation ; and it will pass by right of representation to the executor of his executor (/). Where a testator has charged his real estate with the paymeni Power by of debts and legacies, without making any express provision for ^isech raisin^ the charge, a power to sell or mortgage for that purpose for debts i 3 •* l legacies, is given to the devisees in trust of the land, if there be such, and if not, to the executor, by the Law of Property Amendment Act, 1859, which applies to wills coming into operation after the 13th August, 1859. But the practical importance of this statute is displaced, except in the case of customary tenure, by the provisions of the Land Transfer Act, 1897, to which reference has been already made (u) . Powers were formerly given in terms expressing the effect of Pow< the execution of the power, as to lease, sell, charge, etc., and e tc., operate such mode of creating the power sufficiently expresses the hv appoints intention ; but the correct form of the power, according to its esl technical mode of operation, is to authorise the revocation of the previous uses or estates, and the declaration of new uses or estates to the extent and for the purposes intended. So also powers were frequently executed in the form of a lease or conveyance or devise, although the technical operation of the instrument was strictly by way of declaration of the uses or estates to be taken under the instrument creating the power (x). The powers usually given in settlements of land may be Powers referred to two kinds according to the purpose effected. The upontiuf one kind operate only upon the beneficial interests of the settle- beneficial in- ment and are designed to modify the uses and estates primarily settled and to introduce new ones to meet the future requirements of the settlement, without affecting the subject of property. Such are powers to jointure a wife, to raise portions for children, (0 Sugden, Powers, 115—118. See execute it. Co. Lit. 113 . : < bx v. ' 246; Sugden, Powers, 479. Cltamberlain, 1 Ves. 63] ; Roach v. (Z») See ante, p. 93. Wadham., 6 East, 289. As to the correct 00 Sugden, Powers, 93, 479 ; Clere's mode of framing deeds of appointment Case, ('. Co. 17 h ; Maundrell v. Mown- and conveyance, see Sugden, Towers, drell, 7 Ves. 567 ; 10 Ves. 240. 1!'::. T 2 27G PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Execution of power divests the estate and all original charges. Power cannot be exercised in derogation of convey- ance. acquire the fee simple, the power would, in general, cease according to the intention, as being no longer required for any purposes of its creation. — This might occur under settlements of land limited to a tenant for life, with powers of sale, leasing, charging, etc., and with the ultimate remainder to him in fee ; if the fee became executed in the tenant for life by the failure of the intermediate limitations between the life estate and the ultimate remainder, the powers ceased to be exercisable, not on the ground that they had merged, but that according to the true construction of the settlement they were not intended to endure beyond the continuance of the limitations which they were intended to overreach (r<>. C. C. 80 ; Wullei/ v. Jenkins, 23 Beav. 53 ; 26 L. J. C. 379 ; arid. 3 Jur. X. S. 321 ; Broum's Settle- ment, L. R. 10 Eq. 349 : 39 L. J. C. 845 ; He. Jump, [1903] 1 Ch. 129; 72 L. J. C. 16 ; He Cotton's Trustees and School Bd. for London, 19 Ch. D. 624 ; 51 L. J. C. 514. (/) Sugden, Powers, 479 ; Run v. Pung, 5 B. & Aid. 561 ; 5 Madd. 310. See Sweetapple v. Itorloeh, 11 Ch. D. 745; 48 L. J. C. 660; Jackson v. Com- missioner of Stum /is. [1903] A. ('. 350 : 72 L.J. P. C. 68. (//) Roach v. Wadham, 6 East. 289. But the benefit of covenants made with the donee of the power and his ap- pointees may run with the land in favour of the appointee. Spoor v. Green, L. R. 9 Ex. 105 ; 43 L. J. Ex. 57. SECT. IV. § 1. POWERS JX CONNECTION WITH ESTATES. 'Ill be so far suspended ; hut as to the estates limited to others, and not affected by the bankruptcy, the power would still In- operative (//). A conveyance of the estate may he made with an ex] tveyance reservation of the power. — Where the tenant for life under a tionof power. settlement containing powers of sale and conversion exercisable with his consent, conveyed his interest to a purchaser by the description of all his interest in the lands and funds into which the settled property then was or at any time thereafter might be converted and changed, it was held that the purchaser took the property subject to the powers of conversion, and that the sub- sequent consent of the tenant for life to a conversion was no derogation from his grant (/). "Where an estate subsists together with a power of leasing at a implied re- rent not less than the full value, a conveyance merely by way of JJJJJjJ 011 mortgage or security for a charge, impliedly reserves the power to its full extent, because the power is not derogatory to the security, but auxiliary to it(A-). So a power to appoint new trustees may be exercised by a tenant for life who has parted with his life interest, without the consent of the alienee {I). "Where the tenant for life under a settlement, having a power to renew leases and take the fines on renewal for his own benefit, assigned all his interest under the settlement by way of mort- gage; it was held that the power might be exercised notwith- standing the mortgage, but that the consent of the mortgagee was necessary, for he being assignee of the fines had an interest in every renewal which might be granted (m). A tenant for life cannot make a valid contract not to exercise statutory the powers conferred upon him by the Settled Land Acts, but if he has for value aliened or incumbered his life interest, his statutory powers cannot be exercised to the prejudice of the alienee without his consent (n). A judgment, as formerly charging the land, was considered to Effect of a do so not by act of the party, but in invitum, and therefore did ^'™^ ie not affect the power, and was liable to be defeated by an execution donee of a power. (//) Long v. Rankin, Sugden, Powers, (/.■) Long v. Rankin, Sugden, Powers, App. 2. p. 895 ; Bringloe v. Goodson, i App. 2. p. 895. Bing. N. C. 726 ; Jones v. Winwood, 3 )• Powers have been distinguished and designated according to their operation upon the estate of the donee, and their consequent dependence for their full efficacy upon the continuance of that estate, as follows : — Powers ap- " Powers appendant or appurtenant are so termed because they pendant to strictly depend upon the estate limited to the person to whom they are given." They are restricted by any alienation or disposi- tion of that estate inconsistent with a subsequent exercise of the power ; for the power cannot be afterwards exercised in deroga- tion of such alienation. As where an estate is limited to the use of a person in fee, with a power of revocation and new appointment ;— or where an estate for life is limited to a person with a power to grant leases in possession ; — in either case an alienation of the estate restricts the power to the extent of the alienation, and the power is so far appendant or appurtenant to the estate (q).— Powers appendant may also be extinguished by release (r). Powers col- Powers which do not operate upon an estate limited to the lateral or in person to whom they are given, are called collateral or in gross. They include powers given to a person to whom an estate is limited, but which enable him to create such estates only as do not operate upon his own estate ; also powers given to a person in person having no estate.— Instances of the former kind occur in the having estate. case f a tenant for life, with a power of appointing a jointure to his widow, which cannot operate until after the determination of his life estate ; and in the case of a tenant for life with a power of appointing after his death to his children.— Such powers in ((0 Sugden. Powers, 480. (r) Sugden, Powers, 82. See now 0) See as to these statutes Carson. Conveyancing and Law of Property Eeal Prop. Stats, pp. 483 et seq. Act, 1881, s. 52; Conveyancing Act, (q) Sugden. Powers, 4(i, 51, 57. See 1882, s. 6; Settled Land Act, 1882, cases cited ante, p. 277, n. (//). s. 50. SECT. IV. § 1. POWERS IN CONNECTION WITH ESTATES. 279 a tenant for life are not, like powers appendant, affected by a conveyance of bis life estate; because they do not operate in derogation of the conveyance. But tbey may be released and extinguished by him (s). Powers in gross in a person having no estate in the land are in person • i ii havii distinguished into those which the donee of the power may exercise for his own benefit, — and those which he can exercise for the benefit of others only, without any benefit to himself. The former partake of the nature of property or interest, and may therefore be released or extinguished by the donee of the power.— An instance of this kind of power occurs where a person Power re- 1 L Berved npon seised in fee settles his whole estate upon others, but reserves to settlement £ himself a power of revocation. Such power is a power in gross e lte - and part of his old dominion ; by revocation of the uses he would be restored to his former ownership ; and it is therefore capable of being released and extinguished (t). — So if the power of revocation be reserved to the heir of the settlor, because by the revocation the heir would be restored to the estate ( u >. A power in a person having no estate or interest in the land Power simply which he can exercise for the benefit of others only, and not of himself, is called a power simply collateral. As for example, a power given to a stranger to revoke a settlement and appoint new- uses to other persons designated in the deed. Also powers given to executors to sell land for the purpose of the will, and powers given to trustees of settlements to sell, lease, etc. are examples of powers simply collateral (a;).— Powers of this kind give a bare authority without any property or interest, and could not be released or extinguished by the donee of the power, but only by those persons for whose benefit they are created (//). If coupled with a trust or duty these powers cannot be released under sect. "»-2 of the Conveyancing and Law of Property Act, 1881 {z) ; or, it would seem, disclaimed under sect. 6 of the Conveyancing Act, 1882. It may be observed that " a power in gross, and a power collateral (not simply collateral) is one and the same thing;" though the word collateral has been sometimes used as meaning simply collateral in distinction to powers in gross (a). — "This (*) Sugden, Powers, 16,79,82. See 1882, s. 6. now Conveyancing and Law of Property («) Gh'angev. Tiving, Bridgm. 111. Act, L881, s. 52; Conveyancing Act, {■'■) Sugden, Powers, 17. L882, s. (i ; Settled Land Act, 1882, (//) Sugden, Powers, 17. 19; Co. Lit. s so. 237 a, 12 • '. • h ; Digged Case, Mo >r, 605. (Q* Sugden, Powers, 17, 82; Co. Lit. o Re Eyre, 49 1.. C. 259 ; Saul v. 237 a. 265 /- ; Albany's Case, 1 Co. 110 />. Pattinson, 55 L. -I. C. 831. See Conveyancing and Law of Properly (//) Sugden, Powers, '.»»'•. Act, 1881, s. 52 ; Conveyancing Act, 280 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Power appen- dant as to some estates classification of powers is important only with reference to the ability of the donee to suspend, extinguish, or merge the power " (b) The same power may have different aspects and may be both appendant and collateral with reference to different estates of the some e-jiai.es L L . , , . and collateral donee upon which it operates ; as, if a settlement be made to A. as to others. for jj fe with rema i n a er to B. for life or in tail, with remainder to A. in fee, and A. be given a power to jointure his wife or to appoint to his children after his death, the power is collateral or in gross as to his life estate, but appendant or appurtenant as to his remainder in fee. And if he conveyed the fee, he would remove it from the operation of the power ; but the power would remain operative over the intermediate remainder after the death of A. (c). §§3. Powers Distinguished, as to the Objects of the Power. General and particular powers. Powers of appointment to a class— Distributive and exclusive powers- power of selection from class. Power to appoint to children— to children living at death of parent— child en renin' sa mh-e — power to appoint to "relations/' Implied gift to children in default of appointment— gift to children with power to apportion shares. Powers are also distinguished, in regard to the objects of the power, into general and 'particular or special powers. — A general -a particular or powers. Powers dis- tinguished as to the object, —general and power authorises an appointment to any person ;- special power restricts the appointment to some person or persons, or class of persons specified in the creation of the power (a). — " A general power is. in regard to the estates which may be created by force of it, tantamount to a limitation in fee, not merely because it enables the donee to limit a fee, which a particular power may also do, but because it enables him to give the fee to vhom he pleases; he has an absolute disposing power over the estate." This distinction of general and particular powers has some important consequences in the execution of powers (6). Power of ap- pointment to class of ob- jects. A power of appointment to a class of objects, as children, may (//) Sugden, Powers, 49. (c) Sugden, Powers, 47, 87 ; see ante, p. 278. (a) Sugden. Powers, 394. (b) Sugden, Powers, 181, 195, 394. Seejpoxt, pp. 294, 300. SECT. IV. § 1. POWERS DISTINGUISHED AS TO OBJECTS. 281 be distributive amongst all the individuals of the class, also called a non-exclusive power; or exclusive, authorising a selection of one or more to the exclusion of the rest, according to t he terms of the power. — A power given in the terms, "to all and every Distributive the children," or "to and amongst " or " amongst " the children, *°i^ cluaive o o 'power. or "in such shares" as A. shall appoint, is distributive only and not exclusive, and originally every one of the objects of the power was entitled to have a substantial share of the property appointed to him (c). — A power in the terms, " to such,'' or " to and amongst such" or " to one or more " of the children, as A. shall appoint, imports the power of appointing to some exclusively; the power is distributive and exclusive (//). — A power in the terms, iv. "to one" of the children, as A. shall appoint, gives the power of selecting one; it is exclusive only and not distributive (<). A power to appoint to children does not extend to grand- Power to ap- i i-i point to clnl- children ; although the power be expressed to be to the children dren, etc. "for such estate and subject to such provisions and limitations as the donee of the power may direct, limit, or appoint." And under such a power an appointment to a child for life with remainder to his children in strict settlement would not be authorised except as to the appointment to the child, and beyond that would be void (/). But if the child be a party to a deed of appointment in this form, it may be supported as operating first as a good appointment to the child, and then as a settlement by him {'• Rising, (//) Sugden, Powers. I II. [1904] 1 Ch. 7.33 ; 73 L. .1. C. l"-">. (r) Brown v. fflggs, 1 7es. 708, 717; (/") Brudenel v. Elwes, 1 East, 451. lie Porters Settlement, 45 Ch. P. 179 ; (/.) Sugden, Powers, 674. 282 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Child en ventre sa mere capable of taking. Power to appoint to relations. Implied gift- to children in default of ap- pointment. Gift to chil- dren with power to ap- portion shares. as existing for the purpose of taking by appointment under a power to appoint amongst children living at the death of the father (/). A power to appoint amongst " relations," where the donee has a mere power of selection or of distribution, is restricted to those persons who are next of kin according to the Statute of Distribu- tion, subject to the ascertainment of the class at the period indicated by the settlor ; but if the donee is empowered to select one or more members of the class to the exclusion of others of the same class, then the word "relations" will be taken to include the larger class usually denoted in popular language by that expression (/»)• Where a power of appointment amongst children is given by will, whether exclusive or non-exclusive, without any express gilt to the children in default of appointment, a gift to the children in that event may be implied from the terms of a gift over (it). But under such implied gift those children only can take in default of appointment who were capable of taking by appoint- ment. So that if the power be restricted to children living at the death of the parent, (as where it is exercisable by will only,) the surviving children only take in default of appointment, and those dying in the lifetime of the parent are excluded (o). — A power to appoint to one only of children to be selected exclusively of the others would not raise such implication in favour of all the children or of any of them (p). But where there is a gift to children with a power of appropriating the shares in which they are to take, — as, to all the children of A. in such shares as A. should appoint by will,— the children take vested interests by the express terms of the gift, subject to be divested by the exercise of the power, and a child dying in the lifetime of the parent will remain entitled in default of appointment, notwithstanding the power, being by will only, is restricted to those living at the death of the parent (q) . (Z) JieaJe v. Beale, 1 P. Wins. 241. See Villar v. Gilbey, [1907] A. C. 139 ; 76 L. J. c. 339. (w) Sugden, Powers, 653, 657 ; Be BeaMn, [1894] 3 Ch. 565 ; (33 L. J. C. 779. (?/) Sugden, Powers, 591 : Brown v. Higgs, 8 Ves. 574; Butler v. Gray, L. R. 5 Ch. 26 ; 39 L. J. C. 291 ; Wilson v. Buguid, 24 Ch. D. 241 : Ricliardson v. Harrison, 16 Q. 1'.. D. 85 ; Be Weehes Settlement, [1897] 1 Ch. 289 ; 66 L.J. C. 179. (' : Cro~ier v. extend. Crozier, 5 Dru. & War. 353. 284 PAR! II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Of sale and conversion. Devise of absolute power of dis- position passes the fee. Disposition restricted as to the objects. Devise for life with power over remain- der. without a legal term or interest as auxiliary to it (e) ; — or by appointing that the land shall be sold and the proceeds distributed amongst the objects of the power (/). — So a power of appointment over real estate, unrestricted as to the estates or interests to be appointed, may be well executed by appoint- ing a share to an object of the power and declaring that it shall be of the nature of personal estate ; and the interest in such share will be transmissible accordingly (g). And where lands are devised in trust for sale, with a direction to invest the proceeds of sale in other lands, a power to appoint the lands so to be purchased is well executed by an appointment operating directly upon the original estates (h). — In such cases, though the appointment may not be formally void at law, as where it is made to trustees for sale, (such trustees not being objects of the power,) it is valid in equity and will be carried into effect (i). A devise to a person in terms importing that he may dispose of the property at his absolute discretion confers an estate in fee simple or the entire interest, and not merely a power ; but this construction does not apply to a conveyance by deed, in which such form of limitation would merely confer a power of appointment (k), Where the devise is accompanied with expressions restricting the disposition to particular objects, the question often arises whether such expressions are obligatory and create a trust in favour of the objects mentioned. No general rule can be laid down, but the tendency of modern decisions is not to cut down a gift which is absolute in terms to a life estate with a power of appointment, unless the language clearly indicates that that was intended. The question in each case is one on the construction of the particular instrument (/). A devise to a person for life expressly, with remainder to such persons as he shall by deed or will or otherwise appoint, does Trustee* and Frost's Cunt., [1907] 1 Ch. 350 ; 76 L. J. C. 408. (/.') Sugden, Powers, 104, 134 ; Re Maxwell's 117//, 24 Beav. 246; 26 L. J. C. 854 ; Symes v. Symes, [1896] 1 Ch. 272. See ante, p. 119. As to a devise to executors or trustees passing the fee or a power to sell only, see ante, p. 272 ; Sugden, Powers, 111. (/) Liimhe v. Fames, L. R. 6 Ch. 597 ; 40 L. J. C. 447 ; lie Williams, [1897] 2 Ch. 12 ; GO L. J. C. 485. See ante, p. 101. (e) Sugden, Powers, 405 ; Huberts v. Fhrall, 2 Eq. Ca. Abr. 008 ; Sugden, Powers, 930. (/) Foiuj v. Long, 5 Ves. 445, where the power in terms extended to charging only, but to an unlimited extent : Kenworthy v. Fate, Ves. 793; Fe Redgate, [1903] 1 Ch. 350; 72 L. J. C. 204. {g) Webb v. Sadler, L. R. 8 Ch. 419 ; 42 L. J. C. 498. (//) Bulloeli v. Fladgate, 1 Ves. & B. 471. (/') Sugden, Powers, 400; Fe Adams SECT. IV. § 2. CONSTRUCTION OF POWERS. 285 not give him the absolute interest; although he may acquire it by an exercise of the power (m). — So, a devise to a person for life, with remainder to his " assigns " gives him a life estate with a general power of appointment over the remainder (n). "Where several powers are given or reserved by the same deed C or instrument, which cannot operate concurrently, the question ?„ priority^ occurs as to the priority of their operation. This may be operati expressly provided for in the terms of the instrument; hut the usual practice seems to he to leave it to be determined by construction of law from the purpose and intention of the powers and the occasions for their exercise (o). A power of sale and exchange necessarily operates by its Powi exercise a complete conversion of the subject of property and, in , n 1 1, _-. -. ,,arti- freneral, supersedes all the then existing uses, estates, and powers tl ," I1 > :n " 1 t> > x o i cnargmg. under the settlement, (except a lease previously created under a power of leasing,) and transfers them, so far as they apply, to the property purchased or taken in exchange (p ). Similarly, a powder of partition shifts all the uses from the undivided moiety to the specific separate moiety acquired by the partition (7). — So, a power to raise money for payment of debts or legacies, in general, takes priority of all beneficial estates and interests in the property (r). A power of leasing, the purpose of which is the profitable Power of disposal of the property for the time being in the interest of all persons beneficially entitled under the settlement, necessarily operates in priority to all other powers then subsisting. The execution of a lease under the power effectually displaces the possession during the term thereby created and vests it in the lessee, as against all the estates in the settlement, which it renders reversionary in regard to the lease ; and all other powers subsequently executed operate only upon the reversion («). — The benefit of the rents, covenants, conditions and rights of entry under the lease, provided it be made in accordance with the power, becomes incident to the reversionary estates and interests under the settlement in their order of succession (t). (m) Sugden, Powers, 105. Se.e Pennoc7t {/>) Sugden, Powers, 182. v. Pennock, L. R. 13 Km- L44 ; 41 L.J.C. (?) Sugden, Powers, 183; Uxbridge 111: Re Thomson's Estate, 14 Ch. D. (/w/7) v. Bayley, 1 Ves. jun. 499; 263; 49 L. J. ('. 622. 4 Bio. C. C. 13. (//) Quested v. Michell, 24 I,. J. »'. (/•) Brlngloe v. Goodson, ! Bing. N. C. 722] See Brodkman v. Smith, L. R. 6 726 ; 8 L. J. 0. P. 116. Ex. 291 ; L. It. 7 Ex. 271 ; 10 L. J. Ex. (*) Sugden, Powers, 183 ; Rogers v. 161 ; 41 L. .1. Ex. 111. Hwnphreys, I A. \ B. 299 : ■'■ I.. .1. K. B. (,i) Sugden, Powers, 188; 1 Sanders. 65; Bringloei. Goodson, \ Bing. N.<'. Uses, 170; Butler's note to Co. Lit. 726 ; 8 L. J. C. P. 116. 271 & III. 4. (0 WhitlocWs Case, 8 Co. 69 b ; Tsher- 286 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Statutory powers of sale. etc. Power of jointuring. Power of charging por- tions. The statutory powers to sell, exchange, partition, lease, mort- gage, or charge conferred upon limited owners by the Settled Land Acts, 1882 to 1890, if exercised, transfer the land conveyed " discharged from all the limitations, powers, and provisions of the settlement, and from all estates, interests, and charges subsisting or to arise thereunder, but subject to and with the exception of (i) all estates, interests, and charges having priority to the settlement ; and (ii) all such other, if any, estates, interests, and charges as have been conveyed or created for securing money actually raised at the date of the deed ; and (iii) all leases and grants at fee farm rents or otherwise," and certain other matters " granted or made for value in money or money's worth, or agreed so to be, before the date of the deed, by the tenant for life, or by any of his predecessors in title, or by any trustees for him or them, under the settlement, or under any statutory power, or being otherwise binding on the successors in title of the tenant for life " (u). Mortgagors and mortgagees of land while they are in possession may make leases of the mort- gaged land. The lease takes effect out of the interest of the mortgagee (x). A power of jointuring, according to its purpose, operates from the death of the husband, and takes priority of all other beneficial uses and estates of the settlement then subsisting or arising upon that event (y). A power of charging portions for children, in general, takes effect after the life estate of the father, and subject to the jointure of his widow (z). wood v. Oldknow, 3 M. & S. 382: Rogers V. Humphreys, 4 A. & E. 2!)'.) ; Butler's note to Co. Lit. 21 4 a. Where the lessor having a power of leasing under a settle- ment made a lease reserving the rent to himself, his heirs and assigns, without any reference to the power whereby the reservation might be explained and directed, it was held that the lease operated only by way of estoppel between the parties to it, and was void both for and against the persons entitled under the settlement. Yellowlyv. Gower, 11 Ex. 274 ; 24 L.J. Ex. 289, explaining Greeiiaway v. Hart, 14 C. B. 340 ; 23 L. J. C. P. 115, in which case a lease made in like terms but with express reference to the power was supported in accordance with the apparent intention. O) Settled Land Act, 1882, s. 20. See Carson*s Real Prop. Stats. 673 and the cases there cited, and Re Dickin and EelsalVs Cowt., [11108] 1 Ch. 213 ; 77 L.J. C. 177. (./•) Conveyancing and Law of Pro- perty Act, 1881, s. 18 ; Robbing y. Wliyte, | 1906] 1 K. B. 125 ; 75 L. J. K. B. 38. (?/) Sugden, Powers. 484 ; Re Be Hoghton, [1896] 2 Ch. 385; 65 L. J. C. 667. See Re Hancock, [18%] 2 Ch. 173; 65 L. J. C. (390: Re AiUsbury {Mara.') and Iveagh {LA.), [1893] 2 Ch. 345 ; 62 L. J. C. 713 ; Re Keck and Hart's Cunt., [1898] 1 Ch. 617 ; 67 L. J. C. 331. (.-) Sugden, Powers, 487. SECT. IV. § 3. TIME OF EXECUTION. 28'i § 3. Execution of Powers. §£ 1. Time of Execution. Power may be executed at any time daring the life of tbedonee — notwith- standing the determination of his estate. Power to be exercised at a future time or event — aftei -when in possession of estate. Power given upon contingency — power given to survivor oE two or more persons. Power restricted to certain time or event — during coverture — powers in settlements. A power given to a tenant for life in general terms, without Power given express or implied restriction of the time of execution, may be for life" exercised at any time during the life of the donee (a). And Notwith- where the donee of the power takes an estate determinable standingde- 1 , terminal during his life, the power may continue and be exercised, though h - the estate be determined and the remainder vested in possession l' t ^"[,~ until appointment. Thus where real estate was settled upon A. for life or until bankruptcy, with remainder to his children as he should appoint, and in default of appointment to the children equally ; upon his bankruptcy the property vested in possession in the children, but was subject to a subsequent execution of the power (b). — Where the donee of the power took a determinable estate, and it was expressly provided that upon the determination of his estate in the event specified the property should go over as if he were actually dead, it was held that his power ceased upon the determination of his estate (c). The statutory powers of a tenant for life under the Settled Land Acts, 1882 to 1890, " are not capable of assignment or release, and do not pass to a person as being, by operation of law or otherwise, an assignee of the tenant for life, and remain exercisable b}^ the tenant for life after and notwithstanding any assignment, by operation of law or otherwise, of his estate or interest under the settlement " (d). A power to be exercised at a future time or in a future event Power to be cannot be executed until the time arrives or the event happens. f^'eTim!- Thus, a power of sale given after the decease of a person cannot, After.! in general, be exercised during his life (e). — So, where in a settle- " f a l ,orson - («) Sugden, Powers. 260. See Blaclt- 72 L. J. C. 211 ; 11, ■ Wimborne (Lor&) woody. Bnrrowes, 4 Dr. & War. 441. and Browne's ('out.. [11)04] 1 Ch. 537 ; (6) AyhoinS Trusts, I,. R. If, Eq. 73 L. J. C. 270. 585; 42 L. J. C. 745; Wichham v. (e) Sugden, Powers. 266; Co. Lit. Wing, 2 II. .v M. 436 ; 34 L. J. C. 425. 112 J ; Johnstone v. Baber, 8 Beav.233. (c) Potts v. Britton, L. K. 11 Eq. 433. See eases cited Want v. Stallibrass, (rf) Settled Land Act, 1882, s. 50; lie Barlow* Cont.. [1903] 1 Ch. 382 ; L. Pi. 8 Ex. 175 : 12 I.. .1. Ex. 108. 288 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Power given to tenant for life to ap- point uses arising after his decease. Power given when in possession. Power given upon a con- tingency. ment a power of leasing was given to the father (tenant for life) during bis life, and after his decease to the son (tenant for life in remainder) during his life ; it was held that the son could not lease under the power during the lifetime of the father, although the father conveyed his estate to the son (/). But a power given to appoint uses or estates after the decease of a tenant for life may require to be construed relatively to the prior life estate, as applying to the time of possession of the estate to be appointed and not as limiting the time for executing the power (g). — A limitation to A. for life and "at" or "after" his death as he shall appoint, does not restrict the execution of the power to a will, but it may be made at any time during his life. On the other hand, where the terms of a power are only consistent with a testamentary power of appointment, the power will he so restricted (/<)• A power given to the tenant of an estate to be executed when in actual possession of the estate cannot be executed before he obtains possession ; and, in general, possession of his own estate is intended, so that the power cannot be accelerated by possession acquired under a grant of a prior possessory estate (?')• The person to exercise, as tenant for life, the statutory powers conferred by the Settled Land Acts, 1882 to 1890, must be " beneficially entitled to possession of settled land," which has been interpreted to mean in possession as contradistinguished to in reversion (k). Where two or more persons are so entitled they together constitute a tenant for life(/). There was a jurisdiction in equity (now possessed by all branches of the Supreme Court) to enforce a covenant or contract to execute the power when it arises, if made at a date anterior to that at which the power was actually exercisable (m). Whether a power given upon a contingency can be exercised before the contingency happens, depends upon the nature of the contingency. Thus a power given to a person in case of failure of issue at his death may be executed during his life, though (/) Coxe t. Day, 13 East. 118. (17) Hargrave"s note (2) to Co. Lit. 113 a ; Alexander v. Young, 6 Hare, 393. (h ) Sugden. Powers. 210 ; Re JaeJtson's Will, 13 Ch. D. 189 : 49 L. J. C. 82; and the cases there cited ; Re Flower, 55 L. J. C. 200. (/) Sugden. Powers, 269 ; Coxe v. Day, 13 East. 118. (/<•■) Settled Land Act, 1882, s. 2 ; Re Atkinson, 31 Ch. D. 577; 55 L. J. C. 49 : Re Llanover's (^Baroness) Will, [1903] 1 Ch. 16 ; 72 L. J. C. 406. See Carson, Real Prop. Stats, p. 658. See as to persons having powers of a tenant for life Settled Land Act, 1882, ss. 58 — 63 ; Carson's Real Prop. Stats, pp. 699 et sea. (I) Settled Land Act, 1882, s. 2 ; Re Atkinson, 31 Ch. D. 577; 55 L. J. C.49 ; Re Collinge's Sett., 36 Ch. D. 516 ; :,7 L. J. C. 219 ; Re Osborne ,v Brig/tfs, Ltd., [1902] 1 Ch. 335 ; 71 L. J. O. 215. {m) Sugden, Powers, 550 ; and see ibid. 530. Seejwst, p. 306. SECT. IV. § 3. TIME OF EXECUTION. 289 operative only upon the contingency happening of his death without leaving issue (n). But a power to appoint by will to those members of a class who might be living at a date beyond the limits of the rule against perpetuities cannot be executed in favour of the class by a will made before the date fixed If the contingency is as to the person, it cannot be executed Power to sur- until the person is ascertained. Thus, a power given to the pe „ survivor of two persons cannot be executed by a joint appoint- ment, or by a several appointment, during their joint lives (p >. But a general power, if to be executed by will, may be well executed by the will of the actual survivor, though made during the joint lives ; for the will, as to the property comprised therein, speaks from the death (q). A power given to a designated person in the event of his surviving another, if executed during the joint lives, will be effective if the donee be the survivor (/•). A power to be exercised within a prescribed period is not well Pow executed by a will, unless the donee of the power die within the ^"tain period period, because the will is not operative until his death (s). And or event, where the power was limited to cease in a certain event, as if the donee were then dead, a will previously made was held to be no execution, as the will remained revocable (t). A married woman may execute a power. But her power may Power daring cover tunc or be limited so that she can only execute it while unmarried, or notwitbstand- during the continuance of a particular coverture, or during the ing coverture. continuance of any coverture. The nature of the power depends upon the wording of the instrument creating it, and it is not possible to reduce the cases to any definite rule(%). The usual powers in a settlement are impliedly restricted in Powers in their execution by the duration of the settlement, or the continu- piiedlyre- ance of the trusts and purposes to which the powers are stricted to . . purpos subservient; and they cannot, in general, be exercised after the the settle- vesting in possession of the ultimate remainder in fee, whereby L they are rendered no longer necessary (x). (n) Dally v. Pullen, 2 Bing. 144. more, 1 Dick. 56 ; S. C. nom. Sclaterv. Ami as to a power to arise on default of Travell, '■'< Vin. Ab. 1-7. pL 8. S issue, see Sugden, Powers, 267. Tliomas v. Jones, 1 De G. J.& S. 63 ; 32 (o) Blight v. Hartnoll, 19 Ch. D. 294 ; L. J. C. 139. 51 L. J. (.'. 162. (.0 Cooper v. Martin, I.. B. •" Ch. 17. ( p) McAdam v. Logan,% Bro. C. C. and there is no jurisdiction in equity to 310^ Doe v. Tomhinson, 2 M. & S. L65 ; supply Buch defect in the execution. Hole v. Escott, 1 M. cV Cr. 187. .See Lb. : 306. Care v. Cave, 8 De G. .M. & G. L31 : 7.'.' (t) Potts v. Britton, I.. R. 1 1 Eq. 133. BlacMurn, 13 Ch.D. 75; 59L. J. C. 208. Sugden, Powers, 153 et seq. ; Wood (,/) Wills Act, 1837, ss. 24, 27; v. II.W. L. K. 1" K ,. l'-'" : ■•■' I- •'• < '• Thomas v.' Jones, 1 De G. J. & S. 63 ; 32 790. L. J. C. 139. (a?) Sugden, Powers, 99, 359; (/■) Sutherland (Count est') v. North- ante, pp. 275, -<<'■■ L.P.L. U 290 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. §§ 2. The Form and Conditions of Execution. Forms and conditions prescribed by the power must be strictly complied with. Power given in general terms. Tower to be executed by deed— by other instrument or writing — will operating as instrument of execution — statutory form of execution by deed. Tower to be executed by will— statutory form of execution by will- execution by will revocable. Consent required to execution. Tower involving discretion cannot be transferred — power exteniled to survivors— to heirs or executors— to assigns— execution by attorney. General power may be transferred— execution by giving power. Forms pre- scribed in jiower mast be observed. The forms and conditions prescribed in the creation of the power for the due execution must be strictly observed ; — as that it shall be executed by deed, or will, or writing ; — with signature, sealing, delivery ;— in the presence or with the attestation of witnesses; — with enrolment, or any other like ceremony ;— with the consent of certain persons, or with notice to certain persons, or with any other conditions of the like kind (a), or that the instrument executing a general power to appoint by will shall refer to the instrument creating the power (6). Tower given in general terms. Power to be executed by deed. By other in- strument or writing. \\ T ill operat- ing as instru- ment of execution. A power given in general terms, without any express or implied restriction upon the mode of execution, may be executed by deed or will, or by any writing sufficiently declaring the use or estate appointed (<•). A recital in a deed, where no special form is necessary, may amount to a sufficient execution of a power (d). A power expressly requiring an execution by deed cannot, in general, be executed by will.— But if the mode of execution be extended in terms to any other instrument or writing, it is not then restricted to a deed, and an instrument intended as a will, whether good or not as such, if answering to the description and complying with the formalities required by the power, may be a sufficient execution (e). In this respect, a will attested as being " published, acknowledged and declared " as the testator's will {a) Sugden, Powers, 206, 229. \h) Phillip* v. Cayley, 43 Ch. D. 222 ; 59 L. J. C. 177 : Hr Lane, [1908] 2 Ch. 581 ; 77 L. J. C. 774. (i<) Susrden. Powers, 135, 203 ; lie Jaehson 's Will, 13 Ch. D. 189 : 49 L. J. C. 82. See Be Flower, 55 L. J. C. 200. {(J) Paulson v. Wellington, 2 P. Wms. 433 : Be Farnell, 33 Ch. D. 599. (e) Sugden, Powers, 135, 209, 214: Taylor v. Meads, 4 De G. J. & S. 597 ; 34 L. J. C. 203. As to the jurisdiction to aid in the case of a defective execu- tion of a power, seejwst, p. 304. SECT. IV. S 3. FORM AND CONDITIONS OF EXECOTION. •i'.H in the presence of witnesses was held to answer the description of an instrument " delivered " (/). But a will not sealed, nor purporting to be sealed, was held not to operate as an instrument " sealed," as required for the execution of a power (//). By the 22 & 23 Vict. c. 35, s. 12, " A deed hereafter executed - in the presence of and attested by two or more witnesses in thi manner in which deeds are ordinarily executed and a: shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by deed or by any instrument in writing not testamentary, notwithstanding it shall have been expressly required that a deed or instrument in writing made in exercise of such power should be executed or attested with some additional or other form of execution or attestation or solemnity." A proviso follows saving the effect of any direction in the power as to the consent of any person required, or as to any act having no relation to the mode of executing and attesting the instrument, and also saving an execution conformable with the power (li). Statutory form of exe- cution by will. Where the donee of a power is restricted to an appointment Power to be by will, he cannot execute it by deed or other instrument having c ; x jl cu ' an immediate irrevocable operation, for the intention of the power that the execution should be revocable would be thereby defeated (i). The Wills Act, 1837, (applying to wills made subsequently .1 which prescribes a general form for the execution of wills (s. 9), further enacts as to the execution of powers by will (s. 10), " that no appointment made by will in exercise of any power shall be valid, unless the same be executed in manner herein- before required; and every will executed in manner hereinbefore required shall, as far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it shall have been expressly required that a will made in exercise of such power should be executed with some additional or other 'forru of execution or solemnity " (k). The statute applies only to powers admitting in terms of an (f) Smith v. Adkins, L. R. It Eq. 402; 11 L. J. C. 628. (g) Taylor v. Meads, 4 Dc G. J. & S. .7.17 : 34 L. .1. C. 203, and see the there cited. (It) See as to the changes effected by this statutory provision, Sugden, Powers, 234 : Carson, Real Prop. Stats. 529. And see Newton v. Rickette, i» H. L. C. 262. (. Sugden, Powers, 210; Proby v. Landor, 28 Beav. 504; /.'• /' oer. 55 L. J. C.200; Majoribaiiks v. II, < Dru. 11. Ami there is no jurisdiction in equity to aid such an execul the power, see post, p. 306. (/.•) Phillips v. 1 13 Ch. D.222 ; 59 I.. .1. ('. 17 7. See /.'• La . 1908 2 Cli. 581 ; 77 1.. .1. C 771. I 2 292 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Execution by will is re- vocable. Consents re- quired for execution. Power in- volving dis- cretion can- not be trans- ferred. Power ex- tended to sur- vivors. execution "by will," and does not extend to powers to be executed by other instruments or writings, though a will might answer the description of such instrument or writing and satisfy the terms of the power ; in which case, however, the statute will not obviate the defects of the will as such instrument in not satisfying the requirements of the power (I). An appointment by will partakes of the revocable quality of the will itself in which it is made, and, therefore, is not complete until the death of the testator. Consequently it cannot operate in favour of appointees dying before the testator ; and a revoca- tion of the will is a revocation of any appointment thereby made (»i). So it cannot operate as an execution of a power restricted to a certain time, unless the testator die within the time, so that his will may become operative during the continuance of the power (n). The consent of other persons, which may be required as a condition to the execution of the power, must be obtained, and at the time and in the particular form required by the terms of the power; and the death of the person whose consent is so required, or of one of several persons whose joint consent is required, prevents the exercise of the power and so destroys it (o). " If the power repose a personal trust and confidence in the donee of it, to exercise his own judgment and discretion, he cannot refer the power to the execution of another, for delegatus non potest delegare" (p). — So a power of consent, as a condition to the execution of a power by another, cannot be transferred (q). The statutory powers of a tenant for life under the Settled Land Act cannot be assigned (r). It is sometimes important to consider, especially in the case ' of trustees, whether a power is exercisable by the persons named, or may be executed by others in a chain of devolution. As regards survivorship, the following rules are laid down by Lord St. Leonards : (1) where a power is given to two or more, (/) Taylor v. Meads, 4 De G. J. & S. 597 : 34 L. J. C. 203. (m) Sugden, Powers, 458,460 ; Dalies' Trusts, L. R. 13 Eq. 163; 41 L. J. C. 97 ; Sotlieran v. Deniiig, 20 Ch. D. 99 ; Be Boyd, [1897] 2 Ch. 232 ; 66 L. J. C. 614. See Be Martin. [1902] 1 Ch. 314 ; 71 L. J. C. 203. (n) Cooper v. Martin, L. R. 3 Ch. 47. And if the power cease before the death of the testator, there is no equity in aid of the appointment in his will. See post, p. 306. (u) Sugden, Powers, 252, and see the cases there cited. (p) Sugden, Towers. 179, and see the cases there cited. See Williamson v. Farwell, 35 Ch. D. 128 ; 56 L. J. C.645. ((/) Hawkins v. Kemp, 3 East, 410. (/•) Settled Land Act, 1882, s. 50. SECT. IV. § 3. FORM AND CONDITIONS OF EXECUTION. 293 by their proper names, who are not made executors, it will not survive without express words; (2) where it is given to three or more generally, as to " my trustees,'' " my sons/' etc., and not by their proper names, the authority will survive whilst the plural number remains; (3) where the authority is given to " executors," and the will does not expressly point to a joint exercise of it, even a single surviving executor may exercise it ; (4) where the authority is given to them nominatim, although in the character of executors, yet it is at least doubtful whether it will survive; (5) where the power to executors to sell arises by implication, the power will equally arise to the survivor. The learned author in conclusion repeats the advice of Lord Coke that the power should be extended in express terms to the survivors or survivor (s). In the case of trusts constituted after, or created by instruments coming into operation after, December 31st, 1881, a power may be executed by the survivor or survivors of two or more trustees unless the contrary is expressed in the instrument creating the power (t). The power may be expressly extended to representatives, as Pow the heirs or executors of the donee, who in such case may j^oiMjxe- execute it ; but it is not thereby made assignable (<()• cutors. If the power be expressly extended to the assi'jiix of the donee, Power ex- it may pass to his assignee in law or in fact, either as annexed g£ ^ SDBM " to an estate or not, and either in his lifetime or at his death, according to the intention of the instrument creating the power (x). New trustees appointed by the donees of the power for that purpose may exercise the same powers, authorities, and discretions as the original trustees, unless this right is negatived or modified by the instrument creating the trust ; and if appointed by the court without this limitation (//). The deed or instrument of appointment under a power, when Execution by ,. .. , , attorney, prepared according to the instructions of the donee, may be executed by attorney, there being no discretion involved in the mere act of execution ; unless the power prescribe some particular mode of execution inconsistent with such agency. The deed or instrument is in fact that of the principal ; it purports to be drawn and executed in his name, though the formal act of execution is by the hand of an attorney (z). (.y) Sugden, Powers, 128. See ante, May, 3 K. & J. :»s:. ; 26 L. J. <". p. 273, n. («). 791. (0 Trustee Act, 1S93, s. 22. y) Drustee A ct, 1893, ~. 1". - ■ • ■■■ (u) Sugden, Powers, 129 — 131. ami .">, -. :;7. the cases there cited. (--) Sugden, Powers, 180, 199 [a Sugden, Powers, 180; Ilall v. Berkeley v. Hardy, o B. & C. 3oo. 294 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. General power may be trans- ferred. Execution by giving power. A general power, unrestricted as to the objects and as to the execution, may be transferred to another. Thus where an estate is limited generally to such uses as A. shall appoint, he may limit it to such uses as B. shall appoint, and B. will take a general power of appointment. The power in such form is a species of ownership equivalent to the fee simple, involving no trust or discretion except on his own behalf (a). A power to appoint generally to or amongst particular objects may be executed by giving to the objects a general power of appointment, for that is equivalent to ownership, and not a delegation of the original power (A). So the power may be executed by giving to an object an estate for life with power to appoint by will (c) ; only if the object of the appointment were not living at the time of the creation of the power, the appoint- ment to him of the power by will would be void for remoteness (d). §§3. Construction and Operation of the Instrument of Execution. Intention to execute the power — examples. Conveyance or devise operating as execution of power — where donee of power has no estate — where donee has estate — where donee, having estate, both appoints and conveys. Statutory effect of general devise in execution of power — power created subset puently to the will. Construction of the uses and estates appointed. Partial and repeated execution of power — execution for mortgage or charge only. Execution with reservation of new powers of revocation and appointment — new powers must be expressly reserved — new power of revocation does not include new appointment — new powers do not require the formalities of the original power — Execution by will revocable without reservation. Execution subject to a condition. Intention to An intention to execute a power must appear, but is execute the sufficiently manifested by an instrument which points to the appear. property over which it exists ; it need not expressly recite or refer to the power, although it is customary to do so (a). (a) Sugden, Powers, 181, 195 ; see ante, p. 284. (b) Bray v. Bree, 2 CI. & F. 453. (c) Phipson v. Turner, 9 Sim. 227 ; SlarTi v. Dah/ns, L. R. 10 Ch. 35 ; 42 L. J. C. 524. (d) Wollastm v. King, L. It. 8 Eq. 105 ; 38 L. J. C. 01, 392 ; Morgan v. Gronow, L. R. 16 Eq. 1 ; 42 L. J. C. 410. («) Sugden, Powers, 201, 289; Garth v. Townsend, L. R. 7 Eq. 220 ; Be Farnell, 33 Ch. D. 599. SECT. IV. § 3. CONSTRUCTION OF INSTRUMENT. 295 A will containing a general expression of intention to execute Exam] any disposing power may operate as an execution of a power, general or special, notwithstanding the will contain a general charge of debts, which could not attach on the property appoint) 1. and notwithstanding that it purport to devise a greater estate or to include other persons than the power authorises (b). A recital in an instrument to the effect that a person, an object of the power, is entitled to an estate or fund to be appointed may show a sufficient intention to appoint, and if sufficient in respect to form may operate as an appointment (c). — Where a person, having a general power over property vested in a trustee, took a transfer of the property from the trustee and executed the deed of transfer, it was held to operate as an execution of the power (d). Where a person, having a power to appoint property, executes Conveyance an instrument (whether a conveyance or will) satisfying the operat i] requirements of the power as to form and conditions, it will executio ... power — operate as an execution of the power, although it neither contains where' no a reference to the power, nor expresses an intention to execute ei,iUe - the power, if the donee has no property to which a direct conveyance or devise could apply (<■). Where a person has a power of appointment and also an Where donee , , . , -i ■ i • -j/u i. of power 1ms estate m the same property, a conveyance or devise, without est ! Ue- any reference to the power, operates presumptively upon the estate only, and not as an execution of the power. But if full effect cannot be given to the intended disposition by way of conveyance or devise, the instrument, if sufficient in other respects, may be taken to operate in execution of the power in order to effectuate the general intention (/). — Thus, if a tenant for life with a power of leasing grant a lease without reference to the power, such lease, as drawn from his estate, would determine with his life ; but, if made in conformity with the power, it may be supported for the whole term as an execution of the power (g). . Qt) Lowe v. Pennington, 10 L. J. bell, 2 Giff. 112 ; Re Davtnport, 1895] N. S. C. s:f : Teape's Trusts, L. R. 16 1 Ch. 361 : 64 L. J. C. 252. Eq. 442; 43 L. J. C. 87; Re Winer, O) Sugden, Powers, 289; Roake v. [1899] 1 Ch. 563; 68 L. J. C. 255 ; Re Denn, 1 Bli. N. S. 1 : Att.Gen. v. Maylmw, 70 L.J. C. 128; [1901] 1 Ch. Wilkinson, I.. R. 2 Eq. 816; Gratwick's 677; Re Weston's Sett., [1906] 2 Ch. Trusts, L. R. 1 Eq. 177; Re Mayliew, 620; 76 L. J. C. 54. [1901]] Ch. 676 ; 70 L. .I.e. 128. (c) Wilson v.Piggott, 2 Ves.jun.351 ; (/") Roake v. Denn, l Bli. N. S. 1 : Re Farnell, 33 Ch. D. 599. Sir Edward Clere's Case y & Co. 17. - (di) Marler v. Tommas, I.. 11. 17 Eq. Sugden, rower-. 317. 8 ; 43 L. J. C. 73. See Watts v. Camp- g) Per Parker, C. J., Tomlinson v. 296 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Execution of power operat- ing as con- veyance. Where donee of power having estate both appoints and conveys. Statutory effect of general devise as execution of a general power. On the other hand, where the instrument is expressly made in execution of the power only, and not as a conveyance of the estate, if it he void in execution of the power, it may be supported as against the appointor out of his interest ; but it will not operate as a conveyance contrary to the intention, where the effect of such operation would be prejudicial to the appointee, as by merging a prior interest, or giving a less interest than intended under the power, or where the estate is subject to trusts (//). "Where the donee of a power, having also an estate or interest in the land, both executes the power and conveys the estate, the question may arise whether the instrument operates by way of conveyance or appointment. This is a question of construction with reference to the circumstances, and that construction is to be adopted which will best effectuate the intention of the parties (i). — Conveyances are commonly drawn so as to be capable of operating either way, for greater security (/.■) . By the Wills Act, 1837, s. 27, " a general devise of the real estate of the testator, or of the real estate of the testator in any place, or in the occupation of any person mentioned in his will, or otherwise described in a general manner, shall be construed to include any real estate or any real estate to which such description shall extend (as the case may be) which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will;" the section proceeds to enact in the same terms as to personal estate. — If the power requires that the appointment should expressly refer to the power, it is not a general power within the section (I). A power to appoint to any person by will only is a general power within the section (m) ; a power to appoint in any manner amongst children is not (»)• A power to appoint a life estate to a wife cannot be exercised by an appointment of an absolute interest to her (o). This enactment merely expresses the rule of law, where there is no other estate to satisfy the devise ; but where the testator has an estate as owner, and also a general power over the same LHghton, 10 Mod. 36 : Campbell v. Leach, Ambl. 740. See Dijas v. Cruise, 2 Jo. & Lat. 4GU. (/() Sugden, Powers, 353 ; Roev.Abp. York, 6 East, 86 ; Bowes v. East London Waterworks, 3 .Ma. Id. 375 : Jac. 324. (0 Sugden, Powers, 3.j7, and cases there cited. See Butler v. Gray, L. E. 5 Ch. 26 ; 39 L. J. C. 291. (Ji) See ante, p. 275. (I) Phillips v. Cayleij, i.i Ch. D. 222 ; 59 L. J. C. 377. See Re Lane, [1908] 2Ch. 581 ; 77 L. J.C. 774. (/«) Me Powell's Trusts, 39 L. J. C. 188. (n) Chirrs v. Awdry, 12 Beav. 604. C«) Be Williams, 42 Ch. L>. 93 ; 58 L.J. C. 451. SECT. IV. § 3. CONSTRUCTION OF INSTRUMENT. 291 or other estates, it alters the previous rule, that a general devi would operate as an appointment only if the intention required it. Under the statute a general devise executes the power unl< a contrary intention appear by the will (p). Under this section a charge of debts or Legacies, or other Dii general direction as to the application of the testator' . p may operate as an execution of a general power of appoint- ment (7). But the execution will extend only so far as accessary to render such directions effectual, and so far as such directions fail by lapse or otherwise the power will remain unexecuted r). The same statute enables a testator to dispose of all the real Powers . created -ub-e- and personal estate which he shall be entitled to at the time of quentlytothe his death (sect. 3) ; and further enacts that every will shall be wllu construed, with reference to the real and personal estate com- prised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appeal' by the will (sect. 24). — Hence a general devise may operate in execution of a power created after the date of the will, if it be capable of being so executed ; but it may appear from the circumstances, or the language used, that the testator did not intend his previous will to operate in execution of it, in which event it will be so restricted in its operation < The limitation of the uses or estates appointed in execution of Construction a power is construed by the rules applicable to the instrument ^tatesap- of execution, as being a deed or a will. Therefore, if the pointed. appointment be by deed, the same technical terms are required, and receive the same construction as in a conveyance of the like estates. If the appointment be by will, the terms of appoint- ment receive the same construction as wills in general (t). — The appointed limitations are construed, in general, in combination with the limitations of the original instrument creating the power and as if inserted therein in place of the power (»)• A power of revocation and new appointment may be executed Partial execa- froni time to time as to different parts of the land, or as to * (/o Sugden, Powers, 300 : Carson, 508; 55 L. J. C. 564 ; Re Boyd, [1897] Real Prop. Stats. 4l"; 35 1.. .1. •'. Hodgson, [1899 j 1 Ch. 666 ; Re Marten, 389; Re Hayes, [1901] 2 Ch :>l".'. - [1902] 1 Ch. 314. See Be Van Hag an, Beddington v. liaumann, [1903 A. C. 1G Ch. D. 18. 13 ; 72 L. J. C. 155. (/•) ReBavies' Trusts, L. R.13Eq. 163 ; Ch. D. («) Sec ante, p. 270. 298 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Repeated exc- cul ion. Execution for mortgage or charge only. different uses or estates, so long as any power continues. Thus, a general power of appointment may be executed by appointing an estate for life at one time, and the fee at another time. So, a power of jointuring or raising portions may be executed from time to time, as required, up to the limits of the power (.v). — And an express declaration that the residue of the estate or interest shall go to the remainderman or as in default of appointment is merely a statement of the legal result, and not a complete execution of the power, preventing any further execution of it (y). A power may be executed for the whole legal estate, but only partially for the equitable or beneficial estate ; as in the case of an appointment in fee by way of mortgage or charge only, the power is wholly executed at law, but only partially in equity, leaving the equity of redemption or the residue of the beneficial interest still subject to the power ; but a formal reservation of the equity of redemption may operate as an appointment of the residuary interest, without an express declaration of intention to alter the previous title (z). , Execution with power of revocation and new ap- pointment. Power of re- vocation must be expressly reserved. Reserved power of re- vocation does not include new appoint- ment. A power, whether general or limited, may be executed with the reservation of a power of revocation and new appointment, although no express authority for such reservation be given in the original power ; and a like reservation may be made upon every subsequent execution of the power (a). — And it seems " that such a power may be reserved upon the execution of even a power simply collateral " (b). — " But a power may be so framed as to show that an irrevocable appointment is intended so as to exclude the right to reserve a power of revocation " (c). Where a power of appointment is executed by deed, without a power of revocation being reserved in the deed, the appointment cannot be revoked, although the original power expressly authorise revocation from time to time (d). The execution of a power to revoke reserved upon the execution of a former power will revive the powers contained in the original settlement, although to the power of revocation there (.r) Sugden, Powers, 272; Bigges' Case, 1 Co. 173 // ; Herrey v. Hervey, 1 Atk. 561 ; Zmieh v. WooUton, 2 Burr. 1136; 1 W. Bl. 281; Cuninghame v. Anstruther, L. R. 2 H. L. Sc. 223. See Webster v. Boddington, 1<> Sim. 177 ; Versturme v. Gardiner, 17 Beav. 338. (v/) Sugden, Bowers. 82 ; Zovch v. Woolston, 2 Burr. 1136: 1 W. Bl. 281. See Doe v. Milborne, 2 T. 11. 719. (?) Sugden, Powers, 273, 274 ; In»cs v. Jackson, 16 Yes. 356 ; 1 Bligh, 104. See ante, p. 208. (a) Sugden, Powers, 367 ; Adams v. Adams, Cowp. 651. (b) Sugden, Powers, 389. See ante, p. 279. (r) Sugden, Powers, 389. Id) Sugden, Powers, 369 ; liele, v. Bond, Sugden, App. 908; Prec. Ch. 474 ; Be Hancock, [1896] 2 Ch. 173 ; 65 L. J. C. 690. See Tarbaeli v. Marburg, 2 Vein, oil and note. SECT. IV. § 3. CONSTRUCTION OF INSTRUMENT. 299 be not added an express power to appoint new uses, unless the appointment be destructive of the original settlement. In tin- latter case, if a power of revocation be reserved, or if executed, a power to appoint new uses be not also reserved, the seisin will vest in the settlor under the doctrine of resulting uses(e), and upon an attempted execution of the original power there would be no seisin to serve the new uses declared (/). — An original power in a settlement reserved to the settlor to revoke the u- authorises a new appointment without further reservation (g). New powers of revocation and appointment reserved upon the New pow execution of an original power are restricted in extent of operation by form and as to the objects of appointment by the terms of the original °' -■ 11:l1 . . . power, power ; but they are not restricted in execution by the formalities required by that power. These formalities may be altogether omitted, and the new 7 powers executed in compliance with those formalities and conditions only which may be prescribed in the terms of their reservation (//). An execution by will is always revocable by the nature of the Execution by instrument, without any express reservation of a power to revoke ; ^vocable? 8 and a new appointment may be made at any time by a subse- quent will (/'). A power may be executed conditionally, so as not to take effect Execution until a future time or event ; or to be subject to revocation by a eonStion! * future event (A). Thus, an appointment by will, reciting that the appointor had then no children, was construed to be conditional on there being no children ; so that, upon children being born, the appointment was inoperative, and the children became entitled under a limitation to them in default of appointment (/). In settlements of land a power is usually given to raise sums of money charged upon the settled estates to be paid to those who will not come into possession of the lands under the limitations of the settlement. These sums of money are known as portions for younger children, and an appointment made to a younger child is impliedly conditional upon his continuing to till that character until the time of payment ; and upon his becoming the eldest son in the lifetime of the parent the appointment becomes (e) See ante, pp. 83, 254. (h) Sugden, Powers, 366. See Idams if) Ward v. Lent/tall, 1 Sid. 343 ; 2 v. Adams, Cowp. r,:.l : Brudenell v. Keb.269; Montagu v. Kater, 8 Ex. 507 ; Elives, 1 Bast, II-': 7 Ves. 382. 22 I.., I. Ex. 154 : Saunders v. Evans, 8 (i) Sugden, Powers, :; s 7. See ante, H. L. C. 7i' 1 : 31 L. .1. ('. 2X.\. See p. 292. Sugden, Powers, 373 — 386. I l Sugden, Powers, 362. (f executory limitation in defeasance of the prior appointment, it may in some cases operate by construction as a conditional limitation of the preceding estate and determine it in the event, though inoperative to pass the estate to the appointee as intended. It may express the intention that the former estate is to cease in the event prescribed, though it fail of further operative effect by reason of the incapacity of the appointee (d). An appointment to a person not within the power followed by an appointment over to an object of the power, either by way of remainder or executory limitation, is void as to the prior appoint- ment but may take effect as to the appointment over. — The ulterior appointment, however, if limited by way of remainder, does not admit of acceleration by removal of the preceding estate ; for the prior appointment, though it be made in the form of a particular estate, is wholly void, and leaves only the ulterior appointment, limited to take effect at the period or event prescribed for the determination of the void limitation. In all cases therefore the ulterior appointment can be supported only as an executory limitation, and if it be valid as such, it may take effect in due course, and in the event immediately, or upon the determination of a prior estate validly appointed ; but until it takes effect, the estate goes as in default of appointment (e). A power to appoint to children does not extend to grand- children ; therefore an appointment under such a power to a child for life, with remainder to his children or issue is void as to the remainder to the children of issue, who are incapable of taking under the power (/). (//) Sugden, Powers, 504 ; Sadlei' \. Pratt, 5 Sim. 7>1 : Brown v. Nisbett, 1 Cox, 13. See Be Boner's Settlement, to Ch. I'. 17'.' ; 59 L. J. C. :>'.'.">. (//) Doe v. Eyre, 5 C. B. 713; Sugden, rowers, 512 — 51 1. See aide. p. 26'2. atment appointment over to ■itment to strai with appoint- ment over t" object. tment to chilil for life with re- mainder to his children or issue, not objects. (e) Sugden. Powers. 508, 7,1.". ; Brude- nell v. Blwes, 1 East, 142 ; 7 Ves. 382 ; Crompe v. Barrow, I Ves. 681 : Crozier v. Crozier, 3 Dr. & War. 353; Craven v. Brady, I.. V,. 1 Ch. :.".»; ; 38 L. J. C. 345 : Re Swinburne, 27 Ch. D. 696 ; 54 I.. -I. t '. 229 : Williamson \ . I 35 Ch. D. 128 : 56 I.. J. C. 645. - Re Hunt, 31 Ch. D. 308 ; 55 I.. J. C. 280. (/) See ante, p. 281 ; Sugden, r 5i 3 : Adams v. Adams, Cowp. 651 ; Brudenell v. Elwes, 1 East, 142 ; 7 Ves. 302 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Construed as an estate tail by the cy-pres doctrine. But where such an appointment is made by will and the remainder is appointed to the children or issue in a manner showing an intention that they should take in a course of descent, it is construed to give an estate tail to the parent, in order to effectuate the general intention of the testator. This is an application of the r<->> doctrine already explained, which applies to wills, whether devising directly or in execution of a power (g). The same construction is not admitted in appoint- ments by deed (//). Excess in estate or interest ap- pointed. Equitable estate instead of legal. Lease in ex- cess of term. Lease in re- version. "Where a power authorises not merely the appointment of the land, but fixes the estate which may be appointed, an appoint- ment of a greater (or less) estate is an invalid execution of the power, as an appointment of the fee or of an estate tail under a power to appoint for life, or, it has been said, of an estate for life under a power to appoint an estate tail (a). — A power to appoint to a particular object was not well executed at law by appointing to a trustee for that object, but a similar appointment was valid in equity, and the equitable rule must now prevail since the Judicature Acts (/.). Under a power to lease for a certain term, as twenty-one years, a lease for twenty-two years or any greater term is wholly void at law ; but in equity it is void only for the excess and is supported as a valid execution of the power for the term authorised (/). A power to lease for a certain term authorises a lease for a less term (in). Under a power to lease in possession a lease appointed to commence infuturo is void, both at law and in equity (n) ; and a power of leasing in general terms presumptively authorises only leases in possession ; and such a power does not authorise leases in reversion, nor, it seems, future or concurrent leases without 382. As to the circumstances under which a case of election will arise, see notes to Streatfield v. Slreatfield, Cas. t. Talb. 176 ; 1 Wh. & T. L. C. Eq. 416. (if) Sugden, Towers. 498 et seq. : Line v. Hall, 43 L. J. C. 107 ; Re Rising, [1904] 1 Ch. 533 ; 73 L. J. C. 455. See ante, p. 243. (/() Adams v. Adam*, Cowp. 651 : BrudeneU v. Elwes, 1 East, 451. (i) Sugden, Powers, 522 — 525. and the cases there cited ; llr Pointer's < s '' ttle- ment, 45 Ch. D. 179 : 59 L. J. ('. 595. But see as to the latter point. Islierwood v. Oldknow, 3 M. & S. 382 ; Sugden, Powers, 411. (It) ChurcJiman v. Harvey, Ambl. 335 ; Wyhham v. Wykham, 18 Ves. 395 ; Scotney v. Lamer, 2!) Ch. D. 535: 54 L.J. C. 558. See Re Redgate, [1903] 1 Ch. 356 ; 72 L. J. C. 204. (/) Sugden, Powers, 519 ; Campbell v. Leach, Ambl. 740 ; Roe v. Prideaux, 10 East, 158. As to the execution of powers of leasing, see Sugden, Powers, p. 711. As to reservation of rent and conditions under a power of leasing, see ante, p. 285 ; and as to statutory relief against defects in leases under powers, see post, p. 309. (mi) Islierwood v. Oldhnow, 3 M.& S. 382. («) Sugden, Powers. 520, 760 ; Bowes v. East London Waterworks, Jacob, 375; Doe v. Calvert, 2 East, 376. See Doe v. Day, 10 East, 427. SECT. IV. § 3. EXECUTION JX EXCESS OF POWER. 303 special words for that purpose (o). But a contract to execute a lease at a future time may be specifically enforced, as may also a covenant for renewal, if at the date when performance may he required the power still subsists, and the proposed lease be conformable to the power (p). Under a power to charge a certain sum on land a charge of a Charge in ex- larger sum is void only for the excess {q). ' ! ; If there be annexed to an appointment conditions, directions, Appointment or qualifications which are not authorised by the power, the Uoiandcon- appointment, if it can be distinguished and separated from th< iaex " unauthorised terms, may stand unaffected by them ; but if inca- pable of being severed the appointment will be absolutely void (/•). — Thus a direction annexed to the appointment that the appointee Condition should share with a person not an object of the power is void ^J* and may be rejected (s). — So directions not authorised by the partici] power as to the time of vesting (0.— So a direction that the Condition appointment be accepted in satisfaction of a debt, or that it he J' charged with debts, or that the appointee release a debt or pay I debts (u) ; — and the appointment in such cases will stand good. TVliere under a power to appoint to children, the appointment Condition of a share is qualified by a direction that it shall be held in trust ,ha ' ll K , , , . J m uuo ° pointed share or settled in a manner to give a benefit to the children or issue of be settled, etc. the appointee, or any other persons who are incapable of taking under the power, such direction is, in general, void and inoperative, and the appointment is good and absolute (a;).— If the appointee combined 6 " be a party to the instrument of appointment containing such witb 5 etUe ' direction or qualification, the latter may be supported as an app independent disposition by him of the appointed share ; as in the case of the marriage settlement of a child to whom an (V) Sugden, Powers, 749, 77>2. 77t> : 443. Roe x. Prideaux, 10 East, 184. (f) Dillon v. Billon, 1 Ball & B 77 (p) Shannon v. Bradstreet,! Sch. & (u) Boberts v. Dixall, 2 Eq Ca \i>r I.. 52 ; Dowell v. Dew, 1 Y. & C. Ch. 668 ; Cowx v. Foster, 1 .1. & ]|. 30 ; 29 345 : affd. 12 L. .1. ('. 158 : Gas Light I,. -I. C. 886 ; Feiiner v. Jay, I.. R. in and Coke Co.v. T,>n-s,: :;:, Ch. D. .".i'.i : Eq. 550; :;:i I,. .1. ( |. 686; White v 56 L. J. C. 889. 8ee (lark v. Smith, 9 White, 22 Ch D 555 See Sueden CI. & 1'. 126. Powers, 528. i V ) Sugden, Powers, 521 ; Parlierv. U) Sugden, Powers, 516,664; Watt Parker, Gilb. 168 ; Hervey v. Hercey, 1 v. Creyke, 3 Sra. & (i. 362 : 26 I.. J. Atk. 561, case of excessive jointure. 211; Woolridge v. Woolridge, Johns (?•) Sugden, Powers, 526 ; lie 1'crhins. 63; 28 L. J. C. 689; Churchill v [1893] 1 Ch. 2S3 ; 62 L. J. c. 531; Churchill, L. R. 5 Eq. 14 ; 37 L .1 C Webb v. Sadler, L. I!. 8 Ch. 419; 12 92; and there is no election in such L. J. C. 4'.»s. caseg j n favour of the grandchildren or O) Sadler v. Pratt, .". Sim. 632. See issue, lb. Stroud v. Xcrvian. Kay. 313 : 23 L.J.C. 304 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. appointment is made in the form of a settlement of the share upon the issue of the marriage (//). Invalid direc- But it is a question of construction whether upon the whole separable instrument the directions which are invalid form a suhstantive from appoint- par fj f ^he appointment so as to invalidate it, wholly or so far raent. * x as they extend (z). § 4. Equitable Jurisdiction over Powers. §§1. Jurisdiction in aid of execution. Defective execution aided in favour of purchaser, wife, child, etc. — against persons claiming in default of appointment. Defects of form aided — execution by will instead of deed — by deed instead of will. Non-execution or defective intention not aided. Covenant or contract to execute a power enforced in equity — covenant to execute future power — covenant to appoint satisfied by allowing estate to pass in default of appointment. Powers held in trust enforced in equity — trust for creditors raised by appointment to a volunteer. Statutory relief against defects in leases under powers. Defective execution supplied. For pur- chasers, etc. Wife or child. \Yhere an intended appointment fails at law from defect in the form or manner of execution required by the power, a court of equity, considering the claim of the appointee in certain cases to be preferable to that of the person becoming entitled in default of appointment, will aid the defective execution by compelling a transfer of the legal estate according to the intention of the appointment (<(). A defective execution is thus aided in equity in favour of persons who have given value for the appointment, as purchasers or lessees, mortgagees and creditors ; but not at the suit of persons claiming without any consideration ; — also in favour of persons for whom the appointor is considered especially bound by relationship to make provision, as a wife, but not in favour (y) Sugden, Powers, 670; Thompson v. Simpson, 1 Dr. A- War. 459. See Morgi in v. Gronow, L. E. 16 Eq. 1 ; 42 L. J. C. IK) ; Cooper v. Cooper, L. R. 5 Ch. 203 ; 39 L. J. C. 240, where the appointment was made to the daughter a minor on her marriage ami the settle- ment made by her husband, giving a reversionary interest to the appointor] the appointment was supported. (z) Sudden, Powers, His. 529; RucJ/er v. Scholejield, 1 H. A M. 36 ; 32 L. J. C. 46 ; Webb v. Sadler, L. R. 8 Ch. 11 '.• ; 42 L. J. C. 4«J8 ; Scotney v. Lomer, 2D Ch. D. 535 ; 54 L. J. C. 558 ; Be Perkins' Settlement, [1893] 1 Ch. 283 ; 62L.J.C. 531. (a) Sugden, Powers, 530 ; notes to Toilet v. Toilet, 2 P. Wms. 489 ; 2 Wh. c\: T. L. C. Eii. 289. SECT. IV. § 4- JURISDICTION IX AID OF EXECUTION, 305 of a husband ; a child, but not a grandchild ; — nor a father or mother, brother or sister, or more distant relation (b). This equity is not extended to an illegitimate child (c). A illegitimate power of appointment to children prima facie extends to legiti- mate children only; and where a power is sufficiently general to include illegitimate children, they must be aptly designated in the execution of the power in order to take as appointees (d). This jurisdiction is exercised against the persons taking in Against per- default of appointment, whether by express limitation or by act in default of of law, and although such persons are objects of the power -'U'P" 1 " 1 ""-"' equally with the appointee. It is also exercised against pur- chasers for value claiming under the settlement, as their claim is subject to the power (c). But a purchaser for value from an appointee under a defective execution is in no better position than the appointee from whom he derives title (/). The defects aided in equity are omissions in the form or Defects of manner of execution required by the power, as signing, sealing, ormsu PP e • the presence of witnesses, attestation, and the like; all which, it has been observed, are immaterial except as prescribed arbitrarily by the donor of the power (//). A power of appointment by deed may be well executed in the In deeds - form prescribed by 22 & 23 Vict. c. 35, s. 12, so far as respects the execution and attestation thereof, although additional or other forms of execution be required by the power, and the aid of equity is so far not required (It). The execution of a power by will is now regulated by 1 Vict In willa c. 26, s. 10, by which a will executed as required by the Act is made necessary and sufficient, so far as respects the execution and attestation thereof ; and, therefore, no relief can be given in equity against the requirements of the statute (/). (//) Sugden, Powers, 533 — 535 : Toilet v. Toilet, 2 P Wms. 489 ; 1 Wh. .V T. L. C. Eq. 287. Also in favour of an appointment to charitable uses, Iitnes v. Sayer, 7 Hare, 377 : 3 Mac. & Gr. 606 : Sugden, Towers, 208. In some cases ;i defective appointment caused by fraud or accident may be aided under the general doctrines of equity, though the appointees do not answer in any of the above descriptions. Sugden. Powers, 572. (c) Sugden, Powers. 535; Bramlmll v. Hull. 2 Eden, 220. See Occleston v. Fullalove, P. PI. 9 Ch. 117 ; L. It. 7 H. L. 568. {,!) Ee Kerr's Trusts, 4 Ch. D. 600 ; 46 P. J. *'. 287. See ante, p. 268. L.P.L. (e) Sugden, Powers, 542 — ."17: Toilet v. Toilet, 2 P. Wms. 489 : 2 Wh. & T. L. C. Eq. 289 and notes. As to the equity against an heir, being a child of the appointor and not otherwise pro- \ Lded lor than by the inheritance in default of appointment, si Powers, 545. (/) Sugden, Powers. .Ml'. {(/) Sugden. Powers. 558, 560. See ,a,t,'. p. 2U0. (A) Carson, Real Prop. Stats. 529. See \ p. 291. ( i ) Sugden, Powers, 559. S v. Orove,26 Beav.64 : Re Broad, L901 2 Ch. 86 ; 70 P. J. < . 601 ; I! Barnett, [1908] 1 Ch. 102 ; 77 L.J. C. 267. And see ante, p. 291. X 300 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Execution by will instead of deed. Execution by deed instead of will. It is a general rule that in favour of a proper object, as a wife or child, a court of equity will supply the defect, where a power which ought to have been executed by deed has been executed by will ; if there be nothing in the instrument creating the power to mark the intention of the donor of the power, beyond the fact that he has pointed to a deed as the mode of executing the power. — But it is competent to the donor of a power to make the nature and character of the instrument by which it is to be executed of the essence of the power, without which no execution shall be valid (k). If the power be limited in duration, and expire before the death of the donee, his will, which can only take effect upon the happening of that event, is no execution of the power, although it be made during the subsistence of the power and pur- porting to execute it, for the court cannot supply the want of execution (/). A power to appoint by will only cannot be executed by a deed, or by any act to take effect in the lifetime of the donee of the power ; nor can such execution be aided or supported in equity, for the intention that the power should continue revocable would be thereby defeated (m). No relief against non- execution or defective intention. The intention to execute the power must sufficiently appear, in whatever form, in order to call for the aid of equity ; for the court will in no case supply the non-execution of a power, or what is the same thing, a defect in the intention to execute (/t). Covenant or contract to appoint en- forced in equit}'. Where a power authorises an appointment by deed or other act inter vivos, a covenant or valid contract will be enforced in equity ; and will thus operate in a manner equivalent to an appointment, in favour of persons for whom a defective execution would be supplied, and upon the same principles. " Contracts are considered as defective executions, and require a sufficient consideration to enable the court to act"(o). — A contract to (&) Sugden, Powers, 558. See per Rolt, L. J., in Cooper v. Martin, L. K. 3 Ch. 47, 57 ; Bruce v. Bruce, L. R. 11 Eq. 371 ; 40 L. J. C. 141 ; Toilet v. Toilet, 2 P. Wms. 489 ; 2 Wh. & T. L. C. Eq. 289. (I) Cooper v. Martin, L. R. 3 Ch. 47 ; Potts v. Britton, L. R. 11 Eq. 433. See Toilet v. Toilet, 2 P. Wms. 489 ; 2 Wh. & T. L. C. Eq. 289. (in) Sugden, Powers, 560 ; Beid v. Shergold, 10 Ves. 370; per Rolt, L. J., Martin v. Cooper, L. R. 3 Ch. 47. See Gullan v. Grove, 20 Beav. 64 ; Be Broad, [1901] 2 Ch. 86 ; 70 L. J. C. 601 ; Be Burnett, [1908] 1 Ch. 402 ; 77 L.J. C.267. O) Sugden, Powers, 588; Toilet v. Toilet, 2 P. Wms. 489 ; 2 Wh. & T. L. C. Eq. 289 ; Be Weekes' Settlement, [1897] 1 Ch. 289. See Johnson v. Brugge, [1901] 1 Ch. 28 ; 70 L. J. C. 41. As to informal, but sufficient executions, see unte, p. 295. (p) Sugden. Powers, 550, 552 ; notes to Toilet v. Toilet, 2 P. Wms. 489 ; 2 Wh. & T. L. C. Eq. 289. SECT. IV. § 4. JURISDICTION IN AID OF EXECUTION. 807 execute a power may be enforced against the remainder-manor those taking in default of appointment; so where it can In- executed in their favour, as in the case of a contract to take a lease or to purchase the estate, the court will compel an execution of it on their behalf (p). Contracts respecting the execution of powers conferred upon tenants for life by the Settled Land Acts, 1882 to 1890, bind the settled land and are enforceable by or against those entitled in remainder (q). The agreement to appoint an interest in land must be in Agre writing, in order to satisfy the Statute of Frauds (?•). Part ™ performance of a parol agreement by the intended appointee will Effect of part take the case out of the statute as against the party contracting Pf forn ? ailce ° l j © or parol to execute the power; but as against the remainder-man, part agreement performance will have no effect, unless it has been performed upon the faith of some act of acquiescence or permission on his part, or unless the acts of part performance have taken place in the lifetime of the donee of the power, and the contract would have been in fact enforceable against him (s). A recital in an instrument, to which the donee is a party, that Recital show- an object of the power is entitled to a certain estate or interest to g execute!° n in the property subject to the power, which the instrument proceeds to deal with, if the instrument in other respects satisfy the requirements of the power, may operate as a direct and perfect appointment, in law as well as in equity, or as an enforce- able agreement to appoint, and now binding in all courts as an equitable appointment (t). A covenant is a sufficient declaration of intention to execute, Covenant t.. and will be enforced in equity, even when made before the power power. arose, as where a power is limited to be exercised by a tenant for life in possession, and he covenants that when he comes into possession he will execute the power (u). Thus, a power given to the successive tenants for life under a settlement as and when they should be in possession to appoint a jointure, will be executed by a covenant by a tenant for life in remainder that if he should come into possession he would execute the power ; or O) Sugden, Powers, 557. -' 1 : 22 I.. .1. C. 897. (q) Settled Land Act, 1882, s. 31. (0 Sugden, Powers, 550; Wilson v. (y) Sugden, Powers, 554; Blore v. Piggott, 2 Ves. jun. :>">1 : Skipwith v. Sutton, '.*> .Uer. 2'M. See Johnson v. S/tirley, 11 Ves. c,i ; Dyne v. Costabadie, Bragge, [1901] 1 Ch. 28; 70 L. J. C. 17 Beav. 140; l'l' L. J. C. 66. 41. (u) Per Lord Redesdale, Sim muni v. (.v) Sugden, Powers. 555; Blore v. Bradstreet, 1 Sen. & L. 63 ; see Bowell v. Sutton, :'i Mer. -I'M; Shannon v. Brad- Dew, 1 Y. & C. Ch. 345 ; affd. 1 -' L.J. C. street, 1 Sen. & L. 52 ; Dowell \. Dew, 158. As to leases granted in intended 1 V. & C. ( b. 34f> ; affd. 12 L.J. C. 15S. exercise of power, before acquiring the Hce Morgan v. Mil man, 3 1>. M. & (!. power, see post, p. 310. x 2 A & 308 TART IT. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Contract satisfied by allowing estate to pass in default of appointment. Covenant not to execute. even by a covenant to charge a jointure on an expectancy after- wards realised by a devise from a testator living when the covenant was entered into (./•). — So where a power was given to a person to be exercised after he should attain the age of twenty- five j'ears and not before, and a covenant to appoint was made before that age; it was held, upon his attaining that age, to be a valid execution in equity (//). A covenant to execute a power, to be executed by will only, in favour of particular objects, cannot be enforced ; for such a covenant, if valid, would enable the donee to defeat the intention of the power by making an irrevocable appointment {z). A general power is for most purposes equivalent to property (a), but a covenant to execute a general testamentary power, although not invalid unless it appeared that the power only authorised an appointment by a revocable instrument operative only upon the death of the donee, will not be specifically enforced (b). A covenant to appoint is satisfied in equity by allowing the property to pass to the same object for the same estate by default of appointment (c). A covenant not to execute a power may operate in equity as a release of the power (d) ; — and a recital in a deed to that effect may operate as a release (e). Powers held in trust exe- cuted in equity. Trust for creditors created by ap- pointment to volunteer. A power held in trust without any discretion as to its exercise will be enforced in equity in conformity with the trust, although not executed by the donee of the power ; — as a power in trustees or executors to sell the property and apply the proceeds upon trusts ; and if the trustee die without executing the power, or if no trustee be appointed to execute it, the court will order a sale and compel the heir to join in conveying (/) ; but the court will not execute or control a discretionary power (g). Where a person having a general power of appointment executes it effectually in favour of a volunteer, whether by deed (a.) Affleck v. Affleck, 3 Sm. & Giff. 394 ; 26 L. J. C. 358 ; Charlton v. Charlton, [190GJ 2 Ch. 523 ; 75 L. J. C. 715. (y) Johnxon v. Toucliet, 37 L. J. C. 25. (.-) Be Bradshaw, [1902] 1 Ch. 436 ; 7 L. J. C. 230. (a) Sugden, Powers, 181, 195, 394. (&) Sugden, Powers, 500 ; Reid v. Sliergold, 10 Ves. 370; Be Parkin, [1892] 3 Ch. 510 ; 62 L. J. C. 55. 00 Tkacker v. Key, L. R. 8 Eq. -108 ; see. Blandij v. Widmore, 1 P. Wms. 324 ; 2 Wh. & T. L. C. Eq. 407. (rf) Bavies v. Huguenin, 1 H. & M. 730 ; 32 L. J. C. 417 ; Imac v. Hughes, L. P. 9 Eq. 191 : 39 L. J. C. 379. ' See Hurst v. Hurst, 16 Beav. 372 ; 22 L. J. C. 538; Watford v. Gray, 11 Jur. N. S. 743. (e) Bmid v. Petrie, L. R. 7 Ch. 385 ; 41 L. J. O. 378. (/) Sugden, Powers, 588 ; and see the cast's there cited; see Brawn v. Higgs, 8 Ves. 561, 574 ; as to an implied gift or trust for the objects of the power in default of appointment, see ante, p. 2S2. (#) Sugden, Powers, 258, 659. SECT. IV. §4. JURISDICTION IX AID OF EXECUTION. 301) or will, a trust is thereby created for his creditors, and the appointed property is made assets in equity for payment of his debts; though in the administration of the assets of a deceased debtor the property so appointed will not be resorted to until the property descended or devised lias been exhausted. It the N ■ ch trust power be not executed or be defectively executed, there is no ]\, jurisdiction in aid of the execution, and no such trust arises for creditors, as against those entitled in default of appointment (/t). But a purchaser for a valuable consideration from the appointee, Nor against having a specific claim on the property, is not affected by the J',"'^ 1 ' general charge of the creditors: and a settlement of the appointed appoir. property upon the marriage of the appointee would also be supported against them (£). Execution may be had by a judgment creditor against any Execution lands over which the debtor has any disposing power which he r ^, :lillst 1:llul subv may exercise for his own benefit; but the judgment does not power. operate as a charge upon the land as against a purchaser for value until the writ is registered in the Land Registry (A). Statutory relief is provided against defects in leases granted by statutory persons having valid powers of leasing in certain cases by 12 & ( 1 I el f ";' ( ! t !. l f lin '" t 13 Yict. c. 26, amended by 13 & 14 Vict. c. 17. Sect. 2 enacts lease- under " that where in the intended exercise of any such power of pm leasing, whether derived under an Act of Parliament or under any instrument lawfully creating such power, a lease has been or shall hereafter be granted, which is, by reason of the non- Defective observance or omission of some condition, or restriction, or by Jdered° hi reason of any other deviation from the terms of the power, Ci i i;it y as * ... con t met. invalid as against the person entitled after the determination of the interest of the person granting such lease to the reversion, or against other the person who, subject to any lease lawfully granted under such power, would have been entitled to the here- ditaments comprised in such lease, such lease, in case the same have been made bond fide, and the lessee named therein, his heirs, executors, administrators, or assigns (as the case may require) have entered thereunder, shall be considered in equity as a contract for a grant, at the request of the lessee, his heirs, (ft) Sugden, Powers. 474, 540, 588; F. t36 ; Halifax Joint Stocl Bank v. Holmes v. Coghill, 7 Ves. 199: 12 Ves. Gledhill, [1891] 1 Ch. :'.l : r,n i.. .]. c. 206; Fleming v. Bueluinan, 3 D. Bf. 181. & (i. 976 : 22 L. J. G. 886 : Beyfui v. (/,') 1 ,V 2 Vict. c. 1 I". <. \\ : 5] & 52 Laioley, [1903J A. ('. 411 ; 72 L. J. C. Vict. c. 51, ss. 5, 6 : 63 & 64 Vict. c. 26, 781. ' s. 3. See Carson, Real Prop. B (/) George v. MilbanJte, 9 Ves. 190. rt . ■<,■//. See Aldborough (Lord) v. Trye t '.' CI. & 310 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. executors, administrators, or assigns (as the case may require), of a valid lease under such power, to the like purport and effect as such invalid lease as aforesaid, save so far as any variation may be necessary in order to comply with the terms of such power ; and all persons who Avould have been bound by a lease lawfully granted under such power shall be bound in equity by Proviso where such contract : provided always, that no lessee under any such confirmed ° invalid lease as aforesaid, his heirs, executors, administrators, or assigns shall be entitled by virtue of any such equitable con- tract as aforesaid to obtain any variation of such lease, where the persons who Avould have been bound by such contract are Avilling to confirm such lease without variation." Confirmation By sects. 1 and 2 of 13 & 14 Yict. c. 17, which replace sect. 3 by acceptance f ^he earlier Act, the acceptance of rent shall be deemed a Con- or rent. * ..,.,. firmation of such lease, if accompanied with a signed receipt or note in writing confirming such lease. By the later Act, sect. 3, Avhere the reversioner is able and willing to confirm, the lessee is bound to accept the confirmation. Lease may be- By sect. 4 of 12 & 13 Vict. c. 26, " where a lease granted in come valid by -^q intended exercise of any such power of leasing is invalid by subsequent . power. reason that at the time of the granting thereof the person grant- ing the same could not laAvfully grant such lease, but the estate of such person in the hereditaments comprised in such lease shall have continued after the time when such or the like lease might ha\ T e been granted by him in the lawful exercise of such power, then and in every such case such lease shall take effect and be as valid as if the same had been granted at such last- mentioned time, and all the provisions herein contained shall apply to every such lease." Lease sup- By sect. 5 of the same statute, " Allien a valid power of leasing ported by j vested in or may be exercised by a person granting a lease, power though J . . not referred and such lease (by reason of the determination of the estate or interest of such person or otherwise) cannot have effect and con- tinuance according to the terms thereof, independently of such power, such lease shall, for the purposes of this Act, be deemed to be granted in the intended exercise of such power, although such power be not referred to in such lease " (/). (0 Ex p. Cooper, 2 Dr. & Sin. 312; 519; 56 L. J. C. 889. And see the 34 L. J. C. 373 ; Hallett to Martin, 24 effect of these enactments stated and Ch. D. C.24 ; 52 L. J. C. 804; Gas commented on in Sugden, Powers, 571. Light and Coke Co. v. Towse, 35 Ch. D. SECT. IV. § 4. JURISDICTION TO SEr ASIDE EXECUTION. -'ill §§ 2. Jurisdiction to set aside Execution. Execution in fraud of the power set aside in equity -examples — mo distinguished from purpose of execution. Appointment to child in consideration of benefit to parent— consideration paii I by a third party. Appointment for the purpose of disposing to a person not an tlir power. Appointment for ulterior purpose consistent with the powi Execution partly in fraud of the power — appointment of jointure in ex of interest given to wife — appointment to one of children in fraud of the power. Subsequent execution after prior invalid appointment . Purchaser from appointee under fraudulent appointment. Illusory appointment under non-exclusive power. The execution must be within the purpose and intention of the Execution power, which is to be collected from the true construction of the fl:lud of f . . power set instrument creating it, without regard to any purpose or design aside. of the donor not therein expressed ; and if an appointment, though correct in point of form and operative at law, be made for any indirect or ulterior purpose not warranted by the power, it will be set aside in equity as a fraud on the power (a). Thus, where a parent, having a power of appointment amongst his children, and being desirous of preventing one of his daughters from marrying a particular person, for that purpose appointed the portion intended for that daughter to one of his sons, upon a trust or understanding that his son should retain the control over it, and withhold it or not from the daughter according to the event; the appointment was held to be a fraud on the power and void. In the same case the parent, in pur- suance of the same purpose, made a settlement of property with a power of appointment in favour of the daughter, but upoD an understanding, and with the direction to the donee of the power, that he should execute in a manner to promote such purpose, which, however, was not expressed in the deed ; it was held that the intention of the power was to be collected from the instru- ment creating it only, and that extrinsic evidence of the purpose of the donor was inadmissible ; but that such evidence was admissible to show the purpose for which the power was in fact (a) Pwtland (Dukr) v. Tojtham, 11 L. J. C. 259; Sugden, Powers, H. L. C. 32 ; 34 L. J. C. 113; 2'opham notes to Aleyn v. Belchiei; 1 Eden, 132 ; v. Portland (Duke), L. 11. 5 Ch. 40 ; 39 2 Wh. & I. L. C. Eq. 3 - in tf tf*jh. 3, / 5~. SECT. IV. § 4. JURISDICTION TO SET ASIDE EXECUTION. 313 matter of the appointment may be supported (/t). Trustei having notice that an appointment is invalid on bhe above-men- tioned grounds, will pay over a trust fund at their peril ; they are not, however, justified in refusing to hand over the fund upon mere circumstances of suspicion, a stale of the law which sometimes places them in an unenviable position of difficulty (i). "Where the consideration for the preference of one of the Consideration children is given by another person, and not derived out of the party/* property appointed, and though without the knowledge of the appointee, the appointment will he set aside ; for it is a fraud upon the power in regard to the other objects who are thereby excluded from the property appointed (A). An appointment made upon any bargain or understanding Appointment that the appointee shall dispose of the property to persons who dispodi are not objects of the power is void and will be set aside (Z). — ■ }'\'^"* " ot An appointment made for the purpose and in the expectation that the appointee would transfer the property to a person, not an object of the power, was held void, though that purpose was not at the time communicated to the appointee (m). — But an appointment to a child upon marriage with a view to a suitable settlement being then made, though to include persons not objects of the power, is valid as being a proper mode of enjoyment of the property by the appointee (n). An ulterior purpose may be consistent with the power; — as Appointment where the appointment is made to enable the appointee to join pSrposeTStti- in making a title upon a sale of the property. Where a tenant sistent with for life with an exclusive power of appointment amongst his „ " . . ° To enable ap- children sold the estate and then appointed to one son in fee, pointeeto who joined with him in conveying to the purchaser, the title was ynn 1U sak> * held good, as it did not appear that the son got less than the value of his reversionary interest on acceding to the purchase (o). (A) See McQueen v. Farqultar, 11 De G.J. ,v S. 33: 33 L.J. <'. Ill ; Re Ves. It'.? ; Noel \. Walsingliam [Lord), hint-mi's Trusts, 25 Ch. D. 373; 52 2 Sim. ..V St. !i'.i : Ask/tain v. Barker, 17 L. .1. C. 952. Beav. 37. See Saunders v. Shafto, (m) Re MarsderCs Trust, 4 Drew. 594 ; [1905] 1 Ch. 126 ; 74 L. J. C. 110. ' 28 L. J. C. 906. (/) Campbell v. Home, 1 Y. & C. C. C. I n i Fitzroy v. Richmond D 664; Cochcroft v. Sutcliffe, 25 L. J. C. Beav. 190; 28 I.. .1. C. 752; and - 313 ; Maclteehnie v. Maijoribanks, 39 ante, p. 303. L. J. < '. 604; Harrison v. Randall, 'J (o) McQueen v. Farquhar. 11 Ves. Hare. 397 : 21 L. J. C. 294. 467 ; Campbell v. Ilomr. l V. & r.r.c. (//I Rowley \\ Rowley, 1 Kay. 242; 664; as to questioning like transactions 23 I.. .1. < '. 275. between father and son on the ground (/') Sugden, Powers, 615; Salmon v. of undue influence and improper appro- Gibbs, 3 De G. & Sm. 343 ; 18 L. J. C. priation of the proce< Inbrigge 177: Birley v. Birley, 25 Beav. :u>* ; v. Browne, is Ch. I>. 188; 50 I.. J. I . 27 L. J. C. 569; Fryer v. Pnjoi\ 2 .".22; Tucker v. Bennett, 38 eh. I>. 1 ; 3l faJUs ^CUJO^V-t^Hyf^^ (f> . 3Vq5^ 314 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Appointment So an appointment may be made by a tenant for life with power makino- a of appointing the remainder to his children, for the purpose of mortgage, enabling the appointees to join him in a mortgage, the money being expressed to be advanced to all of them, and being applied in a business in which they were all partners (j>) ; or for or lease, the purpose of making a building lease for the improvement of or settlement, the property in the interest of all parties (ro tanto (s). Where a power of jointuring was executed upon an agreement that part of the jointure should be applied to pay the debts of the husband, the appointment, as to that part, was set aside. Such an execution of the power, so far as it goes to the wife who is the sole object of the power, is good and may be supported ; but so far as it diverts the property from her as the object of the power, it is in excess of the power and in fraud of the persons entitled in default of appointment (i). But a power to appoint a jointure is not a fiduciary power, and the donee may obtain a money payment, if it be not provided by diverting part of the jointure to his own use, in consideration of exercising it (r). Under a power of appointment to children, an appointment made to one of them in fraud of the power will not invalidate an appointment made of the rest of the property to the other, unless the fraud runs through the whole transaction, in which case the appointment to the innocent party will also be invalid (x). And it seems that an appointment of a specific share to the same appointee to whom the invalid appointment is made, if uncon- nected with the invalidity, may be supported (//). 57 L. J. C. 507 ; Powell v. Powell, [1900] 1 Ch. 243 ; 69 L. J. C. 164. (j>) Cotikcroft v. Sutcliffe, 25 L. J. C. 313. («/) Re finish's Charity, L. R. 10 Eq. 5 ; 39 L.J. C.499. (/•) Fitzroy v. Richmond (Duke), 27 Beav. 190 ; 28 L. J. C. 752. See Pryor v. Pryor, 2 l)e G. J. & 8. 33 ; 33 L. J. C. 441. (s) See per Turner, L. J., in Topham v. Portland (Duke), 1 De G.J. & S. 517 ; 32 L. J. C. 270 ; and see Re Perkins, [1893] 1 Ch. 283 ; 62 L. J. O. 531. (Y) Sugden, Powers, 6U9 ; Alei/ii v. Belohier, 1 Eden, 132 ; 2 Wh. Ac T.'L. C. Eq. 308. (r) Saunders v. Shafto, [1905] 1 Ch. 126; 74 L.J. C. 110. (.(■) Harrison v. Randall, 9 Ha. 397 ; 21 L. J. C. 294 ; Rowley v. Rowley, Kay, 242 ; 23 L. J. C. 275 ; Yiant v. Cooper, 76 L. T. 768. (//) Ranking v. Barnes, 33 L. J. C. 539. 3f ^o£l J2uu$&asis*L. 9 (f>. 3,/S SECT. IV. § 4. JURISDICTION TO SET ASIDE EXECUTION. B15 If a prior appointment be invalid, a subsequent appointment s ibsequent may be made of the same property under the original power; ®S*' — — - — UllCI IJ11U1 ill but it must be clearly shown to be free of the purpose or influence ■ :i1 - ■' »l which has invalidated the prior appointment t:). And it is open to the objects of the power to confirm, and thus render valid an appointment made in fraud of the power (a). prior m- A purchaser from the appointee under an appointment which Pare may be set aside for the above causes, though he gave value and pdSteehasuo had no notice of the improper execution of the power, would better title. have no better title in equity than the appointee himself (b). It was formerly necessary, in the case of a distributive or non- illusory up- exclusive power to appoint a share to each of the objects of the J,^]!!,! 1 ,','!^. power; but it was satisfied, at law, by giving some amount or exclusive interest, however small, to each object, either by way of direct [aw. appointment, or (which amounts to the same thing) by leaving residue unappointed to be divided amongst all the objects in default of appointment; but under similar powers, appointments Bat void in whereby an unsubstantial, illusory or nominal share of the c ' llutJ - property was appointed to, or left unappointed to devolve upon any of the objects could be impeached in equity (c). The statute 1 Will. IV. c. 46 (generally known as the Illusory Made valid in Appointments Act) provides that appointments made after the ^tatafe. 3 passing of the Act " shall be valid and effectual in equity as well as at law, notwithstanding that any one or more of the objects shall not thereunder or in default of appointment take more than an unsubstantial, illusory or nominal share of the property subjected to such power." The Act excludes from its operation Appointment appointments under powers which require a minimum sum to be V aii.i on appointed to each object (d). As was pointed out by a very eminent judge (e) '"the reasonable mode of altering the law would have been to make every power of appointment exclusive, unless the author of the settlement had pointed out the minimum share which every object w T as to get," and this suggestion was shortly afterwards embodied in the statute 37 & 88 Vict. c. 37, (c) Sugden, Powers, 285, 355 : Hum- (//) Daubeny v. Cockbum, 1 Bier. 626. phrey v. Olcer, 28 L. J. C. 406 ; Carver Bee Green v. Puls/ord, 2 Beav. 70; v. Richards, 1 De G. F. ,V: .1. 548 ; 29 Hamilton v. Kirwan, 2 -l". & Lat. 393 : L. J. C. 357; Topliam v. Portland Warde v. Dixon, 28 L. J. C. 315. (Duke"), L. R. 5 Ch. 40 ; 39 L. J. 0. 259. (<•) Sagden, Powers, 1 19, App. 9 («) Harrison*. Randall, 9 H&re, 397; (//) Re Capon's Trusts, LOCh.D.484 ; 21 L. J. C. 294 ; Preston v. Preston, 21 is L. J. C. 355. L. T. 346. See Wade v. Cox, 1 L. .1. (e) Jessel, M. B., Gainsford v. Dunn, N. S. C. 10."). L. It. 17 Eq. 405 : 13 L. J. C. 4U3. jroand of exclasioa. 31G PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Execution by successive ap- pointments. commonly called Lord Selborne's Act, which applies to appoint- ments thereafter made (/). Under the law applying to appointments made before the passing of this Act, where there are several appointments to different objects of the power at different times, and one is ultimately excluded, the ultimate appointment, disposing of the residue of the property, only is invalid ; for to that appointment only the exclusive effect can be attributed (//). — But where several appointments are made to take effect at one time, as in the case of appointments by will with an ultimate residuary appointment, the exclusive effect is attributable to all equally and all are void (It). Section V. Perpetuities and Accumulations. § 1. The Rule against perpetuities. § 2. Accumulation of rents and profits. § 1. The Rule Against Perpetuities. The Rules restricting the limitation of future estates — Rule against per- petuities — remainders — springing uses and executory devises — terms of years. The computation of time — the lives — the term of twenty-one years — time of gestation, when child taking is en ventre sa mere — application to limitations of terms of years. Limitations to persons to be ascertained by description. Limitations to a class of persons — children — grandchildren — limitations upon death of children. Limitations upon failure of issue — upon failure of issue within restricted period — of term of years upon failure of issue — construction of phrases importing failure of issue — exceptional constructions of limitations on failure of issue. Validity of limitations is independent of subsequent events — limitation to class containing objects too remote — where the shares are ascertained within the period. Limitations with modifications too remote — directions to postpone the possession beyond the period. Limitation in alternative of limitation too remote — limitation in restricted alternative. Limitations restricted by the duration of the estate limited — estate for life of living person — leasehold for life. (/) See lie Dealtin, [1891] 3 Ch. 565 ; 63 L. J. C. 779. Qj) Young v. WaterparJt {Lord), 13 Sim. 202 ; arid. 15 L. J. C.63; Trollope v. Routledge, 1 De G. & Sm. 662 ; Wilson v. Ken-rich, 31 Ch. D. 658. It may be made good by the invalidity of a prior appointment whereby the share thereby appointed passes to all the objects iu default of appointment. Ranking v. Barnes, 33 L. J. C. 539. (//) Bulteel v. Plummer, L. R. 6 Ch. 160; 39 L. J. C. 805. SECT. V. Jl. THE RULE A.GAINST PERPETUITIES. 317 Limitations after estates tail —provisoes f 01 ii] — limitations to take effect after determination ,iil — term preceding ■ I ail upon trusts snbse [uent. Application of the rule to powers and execution of | computed from the creation of the power— general pow sr is e [uivalent to ownership. Power to appoint to grandchildren or remoter issue appointment must take effect within the rule — power in man, aenl to appoint to children. Powers of sale, leasing, etc. may be unrestricted in terms pow with consent — power of sale extending over estates tail — p impliedly restricted to the continuance of the settlement. The limitation of future estates is subject to restrictions as to The rest the time of taking effect, which differ according to the nature of Umitotmnof C the limitation, as operating by way of remainder, or by the way futu 'e . . } ,° ' . J , ■ . . • estates.— Rule common to springing and shifting uses and executory devises. The principal restriction is the rule against perpetuities. This P etuiti '■ rule renders void the creation or limitation of a future estate which does not vest, if. at all, in interest at a period not later than twenty-one years after the determination of some life or lives in being at the time when the deed or will becomes opera- tive, and therein indicated as comprised in the computation of time. And where the person to take is actually procreated, there may be added a further period equal to the actual period of gestation (a). The rule against perpetuities was invente 1 by the v^ Chancellors (b), and the rule was first applied to legal contingent remainders by equity judges (c). Another equity judge applied the rule to a common law condition ( in these c ses. S L908] 1 Ch. 4 ; 77 L. J. C. 60; Lewis, Perpetuities, pp. W8 etseq. Perpetuities, c. xi. ; Gray; Perpetuities, [d Re Sollis' Hospital / tees) and pp.166- 201. Haynes' Cont., 1899 2 Ch. 510; 68 (V) Jessel, M. I;.. Re Ridley, 11 Ch. L. J. C. «'>:;;; where the previous 1'. 645, HI'-) : 18 1.. -I. ''. ">ii.*. ' tli<" - .1. (c) Kay, .1 . Re Frost, 13 Ch. D. 246 : (< ) L. ,v S. II". Ry. v. Gomm, 20 Ch. 59 L.J.C. 1-:. : FarwelLJ., /.v Ashforth, I». 562 : 51 I.. .1. Ch. [1905] 1 Ch. :>:r> : 74 J.. J. C. 361 ; (/) Woodall v. Clifton, [!'.' 2 I . Buckley, J., Wliitby v. Von Luedecke, 257; 7 1 L. J. C. 555. [1906] 1 ch. 783 : '7:. 1.. .). ( '. 359. It (cf) Bridges v. Hitchcock, :> Bro. P.C. is not a little curious that the opinion (1 : Shelburne (Earl) v. Biddulph, <'■ of an eminent writer who in 1843 chal- Bro. P.C. :!•">''> : Nicholson v. Sm ■ . 22 lenged the propriety of the conclusion Ch. 1>. 640; 52 I.. J. C. 191. S of the Real Property Commissioners that L. ,v 8. W. /•';/. v. Gomm, 20 ch. 1'. the rule against perpetuities did not 7''..': 71 i.. .). i '. 530; '/ . . , v. 318 PART II. CHAP. IT. THE LIMITATION OF FUTURE ESTATES. Conveyancing Act, 1882. Accumula- tion of rents and profits. The restric- tions upon remainders. against perpetuities is to be regarded as involving a question of policy, which is the view now put forward (/<), there seems no reason why the rule should not be applied to these cases also. A restriction upon the operation, but not on the validity, of executory limitations has been enacted with respect to those contained in an instrument coming into operation after 1882 in these terms : " where there is a person entitled to land for an estate in fee, or for a term of years absolute or determinable upon life, or for term of life, with an executory limitation over on default or failure of all or any of his issue, whether within or at any specified period or time or not, that executory limitation shall be or become void and incapable of taking effect, if and as soon as there is living any issue who has attained the age of twenty-one years, of the class on default or failure whereof the limitation over was to take effect " (i). An earlier statute had restricted the accumulation of rents and profits of land. The effect of this statute is stated hereafter (k). The restrictions upon limitations by way of remainder have already been considered. They are, for the most part, involved in the dependence of the remainder upon the particular estate, requiring that it must become vested in interest pending that estate, so as to take effect in possession immediately upon its determination (I). The limitation of remainders is further restricted by the positive rule that, though they may be limited to the unborn child of a living person, they cannot be limited by way of purchase to the issue of a person unborn (m). In addition every person in whom the estate is to vest in interest must be ascertainable within the period prescribed by the rule against perpetuities, whether the remainder be equitable or legal, unless the remainder is to take effect after the determination of an estate tail, in which event it is saved by the statute Be donis (n). But a limitation in remainder expectant upon the determination of an estate tail, may be destroyed by a tenant in tail in possession, when of full age, and by a tenant in tail in Childers, 43 Ch. D. 265; 59 L. J. C. 188. And see Leake, Contracts, 858 et seq. , (A) See lie IIoWs Hospital (Trustees) and Waynes' Cont., [1899] 2 Ch. 540 ; 68 L. J. C. 673; Be Ashforth, [1905] I Ch. 535 ; 74 L. J. C. 361. (i) Conveyancing Act, 18S2,s. Id. See Be Booth, [1900] 1 Ch. 768 ; 69 L. J. C. 474. (/.•) Post, p. 335. (1) Feaine, Cont. Rem. 307 ; Archer's rose, I Co. 66 *; Chu&leiglCs Case, 1 Co. 120 a; Wliite v. Summers, [1908] 2 Ch. 256 ; 77 L. J. C. 506. (?«) lie Frost. 43 Ch. D. 246; 59 L. J. C. 118: Whithij v. Mitchell, 44 Ch. I). 85 ; 59 L. J. C. 485. (/i) Hen sum n v. Pearse, L. R. 7 Ch. 275 ; 41 L. J. C. 705 ; Abbiss v. Burney, 17 Ch. D. 211 ; 50 L. J. C. 348; lie Ashforth, [1905] 1 Ch. 535 ; 74 L. J. C. 361 ; Whitby v. Von LuedecJte, [1906] 1 Ch. 783 '; 75 L. J. C. 359. See Trerjonirell v. Sydenham, 3 Dow. 194. SECT. V. § 1. THE RULE A.GAINST PERPETUITIES. 319 remainder with the consents mentioned in the Fines and ^Recoveries Act, 1833 (o), by means of a disentailing assuran and he may thus acquire or convey an estate in fee simple discharged of all remainders expectant thereon. Therefore, the limitation in remainder after an estate tail remains effectual only during the minority of the tenant in tail; and it the estate tail he preceded by an estate or estates for life, as in an ordinary settlement of land, the limitations in remainder, thougb valid in creation, would not generally be operative beyond the lives of the tenants for life and twenty-one years, the possible minority of the tenant in tail. On the other hand, limitations by way of springing use and Restrictions executorv devise arise and take effect accord in e to the terms of " pon B P rin P" . . ing uses ana limitation independently of the preceding estates, which they executory supersede and defeat; consequently there are no restrictions inherent in the nature of such limitations as there are in remainders. If limited after or in defeasance of an estate tail they may be discharged or destroyed by the distentailing assurance of the tenant in tail ; but a tenant in fee simple cannot by any means destroy or get rid of the executory limita- tions of this kind which may operate upon his estate. There- fore, except where preceded by an estate tail, these limitations require a special rule of restriction ; otherwise they might be employed in a manner to restrain the alienation of the land for an indefinite period or in perpetuity (p). The rule against perpetuities applies to executory bequests Terms of of terms of years and chattel interests in lands (7) ; and - year:; - also to the creation of future terms of years according to the opinion of eminent text writers, which in the present state of judicial opinion is likely to be confirmed (r). It may not be superfluous to observe that the rule does not affect the validity of the instrument in which limitations obnoxious to the rule occur, but only the limitations themselves. Accordingly the instrument must be read apart from the rules for the purpose of construction and the rule only applied to those limitations which (0) See ante, p. 27 ; Allgoodv. Blake, Fletcher's Case, 1 Eq. Cas. Al>. 193, L. R. 8 Ex. 160. pi. 10; Curtis v. Lakin, ■', Beav. 117 : (//) See ante, p. 163 ; 1 Sanders. Uses. 11 L.J. C.380. 14!>. 159, -'"I ; Fearne, Cont. Rem. 123; (/•) 1 San). Thus, a devise to the first or other son of A. (having no son at the time of the devise,) who should be in holy orders, was held void for remoteness, because A. might have a son who might take orders so as to answer the description more than twenty- one years after the death of A. ; and a devise over in the same will, in case A. should have no such son, was also held void, as being limited upon a contingency which might not become ascertained until an equally remote period (c). — So, a devise made to such person as should from time to time bear a certain title, in order that the property should be held with the title, was held void for remoteness, because the title might remain in abeyance for an indefinite period ; and though that case did not happen, the validity of the limitation could not depend upon contingencies which might cause it to be good or bad according to the event {). — But a remainder expectant upon the determination of an estate tail is valid, therefore a limitation to A. for an estate in tail general, followed by a limitation over upon failure of the issue of A. is good (q). Also, if there be a preceding limitation to A. and his heirs, with a limitation over on failure of issue of A. indefinitely, the estate of A. is restricted to a fee tail, and the limitation over is a remainder, by a well-known rule of con- struction (r). And by a further rule of construction applicable to wills, a devise in terms to A. for life, with a devise over upon failure of issue of A. indefinitely, gives A. an estate tail with remainder over (s). If a devise in fee be followed by an executory devise upon the Limitation failure of heirs to a stranger, it is too remote ; but when the gift "f 1 "^' 111 ' . . . ° of he over is limited to one who is capable of becoming a collateral heir of such person, the word heirs in the first devise is con- Lds. Jols. 1811, I'm,. 168, 171: Doe v. 2Beav.397; Ecers v. C/udlis, 7 H. L. C. Nowell, 1 M. & S. :S27 ; Rindoll v. Doe, 531. See Broohman \. Smith, I,. R. 7 5 Dow. 202. Ex. 271 : II L.J. Ex. Ill : Mony penny (I) Pearks v. Moseley, 5 App. ('as. v. Bering, 2 De G. M. \ G. 145; 22 714 ; 50 L. ,1. C. 7>7. L. .!. C. 313. O) Sussex (Earl) v. Temple, 1 [id. (//) Fearne, Ex.Dev.444. - Raym. .'ill ; Oates v. Jackson, 2 Stra. v. Cltapman, 1 1'. Wins.663; I'M. I. C. 1172 ; Doe v. Perryn, :i T. R. 484; Doe Conv. 371. v. Mart I//, 4 T. R. :i'.i : Mogg v. Mogg, 1 (. Some exceptional cases occur in the construction of d< rial over upon failure of issue. — Wherea devise upon failun follows a devise to children, sons, or other particular branch or deyiseon class of issue, it may refer only to the objects of the prior ,uow- limitation, and so be restricted to the failure of such issue. !"■- Tliese cases are expressly excepted from the statutory con- struction put upon words expressing failure of issue by the 1 Vict. e. 26, s. 29 (b). Wliere a testator, having no issue at the time of making his Devise on will, makes a devise upon failure of issue of himself, he is . . testator 8 own considered to refer only to a failure of is.^ue at his death and issue. not to an indefinite failure of issue (c). If a testator, being entitled to a remainder or reversion Devise of expectant upon an estate tail, devise it upon failure of the issui in tail, the devise is not executory but immediate, the limitation failure of » -, j. • i ■ ,' i • , • c , i • issue in tail, upon failure of issue being merely descriptive or the reversionary interest. — If the reversion or remainder be expectant upon an estate in tail male or other estates tail not comprehending all the issue, a devise of such reversion or remainder upon a general failure of issue of the tenant in tail is, according to the literal construction, executory, and, if not further restricted within the period allowed by the rule, is void (d). But wliere land is settled for estates tail not comprehending all the issue, a limitation over upon failure of issue in the same instrument, whether a deed or a will, or in a subsequent instrument or appointment referring to the former limitations, will generally be read as meaning the failure of issue under the entail and as applying to the reversion or remainder expectant upon the estates tail, unless a contrary intention appear (c). The rule of construction in wills may be here noticed, that Devise over where a devise is made to A. in fee simple, with a devise over " if ™,je^21 «>• A. die under 21 or without issue," the word "or" may he read without issue, " and," and the failure of issue thereby restricted to the death of (a) See ante, p. 1 39, where sect. 29 of married testator may be presumed to the Wills Act, 1837, by which the change contemplate and provide against. A was effected, is set out ; 2 Jarman, Wills, will is revoked by marriage, 1 \ 1324 et seq. c. 26, s. 18. (A) See the section and proviso, ante, (s Cr. L27. 326 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. A. under twenty-one ; this construction is adopted to support the presumed intention not to exclude the issue, if A. die under twenty-one leaving issue, which result would follow upon the literal construction (/). — So, where A. was heir at law of the testator and took the fee by descent, and there was a devise over in the above terms (r/). — But this rule is not applied after an estate tail, because the devise over on failure of issue may then take effect as a remainder (//). Validity of limitation is independent of subsequent events. Limitation to class contain- ing objects too remote. The validity of a limitation as to remoteness is determined at the time of its creation, — at the date of the deed, if by deed, — or at the death of the testator, if by will ; — and if it may then possibly exceed the limits allowed by the rule, it is void, without regard to the subsequent course of events which may, in fact, sufficiently restrict its operation (/). According to this principle of applying the rule, a gift to the children of A. who should be living at a period too remote is held to be void, notwithstanding the moral certainty, from the age of the parents, that no children could be born after the death of the testator (J). So a gift over upon an event which is too remote, as upon the death of all the children of A., a person so advanced in years as to be unlikely to have children, is void (/,). A limitation to a class of persons, some of whom may not be ascertained within the limits of time, is not rendered valid by the fact that some of the objects of the class are already ascer- tained, or that some or all objects of the class become eventually ascertained within the period allowed ; because the impossibility of ascertaining the number of shares within the proper period involves the whole gift in uncertainty. Thus, where a bequest was made to A. for life and after his decease to the child or children of A. who should attain the age of twenty-five, as the class must be ascertained at the death of A., it was held that the bequest was wholly void, without any exception in favour of children living at the death of the testator (/). But where the (/) RigJtt x. Day, 16 East, 69 ; Faivjield v. Morgan, 2 Bos. & 1'. X. R. 38 ; Grey v. Pearson, (J H. L. C. (51 ; 26 L. J. C. 472. (//) Johnson v. Sim cock, 7 EL <5c N. 344 : 31 L. J. Ex. 38. (//) Mortimer v. Hartley, Ex. 47; S. C. 3 De G. & Sm. 316. (/) Jce v. Audley, 1 Cox, 324 : Dun- gannon (Lord) v. Smith, 12 CI. cV; F.546 ; Houghton v. Boughton, 1 II. L. C. 406 ; Be Dawson, 39 Ch. L». 155; Be Wood, [1894] 3 Ch. 381 ; Br Ash forth, [1905] 1 Ch. 535; Haycock v. Watson, [1902 j A. C. 14 : 71 L. J. C. 149. O') Jee v. A /id try, 1 Cox. 324; Be Dawson, 3'.) Ch. L>. 155 ; 57 L. J. C. 105. (/,•) Sayer's Trusts, L. R. 6 Eq. 319 ; 36 L. J. C. 360 ; Hancock v. Watson, [1902] A. C. 14 ; 71 L.J. C. 149. (1) Leake v. Bobinson, 2 Mer. 363 ; Smith v. Smith, L. II. 5 Ch. 342 ; Bent i nek v. Portland (Duke), 7 Ch. D. 693 ; 47 L. J. C. 235 ; Pearks v. Moseley, 5 App. Cas. 714 ; 50 L. J. C. 57. See Mogg v. Mogg, 1 iter, 654. SECT. V. § 1. THE RULE AGAINST PERPETUITIES. 32'J gift to a class is not preceded by a life estate, the el be ascertained at the death of the testator, and an original executory gift to the children of A. who shall live to attain twenty-fi year.-, is a valid gift to such of the children living at the death oi the testator who shall attain twenty-five (m). But where, upon a gift to a class of persons, the number of May be valid shares must become ascertained within the period, and thi destination of some of the shares only is too remote, the limita- within the "i. tion as to the rest may be valid. — -Thus, a testator devised to A. for life, with remainder to the children of A. in equal shares for life, with remainder, as to the share of each child, to the children of that child in fee ; the devise was held good, except only as to the remainders in the shares of the children of A. born after the testator's death, the number of shares being finally ascertained at the death of A. (re). Thus also, a gift after a life estate to A., to his children who should attain twenty-one, and the issue of such of them as should die under twenty-one, such issue to take only the share of their parents, but conditionally upon their attaining twenty-one, was held good as to the shares of the children who attained twenty-one, because the number of shares must be ascertained within twenty-one years of the death of A., though void as to the shares of those dying under twenty-one, because the vesting of such shares was postponed until the issue (of children who might not be born until after the testator's death) attained twenty-one (<>). Where a future interest is limited to vest within the prescribed Limitations ,. ... , , . , , ,. ,.» • with modifi- hmits of time, but is attended with a clause settling or modifying cations too. the interest in a manner extending beyond the limits, and remote, which is therefore void, the substantive limitation may stand unaffected by the subsequent clause. Thus, if there be a gift to one for life, and after his death to such of his children as attain twenty-one, with a direction to settle the children's shares, the direction will be valid as to those who are born in the testator's lifetime, but invalid as to those born afterwards (p). And a residuary gift absolute in terms will not be displaced by a direction to settle the share of a female upon her for life and («/) Piclten v. Matthews, 10 Ch. D. Wilson, v. Wilson, 28 L. J. C. 95. - 2t>4 ; 48 1.. .1. C. 150. however, Pearks v. Moseley, 5 App. I (n) Cattlin v. Brown, 1 1 Bare, 372. 714 ; 50 I.. J. G. 57. (,/) Moselei/s Trusts, L. It. 11 Eq. (./>) Be Russell, [1895] 2 49a ; 40 L. j'. C. 27."> ; and see the same : 76 L. J. C. L68. 3 D. M. & U. 31)0 ; 22 L. J. C. 823 : 328 PART II. CHAP. IT. THE LIMITATION OF FUTURE ESTATES. Directions to postpone possession only beyond the period. Limitation in alternative of event beyond the rule. Limitation in restricted alternative. after her decease upon such of her children who should attain the age of twenty-five (q). If a future interest he limited to vest within the period allowed, with a direction to postpone the possession heyond that period, the direction as to the possession may be rejected and the limitation may be good. Thus, devises to all the children of A. when and as they attain, or at, or vpon their attaining, some given age, have been construed as giving vested interests in the children as they come into existence, but with a postpone- ment of the possession or distribution ; which, if extended to postponing the possession of unborn children beyond the age of twenty-one is void (>•). — With vested interests, not being remainders, the possession cannot be effectually postponed, unless there be a divesting limitation to take effect within the period of postponement, for a person of full age taking a presently vested and indefeasible interest in the property is not bound to let the income accumulate, which he himself will be ultimately entitled to; he may dispose of his whole interest as soon as he is competent to do so (s). A limitation by way of remainder after a limitation too remote, being limited to take effect in the alternative of the same event, is also too remote ; and it is not accelerated by the prior limita- tion being void, or by the alternative of the event in fact happening within the prescribed period. As a devise to the children of A. who should be living at the end of twenty-eight years from the death of the testator, with devises over in case there should be no such child ; the devise to the children is void as possibly not ascertained until a period too remote, and the gifts over not being to take effect until after the same period, which is too remote, are necessarily void also (t). But a limitation in an alternative to a too remote event, if restricted to happen within the allowed limits, may be good (u) (//) Ring v. Hardwlcli, 2 Beav. 352 ; Hancock v. Watson, [1902] A. C. 14; 71 L. J. C. 149. (>•) Farmer v. Francis, 2 Ring. 151 ; 2 Sim. & St. 505 ; Murray v. Adden- broolte, 4 Russ. 407 ; Judd v. Judd. 3 Sim. 525 ; Doe v. Ward, 9 A. & E. 582. See Re Francis, [1905] 2 Ch. 295 ; 74 L. J. C. 487. As to the reference of such expressions to a limitation over, see ante, p. 265. (.s) Josselyn v. Josselyn, 9 Sim. G3 ; Saunders v. Vavtier, 1 Cr. & Ph. 240 ; 4 Beav. 115; Re Travis, [1900] 2 Ch. 541 ; 09 L. J. C. 663. See Wharton v. Masterman, [1895] A. C. 186 ; 04 L. J. C. 369. (0 Palmer v. Holford, 4 Russ. 403 ; see 1 Jarman, Wills. 230, u. (e),3rdedn. ; Proctorr. Bath and Well* {!?]).), 2 H. Bl. 358; Robinson v. Hardcaxtle, 2 T. R. 241: 2 Bro. C. C. 22; Rowtledge v. Dorril, 2 Ves. 357 ; Brudenell v. Elwes, 1 East, 442 ; 7 Ves. 3-2 ; Beard v. Westcott, 5 Taunt. 393 ; 5 B. & Aid. 801 ; T. & R. 25. See Hancock v. Watson, [1902] A. C. 14; 71 L. J. C. 149. 00 Doe v. Ford, 2 Ell. & B. 970 ; 23 L. J. Q. B. 53 ; Re Bowles, [1905] 1 Ch. 371 ; 74 L. J. C. 338. SECT. V. § 1. THE RULE AGAINST PERPETUITIES. 329 — As if a devise be made to the children of A. who should attain the age of twenty-live, and in case A. Bhould die without leaving issue at his death, or leaving issue they should all die before tin- age of twenty-five, then to !'-.: the devise in the even! of A. dying without leaving issue would be -nod. and thai in the event of A. leaving issue would be bad I c) — A limitation over in the event of the death of all the children of A. under q certain agi which if exceeding twenty-one years would lender the limita- tion void for remoteness, may be construed in some cases to extend to the event of there being no children, as a separate alternative event, and in such event the limitation would be good (//!. A limitation in terms too remote may be restricted in effect Limitations by the duration of the estate limited, which may be such as " (if ' } must determine within the period allowed, as an estate for the ; life of a living person. Thus an executory devise, after the failure of issue of A., to B. for life is good, because the estate must necessarily take effect, if at all, during the life of B., and the rule, as to the time of limitation, is excluded {z). But this exclusion of the rule extends no further than the life estates created in living persons ; and the rule applies as to other limitations for transmissible interests to take effect upon the failure of issue, though created at the same time and in the same instrument. Thus, a testator (before 1838) devised all his estate, upon failure of issue of A. to be divided between certain persons named, but the part of one for life only; it was held that though the devise for life to the one was good, and would take effect if that one should be living when the issue failed, yet the devise of absolute transmissible interests to the others, to take effect upon the indefinite failure of issue, was void for remoteness (a). A future limitation may purport to be made to a person to Limit a; take effect upon an indefinite failure of issue or any other JJJ^JfJdng remote period, for any estate, if made contingently upon his alive. (./•I Cambridge v. Rous, 8 Ves. 12; 22 L. J. C. 345. And mte, pp. 138, Leake v. Robinson, 2 Mer. 363. 324. (//) Meadows v. Parry, 1 Ves. & I'.. (a) Ward v. Becil, 1 V- & J. 124; MacMnnon v. Sewell, 5 Sim. 78 : Barlow v. Salter, 17 Ves. 179. v 2M. & K. 202. See Etersv. C/tallis,7 Fislier v. Webster, L. R. II 1 H. L. C 53] : 29 L. J. Q. B. 121 ; Re 12 L. J. C. 156. I doctrine Benee, 1891] 3 Ch. 242; 60 L. J. C. can have little application to wills r,;w,. coming under ihe operation • t 1 v C) Roe v. Jeffery, 7 T. R. 589, as c. 26, s. 29, which restricts the failure expld. Doe v. Ewart, 7 A. & B. 636,660; of is eaning failure at death 7 L. J. Q. B. 177 ; Fearne, Ex. Dev.488. anless a contrary intention appear. S Sec Re Rye's Settlement, 10 1 1 are. L06 ; ante, p. 139. years. 330 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATRS. being then alive ; for then it would be expressly restricted within the limits allowed (/>). Leaseholds The same doctrine applies to future limitations of leaseholds termsof ° V fov nves > or for terms of years determinable with lives, or for an twenty-one absolute unexpired term of years not exceeding twenty-one ; these are not subject to the rule against perpetuities, because the limits of duration of the estate sufficiently restrict the vesting within the allowed period (c). Thus, where a term was created of one hundred and twenty years, if twenty-eight persons named or the survivor of them should so long live, with an additional term of twenty years from the expiration of that term, and was made the subject of a settlement, the limitations of the settle- ment, though in terms void for remoteness, were allowed to be good because restricted in effect by the subject to which they Renewable were applied (d) ; — but the above doctrine seems not to be applicable to renewable leaseholds, for such estates are equivalent to indefinitely continuing interests (e). leasehold. Rule not The rule against perpetuities is not applied to executory Stations limitations, whether by way of shifting use or executory devise, after estates w hich are to take effect in defeasance or upon the determination of an estate tail ; because the power of disposition of the tenant in tail for the time being, by means of a disentailing assurance, extends over all subsequent limitations of whatever kind and enables him to acquire or convey the fee simple, and the freedom of alienation is thereby preserved (/). Provisoes for Estates tail may, therefore, be settled subject to conditional cesser of limitations or provisoes for cesser, with limitations over, estate tciiJ, indefinite as to time, as a proviso divesting the estate in the event of the tenant in tail or any issue in tail neglecting to assume the name and arms of the settlor,— or in the event of their becoming entitled to other settled estates ; — for such limitations or provisoes may be barred by the disentailing assurance of the tenant in tail {g). — vYhereas such limitations over in defeasance of an estate in fee simple, as they could not be barred by the tenant, would be void, unless expressly (/>) Pells v. Brown, Cro. Jae. 590 ; <', ; Shelburne [Earl) v. Blddulph, 6 Porter v. Bradley, 3 T. P. 143 ; Doe v. Pro. P. C. 356. See ante, pp. 155, 317. Webber, 1 B. & Aid. 713. See Staines (/) Lewis, Perpetuities, c. xxxii. ; v. Mud dork. 3 Bio. P. C. 108. Sanders, Uses, 201 ; Fearne, Ex. Lev. (/•) Butler's note (e) to Fearne, C. R. 423. 500 : Loo: v. Barron, 3 P. Wms. 262 ; (J) Malls v. She/field. 2 Bro. C. C. Wastneys v. Chappel, 1 Bro. P. O. 457. 215 ; Carr v. Erroll (Eart), 6 Fast, 58; (d) Cadell v. Palmer, 7 Bligh, N. S. Scarborough {Karl) v. Doe, 3 A. & E. 202 ; Tud. L. C. Conv. 578. . s !>7. See Gulliver x. Ashby, 4 Burr. O) Bridges v. Hitchcock, 5 Bro. B.C. 1927. si:< IT. V. ^ 1. THE RULE AGAINST PERPETUITIES. 333 restricted to operate within the period allowed by tin- rule against perpetuities (//). Accordingly, where a devise was made for estates tail, with Limitai remainder to trustees upon trust to .-.11 and to divide thi proceeds amongst the children of A. who should he then livim . of estate tail and the issue of such of them as should he then dead, with a proviso that if any of such issue should be then dead Leaving issue, the issue should take the share of the parent, the proviso, though operating throughout the continuance of the estates tail. was held valid; and it was laid down by the court "that whether the limitation be directly to a class of issue to he ascertained at the determination of the estate- tail, or a gift to a trustee for such class, or upon trust to convey to such class, or to sell and to divide the produce amongst such class, is wholly immaterial, if the legal and beneficial interests should be both ascertainable at the moment of the determination of the estate tail " (i). An executory limitation after an estate tail, which may not bi ascertained at the determination of the estate tail (not being a !,'j contingent remainder, which must take effect then or not at all), mination of though it may be barred by the tenant m tail during Ins tenancy, may be incapable of being barred by the remainder-man after the determination of the estate tail, and in this view may be considered to be subject to the rule against perpetuities ; hut there does not appear to be any direct authority upon the point. Thus, if land be limited to A. in tail male with remainder to B. in fee, subject to an executory limitation to take effect upon the general failure of issue of A., such executory limitation would seem not to be withdrawn from the rule by reason of the prior estate tail, since it might be neither barred nor ascertained during the continuance of the estate tail, and alter the deter- mination of that estate, it could not be barred by the tenant in fee, and would be open to all the objections the rule is intended to meet (A) . If a term of years be created antecedent to an estate tail, it Term pre- CCQIDff 661 cannot, nor can any trusts of the term be barred by the tenant ;,:'„[„,„ in tail. The trusts of such term are therefore subject to the ' quent. rule against perpetuities and must be limited to take effect within the period allowed by the rule. Thus, where a term was (A ) See ante, p. 319. Wartopj) v. Lord Carbery, cited in 1 ((') Heasman v. Pear*,, I.. R. 7 eh. Sanders, Us -. 204. Se» Brvstow v. 275; 41L. J.C.705; Morse v. Ormonde Boothby, 2 Sim. & St. I >'•'> : Horse v. (Lord), 5 Madd. 99 ; 1 Russ. 382. Ormonde [Lord), :• Madd. '.".': 1 I: (A) See Lewis. Perpetuities, 671 ; :isi' ; Faulkner v. Daniel, 3 Ha. L99. 382 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Application of the rule to powers, and execution of powers. Time is com- puted froni creation of the power. Under general power time is computed from the appointment. created prior to estates tail upon trusts to raise portions upon failure of issue in tail, the trusts were held void for remoteness (/). The rule against perpetuities applies to powers, but with the modifications required by the nature of a power. A power may be unrestricted in its terms as to the limits within which appoint- ment is authorised; because the power alone gives no estate, but only the authority to appoint estates and interests. But the appointment under a power must be restricted to estates and interests which shall take effect within the time allowed by the rule(w). But where the object of a power, as appearing in its terms, is to create a perpetuity, or it can only be exercised at a period outside the limits of the rule, it is void(w). And the validity of limitations in a deed creating the power to take effect in default of appointment under a power which is void for remoteness, depends upon whether they are or are not themselves obnoxious to the rule (o). The uses and estates appointed take effect from the instrument creating the power, as if originally inserted therein in place of the power. Therefore the time allowed by the rule is, in general, computed from the creation of the power and not from the appointment ; that is, from the execution of the deed, if the power be created by deed, and from the death of the testator, if by will {p). But a general power is equivalent, as regards the disposal of the property, to the absolute ownership ; and the execution of such a power is considered, in substance, as an original dis- position. Therefore, the time within which the limitations appointed under it must take effect is to be computed from the execution of the power and not from the creation of it (q). — Thus, if A. were to convey his estate to such uses generally as he should appoint, he might afterwards, upon the birth of a son, make a valid appointment of the estate to that son for life, remainder to his sons as purchasers ; although a conveyance by A. to an unborn son for life, followed by a limitation in (0 Eales v. (\>nn, 4 Sim. 65 ; Case v. Drosier, 2 Keen, 761 ; 5 M. & Cr. 246 : Syltes v. Syhes, L. Ft. 13 Eq. 56 ; 41 L. J. C. 25. (///) Sugden, Powers, 31, 151 ; Griffith v. Pownall, 13 Sim. 393 ; Stark v. Daltyn*, L. K. 10 Ch. 35 ; 41 L. J. C. 205; Hodgson v. Hal ford, 11 Ch. D. 959 : 48 L. J. C. 548 : WainwrigU v. Miller, [1897] 2 Ch. 255 ; 66 L. J. C. 616 ; Re Gage, [1898] 1 Ch. 498 ; 67 L. J. C. 200. («) Spencer v. Marlborough (Dulte), 3 Bro. P. C. 232 ; Ferrand v. Wilson, 1 Ha. 344 ; 15 L. J. C. 41 ; Flayer v. Banltes, L. R. 8 Eq. 115 ; Goodier v. Edmunds, [1893] 3 Ch. 455 ; 62 L.J. C. 619. 00 Re Abbott, [1893] 1 Ch. 54 ; 62 L. J. C. 46. (/;) Sugden, Powers, 396, 470 ; Lewis, Perpetuities, c. xx. (-/) Sugden, Powers. 396. 470 ; Rons v. Jacltson, 29 Ch. D. 521 ; 54 L. J. C. 732 ; Re Flower, 55 L. J. C. 200. SECT. V. § 1. THE RULE AGAIXST PERPETUITIES. remainder to the sons of that son as purchasers would be invalid (/•). According to these principles, a power may be well created to P ■■••■ i toap- appoint to grandchildren or other more remote issue of a person, ^ndchildren without any express restriction to those who may be born within ■ the time allowed from the creation of the power; but the appointment authorised is impliedly so restricted, and the power, so far as it extends to more remote objects, is simply void. — An appointment to any objects of such power living at the time of the appointment would be valid: also an appointment restricted to those objects, whether grandchildren or remoter issue, who may be born in the lifetime of the donee of the power, or within twenty-one years of his death, would be valid; because Buch appointments must take effect within the limits of time allowed from the creation of the power (s). — But an appointment to the Appoint grandchildren or remoter issue, without restriction as to the tim< /',"„, of their birth, would be void altogether, even as to those who an isvoid. in fact born within such limits of time. Unless it could be sup- ported as a distinct appointment of certain shares to those of the objects who are capable of taking, leaving the residue unappointed (0- Accordingly, a power of appointment in a marriage settlement Power in mar- amongst the issue of the intended marriage is restricted in ™ execution to issue born at the death of the parents or within appoint to twenty-one years after. — An appointment under such power to . ' children for life, with remainder to their children, would be void to child for as to the latter as being too remote (u). And an appointment binder to " under such power to a child cannot be postponed in vesting his children. beyond the death of the parents and twenty-one years after. Thus, an appointment to a child to vest on marriage is too To child on remote, being an event which might occur at any time during " the life of the child unborn at the date of the settlement (x). — So, an appointment to a child for life, with power in the child to To child for 1 L . -Hi hfo wit li appoint by will, is too remote, as to the power by will ; because power to ap- postponed until the death of a person unborn at the date of the l""" ' settlement (y). Although a power given in favour of a living (V) Sugden, Powers, 395. See ante, 336; Cronipe v. Barrow, 1 Ves. 681 ; pp. -j i! el sea. Brudenell v. Elwes, 1 East, 111'. (s) Sugden, Powers, 152, 397 ; Rout- Morgan v. Gronow, I.. R. 16 ledge v. Dorril, 2 Ves. :;.".:. See Eq. 1: 12 I.. J. <'. HO; Re Gage, Hodgson v. Halford, 11 Ch. D. 959 ; is i 1898] 1 Ch. 198; 67 L.J. C. 200. L. .1. C. 548. • l: - 8 Eq. □ Powers, 505; Griffith, v. 165; 38 I.. J. C. 61, 393; M gan v. Pow/iall, L3 sim. 393. See ante, p. "•27. Gronoio, L. R. U'> Eq. 1 : 42 I.. J. C. U0. (m) Bristovo v. Warde, 2 Ves. jun. 884 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Powers of sale. etc. may be unrestricted in terms. Power of sab.' with consent of tenant for life. Power of sale extending over estates tail. Power of sale, etc., re- stricted to the continuance of the settle- ment. person may be well executed by appointing to him an estate for life, with a power of appointment by will (z). Powers of sale and exchange, of leasing, and the like powers which operate only upon the subject of the property in settle- ment, without affecting the limitations of the settlement otherwise than by transferring them to the new or altered subject of pro- perty, may be indefinite in the terms of their creation, as to the period of execution ; as where limited to trustees and their heirs, or to trustees and their executors, or to trustees for the time being of a settlement containing powers of renewing the trustees (a). — ■ If these powers, by the terms of the instrument by which they are <4ven, can only arise at a period too remote according to the rule they are void (l>) ; but if such powers are conditioned to be executed with the consent of the tenant for life or other person living, they are restricted in exercise within due limits by the express condition of the execution (c). — Such powers, as extend- ing over estates tail in the settlement, are not subject to the rule against perpetuities, because in common with all executory limi- tations to take effect in defeasance of an estate tail, they may be barred by the disentailing assurance of the tenant in tail, and his power of alienation is not restricted by them (d). But the powers of this kind in a settlement are impliedly restricted to the continuance of the settlement ; and when the ultimate remainder or reversion in fee under the limitations of the settlement has vested in possession, giving an absolute power of disposition, the powers can no longer be exercised as a general rule (e). But a power of sale for the purpose of dividing the proceeds amongst beneficiaries is outside the rule against per- petuities, and may be exercised after the vesting of the estate in a person absolutely entitled (/) ; and if the person absolutely entitled is under disability, as if he is a lunatic, the powers will continue to be exercisable so long as the party continues under dis- ability, provided the rule against perpetuities be not infringed () See ante, p. 33. has been placed here, in anticipation of (V) Thellusson v. Woodford, I Ves. its proper place in the section on future 227; 11 Ves. 112; 1 Bos. & P. N. R. equitable limitations, on account of the 357 : Curtis v. Lukin, 5 Beav. NT: close connection, as regards the object II L. 1 ' '. 380. Bee df the law, with the rule against Butler's note (a) to Fearne, Ex. Dev. Perpetuities. 537. 336 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Proviso as to payment of debts, por- tions, etc. the uses or trusts of the deed, surrender, will or other assurance s directing such accumulations, would for the time being, if of full age, be entitled unto the rents, issues and profits, or the interests, dividends or annual produce, so directed to be accumulated ; and in every case where any accumulation shall be directed otherwise than as aforesaid, such direction shall be null and void, and the rents, issues, profits and produce of such property so directed to be accumulated shall, so long as the same shall be directed to be accumulated contrary to the provisions of this Act, go to and be received by such person or persons as would have been entitled thereto, if such accumulation had not been directed " (c). And by the amending statute — the Accumulations Act, 1892 (55 & 56 Yict. c. 58) — the following further restriction has been imposed: — " No person shall, after the passing of this Act (d) settle or dispose of any property in such manner that the rents, issues, profits or income thereof shall be wholly or partially accumulated for the purchase of land only, for any longer period than during the minority or respective minorities of any person or persons who under the uses or trusts of the instrument direct- ing such accumulation would for the time being, if of full age, be entitled to receive the rents issues profits or income so directed to be accumulated" (e). Section 2 provides " that nothing in this Act contained shall extend to any provision for payment of debts of any grantor settler or devisor or other person or persons, or to any provision for raising portions for any child or children of any grantor, settler or devisor, or any child or children of any person taking any interest under any such conveyance, settlement or devise, or to any direction touching the produce of timber or wood upon any lands or tenements " (/). The Act restricts the power of accumulation to one only of the ly, where a testator gave his One only of the _ statute-) y periods mentioned. According periods r allowed. (r) Griffiths v. Vere, 9 Yes. 127 ; Tud. L. C. Conv. 618 ; Re Seathcote, [I'.Mil] 1 Ch. 826; 73 L. J. 0. 543. See Re Pope, [1901] 1 Ch. 64; 70 L. J. C. 26. The inartificial and ill-defined language of this statute has been fre- quently adverted to by judges. See Brougham, L. C. Shaw v. Rhodes, 1 M. & Cr. at p. 139 : Cranworth, L. C, Edwards v. Turk. 3 De G. M. & G. 40, 55 : 22 L. J. C. 523 : and Tench v. Cheese, 6 De G. M. & G. at p. 460 ; 24 L. .1. C. 718 ; Knight Bruce, L. J., Edwards v. Tuck, supra. (,/) Re Uanoxer {Baroness), [1903] 2 Ch. 330 ; 72 L. J. C. 729. (e) Be Danson, 13 R. 633 : Be Clutter- Inch. [1901] 2 Ch. 285; 70 L. J. C. 614 ; lie Llanover {Baroness), [1903] 2 Ch. 330 ; 72 L. J. C. 729. (/) As to this proviso, see Em us v. Hellier, 5 CI. & F. 114 ; Edward* v. Tuck, 3 De G. M. & G. 40 ; 22 L. J. C. 523; Mathews v. KeUe, L. K. 3 Ch. 691 ; 37 L. J. C. 657 ; Be Heathcote, [1904] 1 Ch. 82G ; 73 L. J. C. 543 ; Re Stephens, [1904] 1 Ch. 322 ; 73 L. J. C. 3. And see other cases cited in notes to Griffiths v. Vere, 9 Yes. 127 ; Tud. L. C. Conv. 618. SECT. V. § 2. ACCUMULATION OF RENTS AND PROFITS. 337 residuary estate to the first son of A. who should attain twenty- one, so as to involve an accumulation during the minority of such son, and further directed the trustees of that estate to accumulate the income for twenty-one years from his death; it was held that the accumulation must stop at twenty-one years after his death, although no son of A. had then attained twenty-one, and that the direction to accumulate during the minority of the son was void (//). Trusts and directions to accumulate rents and profits are void Trust to accu- only so far as they exceed the limits allowed by the Act. Thus period in ex- a trust by will to accumulate during the life of a person named CL,! ; s " f f d is J i v ""' "" v : '^ is held good only for the term of twenty-one years from the to the excess. death of the testator, and stops at the end of that term (i). — So, with a gift to a person upon her marriage with the accumula- tions of interest from the death of the testator ( j). — So, an accumu- lation of income until a certain sum be raised, or a sum required for a certain purpose, cannot be continued beyond twenty-one years (A). — And in such cases the term of twenty-one years during which the accumulations may continue commences from the death of the testator, although the accumulations be not directed to commence until a period subsequent to the death (/). — A trust by deed to accumulate during the life of a person named is held good only during the life of the grantor, and ceases at his death (m). A trust by will to accumulate until an unborn child attains Accunmla- twenty-one, extending through the period before the birth, is bomon/ld"" not confined to the minority of persons born in the testator's attain- lifetime, but ceases at twenty-one years from the death of the testator if there be not an infant then in existence, and entitled but for the trust (n). — The accumulation by the court of surplus Accumula- income after providing for maintenance of infants is independent ^"'J 1 of the Act, being a provident mode of applying the rents of his property (o). (A) Wilson v. Wilson, I Sim. N. 8. (/) Webby. II ebb, 2 Beav. 193; Att.- 288 ; 20 L, J. C. 365 ; Jagger v. Jagger, Gen. v. Poulden, :i Hare, 555. See 25 Ch. D. 72'.i ; 53 L. J.' C. 201 ; ' lie Qorst v. Lowndes, 11 Sim. 434; 10 Cattell, | L907] 1 Ch. 567 ; 76 L. J. C. L. J. C. 161. 242 («') Re Rosslyris (Lath/) Trust, lti (0 Griffiths^. Vere, 9 Ves. 127 ; Tad. Sim. 391 ; 18 L. J. C. 98. L. C. Conv. 618. (.") Edwards v. Tuck, 3 Dc G. M.& G. (/') Morgan v. Morgan, 4 i)e G. & 40; 22 L. J. C. 523 ; Tench v. Cheese,^ Sni' lf,l • 20 L. J. C. inn. De (i. M. & G. 153; 21 L. J. C. 716; ('/,•) Shaw v. Rhodes, 1 M. & Or. 135 : Re Cattell, L907] 1 Ch. 567 ; 76 L.J.C. affd. num. Evans v. Hellier, 5 CI. & 1'. 212. 114 ; Oddie v. Brown, 4 De G. & J. 179 ; (p) Mathews v. Eeble, L. R. 3 Ch. 28 L.J.C. 542. 691 ; 37 L. J. C. 657. L.P.L. z twenty-one. 338 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Implied direc- t ions to accu- mulate are within the Act. Pi »wers of maintenance and advance- ment out of income. Trust to pay premiums on policy. A trust or disposition of property implying or causing an accumulation is as much within the purview of the statute as if an accumulation had heen directed in express terms (j>) ; — thus, a charge of a certain sum to he raised out of the annual rents and profits, the distribution of which is postponed until the sum is raised, is, in effect, a trust or direction to accumulate, and cannot he continued beyond the period allowed by the Act (q). An executory devise, if made in such terms as to include the income until vesting ; or a future residuary disposition, as it carries the intermediate income if not otherwise disposed of, involves an accumulation, and is within the Act (/•). "Where the property was directed by will to be accumulated for the ultimate benefit of certain objects, with powers of main- tenance and advancement out of the income, the powers, as disposing of the income, were held to continue and to be capable of exercise, notwithstanding they extended beyond the period allowed for accumulating the income (s) ; but this decision can only be regarded as anomalous (t). A trust to pay the premiums upon a policy of insurance during the life of a person out of the income of property is not an accumulation of such income within the Act ; it is an abso- lute disposal of it, in consideration of the payment to be made in a certain event under the policy (it). So too, a direction to apply a portion of the rents of leaseholds to effect and keep on foot a policy of assurance, to secure the capital value which leaseholds would have realised if sold is valid, notwithstanding it may extend beyond twenty-one years from the testator's death (v). Directions to A. trust or direction for accumulation which infringes the rule accumulate in against perpetuities, as directing accumulation for an indefinite period, or a period extending beyond the time allowed by that rule, or as disposing of the accumulations by limitations too remote, is void altogether, independently of the above statute, and is not apportionable as to the time of accumulation ; as a proviso in a settlement that during the minorities of any persons becoming successively entitled in possession under the rule against perpetuities void. (/>) Cranwortb, L. C, Tench v. Cheese, 6 De G. M. & G. 453 ; 24 L. J. C. 716 ; Wood and Selwvn, L. JJ., Mathews v. Keble, L. R. 3 Ch. 691, 696, 698; 37 L. J. C. 657. (7/) Shaw v. Rhodes, 1 M. & Cr. 135 ; arid. nom. Evans v. Hellier, 5 CI. & F. 114. (/•) M'Dondld v. Bryce, 2 Keen, 276 ; Morgan v. Morgan, 4 De G. & Sm. 164 ; 20 L. J. C. 109, 441. 0) Pride v. Fooks, 3 Beav. 430 ; 9 L. J. C. 282. (7) Connolly v. Farrell, 8 Beav. 347 ; 14 L. J. C. 189. (w) Bassll v. Foster, 9 Hare, 177; 20 L.J. C. 641. (r) lie Gardiner, [1901] 1 Ch. 697; 70 L. J. C. 407. SECT. V. § 2. ACCUMULATION OF RENTS AND PROFITS. 339 settlement, the trustees shall receive and accumulate the rents and profits (w). Where a testator created a long term of years upon trust to raise and accumulate an annual sum for the purpose of paying the mortgage debts charged upon the land, it was held that the trust, though not limited in duration, was valid, because the power of the owner of the inheritance, subject only to the mortgages, was not thereby restricted (./■). Where there is an absolute and immediate disposition of the Destination of property, subject only to a direction for accumulation during ex .., an excessive period, the statute in stopping the accumulation Where there is tin inimG- beyond the period allowed leaves the disposition of the property diate gift of discharged from the direction, and entitles the grantee or devisee I "" ! ' '"■ ' to the immediate income or possession (//). Where the accumulation is directed for an excessive period, where the and there is no disposition of the property until the expiration ferred. of that period, the statute in stopping the accumulation beyond the period allowed does not accelerate the disposition ; but the effect is to withdraw the subsequent income from the disposition of the rest -of the property. The subsequent income until the disposition takes effect will then pass under the residuary dis- position in the will ; — or, if the disposition from which such income is withdrawn be a residuary disposition, it will pass as undisposed of,— either to the next of kin, or to the heir, accord- ing to the nature of the property (z). — Where a testator devised to trustees upon trust to accumulate the rents until the youngest child of A. attained twenty-one, it was held that the interest of the heir, becoming entitled to the undisposed of rents accruing after twenty-one years from the testator's death until the youngest child should attain twenty-one, was a chattel interest which upon his death passed to his personal representatives (>(). A trust to invest the accumulations of income of property in the w) Soutltampton (Lord) v. Hertford 560; Combe v. Hvghes,2 De G. J. ,v S. (Marq.), 2 V. & B. 54; Marshall v. 657; 34 L. J. C. 344. Hollow, 1 1/, 2 Swanst. 132; Browne v. (z) Ellis v. Maxwell, 3 Beav. 587: Stoughton, 14 Sim. 369; 15 L. J. C. 10 L. J. C. 266; Tench v. C/teese, 6 391; Scai-isorick v. Skelniersdale, 17 D. M. & G. 453 ; 24 L. J. C. 716 ; Vine Sim. is; ; 19 L. J. 0. 120; Tarvin v. Raleigh, [1891] 2 Ch. 13 ; 60 L. J. C. v. Newcombe,% K. & J. 16. 675; Re Mason, [1891] 3 Ch. 167 ; 60 (a?) Bateman v. HotchMn, 10 Beav. 1.. J. C. 25 ; Re Pope. [1901] 1 Ch. 6J ; 420, and the trust was held to be within 70 L. J. C. 26. As to the further income the exception of the Act restraining of the accumulations already made until accumulations, being a provision for the the period of resting, see Morgan \. payment of debts. See /trio*/* v. Oxford Morgan, 20 L. J. C. 441 ; II »e G.& Sm. \EarV), 1 Do G. M. .V G. :*ii:i ; 21 L.J. C. 104.' 829; Tewart v. Lawson, 43 L. J. C. 673 ; («) Sewell v. Denny, 10 Beav. 315. L. R. IS Eq. 190. See ante, pp. 31, 1 19. ' GO Trickey v. Trickey, 3 M. & K. Z -1 340 PART 11. CHAP. II. THE LIMITATION OF FUTURE ESTATES. purchase of land, does not attach upon the income during the period of excess, and such portion of the income passes according to the original nature of the property (//). Direction to Where property becomes presently and absolutely vested in a afterpresent person who is sui juris, although it be subject to a trust or vesting. direction for accumulation beyond the time of vesting and be directed to be paid at a future period, he is not obliged to let the accumulations continue, but may claim to have the property transferred to him in immediate possession (<•). The same principle is applicable to a gift to a charit}^, subject to a direc- tion to accumulate the income, the charity being entitled to present possession, and to put an end to the accumulation of income after the expiration of the legal period (d). Section VI. Future Equitable Estates and Interests in Land. § 1. The limitation of future equitable estates and interests. § 2. Priority of estates and interests in equity. § 3. Protection of the legal estate. § 4. The doctrine of notice. § 5. Tacking and consolidating mortgages ; Marshalling. § 1. The Limitation of Future Equitable Estates and Interests. Future equitable estates corresponding to legal estates — remainder and reversion — limitation of freehold in futuro — in defeasance of prior estate — powers. The rule against perpetuities — accumulations. Contingent limitations of equitable estates — vesting of intermediate interest. The rule in Shelley's case applied to equitable limitations. Future charges upon land of portions, legacies, etc. — construction of charges as vested or contingent — charges upon personalty — charges upon both real and personal estate. Charge of portions subject to advancement — presumption against double portions. Equitable estates and interests in land have been distinguished into those corresponding with legal estates and those peculiar to equity, having no analogy with legal estates (a). (V) Simmons v. Pitt, L. R. 8 Ch.978 ; 511 ; Norton v. Johnstone, 30 Ch. D. 43 L. J. C. 267. See Bective [Countess) 641) ; 55 L. J. C. 222. See Hilton v. v. Hodgson, 10 H. L. C. 656 ; 33 L. J. C. Hilton, L. R. 14 Eq. 468. And see 601. ante, -p. 328. (r) Saunders v. Vautier, Cr. & Ph. (//) Wharton v. Masterman, [1S ( J5] 24(): 10 L. J. C. 354; Bateman v. A. C. 186 ; 64 L. J. C. 369. Hotchkin, 10 Beav. 426: 16 L. J. C. («) See ante, p. 181. SECT. VI. § 1. FUTURE EQUITABLE ESTATES. 341 In the limitation of equitable estates, corresponding with legal Future estates, future estates and interests are, in general, limited in States corre- the same manner, and the same language is used and receives spondii^wlth the same construction, as in limiting future legal estates ; — according to the principle that equity follows the law. Accord- Remainder ingly, the equitable estate may be limited for a particular estate with remainder, or with successive remainders, or leaving a reversion, as at law (&). But the limitation of the trust or equitable estate is free from the restrictive rules peculiar to the quality of freehold tenure ; for these rules are satisfied in their application to the legal estate of the trustee and have no ulterior effect on the beneficial interest. The rule of common law that the freehold cannot be in abeyance, with all its consequences in legal limitations, has no application in equity. Therefore, an equitable estate, free- Limitation of hold in quantity, may be limited to commence at a future time, or upon the happening of a future event, without any preceding freehold estate to support it as a remainder (c). So an equitable estate may be limited to take effect in defea- Limitations in sauce or substitution of a preceding estate without awaiting its prior estate. determination, in the same manner as a shifting use or executory devise (d). — The trust or equitable interest in leaseholds or terms of years may be limited with all the freedom of an executory bequest of personal estate (e). Equitable estates may also be appointed under powers given Powers of ap- for that purpose, analogous to and, so far as the quality of the 1>0 ' estate permits, governed by the same rules as powers of appointing uses or powers under wills (/). Future limitations of the trust or equitable estate are subject Rule against to the same rule against perpetuities as future legal limitations by appb^edto wav of springing use and executory devise, and the rule is applied equitable . limitations. according to the same principles. " It may be laid down with- out any qualification that no nearer approach to a perpetuity can be made through the medium of a trust, or will be sup- ported by a court of equity, than can be made by legal con- veyances of legal estates or interests or will be admitted in a court of law " (//). By means of a trust or direction for that purpose the rents Trust- for -,,.,„... . .,. , „ i • accumulation. and profits of land may be withdrawn from present ownership, (//) See ante, pp. 97, 182. (./") Sugden, Towers. 4.".. See ante, (c) See ante, p. IMS. p. 269. (d) *ee«/tt<>, pp. IDS, l>;,3, 260. Q/) Butler's note to Co. Lit. 290 b, (r) See ante, p. 232 ; ami see Holmes s. xiv. ; Butler's note to Feame, Ex. v. Prescott, 33 L. J. C. 264. Dev. .">37. And sec ante, p. 317. 342 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Contingent limitations of equitable estates. Intermediate interest until vesting of contingent limitation. The rule in Shelley's case applied to equitable limitations. and accumulated for the benefit of a future and uncertain owner. Such dispositions were impossible at the common law on account of the rule that the freehold could never be in sus- pense. Trusts and directions to accumulate rents and profits for future disposition are subject to the rule against perpetuities ; and they are subject to further restriction by the Accumulations Acts, 1800 and 1892, already noticed (/*)• The rules restrictive of contingent remainders at the common law have no application in equity. A contingent limitation of the equitable estate, though in the form of a contingent remainder at law, may take effect as and when it is limited to arise, sub- ject only to the rule against perpetuities. It is not affected by the determination of the preceding estate before the happening of the contingency upon which it depends (t). Thus under a trust for A. for life and after his death for the children of A. who should attain twenty-one, the trust for the children will not fail by reason of A. dying before any child has attained that age, as would be the case with a contingent remainder at law in the same terms (/,•). So under a trust for A. for life and after his death to the children of B., the trust for the children of B. does not fail upon the death of A. before children of B. exist (/). If a contingent limitation be made without any preceding estate, or if a contingent limitation do not vest until after the determination of the preceding estate, the intermediate interest, unless otherwise disposed of, results to the settlor or his heir, or falls into the residue of his estate (m). The rule in SJielhnjs case, by which limitations in the form of remainders to the heirs or to the heirs of the body, after an estate of freehold in the ancestor, are referred to the estate of the ancestor, is applied by analogy in construing the like limita- tions of equitable estates, and upon the same principles upon which it is applied to legal limitations. But it can be applied only where the limitations to the ancestor and to the heirs are (/() See ante, p. 335. (/) Fearne, Cont. Rem. 303 : EddeVs Trusts, L. R. 11 Eq. 551); 40 L. J. C. 316; Astley v. Mickletfiwait, 15 Ch. D. 59 : 4:> L. J. C. 672 ; Re Brooke, [1894] 1 Ch. 43; 63 L. J. C. 159. (/.•) EddeVs Trust*, L. R. 11 Eq. 559; 40 L.J. C. 316. (/) Ctiapman v. Blisset, Cas. t. Talb. 145. As to executory devises to children, see ante, p. 267. («/) EddeVs Trusts. L. R. 11 Eq. 559 ; 40 L. J. C. 316; Best v. Donmall, 40 L. J. C. 160 : and see cases cited ante, p. 2H2. nn. (p) & O). In the case of personalty a different rule obtains ; but where the intermediate income of per- sonalty, settled by reference to the limitations <>f realty involving a con- tingent limitation, was held to follow the rents of the realty : Holmes v. Preseott, 32 L. J. C. 264. SECT. VI. ^ 1. FUTURE EQUITABLE ESTATES. :;i:; of the same quality ; if the estate limited to the ancestor is equitable and the remainder to the heirs is legal, or conversely, the rule is not applicable (n). Where both the limitations are legal, a trust imposed upon Legal Un . . , . . , tionsub one of them does not prevent the application ot the rule to the ,. legal limitations ; for a court of law, in construing legal limita- tions, takes no notice of trusts (o). But the rule in Shelley's case is not applied in construing Application of . - i the rule to executor// trusts, which have to be carried out by a conveyance or executory settlement to be framed according to certain directions, where an t; application of the rule to the literal terms of such directions would defeat the intended purpose of the trust. As in marriage articles or a devise by will directing that a settlement be made to a person for life with remainder to the heirs of his body, (limitations which in their technical meaning according to the rule in Shrllei/'s case would make him tenant in tail in possession with an absolute power over the property,) the trust is executed by a strict settlement, with limitations to the person for life with remainders to his first and other sons successively in tail (p). Trusts for conversion, charges of money for portions, legacies, debts, etc, constituting equitable interests in land of a kind peculiar to equity, and having no correspondence with legal estates (q), may also be limited to take effect at a future time or upon the happening of some event or contingency, subject only to the rule against perpetuities. "With charges of money on land, whether by deed as portions in settlements, or by will as legacies, it is a rule of construction as to the vesting of the charge, that a direction for payment at some future time or event, having reference to the condition or circumstances of the legatee or portioner, as at the age of twenty-one or on marriage, is to be construed as deferring the vesting; so that if the legatee or portioner die before the time, the land is discharged, unless an intention to the contrary appear in the will or instrument (r). And the gift of interest on the Future charges upon land, of por- tions, legacies, etc. Charge to be paid at a certain age < r other event affecting the person. (») Silrester v. Wilson, 2 T. R. 144; Jackson v. iVob <\ 2 K< en, 590 ; 7 L.J. < '. 133 ; Cooper v. Kynock, I.. Et. 7 Ch. 398 ; 41 L. J. C. 296 : Van Grutten v. Foxwell, r ls;i7 A. C. 658 : 66 L. .). Q. B. 745 ; Re Foumans II ill, [1901] 1 Ch. 720 ; 70 L. J. ('. 430. See the rule stated and applied, ante, p. _i7. («) Fearne seems to have been of a contrary opinion, see Cont. Kern. 35 : but see Butler's note Q>~) lb. : Porter v. Bradley, 1 T. R. 143, 146. (//) Glenorchy {Lord') v. Boseille, Cas. t. Talb. 3; 2 Wh. & T. L. C. E : . 763 ; Fearne, Cont. Rem. 90, 1 1 \. And see as to executory trusts, ante, p. 182. (,/) Seeawte.pp. 182, 185, 190. (/•) Pawlett v. Pawlett, 1 Vera. 204, 821 ; Chandos (Duke) v. Talbot, 2 I'. Wins. 601 and note, p. 612 ; King v. Withers, Cas. '. Talb. 117: Evans v. 1 II. L. C. 13. As to the origin 344 PART II. CHAP. II. THE LIMITATION OF FUTURE KSTATES. < 'harge to be paid upon death of tenant for life or other affecting the property. Charges on personalty. Gift of inter- mediate in- come. sum in the meantime for maintenance or otherwise is not sufficient to show an intention to the contrary (s). But if the payment be postponed to a time or event, having reference merely to the condition or convenience of the property, as the death of a tenant for life, and having no reference to the personal condition of the legatee or portioner, the effect of such direction is restricted to the purpose manifestly intended, and it does not affect the vesting (t). With charges on personal estate a different rule prevails. If there be an independent gift or appropriation, preceded or followed by a direction for payment at a future time, it does not alone defer the vesting ; and if the legatee or portioner die before the time of payment his representatives become entitled, not- withstanding the payment be postponed, unless an intention appear to the contrary. But if the gift and provision for pay- ment are not independent, as if there be a gift "if" or " when," or " at " or "upon" or "after" a person attains twenty-one years, or a direction to pay a legacy or portion under similar conditions, the gift will be considered as contingent (h). So a direction to pay a person upon her marriage does not vest the gift until tbat event happens (.<•). In the case of personalty, a gift of the entire income until the time appointed for payment of the capital, presumptively vests the principal ; and a direction to apply the whole income by way of maintenance will give rise to the same presumption although a discretionary power be given to apply a less sum for that purpose (y). But if the intermediate income is directed to be accumulated and paid at the same time as the principal, the gift is presumptively contingent (z). These rules of construction are applicable to charges upon terms of years (a), or upon the proceeds of sale of land sold under a trust for conversion (b). In consequence of the above distinction in the effect of a of the rule, see Butler's note (1) to Co. Lit. 237 a. and note (//) to Fearne, Ex. Dev. 552. 0) Pawlebt v. Pawlett, 1 Vern. 201, 321 ; Hubert v. Pat sons, 2 Ves. sen. 261 ; Wathin* v. C/ieelt, 2 Sim. & S. 199. (t) Remnant v. Hood, 2 D. F. & J. 396 ; 30 L. J. C. 71 ; Davies v. PLuguenin, 1 H. &M. 730 ; 32 L.J. C. 417. ' («) Hansen v. Graham, 6 Ves. 239 ; Leake v. Robinson, 2 Mer. 363; Lister v. Bradley, 1 Hare, 10 ; 11 L. J. C. 49 ; He Bartholomew's Trust, 1 Mac. & G. 354 • 19 L. J. C. 237. (r) Morgan v. Morgan, 4 De G. &; Sm. 164 ; 20 L. J. C. 109, 441. (//) Ha tx ford v. Kehbell. 3 Ves. 363 ; Pell v. Cade, 2 J. & H. 122 ; 31 L. J. O. 383 ; Re Holt's Estate, 45 L. J. C. 208 ; Re Williams, [1907] 1 Ch. 180 : 76 L. J. C. 41. (z) Knight v. Knight. 2 Sim. & S. 490 ; Saunders v. Vautier, Cr. & P. 240 ; 10 L. J. C. 354; Re Thurston's Will, 17 Sim. 21 ; 18 L. J. C. 437. See Phase v. Burgh, 2 Beav. 221 ; 9 L. J. C. 226. («) lie BTudsons, Drury, 6. (b) Re Hart's Trusts, 3 De G. ic J. 195 ; 28 L. J. C. 7. See Re Punn, 16 Ch. D. 47. SECT. VI. S i. future equitable estates. : >i-J direction for future payment upon the vesting of charges, as Charge . , ., , ,i , both real and operating upon real or personal estate, it may happen Umt personal a legacy originally charged both on real and personal estate may ' fail as against the real estate by reason of the death of the legatee before the time of payment, but remain a charge upon the personalty; as in the case of a legacy given to a person and made payable at twenty-one, and the legatee dying under twenty-one (c). Portions charged in settlements of land to be raised upon the Portions , , t , . charged sub- death of the parents are usually made subject to an express j ec t to satis- proviso that an advancement made by the parents in their ^^ment^" lifetime shall be taken in satisfaction, unless expressly declared not to be so intended (d). Under such a proviso a devise or bequest by will of the parent would not, in general, operate as an advancement in his lifetime in satisfaction of the portion (■ 'V- 1* Ves. U0 ; 2 Wh. (77) See 2 Prideaux Conv. 28-1, 7th ed. ; & T. L. C. Eq. 366. 2 Haves Conv. G3, .">th ed. ; and see tions. 34G PART IT. CHAP. II. THE LIMITATION OF FUTURE ESTATES. § 2. The Priority of Estates and Interests in Equity. Priority of estates and interests in equity. Priority of acquisition gives prior equity. Priority lost by fraud or negligence. Negligence as to the custody of title deeds — trusting to representations as to the deeds. Trustee depositing deeds in breach of trust. Vendor signing receipt for purchase money. Priority by notice to trustee of equitable interest in personalty or money charged upon land — no priority in equitable estates in land by notice to trustee — notice upon change of trustees. Priority of estates and interests in equitj'. Examples. Priority of acquisition gives prior equity. Estates and interests may be created in the same property not in a prescribed series of limitations, but upon various and inde- pendent occasions ; and questions may then arise as to their priority or relative times of taking effect, which cannot be deter- mined merely by construction of the terms of limitation, but are to be decided by the rules and principles of equity. For example, the equity of redemption in mortgaged land may be mortgaged or charged successively to two persons, between whom may consequently arise a conflict of claims to priority (a). — An interest in the proceeds of real estate under a trust for conversion, or a charge to be raised by sale or mortgage may be assigned to two persons successively, thereby raising a question of priority (b). — A purchaser of land, having taken a conveyance subject to a lien or charge of the vendor for unpaid purchase money, may sell or charge the same land in favour of a third person, and a conflict of claims may thus arise between the vendor and the subsequent incumbrancer (c). — A trustee by his dealings with the trust property may raise a conflict of equities with the cestui que trust (d). The general rule of equity as to the priority of estates and interests created or arising on different occasions in the same (a) Jones v. Junes, 8 Sim. 633 ; 7 L. J. C. 164 ; Wtimot v. Pike, 5 Hare, 11 ; Frazer v. James, 5 Hare. 475 ; affd. 17 L. J. C. 353: Taylor v. London and County Jih.. [1901] 2 Ch. 231 ; 70 L. .1. C. 477. (h) See Lee v. Howlett, 2 K.& J. 531 ; Hughes' Trusts, 2 H. & M. 89 ; 33 L. J. C. 725. (V) Maehreth v. Simmons. 15 Yes. 329 ; 2 Wh. & T. L. C. Eq. 926 ; Rice v. Rice, 2 Drew. 73 ; 23 L. J. C. 289. (d) Dunce v. Hold] nqhn m, L. R. 8 Ch. 902 ; 42 L. .1. ('. 777 ; Turner v. Smith, [1901] 1 Ch. 213 ; 70 L. J. C. 144; Taylor v. London and County Bit., [1901] 2 Ch. 231 ; 70 L. J. C. 177. The fraudulent concealment from the pur- chaser of any deed or instrument material to the title, or any incum- brance, is a statutory misdemeanour. See post, p. 366. SECT. VI. §2. THE PRIORITY OF ESTATES. 347 subject of property is that they rank in order of the time of acquisition. — " Every conveyance of an equitable interest is an innocent conveyance, that is to say, the grant of a person entitled merely in equity passes only that which he is justly entitled to, and no more. If, therefore, a person seised of an equitable estate (the legal estate being outstanding) makes an assurance by way of mortgage or grants an annuity, and afterwards con- veys the whole estate to a purchaser, he can grant to the pur- chaser that which he has, viz., the estate subject to the mortgage or annuity, and no more. The subsequent grantee takes only that which is left in the grantor. Hence grantees and incum- brancers claiming in equity take and are ranked according to the dates of their securities; and the maxim applies, qui prior est tempore potior est jure — And it is quite immaterial whether the subsequent incumbrancers at the time they took their securities and paid their money had notice of the first incumbrance or not " {(■). In the case of after acquired property of a bankrupt, a bankrupt is entitled, until his trustee in bankruptcy intervenes, to confer a title to an equitable interest in leasehold land paramount to that of the trustee in bankruptcy, but not where the equitable interest is in freehold lands (/). But this rule is only resorted to where the equities are in all JrigjjJ, other respects equal, and where there is no other sufficient negligent. ground for preferring the owner of one conflicting interest to another ; and the priority in equity due to priority of acquisition may be rebutted and lost by circumstances of fraud, misrepre- sentation, or negligence in the conduct of the prior claimant relatively to the subsequent claimant (//). A purchaser or mortgagee of the legal estate in land should Negligence as obtain possession of the title deeds relating to the land, and if he j ti fle deeds, fails to do so may be postponed to a person who subsequently acquires for value an interest in the property without notice of the prior dealing with the land. But he will only be so postponed where there has been fraud or concealment on his part or con- currence in some fraudulent purpose, or negligence so gross as to (*) Per Westbuiy, L. ('.. Phillips v. Phillip*. 4 De G. F. cV J. 208, 215 ; 31 L. J. C. 321 ; Dixon v. MucTtleston, L. R. 8 Ch. L55 ; 42 L. J. C. 213 : Care v. Care. 15 Ch. D. 639 ; 49 I>. J.C;505. How far an assignee is bound by the equities affecting an equitable interest, see post, p. 354. As to the protection afforded by the legal estate, see post, p. 350. (/) Official Receiver y. Coohe, [1900] 2 I h. 661 : 7.". I.. J. C. 757. See //■. ! v. Fripp, [1898] 1 Ch. 675 ; 67 L. J. C. 377. (Y/) Per Kindersley, V.-C, in Rice v. Rice, 2 Drew. 73; 23 L. J. C. 291 ; Taylor v. London and County />V.'.. [1901] 2 Ch. 231 ; 70 L. J. C. 177. 3^8 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Negligence in giving back possession of deeds. amount to evidence of a fraudulent intention (h). But a person who accepts as true the representation that all the deeds relating to the property are being handed over is not guilty of negligence where the mere inspection of the documents handed over would not disclose the fact that material documents are being retained!/); and one of two or more trustees is entitled to permit his co-trustee to retain the exclusive possession of title deeds, unless he has reason to believe that his co-trustee will act improperly (A). So, too, if the possession of deeds is parted with, the title of the true owner will not be displaced " unless there is fraud, con- cealment, or some such purpose, or some concurrence in such purpose, or that gross negligence that amounts to evidence of a fraudulent intention " (V). But where a mortgagee hands back title deeds to his mortgagor to enable him to raise money, he cannot be heard to complain if the mortgagor, in breach of con- fidence, raises an excessive amount, or fails to preserve the original priorities (m). But a greater degree of negligence is required to displace the title of a mortgagee to whom the legal estate has been conveyed, than where there is a conflict between two persons who only have equitable titles (it). "Where a trustee, having the legal custody of the title deeds in right of his trust, deposits them, in breach of trust, as security for an advance to himself, the cestui que trust, if not guilty of any negligence in the matter, as having the prior equity is preferred (o) . Vendor si£ notice to which pass at law by delivery of possession, the priority of an , n assignee or person acquiring an equitable interest may be varied upon giving notice of his interest to the trustee, as is also the case with regard to the assignment of debts or other choses in action. Notice is not necessary to perfect the title of the assignee (r), but until notice of the assignment, an accounting party may deal with the assignor, and those claiming under him by subsequent assignments, on the footing that the first assignment does not exist (s). And an assignee of an equitable interest in pure personalty, or of a debt, by giving notice to the trustee or the debtor may gain priority over a prior assignee of the same equitable interest or debt (0, provided he has no notice of the prior interest when he pays his money («)• Accordingly upon an assignment of an interest in the proceeds Notice re- ° \ oil • i_ quired upon of real estate under trust for sale and conversion, or in a charge assignment to be raised by sale or mortgage, being of the nature of a personal °£ ™™j* n on chattel, the assignee must give notice to the trustee to secure his land. priority over other claims (a-). (_//) Rice v. Rice, 2 Drew. 78; 23 11; 22 L.J. 0.884. See Montefiore v. L. J. C. 291 ; White v. Waltejield, 7 Guedalla, [1903] 2 Ch. 26 ; 72 L. J. C. Sim. -101 ; 4 L. J. C. 195; Hunter v. 142. Waiters, L. 11. 7 Ch. 75; 41 L. J. C. (/) Dearie v. Hall, 3 Russ. 1 ; Loce- 175. See Bicherton v. Walker, 31 ridge v. Cooper, 3 Russ. 58; Ward v. Ch. D. L51 ; 55 L. J. C. 227. As to a Buncombe, [1893] A. C. 369 : 62 L. J. I '. receipt in an unusual form or place, 881; Re Wasdale, [1899] 1 Ch. 163; see Kennedy v. Green, 3 M. & K. 699 ; 68 L. J. 0. 117; Marchant v. Morton, and see post, p. 359. Down ,v Co., [19011 2 K. B. 829; 70 0/) Lloyd's Bit. v. Bulloch, [189G] L. J. Q. B. 820; lie Dallas, [1904 2 2 Ch. 192; 65 L. J. C. 680 ; Rimmer v. Ch. 385 ; 73 L. J.C.365. And see as to Webster, L902 2 Ch. 163 ; 71 L. J. C: assignments within s. 25 (6) of the 561 ; Bateman v. Hunt, [1904] 2 K. B. Judicature Act, 1873, Leake. Contracts, 530 ; 73 L. .J. K. B. 782. pp. 823 et seq. (/■) lie Holmes, 29 Ch. D. 786; 55 (u) Re Holmes, 29 Ch. D. 786; 55 L. J. C. 33 ; Gorringe v. leu-ell India L. J. C. 33. Rubber and Gutta Percha Weeks, 34 (.'■> Foster v. Cockerell, 3 01. & b\ Ch. D. 128 ; 56 L.J. C. 85. SeeMwman 450; Lee v. Howletc, 2 K. & J. 531 : v. Newman, 28 Ch. D. 674 ; 54 L. J. O. Hughes' Trusts, 2 H. & M. 89; 33 598. L. J. C. 725 ; Arden v. Arden, 29 Ch. 1). (*) Stocks v. Helton. 4 De G. M. & G. 702 ; 54 L. J. C. 655. 350 l'AKT II. CHAP. II. THE LIMITATION OF ITTURE ESTATES. Notice not required for equitable estates in land. No priority by notice to legal mortgagee. Notice upon change of trustees. But equitable estates and interests in the land (including chattels real) corresponding to legal estates, though the legal estate he vested in a trustee, follow the analogy of legal estates ; and their priority is independent of notice to the trustee and is subject to the general rule of priority of acquisition. Thus, with the equity of redemption of a legal mortgage, as between successive mortgagees, no priority is acquired by a notice given to the first mortgagee of the legal estate ; but they are entitled in order of time, notwithstanding such notice given (y). A priority once acquired by notice given to all the trustees, remains notwithstanding a change of trustees, for it is not the duty of the new trustees, nor is it the practice of the court, to inquire respecting notices given to the old trustees ; but the new trustees are not responsible for acts done in disregard of notices of which they are in fact ignorant (z). Notice to one of joint trustees is sufficient ; but upon his death it does not survive with the property to the others (a). And notice to one of the trustees, not being himself the assignor, is sufficient, although he be at the same time interested in the property, and might by concealing the notice make a subsequent assignment (b). Protection of the legal estate against prior claims. § 3. Protection of the Legal Estate. Protection of the legal estate against prior claims. Protection of the legal estate to a purchaser for value without notice. Purchaser without notice obtaining legal estate after notice— from a i rustee — from a prior mortgagee. Pui chaser with notice from purchaser without notice— Purchaser without notice from purchaser with notice — repurchase by trustee. Prior claims paramount to vendor — claim to set aside or correct the legal title. Equitable remedies— available to purchaser having the legal estate. Plea of purchase for value without notice — is inapplicable between merely equitable claims. Assignee of equitable interest takes it subject to e piities without notice. A person invested with the legal estate, or having obtained any legal advantage, shall not be deprived as a general rule of (//) Union Bk. of London v. Kent, 39 Ch. D. 288 ; 57 L. J. C. 1022 ; lie Richards, 45 Ch. D. 589; 59 L. J. C. 728 ; Hopkins v. Hemsworth, [1898] 2 Ch. 317 ; 67 L. J. C. 526 ; Taylor v. London and County Jilt., [191)1] 2 Ch. 231 ; 70 L. J. C. 477. (~) Phippsv. Lovegrove, L. R. 16 Eq. 80 ■ 4 L. J. C. 892 ; Ward v. Duneombe, [1893] A. C. 369 ; 62 L. J. C. 881 ; Re Wasdale, [1899] 1 Ch. 163 ; 68 L. J. 0. 117. See J^owe v. Bowverie, [1891] 3 Ch. 82 ; 60 L. J. C. 594. (a) Meux v. Bell, 1 Hare, 73 ; 11 L. J. C. 77. (//) Browne v. Savage, 4 Drew. 635 ; Willes v. Greenhill, 4 He G. F. & J. 147 ; 31 L. J. C. 1 ; Be Dallas, [1904] 2 Ch. 385 ; 73 L. J. C. 365. SECT. VI. § 3. PROTECTION OF THE LEGAL ESTATE. 351 that estate or advantage at the suit of another whose claim to he preferred rests upon priority of acquisition, unless some further grounds of preference can he shown (a). In the case of copyholds, unless the surrender must he pre- sented within particular limits of time, a first mortgagee will not be postponed to a subsequent incumbrancer by reason only of delay in perfecting his security by admittance (A). The priority or protection given or allowed to any estate, right, or interest in land by reason of such estate, right, or interest being protected by or tacked to any legal or other estate or interest in such land was abrogated by sect. 7 of the Vendor and Purchaser Act, 1874, with a saving in favour of any then existing priority or protec- tion ; but this section was repealed by sect. 129 of the Land Transfer Act, 1875, "except as to anything duly done thereunder before the commencement of this Act." The defence is a purely equitable defence, and where prior to the Judicature Act, 1873, the plaintiff could have succeeded in an action at law, without being restrained by a court of equity from pursuing his legal remecby, a plea of a purchase for value without notice affords no answer (c). To establish the plea of a purchase for value without notice Protection of two elements are necessary. First, it must appear that value estete^to a was given ; but this is not restricted to money payments (d). purchaser for ? / \ • value without And the person conveying the legal estate need not receive any notice. benefit from the consideration (e). In the next place it must appear that at the date when he took his conveyance of the legal estate, and at the time when he paid his purchase money, where money passes, the person relying on the plea had no notice of a prior equitable title (/). But the acquisition of the legal estate need not be contemporaneous with the payment of the purchase money except where the conveying party is a trustee ; and with the like exception, a person who has bond fid V (a) Frazer v. Jones, 5 Ha. 475 ; affd. 352 : 62 L. J. C. 100. 17 L.J. C. 353; Newman v. Newman, (tl) Molony v. EJernan, 2 Dr. & War. 28 Ch. D. 674 ; 54 L. J. C. 598 ; Taylor 31 ; Dilkes v. Broadmead, 2 De G. F. v. Russell, [181)1] 1 Ch. 8 ; 60 L. J. C. & J. 566 ; 30 L. J. C. 268. See Gale v. 1 ; affd., [1892] A. C. 244 ; 61 L. J. C. Gale, 6 Ch. D. 1 II : 46 L. J. C. 809. 657; Bailey v. Barnes. [1894] 1 Ch. (e) Taylor v. Russell, [1892] A. C. 25 ; 63 L. J.C. 73. See Intl. Coope $ Co. 244 ; 61 L. J. C. 657. v. Emmerson, 12 App. Cas. 300; 56 (/) Tourville v. Naish, 3 1'. Wms. L. J.C. 989. 307; Jackson v. Rowe, 4 Russ. 514; (b) Borlock v. Priestley, 2 Sim. 75. Allen v. Knight, 5 I la. 272; affd. 16 See WMtbread v. Jordan, 1 Y. lV C. Ex. L. J. C. 370 ; Tildesley v. Lodge, 3 303 ; 4 L. J. Ex. Eq. 38 ; Cole v. Coles, 8m. & Gr. 51;; ; Taylor v. J. on, Ion and 6 Hare, 517 ; affd. 12 L. T. O. S. 237. County Bit., [1901] 2 Ch. 231; 70 (e) Be Cooper, 20 Ch. D. 611; 51 L. J. O. 477. See Sftarpe v. Foy, L. R. L. J. C. 864 ; Re Ingham, [1893] 1 Ch. 4 Ch. 35. 352 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES, Purchaser witln nit notice obtaining legal estate from trustee. Mortgagee not a trustee for subse- quent claimant. Purchaser with notice from pur- chaser with- out notice. paid money without notice of any other title, though at the time of the payment he gets nothing hut an equitable title, may after- wards perfect his title by acquiring the legal estate notwithstand- ing he then has notice of a prior dealing, inconsistent with the good faith of the dealing with himself (//). Where a purchaser acquires the legal estate from a trustee contemporaneously with the payment of his money, but without notice of the trust, he may successfully resist the claim of the beneficiaries (//). But if he obtains the legal estate at a date subsequent to the payment of his money, the title of the bene- ficiaries will prevail (i). But he cannot maintain this defence where he has taken the legal estate from a trustee for the prior claimant, after notice of the trust ; for by taking a conveyance with notice of the trust he becomes affected with the same trust, and will not be allowed to retain the legal estate against it (j). It may be observed that a legal mortgagee is not a trustee for any ulterior claimants, although he may have notice of them ; he holds the estate in his own right until he be paid off, upon the happening of which event he becomes a trustee of the legal estate for the persons interested in the equity of redemption according to their priorities, and his transferee holds it equally unfettered with trusts (k). But the transferee of a mortgage debt, without the concurrence of the mortgagor, is in no better position than the mortgagee in respect of the debt transferred ; and if that debt be invalid, he obtains no charge upon the land, though he gave a valuable consideration and had no notice of the invalidity (/). The plea of purchaser for value without notice in respect of the legal estate is available to all purchasers or claimants under such purchaser ; they may rely upon the position of the vendor at the time of his purchase, though they took after notice to him or to themselves (ra). It is also available to a subpurchaser for London and County Bit., [1901] 2 Ch. 231 ; 70 L. J. C. 177. (7,0 Taylor v. Russell, [1892] A. C. 244 ; 61 L. J. ('. 657 ; Bailey v. Barnes, [1894] 1 Ch. 25 ; 63 L. J. C. 73. See Hoshing v. Smith, 13 App. Cas. 582 ; 58 L. J. (J. 307. And see ante, p. 216; post, p. 366. (7) Burt v. Trueman, 29 L. J. C. 902 ; Parlter v. Clarlte, 30 Beav. 54 ; Vorley v. Coolie, 1 Giff. 230; 27 L. J. C. 185. See Bicherton v. Wallier, 31 Ch. D. 151 ; 55 L. J. C. 227. (w) Harrison v. Forth, Tree. Ch. 51 ; Sweet v. Southcote, 2 Bro. C. C. 66. (a) Blackwood v. London Chartered Bit. of Australia, L. R. 5 P. C. 92 ; 43 L. J. P. C. 25 ; Taylor v. Russell, [1892] A. C. 244 ; 61 L. J. C. 657. And see post, p. 365. (//) Pilcher v. Rawlins, L. R. 7 Ch. 259 ; 41 L. J. C. 489. (/) Maxfield v. Jin rlon. L. R. 17 Eq. 15; 43 L. J. C. 46. See Bates v. Johnson, Johns. 304 ; 29 L. J. C. 509; Heath v. Crealoch, L. 11. 10 Ch. 22 ; 44 L. .1. C 157. (j) Hurt v. Trueman, 29 L. J. C. 902 ; Mumford v. Stohwasser, L. R. 18 Eq. 556 ;' 43 L. J. C. 694 ; Ilarjihuni V. Shackloclt, 19 Ch. D. 207; Taylor v. SECT. VI. § 3. PROTECTION OF THE LEGAL ESTATE. 35-J value without notice, although his vendor was affected with Purcha notice originally (n). — But if the trustee who has conveyed the iv,!,,, !!!,!'. '' land to a purchaser for value without notice, himself repurchase chaser with . ih »t ice. the land, though for a valuable consideration, he cannot rely ,. ', upon the title of his vendor ; but the land in his hands will be by trustee. again charged with the trust (o). The protection of the legal estate to a purchaser for value Prior cl lims . . -iii • i • it paramount to without notice is available not only against claims under the title of same vendor, but also against claims paramount to his title, as veml " r ' where the vendor, as to the equitable title, was in possession under a forged will(;>), or where a purchaser for value without notice might rely upon deeds to prove his legal title, which had been concealed from him, though the deeds disclosed trusts in favour of a prior claimant (q). So, too, where a mortgagee was induced to convey the legal estate to a purchaser in fee, upon misrepresentation which entitled him to set aside the conveyance on the ground of fraud, the purchaser who had no notice of the facts and obtained the conveyance contemporaneously with the payment of his money was held entitled to retain the benefit of his purchase, but other purchasers to whom the legal estate was conveyed after an interval of time had elapsed since the payment of the purchase money, were held to be only assignees of the equity of redemp- tion, but the court refused as against all the purchasers to make a decree for the delivery up of the title deeds (/■). So, a suit to set aside or correct a deed for fraud or mistake, claim to set under which the defendant derives a legal title, may be met by j^ en d the the plea that he is a purchaser for value without notice (s). l, ^ al title - A purchaser or mortgagee who has obtained the legal title Equitable without notice and without complicity in any fraud, is entitled to av'aUaM* to exercise all his legal rights and remedies against other pur- purchaser chasers or incumbrancers for value without notice, without title! 18 restraint in equity ; and is further entitled to all the ordinary equitable remedies, whether by way of relief or discovery, which under the concurrent jurisdiction of courts of equity are incident («) Zowtlter v. Carlton, Cas. t. Talb. 251) ; 41 L. J. C. 74 ; ami see post, 1*7 ; Harrison v. Forth, Free. Oh. 51. p. 358. (p) J>'or<-.-■, 4 De (i. V. .v .1. 208; 31 (jj ) Pilcher v. Rawlins, L. It. 7 Ch. L. J. C. 320. L.P.L. A A 354 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. to the legal estate (/). Accordingly, a legal mortgagee may foreclose against a purchaser or incumbrancer for value without notice; for he is thereby only standing upon his legal title and exercising his right to call upon the adverse claimant to redeem (u). But a court of equity will not exercise its auxiliary jurisdic- tion in aid of a legal title against a purchaser for value without notice, so as to deprive him of any legal defence or advantage which he may possess. Thus, to a bill by the heir for discovery and specific delivery of title deeds, the plea that the defendant is a purchaser for value without notice is a good defence (a;).— And accordingly, a legal mortgagee claiming foreclosure, as against a purchaser for value without notice who was in possession of the title deeds, was held, though entitled to foreclosure, not to be entitled to an order for the delivery up of the deeds (y). Plea of pur- But the principle has no application to purely equitable claims, vatue not where the legal estate is outstanding, and the beneficial interest applicable be- is claimed by several adverse but equally innocent purchasers ckims purely for value without notice; the court may then be called upon to equitable. declare the right to the estate in question. In such cases the court necessarily makes a decree against some one or more purchasers for value ; and such a decree will further regulate the disposition of the legal estate and the possession of the title deeds, if necessary to complete and enforce the equitable title (z). Assignee of equitable in- terest takes it subject to equities with- out notice. The purchaser of a purely equitable interest prima facie takes it subject to all the equities chargeable against his vendor in respect of it, though he gave a valuable consideration and had no notice. So far as depends upon his purchase, and indepen- dently of the conduct of adverse claimants, he can take no better title than his vendor (a). Thus, mortgagees who took an assignment of an equity of redemption in the name of a third (0 William* v. Lamhe, 3 Bro. C. C. 261 ; Collins v. Archer, 1 Russ. & M. 284 ; Ind, Coope $ Co. v. Einmerson, 12 App. Cas. 300 ; 56 L. J. C. 989. (//) Colyer v. Finch, ID Beav. 500; affd. 5 H. L. C. 905 ; 26 L. J. C. 65 ; Heath v. Crealoclt, L. R. 10 Ch. 22 ; 41 L. J. C. 157. (x) Basset v. Nosworthy, ( 'as. t. Finch, 102 ; 2 Wh. A: T. L. C. 150. See Walwyn v. Lee, 9 Ves. 24 ; Joyce v. Be Moleyns, 2 Jo. & Lat. 274. (y) Head v. Eyerton, 3 P. Wms. 280 ; Hiint v. Elmes, 2 De G. F. & J. 578 ; HO L. J. C. 255 ; Heath v. Crealoclt, L. R. 10 Ch. 22; 44 L.J. C. 157. (z) Phillips v. Phillips, 4 De G. F. & J. 208 ; 31 L. J. C. 321 ; Newton v. Newton, L. R. 4 Ch. 143 ; 38 L. J. C. 145 ; Carritt v. Real and Personal Advance Co., 42 Ch. D. 263 ; 58 L. J. C. 688. See Cave v. Care, 15 Ch. D. 639 ; 49 L. J. C. 505. (a) Phillips v. Phillips, 1 De G. F. & J. 208 ; 31 L. J. C. 321 ; Bixon v. Muchleston, L. R. 8 Ch. 155 ; 42 L. J. C. 213; Care v. Cave, 15 Ch. D. 639; 49 L. J. C. 505. See Edgar v. Plomley, [1900] A. C. 431 ; 69 L.J. P. C. 95. SECT. VI. $ 4. THE DOCTRINES OF NOTICE. 355 person, from whom they obtained a declaration of trust in their favour, were held to have priority over an equitable mortgagee from the trustee who had deposited the assignment of the term subject to the mortgage (ft). And an assignee without notice from an equitable mortgagee affected with notice of a prior charge, is equally bound by the prior charge (c). So if he have obtained the mortgage by a fraud entitling the mortgagor to have it set aside, his assignee though without notice takes it subject to the equitable relief against the fraud (d). § 4. The Doctrines of Notice. Notice of prior claim — notice before payment or before conveyance. Actual and constructive notice — duty of inquiry. Notice of deeds belonging to the title and their contents — trusting to representations as to the deeds — notice of possession of deeds by third parties — deeds suppressed by fraud or accident — informality or defect in deeds. Constructive notice from the possession of the land— rights of occupants. Notice to solicitor or agent — solicitor also solicitor of vendor — fraud of solicitor. Lis pendens. Crown debts. Judgments — judgment operates only upon beneficial interest of debtor. Registration in Middlesex and Yorkshire — notice prevails notwithstanding registration — registration under 25 & 2ti Vict. c. 53. A purchaser of real estate is under no legal obligation to Notice of investigate his vendor's title ; while, on the other hand, it is the prior claim - duty of the vendor to disclose what his title is. Nevertheless "in dealing with real property, as in other matters of business, regard is to be had to the usual course of business ; and a pur- chaser who wilfully departs from it, in order to avoid acquiring a knowledge of his vendor's title, is not allowed to derive any advantage from his wilful ignorance of defects which would have come to his knowledge if he had transacted his business in the ordinary way " (a). Accordingly a vendor must disclose all facts known to the purchaser prior to the time when the contract is entered into, under peril, if the facts turn out to be material, (b~) Carritt v. Ileal and Pergonal 21 L. J. C. 545. See the cases cited Advance Co., 42 Ch. D. 2(53 ; 58 L. J. C. ante. p. 352 (Z). 688. («.) Per curiam. Bailey v. Barnes, (c) Ford v. White, 16 Beav. 120. [1894] 1 Ch. 25 ; 63 L. J. C. 73. id) Coekell v. Taylor, 15 Beav. 103; A A 'I 350 PART II. THAI'. Ji. THE LIMITATION OF FUTURE ESTATES. Notice before payment, or befi ire con- veyance. Actual and constructive notice. Duty of in- quiry. of having the contract set aside at the instance of the latter (6).; but a purchaser or incumbrancer acquiring any estate or interest after notice of a prior claim acquires such interest only as he knows his vendor can justly dispose of. He cannot, therefore, claim any priority or protection by reason of holding any legal estate or advantage ; but in respect of such legal estate he will be in the position of a trustee for the prior claimant of whose rights he had notice (c). — Also any question of fraud or negli- gence on the part of the prior claimant relatively to himself, as a ground of priority, would, in general, be excluded by the fact of his knowledge of the prior claim (d). It becomes important, therefore, on the above grounds to consider the doctrines of notice as affecting priority in equity. Though a purchaser or incumbrancer have no notice at the time of contracting for the purchase or charge, yet if he receive notice before payment of the purchase money or consideration, notwithstanding he have given security for it, he will take the property subject to the prior claim, and although he has paid the purchase money without notice, if he receive notice before taking the conveyance, he will be entitled to no protection or preference from the legal estate (e). Notice may be actual as a matter of fact ; or constructive, that is, which is imputed to a person by presumption or rule of law. It is, of course, open to a purchaser to use greater diligence than the law requires, and to refuse to accept a title in respect of matters which he has discovered by his diligence, and of which he would not have been deemed to have notice, if he had abstained from making inquiries (,/'). The whole law 7 on the subject has been remodelled by sect. 3 of the Conveyancing Act, 1882, which is retrospective in its opera- tion, and is, so far as material, in the following terms :— " (1) A purchaser shall not be prejudicially affected by notice of any (/>) Caballero v. Henty, L. R. 9 Ch. 4-17 : 43 L.J. C. 635 ; Reeve v. Berridge, 20 Q. B. D. 523 : 57 L. J. Q. B. 265 : Molyneux v. Hawtrey, [1903] 2 K. B. 487 ; 72 L. J. K. B. 873 : Greenlialgh v. Brindley, [1901] 2 Cb. 324 ; 70 L.J. C. 740. (c) Le JS'ece v. Le yerc, Ambl. 436 ; 2 Wh. & T. L. C. Eq. 175 and notes. And see ante, pp. Ill, 351. (77) See ante, p. 317. (/>) Tourville v. Naish, 3 1'. Wins. 307 ; Jackson v. Rowe, 4 Buss. 514 ; Allen v. Knight, 5 Ha. 272; and. 16 L. J. C. 370 ; Tildesley v. Lodge, 3 Sm. & G. 543; Bailey v. Barnes. [1894] 1 Ch. 43; 63 L. J. C. 73: Taylor v. London and County Bit., [1901] 2 Ch. 231 ; 70 L. J. C. 477. See Sliarpe v. Foy, L. R. 4 Ch. 35. (/) Life Int. and Rev. Securities Corp. v. 'Hand in Hand Fire and Life Insce., fl898] 2 Cb. 230; 67 L. J. C. 548. See /. 671 ; L. J. C. 331 ; et per eundem, West v. 55 L. J. C. 662 : Bailey v. Barnes, 63 lleid. 2 Ha. 24!) ; 12 L. .1. C. 245. L. J. C.73; [1894]! Ch.25 ; Re White (A) Olicei- v. Hinton, L899 2 Ch. and Smith's ('out.. [1896] 1 Ch. (137 : 65 264 ; US I.. .I.e. 583 ; Berwick $ Co. v. L. J. C. 481; Re Valletort Sanitary Price, [1905] 1 Ch. 632; 74 L. J. C. Steam Laundry, [1903] 2 Ch. 654 ; 72 249. This rule is modified where there L. J. C. 674. For the older law. see per is a Registry of deeds, Agra Jih. v. Wigram, V.-C, Jones v. Smith, 1 Hare, Barry, L. 11. 7 H. L. 135. 43 ; 11 L. J. C. 83 ; affd. 1 Ph. 244 ; 12 358 PART II. ('HAL'. II. THE LIMITATION OF FUTURE ESTATES. Trusting to representa- tions as to deeds. Notice that deeds are in hands of third party. Deeds sup- pressed by fraud or acci- dent. have appeared if a proper investigation of title had taken place (i). But if he make a proper inquiry, and a reasonable account be given respecting the deeds, which he honestly relies upon, he is affected only with such notice as he in fact obtains (A). And accordingly where a party has notice of a deed which does not necessarily — which may or may not — affect .the property, and is told that it does not affect it but relates to some other property, and the party believes the representation to be true, he is not fixed with notice of the contents of the instrument (/). And where the managing director of a company deposited title deeds relating to land over which the company had created a floating security by way of debentures, the mortgagee by deposit was held to have priority over the debenture holders, notwithstanding at the time when his security was created, he was also depositee of debentures to secure another mortgage debt created by a third party (in). Notice of title deeds being at the bankers' of the owner, with- out any inquiry being made thereupon, was held to operate as. constructive notice of a charge the bankers had upon them for advances (»)•— But notice of the deeds being in the custody of the solicitor of the owner was held to be no notice of a charge by the solicitor, (beyond his ordinary professional lien,) because it is an ordinary course for a solicitor to have the custody of his client's deeds (o). A purchaser may rely on deeds necessary to support his legal title, of which he had no notice, actual or constructive, at the time of acquiring it, without being affected with the trusts or equities shown in the deeds; as where such deeds have been suppressed by accident or design at the time of the purchase, and an apparently good title shown without them. — Thus, a mortgagor having borrowed trust money by a mortgage deed expressly noticing the trust, took a re-conveyance without paying off the cestui que trust, and afterwards by suppressing the mort- gage and re-conveyance showed a good title to a purchaser and sold and conveyed to him the estate ; it was held that (/) Re Cox and Neve's font.. [1891] 2 Oh. 109; Be A'isbet and Pott's font.. [1906] 1 Ch. 386; 75 L.J. C. 145. Sec I'atmau v. J/arland, 17 Ch. D. 353; 50 L. J. C. (542. (/*) Jours v. Smith, 1 Hare, 43; 11 L. J. C. 83; affd. 1 Thill. 244; 12 L. J. C. 381 ; Hewitt v. Loose mure, 9 Hare, 449; 21 L. J. ('. 69; Espin v. Pentberton, 3 De G. & J. 554 ; 28 L. J. C. :;il ; Batcliffe v. Barnard, L. R. 6 Ch. 652 ; 40 L. J. C. 777 : Dixon v. Mu.ehle.ston, L. R. 8 Ch. 1G1 ; 42 L. J. C. 210. (0 Jones v. Smith, 1 Ha. 43 ; 11 L. J. C. 83 ; arid. 1 Ph. 244 ; 12 L. J. C. 381. (///) lie Valletort Sa /titan/ Steam Laundry Co., [1903] 2 Ch. 654 ; 72 L. J. C. 074. («) Maxjield v. Burton, L. R. 17 Eq. 15 ; 43 L. J. C. 40. 00 Bozo/i v. Williams, 3 Y. k J. 150. s;.(T. VI. ^ 4. THE DOCTRINES OF NOTICE. 359 the purchaser was entitled to retain the legal estate againsi the cestui que trust, notwithstanding the mortgage and re-convey- ance were necessary steps in his title (p). An informality or defect in a deed, as the absence of the usual Informality . ., . , • ■ or defect in receipt for the purchase money, or the receipt appearing in an deed unusual form or place, was thought sufficient in one case to put a party upon inquiry, and to fix him with notice of the title of a third party (q), but the tendency of more recent decisions has been to restrict rather than enlarge the cases in which a party has been tixed with constructive notice(r). A person is affected with notice of all circumstances apparent upon the deeds which a solicitor, if employed by him, would have discovered on his behalf; he cannot avoid such notice by not having used the ordinary caution of employing a solicitor to protect his interest (s). Where a person other than the vendor is in possession of Constructive land, the purchaser is bound to inquire of the occupant what his pu tedfrom rights may be ; but where the land is vacant, he is not bound to the possession ° J ' of tne hum. make a similar inquiry of the former occupant ; and according as the duty to inquire does or does not exist, so are the rights of third parties available against the purchaser (0- So where the tenants in possession paid their rents to an estate agent who received it on behalf of the freeholder, a mortgagee was not fixed with constructive notice of the freeholder's title to impeach a conveyance of the land (u). But the purchaser has no notice of those matters which a tenant would have suppressed (x). This constructive notice extends to any contract or equity of E J|kte of the tenant in possession affecting the title, which the tenant would be presumed to communicate to an intending purchaser in answer to inquiries ; as a covenant or agreement to renew his lease, or a contract to sell to the tenant (y). — So with terms of the tenancy concerning valuations to an outgoing tenant [z). — And where land was occupied under an agreement that it should be partnership property, and one of the partners subsequently O) Pitcher v. Rawlins, L. R. 7 Ch. 282 ; Miles v. Langley, 1 Russ. & M. 39 : 259 ; 41 J,. J. C. 485. 2 ltuss. .V: M. 626 ; Bailey v. Richard- Qj) Kennedy v. Green, 3 M. & K. 699. son, 9 Ha. 734; Trinidad Asphalt Co. As to the effect of signing a receipt for v. Coryal, [1896] A. C. 587 : 65 L.J. the purchase money, see ante, p. AVJ. P. C. 100. (/•) Hunter v. Walters, L. R. 7 Ch. f» Hunt v. Luck, [1902] 1 Ch. 428 ; 75 ; ('limit v. Real and Personal Advce. 71 L. J. C. 239. Co., 42 Ch. D. 263 ; 58 L. J. C. 688. (x) Carter v. Williams, L. It. 9 Eq. (s) Kennedy v. Green, 3 M. ^v K. 699 ; 678 ; 39 L. J. C. 560. Oliver v. Hhnton, [1899] 2 Ch. 264 ; 68 (y) Daniels v. Davison, 16 Ves. 249 : L. J. C. 583. 17 Ves. 433. (0 Daniels v. Davison, 16 Ves. 24'.) ; (-) Phillip* v. Miller, 43 L. J. C. P. 17 Ves: 4:« ; Allen v. Anthony, 1 Mer. 74 ; L. R. 9 C. P. 196. 300 PART II. (HAP. II. THE LIMITATION OF FUTURE ESTATES. mortgaged his estate in the land to a person who had notice that it was occupied by the firm for partnership purposes ; creditors of the partnership were given priority over the mortgagee, even in respect of debts incurred subsequently to the mortgage (a). But if the tenant has in fact no right enforceable in the courts, it is immaterial that the conveyance to the purchaser is expressed to be subject to his alleged rights (b). Notice to solicitor or agent. Fraud. A principal is fixed with notice of facts coming to the know- ledge or notice of his agent, whether counsel or solicitor ; this has sometimes been called constructive notice, but it is more correct to regard the agent as the alter ego of the principal who is fixed with actual or constructive notice according as his agent has actual or constructive notice (c). Where there is fraud which the agent of the party would conceal, the principal will not be fixed with notice (d) ; so, too, where the agent expressed his intention of suppressing the information which he acquired notice was excluded (e). By sect. 3 of the Conveyancing Act, 1882, to bind the principal, the notice must be obtained by the agent in a transaction in which the question of notice arises. This restores the older law and overrides the cases which had extended the doctrine, so as to bind the principal where his agent had been previously employed in a transaction concerning the same property (/). "Where the solicitor for a purchaser or mortgagee was also the parties. solicitor of the vendor or mortgagor in the matter of the pur- chase or mortgage, there would formerly have been imputed to the purchaser or mortgagee notice of all those matters which the solicitor acquired as solicitor for the vendor or mortgagor, including notice of prior dealings with the property by the vendor or mortgagor through the same solicitor. But this rule has been modified by sect. 3 of the Conveyancing Act, 1882 {g). \\ here the mortgagor is himself a solicitor and prepares the Solicitor act- («) Cavander v. Bulteel, L. R. 9 Ch. 79 ; 43 L. J. C. 370. (V) Lufkin v. Sunn, 13 Ves. 170; Smith v.' Widlake, 3 C. P. D. 10; 47 L. J. C. P. 282. See Fvazer v. Jones, 5 Hare, 475 ; aftM. 17 L. J. C. 353. (r) Espin v. Pembertoii, 3 De G. & J. 544; 28 L. J. C. 311; Bradley v. Riches, 9 Ch. D. 189 ; 47 I,. J. C. 811 ; Berwick A Co. v. Prior, [1905] 1 Ch. 032 : 74 L. J. C. 249. (d) Kennedy v. Green, 3 M. & K. 099 ; Atterbury v. Wallis, 8 De G. M. & G. 451 : 25 L. J. C. 792 ; Holland v. Hart, L. 11. 6 Ch. 678 : 30 L. J. C. 345 ; Care v. Cave, 15 Ch. D. 639 ; 49 L. J. C. 505. See Bateman v. Hunt, [1904] 2 Ch. 530 : 73 L. J. K. B. 782. O) Sftarpe v. Fay, L. R. 4 Ch. 3".. See Hooper v. Cooke, 25 L. J. C. 467. (/) Lowther v. Carleton, Cas. t. Talb. 186 ; Worsley v. Scarborough [Earl), 3 Atk. 292 : Be Cousins, 31 Ch. D. 671 ; 55 L. J. C. 662. See Thorite v. Heard. [1895] A. C. 495 ; 64 L. J. C. 652. (//) Ha re/ rea re.s v. Bothwell, 1 Keen, 154'; Fuller v. Beneti, 2 Hare, 394; 12 L. J. C. 355 ; Rolland v. Hart, L. K. 6 Ch. 678 ; 40 L. J. C. 345. See ante, p. 356. SECT. VI. § 4. THE DOCTRINES OF NOTICE. 301 mortgage deed, though the mortgagee employ no other solicitor, Mortgagor the relation does not necessarily arise so as to fix the mort- solicitor gagee with constructive notice ; but some consent must be proved on the part of the mortgagee that the mortgagor should act as his solicitor (//). A lis -pendens or suit relating to land (including leaseholds) Lis pendens. affects a purchaser pendente lite, and his title is, in general, s.ibject to the result of the litigation, — in accordance with the maxim, pendente lite nihil innovetur (i). The doctrine of lis pendens does not apply to personal property, except leaseholds and perhaps money in court (/c). The effect of a lis pendens upon a purchaser extends only to Extends to the rights in question in the suit, which require to be ascertained ; tion hisiut 68 " it does not apply to other rights, though apparent upon the proceedings in the suit ; as the equity of a defendant against a co-defendant which is not required to be adjudicated upon for the purposes of the suit (/). A lis pendens and its consequent operating effect upon a pur- Effect ceases chaser pendente lite ceases upon judgment or decree, although mentor ° the judgment remain to be carried into execution (m). decree. The Judgments Act, 1839, s. 7, has enacted that no lis pendens Registration shall bind a purchaser or mortgagee without express notice thereof, unless and until it has been registered (n). The regis- tration of a suit or other process as a lis pendens may be vacated under the provisions of sect. 2 of the Lis Pendens Act, 1867. Debts to the Crown by record and specialty and from account- Crown debts, ants to the Crown are made a charge upon the real estate, legal and equitable, of the debtors by various statutes ; and they take priority over a purchaser without notice; but they must be registered according to statute, otherwise a purchaser even with notice cannot be charged with them (o). It is beyond the scope of the present work to refer in detail to Judgments. the various statutes which created a charge for the judgment (//) Espin v. Pemberton, i Drew. 333 ; 566 ; 2t> L. J. C. 7H7 ; Tyler v. Thomas. 3 De (I. & .1. 554 ■ 28 L. J. C. 311. 2."» Beav. 17 ; Bull v. Hutcltens, 32 Beav. (/) Wineliester (Bp.) v. Payne, 11 615. See ScJtoJield v. Solomon, 51 Ves. 194 : Bellamy v. Sabine, 1 De G. L.J. C. 1101. & J. 566; 2 ; Hadley v. 3 Atk. 392 ; Kinsman v. Kinsman, 1 London Bit. of Scotland, '■'> De (i. J. *.v s. Kuss. & M. til 7. See Berry \. Gibbons, 63 : London oml County III;, v. Lewis, L. 11. 8 Ch. 717 ; 12 L. J. C. S9. 21 Ch. D. 490. O) Exp. Thornton, L. R. 2 Ch. 171 ; (/.•) Wigram v. Buckley, [1894] 3 36 L. J. C. 190. Ch. 483 ; 63 L. J. C. 689. (o) Land Char.'- Act, 1900, s. 2; (/) Bella in ij v. Sabine, 1 De G. & J. Carson, Real Prop. Stats, p. 51J. k*>-2 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Judgment operates only upon the beneficial interest. Registration in Middlesex. Notice pre- vails notwith- standing registration. Effect of registration as notice. debt upon the judgment debtor's land in favour of his judgment creditor. Every writ or order affecting land (which expression includes incorporeal hereditaments) and every delivery in execution or other proceeding taken in pursuance of any such writ or order, or in obedience thereto, is void against a pur- chaser for value of the land, unless the writ or order is for the time being registered in pursuance of the Act ; with a saving of the rights of a person who has registered his action as a lis pendens (p). An execution creditor— and the Crown has no higher preroga- tive right — can only take in execution the beneficial interest of the debtor, and is subject to all prior equitable charges and interests created by him ; nor can the judgment creditor claim any protection or priority against prior claims by reason of acquiring the legal estate by execution or otherwise (q). By the Middlesex Registry Act, a deed or conveyance is to be adjudged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration, unless registered accord- ing to the Act before the registering of the deed or conveyance under which such subsequent purchaser or mortgagee shall claim (r). Equitable charges created by mere agreement are within the Acts and require to be registered ; as an agreement to execute a mortgage, or to make a deposit of title deeds (s). — So, a further charge upon a registered mortgage must be registered, or it will lose priority over a subsequent registered charge (t). The equitable doctrine of notice prevails notwithstanding these Acts; and a purchaser with notice of a prior claim is charged with it in equity notwithstanding he has obtained priority of registration (it). — A purchaser without notice may after notice obtain priority by prior registration (x). Registration under these Acts is not alone notice ; a purchaser is not bound to search the register, and negligence is not imputed (//) Lands Charges Registration and Searches Act, 1888, ss. 5, 6 ; Carson, Real Prop. Stats. 503 et seq. (n. of such fraud or falsehood shall be null and void to all intents and purposes, except as against a purchaser for valuable con- sideration without notice" (sect. 105). In the case of land registered under the Transfer of Land Acts, 1875 and 1897, provision is made for the compensation of parties defrauded (c). (y) Morecock v. Dichins, Ambl. 678 : Hodgson v. Dean, l> Sim. & S. 221 : Ford v. Wkite,l6 Beav. 120; UeBmselBoad Purchase, L. 11. 12 Eq. 78 ; 40 L. J. 0. 673. (r) Sec Jones v. Barker, [1909] 1 Ch. 321 ; 78 L.J. C. 167. O) 25 & 26 Vict. c. 53, s. 71 : 38& 39 Vict. c. 87, s. 83, as amended by 60 & 61 Vict. c. 65, Sched. I. ; 38 & 39 Vict. c. 87, s. 126. (/») 25 & 26 Vict. c. 53, s. 104 : 38 & 39 Vict. c. 65, s. 127. (f) 60 & til Vict. c. 65, s. 7. 304 PART 11. CHAP. II. THE LIMITATION OF FUTURE ESTATES, § 5. Tacking and Consolidating Moetgages : Marshalling. The doctrine of tacking. Right of mortgagee to tack a farther charge against mesne incumbrancers — not allowed after notice — tacking against surety — further charge must be proved by writing. Right of assignee of mortgage to tack a further charge — assignment after notice — pending suit — notice to first mortgagee. Mortgage after satisfaction gives no priority — assignee of mortgage in same position as mortgagee. Mortgagor can give no priority amongst equitable charges by subsequent transfer of legal estate — where legal estate outstanding charges rank in priority of time. Statute against clandestine mortgages — fraudulent concealment of incumbrance. Debts not charged cannot be tacked against mortgagor — may be tacked against heir or devisee — not against creditors — tacking judgment debts. Consolidation of mortgages — by assignee of mortgage — against purchaser or mortgagee of equity of redemption. The doctrine of marshalling — marshalling securities in favour of second mortgagee — marshalling assets in favour of creditors — in favour of legatees. Doctrine of tacking founded on the protection of the legal estate. Eight of mort- gagee of legal estate to tack further advance. Some equitable doctrines regulating the priority of estates and interests in land remain to be noticed in this sub-section, namely, the doctrines of tacking and consolidating mortgages, and the doctrine of marshalling. Upon the principle of equity, that a purchaser for value with- out notice acquiring the legal estate could not be deprived of it at the suit of a prior claimant merely upon the ground of priority in time of acquisition, was founded the doctrine of tacking mortgages and charges (a). By the doctrine of tacking a mortgagee of the legal estate making a further advance or acquiring a further charge upon the same security, without notice of any intermediate charge, is entitled to tack or add the further advance or charge to his original debt, and to hold the legal estate as against intermediate incumbrancers until he be satisfied in full (b). (a) 2 Coote, Mortgages, 1240. See Powell v. Brodhurst, [1901] 2 Ch. 160 ; 70 L. J. C. 587. The right was tem- porarily in abeyance, see ante, p. 351. (J) Bruce v. Marlborough (Buclietss), 2 P. Wms. 491, 49-1 ; Baker v. Harris, 1 1 Ves. 397 ; Wyllie v. Pollen, 3 De G. J. & S. 596 ; 32 L. J. C. 782. See Zloi/d v. Attwood, 3 De G. & J. 614 ; 29 L. J.'C, 97. "A party claiming to tack must, as against the party against whom the tack is to operate, have advanced his money upon the credit of the land ; 2dly, He must, except as to time have an equal equity ; and 3dly, which follows from the last, he must have advanced his money without notice of the other's claim." Per Cottenham, L. C, in Lacey v. Ingle, 2 Ph. 413. And see the doctrine explained in Liver- pool Marine Credit Co. v. Wilson, L. R. 7 Ch. 507; 41 L. J. C. 798. SECT. VI. vj 5. TACKING AND CONSOLIDATING MORTGAGES. 365 But the legal mortgagee is not entitled to tack further Tacking not advances as against an intermediate mortgage or charge of which no tice— * ' he had notice at the time of making the advances. Nor does he though hecome entitled to do so by reason of his mortgage deed being to further expressly made to extend to further advances ; and although the :i,lv;l »ces. subsequent mortgagee had notice that it so extended (c). Where the subsequent mortgage was expressly made " subject to the security already given," which extended to further advances, it was held that further advances with notice could not be tacked against it (. 615 ; 27 L. .1. ('. ill: HopUnson v. Holt. 9 51 J,. J. C. 690. See Nicholas v. Ridley, H. L. V. 51 1 : 31 L. .1. C. 468 : West v. [1904] 1 Ch. L92 ; 73 L.J. ('. 1 15. William*, [1899] 1 Ch. 132 ; 68 L.J. C. (/) Ex p. Hooper, 19 Ves. 177; 1 127. Mer. 7. (d) Menziesv. Liglvtfoot,~L.~R. 11 Eq. | g) Marsh v. Lee, 2 Vent. 337: 1 459 ; 40 L. J. C. 561. But it was there Ch.' Ca. 162 ; 2 Wh. & T. L. ( '. Eq. L07. said that the second mortgage might (// ) Marsh v. Lee, 2 Vent. 337; 1 by sufficiently explicit terms be made Ch. Ca. 162 : 2 Wh. & T. L. < '. E [. 107 : subject to further advances to be matte Bristol (Earl) v. Hunger/ord, 2 Vein, on the first mortgage. 521. See Exp. Knott, 11 \ es. 609. 366 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. of transferring his mortgage. For he holds the legal estate in his own right, as security for the deht, and ma}', therefore, transfer it to whom he pleases, subject only to the equity of redemption ; nor can his rights be restrained by a mere notice of other claims ; and there is no equity to redeem the property in the hands of the transferee, without paying off all the advances he may have made upon the security of it without notice of prior claims (/). Satisfied mortgage gives no priority. But a legal mortgagee, after satisfaction of the debt, can neither tack any subsequent debt of his own, nor can he give any advan- tage to a subsequent incumbrancer by a transfer of the legal estate ; for he has then ceased to hold in his own right and is a bare trustee for the mortgagor and those claiming under him, and the transferee would be affected with the same trust (k). — And in general, the assignee of a mortgage debt and security, unless by the concurrence of the mortgagor, is in no better position than the assignor ; and if the debt be invalid or subject to equities on the part of the mortgagor, the assignee acquires no greater charge upon the land in respect of it, or of the con- sideration paid for it (I). Mortgagor can give no priority amongst charges by transfer of legal estate. Where legal estate out- standing priority is in order of time. Upon a like principle, a mortgagor, having created several successive equitable mortgages or charges, cannot give an advan- tage to one of them by a subsequent transfer of the legal estate, as he is trustee for all according to their priorities (in). — And generally, in all cases where the legal estate is outstanding, as where it remains in a first mortgagee, the several incumbrances, in the absence of special circumstances affecting their relative equities, rank according to their priority in time (»)• Statute against clandestine mortgages. The statute against clandestine mortgages (4 & 5 TV. & M. c. 16) provides that a mortgagor granting a second mortgage, without (i) Peacock v. Burt, 4 L. J. C. 73 : Bates v. Johnson, Johns. 304 ; 28 L. J. C. 509 ; West London Co mm. Bit. v. Bel ia nee Perm. Buildg. Soc., 29 Ch. D. 954 ; 54 L. J.C. 1081 ; Taylor v. Russell, [1892] A. C. 244 ; 61 L. J. C. 657. (Z-) Brecon (Corp.) v. Seymour, 26 Beav. 548 ; 28 L. J. C. 606 ; Harpham v. Shaddock, 19 Ch. D. 207. See ante, pp. 216. 352. (V) Burt v. 'Irueman. 29 L. J.C. 902 ; Ogilcie v. Jeaffreson, 2 Gift 353. (;«) Sharpies v. Adams, 32 Beav. 213 ; Mumford v. Stohwasser, L. B. 18 Eq. 556 ; 43 L. J. C. 694. But in a case where, under such circumstances, the legal estate was conveyed by the mort- gagor in pursuance of a contract with the first incumbrancer to that effect, it was held to give the right to tack sub- sequent advances against mesne incum- brances, as if originally conveved. < oohe v. Wilton, 29 Beav. "lOO ; 30 L. J. C. 467 ; and see ante, p. 352. («) Frere v. Moore, 8 Price, 475 ; Wilmot v. Pike. 5 Ha. 14 : London and Count I/ Bk. v. Goddard, [1897] 1 Ch. 642 : 66 L. J. C. 261 : Taylor v. London and County Bit., [1901] 2 Ch. 231 ; 70 L. J. C. 477. SECT. VI. §5. TACKING AND CONSOLIDATING MORTGAGES. 361 giving the second mortgagee notice in writing of the first mort- gage, shall forfeit his equity of redemption, and the second mortgagee shall hold the lands as if he had been the absolute purchaser; but the title of the second mortgagee under this statute is very doubtful and precarious, so that it is safer and more usual to resort to his power of sale (o). — By the 22 & 23 Vict. Fraudulent c. 35, s. 24, as amended by s. 8 of the Law of Property Act, 1860, J™^'" the fraudulent concealment of any instrument or incumbrance by brance. a seller or mortgagor, or his solicitor or agent, is made a misde- meanour, punishable by fine or imprisonment (p). A mortgagee cannot tack debts, which are not charged upon Debts not the estate, even against the mortgagor ; and the mortgage may be charged can - ° i not he tacked redeemed upon payment of the mortgage debt only, notwith- against mort- standing the mortgagee be a creditor in respect of other debts ga S° r - not charged upon the same security (q). Upon the death of the mortgagor the mortgagee can tack May be tacked against the heir or devisee all such debts as in the administration a s a 1 ins ! : lieir ° or devisee, of assets become charged upon the real estate ; which formerly was the case only with specialty debts binding the heir, but since the statute 3 & 4 TYill. IV. c. 104, is the case with all debts, as well debts due on simple contract as on specialty, either under a charge of debts by will, or under the statute; and the heir or devisee cannot redeem without paying all such debts (r). — So upon the mortgage of a term of years or other personal estate, the executor cannot redeem without paying all debts to the mortgagee (s). But he cannot tack debts not specifically charged upon the Not against estate against other creditors ; who, having a like charge upon credltOTS - the real assets of the deceased mortgagor, are entitled to be paid rateably (t). And where the equity of redemption is assigned for value the right to tack ceases from the date of the assignment («)• A first mortgagee might formerly tack a further sum advanced Tacking jud<*- upon a judgment, as against a mesne mortgagee of whose charge men1 ,|( he had no notice, because the judgment operated as a charge (o) See observations on this Statute 775; Rolfev. Cltester, 20 Beav. 610 ; 25 in Kennard v. Futvoye, 2 Giff. 81 ; 29 L. J. C. 214 ; Tliovias v. Thomas. 22 L. J. C. 5;.:}. Beav. 341 ; l>:. L. .1. C. 391. O) Smith v. Robinson, 13 Ch. \\ (*) See Coleman v. Winch, 1 P. Wms. 148 ; lit L. J.C. 20. 77.}. (?) Archer v. Snatt, 2 Strange, 1107 ; (f) Rolfe v. Chester, 20 Beav. 610 : 25 Morret v. Pashe, 2 Atk. 53 : Vanderzee L. J. C. 244 ; Talbot v. Frere, 9 Ch. D. v. Willis, 3 Bro. C. C. 21; Jones v. 568; Seams v. Bance, 3 Atk. 630. Smith, 2 Ves. jun. 372. Sue Re Bowes, [>/) CoUmany. Winch,1 P. Wms. 775; 33 Ch. D. 580 ; 56 L. J. C. 14:5. Adams v. Claxtm, 6 Ves. 226. (/•) Coleman v. Winch, 1 P. Wms. 3G8 PART II. (HAP. II. THE LIMITATION' OF FUTURE ESTATES. Consolidation of mortgages. Equitable mortgages. Assignee of mortgage may consolidate. Surety for one of two mort- upon the land upon the credit of which the mortgagee was pre- sumed to have advanced the money; but a judgment is no longer any charge upon the land as against a purchaser or mortgagee until the writ or order affecting the land is registered (.<■). — A judgment creditor, by buying in the first mortgage, could not tack or unite the two debts, because the judgment creditor acquired no specific charge upon the land, but only a general charge upon all the real estate which could be taken in execution; besides, it was said, the judgment creditor does not lend his money upon the credit of the land, and is not deceived by prior judgments or incumbrances (v/). A mortgagee who had advanced moneys to the same mort- gagor at different times upon the security of several properties w T as entitled formerly as of right to consolidate his mortgages, that is, to treat the total of the amounts advanced as one debt, and the properties in mortgage as one security. Where the mortgage is made after the 31st December, 1881, the right can only be reserved by contract "in the mortgage deeds or one of them " (z). The mortgagee may assert the right, where it exists, not only in a suit for redemption, but also in a suit for foreclosure, or upon a sale under a power (a). The same right is incident to equitable mortgages where the right to consolidate is reserved by deed (b). Where two or more mortgages which were originally made to several persons or sets of persons, are transferred to one person, the transferee is entitled to consolidate the mortgages against the mortgagor or the person to whom the equity of redemption in the entire property has been assigned (c). A mortgagee may consolidate as against a surety for one of two mortgage debts to the same mortgagee (d). The right to consolidate mortgages exists so long as the property (./•) See ante, p. 302. (//) Brace v. Marlborough (Ducliess), 2 i'. Wins. 4'.)1 ; see per Oottenham, L. C, in Lacey v. Ingle, 2 Ph. 421. („-) Conveyancing and Law of Pro- perty Act, 1881, s. 17 ; Wenn v. Bird, 33 Oh. L). 215 ; 55 L. J. C. 722 ; Farmer v. Vibt, [1902] 1 Ch. 954; 71 L. J. C. 500 ; Be Salmon, JEx p.. Trustee, [1903] 1 K. B. 147 ; 72 L. J. K. B. 125 ; Hughes v. Britannia Permanent Bg. Soc, [1906] 2 Ch. 607 ; 75 L. J. C. 739 ; Sharp v. Kickards, [1909] 1 Ch. 109 ; 78 L. J. ('. 29. See Griffith v. Pound, 45 Ch. D. 553. (a) Watts v. Symes, 1 De G. M. & G. 240 ; 21 L. J. C. 713 ; Selby v. Pom/ret, 3 De Gr. F. iSc J. 595. See Cummins v. Fletcher, 14 Ch. D. 699 ; 49 L. J. C. 563. (h) Neve v. Pennell, 2 H. & M. 170 ; 33 L. J. C. 19 ; Conveyancing ami Law of Property Act, 1881, s. 17. (c) Vint v. Padgett. 2 De G. & J. 611 ; 28 L. J. C. 21 ; Ttreedale v. Tioeedale, 23 Beav. 341 ; Pledge v. White, [1896] A. C. 187; 65 L. J. C. 449. See Cracknell v. Janson, 11 Ch. D. 1. (d) Fareorofher v. Wodehouse, 23 Beav. 18 ; 26 L. J. C. 81. See Nicholas v. Riley, [1904] 1 Ch. 192 ; 73 L. J. C. 145. SECT. VI. § 5. MARSHALLING. 309 remains in one hand, whether it be the mortgagor or his trans- Asagainsi feree, and having once existed is available against a person to mortgage whom an interest in the equity of redemption of part of the equity of property is subsequently transferred (e) ; but where the equity of redemption in one property is assigned or mortgaged to a third person, there is no subsequent right of consolidation upon the acquisition of the prior mortgages by one person (/). Where a prior claimant has the security of two or more funds 'the doctrine or estates, and a subsequent claimant has the security of one or ];„,_/ some only of the same funds or estates, the court will arrange the funds or estates to meet the various claims upon them in such order as, if possible, to satisfy all the claims. This is known as marshalling (g). The right of the claimant to invoke the doctrine of marshal- ling depends upon the sufficiency of the security to satisfy the claim of the prior creditor ; so far as the prior creditor is unable to obtain satisfaction from the security to which he is exclusively entitled, he is entitled to priority of payment from the security in which both are interested (h). And if a prior incumbrancer, in exercise of his prima facie right enforces his security against that part to which another claimant is also entitled the latter will be entitled to stand in the shoes of the prior creditor as against the •remaining part of the property covered by the prior incumbrance to the extent to which he has been disappointed by this election (i). But the doctrine will not be applied so as to work injustice between the incumbrancers ; thus if two estates are mortgaged first to A., and the equity of redemption in one estate is mortgaged to B., and the equity of redemption in the other estate to C, here the debt due to A. must be apportioned rateably between the two properties according to their respective values, and B. and C. take the properties respectively charged in their favour subject to this apportioned charge, any surplus that there may be being applied in paying the deficiency arising to B. and C, as the case may be, upon realising their security (/«')• (e) Tint v. Padgett, 2 De G. & J. 611 ; (h) Hardwicke, L. C, Lanoy v. Athol 28 L. JVC. 21. See Sharp v. Richards, [Duke), 2 Atk. 146; Tidd \. Lister, 3 [11)09] 1 Ch. 109 ; 78 L. J. C. 29. De G. M. ) Barnes v. Racster, l V. & i '. C.C. (//) Ahh-ieh v. Cooper, 8 Ves. 382 ; 1 401; 11 L. J. C.228; Moxonv.Berlteley Wh. & T. L. C. Eq. 36. See Webb v. Bg. Soc, 59 L. J. C. 524 : Flint v. Smith, 30 Ch. D. 192 ; 55 L. J. C. 343. Howard, [1893] 2 Ch. 51 ; 62 L. J. C. L.P.L. B 13 370 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES. Marshalling securities in favour of second mort- gagee. Marshalling assets in favour of creditors. Marshalling assets in favour of legatees. Accordingly, where there is a first mortgagee holding a mort- gage over two estates, and a second mortgage or other charge over one of the estates only, the first mortgagee may be compelled to resort first to the estate over which there is no second mort- gage, in order to leave as much as possible out of the other to the second mortgagee ; and if he has realised out of the one estate to the exclusion of the second mortgagee, the latter may resort, in his place, to the other estate (/). The same doctrine is applied in the administration of the assets of a deceased person ; if a creditor resort to a portion of the assets which is common to other creditors, the latter may stand in his place as against assets to which the former might have resorted but the latter could not. Hence it was, prior to the Administration of Estates Act, 1833, that if creditors by specialty binding the heirs, who might recover satisfaction out of the real estate, resorted to the personal estate to the exclusion of simple contract creditors who had no remedy against the real assets, the simple contract creditors were allowed satisfaction out of the real assets so far as the specialty creditors had exhausted the personalty (/»)• And where estates which on death devolve in different ways, as is the case with freeholds and leaseholds, are mortgaged so as to secure one debt, the mortgage debt must be apportioned between the freeholds and leaseholds according to their respec- tive values, unless it clearly appears that one property was to be the primary security, and the other the secondary security, to which provision the court will give effect (//). The doctrine of marshalling assets is also applied in favour of pecuniary legatees as against the real assets descended or charged with debts. If the creditors have exhausted the per- sonal assets, which are the only fund for the legatees, the latter become entitled to charge the real estate to which the creditors might have resorted, to the extent to which the creditors have exhausted the personalty ; and the same doctrine is applied as between legatees, some only of whose legacies are charged upon real estate (<>). 801. See Re Miners Trusts, L. R. 8 Eq. 110. (/) Aldridge v. Forbes, 9 L. J. C. 37 ; Gibson v. Seagrim, 20 Beav. 614 ; 24 L. J. C. 782 ; Ford v. Xylite, 41 L. J. C. 758. [m) Aid rick v. Cooper, 8 Ves. 382 ; I Wh. & T. L. C. Eq. 36 and notes. See ante, p. 191. (/<) lie Athlll, 16 Ch. D. 211 ; 50 L. J. C. 123. See Re Mower's Trust*, L. R. 8 Eq. 110. O) Clifton v. Burt, 1 P. Wms. 679 and note ; Luthins v. Leigh, Cas. t. Talb. 53 ; Re Smith, [1899]' 1 Ch. 36 ; 68 L. J. C. 333. SECT. VI. § 5. MARSHALLTX... 371 But this right is restricted to the real assets left to descend or No marel b1- charged with debts by the testator, and there is no marshalling ^"^J' 1 ^ in favour of pecuniary legatees against devisees of the real estate, nor any right of contribution from the latter towards a deficiency of personal estate (p).— A devise to the testator's heir, since the statute 3 & 4 Will. IV. c. 106, s. 3, precludes marshal- ling against him, as under that statute he is to be considered to have acquired the land as a devisee, and not by descent (q). (//) Clifton v. Burt, 1 P. Wms. 679 ; ( Y ) Sti-icMand v. Strickland, 10 Sim. Mirehouse v. Scai/e, 2 M. .V Cr. 695; 374; 9 L. J. C. 60. See ante, p. 12J Farquliar&on v. Floyer, 3 Ch. D. 109. B B 2 INDEX ABEYANCE. of legal freehold, 33. of legal remainder, 34, 244. none in copyholds, 63, 148, 228. 241. none in equitable estates, 108. ACCUMULATION. in excess of the rule against perpetuities, 335, :'>:i s . statutory restrictions upon, 335, 336, 337, 338, 339. after vesting of property, 340. of infant's estate, 337. ACTION. See Ejectment. real and personal, 6. real actions abolished by statute, 42. ADMITTANCE. See Copyhold. AGEEEMENT. See Contract. AIDS, 20. ALIENATION. statutory restraint of, 27. limitation in restraint of, 165. condition against, 177, 178. power of, against heir, 23, 49. fines for licence on, 19. without licence by statute Quia Emptores^ 12, 20. ANCESTOR. See Mandeville's Case. admitted in descent, 46, 47. ANCIENT DEMESNE, tenure, 17. customary freehold in, 59. ANNUITY. charged upon land, 199. APPOINTMENT. See Poweb. ASSETS. administration of, 193, 194. equitable and legal, 193, 208. land, 191. primary liability and exoneration of personal estate, l'.'l et seq. marshalling, 369, 370, 371. 374 INDEX. ASSIGNMENT. of trusts, 109. of satisfied terms, 167. mortgage of term of years by, 219, 229. ASSIGNS. grant extended to, 23. power extended to, 273, 293. ATTENDANT TERM. See Estate for Years. ATTESTATION. of deed executing power, 291. of will, 49, 291. ATTORNEY. See Power ; Solicitor. ATTORNMENT. of tenant, 38. when necessary, 38. to adverse tenant, 39. BANKRUPTCY. estate determinable upon, 165. BARGAIN AND SALE, conveyance by, 85, 93. for a year with release, 39. BASE FEE. 24, 28, 231. BUND. See Debts. for mortgage debt and interest, 206. BOUNDARIES. suit to ascertain, 68. BURGAGE TENURE, tenure, 17. CASTLE GUARD, tenure, 16. CATTLE GATES. tenure, 59. CESTUI QUE TRUST. See Trust. CESTUI QUE USE. definition, 78. rights of, 79, 80. CHARGES UPON LAND. See Mortgage. nature of, 190. by deed, 191. by will, 192. for payment of debts, 155, 191, 193. legacies, 155, 194. for securing annuities, 199. power to raise, 197, 272. construction of, as to vesting, 343 — 345. CHATTELS REAL. definition, 6, 31, 149 et scq. INDEX. 375 CHILD, CHILDREN. purchase by parent in name of, 103. en ventre so. mere, 238, 268, 281, 317, 320. illegitimate, 268. as a word of limitation or purchase, 142. remainder to unborn child, 21 1. chilil of unborn child. 212. devise to children of a named person, 267. power to appoint to. 281. settlement of share upon appointment, 28l, 313. appointment reserving benefit to parent. 812, 313, 314. implied gift to, in default of appointment, 282. COLLATERAL DESCENT. formerly admissible, 45, 46, 17. CONDITION. distinguished from a conditional limitation. 102. 168. implied in tenure, 173. express, 173. precedent and subsequent, 161. condition of re-entry, 162. annexed to freehold estate, 109. •to lease for years, 169, 170, 174, 1 7.">. reservation of, 170. mortgage by, 174, 202. effect of entry for breach of, revests estate. 172. avoids mesne charges, 1 78. avoids remainders, 173. does not avoid executory estates, 173. illegal and impossible, 176. uncertain, 177. repugnant to estate, 177. against alienation, 178.' construction of. 178 et seq. licence to commit breach of, 17'.'. waiver of breach of, 171, 170. relief against forfeiture for breach of, 180. CONDITIONAL LIMITATION, distinguished from condition. 162, 168. examples of, 163 ct seq. CONSIDERATION. definition of, 85, 86, 103. to support use, 83, 84, 85. in bargain and sale, 85. in covenant to stand seised, 86. to support trust, 103, 105. CONSOLIDATION. See Mortgage. CONSTRUCTION. of conditions, 176 et seq. of words of contingency, 178, 245, 264 et seq. in favour of vesting, 178, 246, 264. in favour of remainders, 255, 203. of wills, 49, 50. of powers, 272, 283 et seq. of charges of portions, &c, as to vesting, 343—315. 376 INDEX. CONSTRUCTION— continued. of words importing failure of issue, 139, 323, 324. "or" construed as "and," 120, 161, 325. CONTINGENCY. See Construction. CONTINGENT REMAINDER. defined and illustrated, 233 et seq. application of rule against perpetuities to, 318. remainder construed as vested if possible, 78, 245, 264. gift construed as contingent remainder rather than executory devise 255, 263. must be supported by estate of freehold, if of legal estate, 33, 236, 237. aliter if of equitable estate, 108. or in copyholds, 63, 228, 241. to unascertained person, 233 et seq. to unborn child. 241. with subsequent remainder, 242, 243. with alternative remainder, 244. destruction of, 41, 238. trustees to preserve, 230. CONTINGENT USE. See Use. CONTINUAL CLAIM, 42. CONTRACT. See Covenant. uses raised by, 8~>. trusts created by, 105. mortgage by agreement, 216—218. to sell or purchase lands, 220. to lease, 150, 151, 153. to execute a power, 307. consideration necessary, 105, 106. formalities of writing or deed, 83, 85, 101, 102, 150, 151, 210 — 218. 365. CONVERSION. doctrine of, 185 et seq. by contract of sale, 220. of partnership estate, 189. whether absolute, conditional or discretionary, 185 — 187. resulting interest under trust for, 18G. election against, 188. CONVEYANCE. by feoffment, 12, 32, 35 et .seq. tortious operation of, 40. by bargain and sale, 39, 85, 93. by grant, 36, 37. of equitable estate, 109. of copyhold, ('id. as execution of power, 275. voluntary, 103. obtained by fraud, 104. COPYHOLD. See Court Rolls ; Manor. tenure, 15, 60, 64, 157 et seq. estate of copyholder at law, 60. estate tail, 62. occupancy, 148. future estates, 228. contingent remainder, 241. index. 377 COPYHOLD— continued. estate of copyholder in equity, 100, 102, 103, 108. trusts binding on the lord, 108. equitable estate tail, 109. conveyance of, 58, 60 et seq., 68. limitation of uses in surrender. 61. power of appointment over. 63. lease of, 64, 70. mortgage of, 218, 219. will of, 65. supplying surrender, 65. mixed devise of freeholds and copyholds, 96. descent of. 66. rights and remedies of copyholder, 66. rights and remedies of lord, seizure quousque, 68. escheat and forfeiture, 71. fines, 69, 70. fees to steward. 70. assets for payment of debts, 191. extinction of, 73. enfranchisement of, 76. re-grant of. 74. application of statutes to, 59. Statute of Uses, 95. customary court, 15, 51. CORXAGE. tenure, Id. COURT BAROX. of manor, 13. customary court baron, 15, 54. COURT LEET. 15. COURT ROLLS. property in and custody of, 54. inspection of, 54, 55. admissibility in evidence, 55. mortgage by deposit of, 219. COYEXAXT. to stand seised, 86. to renew lease, 155. running with the land, 155. to pay mortgage debt, 206. to execute power, 307. CREDITORS. See Assets ; Deists. voluntary conveyance void against, 103. tacking, 367. CUSTOM, IMMEMORIAL, 56. CUSTOM OF MAXOR. See Copyhold ; Manor. CUSTOMARY FREEHOLD. tenure, 58. CUSTOMARY TENURE. See Copyhold ; Gavelkind. special forms of, 7, 52. 378 INDEX. CT-PRES. rule of construction applied to wills, 242. applied to testamentary appointments, 302. DEATH. presumption of, 149. death " without issue," &c, 139, 235. DEBTS. See Assets ; Judgments. Crown debts, 501. charge of, by deed, 191. by will, 192. creates equitable assets, 193. combined with charge of legacies, 196. specialty, 192. simple contract, charge of on land, 191. primary liability of personal estate, 191 et seq. power in devisor or executor to raise charge, 197, 272. DEED. of feoffment, 35. of grant, 36, 37. of lease, 150. in execution of power, 290, 291. DEMESNE LANDS, definition, 13, 53. customary tenants, 53. ancient demesne, 17, 59. DEMISE. See Estate for Years. DEPOSIT. under contract for sale, 222. mortgage by deposit of deeds, 216. DESCENT. See Heir. of fee simple, 43 et seq. of fee tail, 45. of equitable estate, 109. of copyhold, 66. DESCENT CAST, 42. DEVISE. See Will. DISCONTINUANCE, 42. DISSEISIN. definition, 40. estate of disseisor, 40, 44. of copyholds, 64. DISTRESS. for rent service, 16. power of, in mortgage deed, 212. DOWER, 110. IXDKX. EJECTMENT, ACTION' OF. substituted for real actions. 42. by lessee for years, 31. by copyholder. 07. by landlord, for rent in arrear, 171. by mortgagee against mortgagor, 211. for forfeiture, 172. against tenant at will, 158. against tenant by sufferance, 160. ELECTION. to waive or enforce a forfeiture. 72. 171. against conversion. L88. under appointment in excess of a power. 302. 303. ELEGIT. tenant by, 156. ENFRANCHISEMENT. See Copyhold. ENTAIL. See Estate Tail. ENTRY. to perfect lease for years, 31. II. right of, upon disseisin, 42. to enforce forfeiture, 158, 109, 170. construction of conditions requiring, 1(12. 169, 170. 172. EQUITABLE ASSETS. See Assets. EQUITABLE ESTATE. See Legal Estate. defined, 78, 97. corresponding to legal estates, 181 ct seq. peculiar to equity, 185 et seq.. 313. created by express limitation, 101. 182. by construction of equity, L02, 182. equitable rights distinguished from, 183, 181. future limitations of, 310. contingent limitations of, 311, 342. rule against perpetuity applied to, 341. rule in Shelley's Cast' applied to, 342. legal estate subservient to, 98, 157. conveyance of, 103, 109, 208, 349, 350. mortgage of, 219, 220, 349, 350. devise of, 109. assignee takes subject to equities. 346, 348. priority, from priority of time, 346 et seq. from acquisition of legal estate. 350 et seq. from priority of notice. 219, 220. 349, 350. descent of, 109. dower, 110. power of appointment over, 341. EQUITABLE MORTGAGE. by deposit of deeds or certificate of title, 216. agreement for, 218. by deposit of copy of court roll, 219. EQUITY. the system of uses, 78. the system of trusts, 97. 379 380 INDEX. EQUITY— continued. follows the law as regards limitation of estates, L07, 181, 182. to prevail in case of variance with law, 100, 151. remedial jurisdiction in ease of fraud, mistake, &c., 183, 184. remedies incident to legal title, 353. auxiliary to legal title, 354. relief against forfeiture, 180. in aid of execution of powers, 304 — 310. to set aside execution of powers. 81 1 — 316. EQUITY OF REDEMPTION. See Mortgage. ESCHEAT, 20, 71. ESCUAGE, 15. ESTATE. in land, 2, 3. ESTATE AT WILL. See Copyhold. definition, 156. creation of, 157. determination of, 158, 159. right to crops. &c., 159. ESTATE FOR LIFE. estate for his own or another's life, Iff, 145. for several lives, 144, 146. limitation of. in deed, 145. in will. 146. by implication, 146. determinable, 165. occupancy of estate pur autre vie, 146, 148. in copyholds. 148. ESTATE FOR YEARS. until entry, merely confers an vntcresse termini, 30. 31, 149. 150, :.'; to commence infuturo, 85, 150, 227. agreement for, 151, 153. formalities of writing and deed, 34, 150, 151. estate and possession of lessee, 31, 34. limitation of. with remainder of freehold, 35, 236. to executors. 154. to heir. 154. for term certain or uncertain, 151. 155. for successive terms, 152. from year to year, 152. during minority, 151. for years determinable upon lives. 152, L66. by notice, 152. 166. Statute of Uses does not apply to, 81, 96. mortgage of, 219. underlease of, 210, 229. satisfied and attendant terms, 166. 167. of copyholds. See Copyholds. created under leasing powers. See Powers. tenant holding over, 159, 160. ESTATE IN FEE SIMPLE, tenure, 12, 23. conditional, 24, 163. [NDEX. 381 ESTATE IX FEE SIMPLE— continued. limitation of. in conveyance. 11!». in will, 123 et seq. by implication. 120, 127. 128. of equitable estate, 107, 120, 181 et seq. descent of. 43, 109. ESTATE IN FEE TAIL, origin of, 2~>. limitation of. in conveyance. l'2'.K in will. 134. of equitable estate, 107, 181 et seq. by implication, 138. proviso tor cesser of. 164. 330. alienation, by tine and recover}'. 26, 27. by disentailing assurance, 27. 63, 109, 1<>4. 178. statutory restraint upon, 27. descent of, 4.">. in copyholds, 02. 133. EXCHANGE. See Power. EXECUTOR. limitation of term to. 154. devise to. for payment of debts, 192, 272. direction to. to pay debts, 272. entitled to legal assets. 193. power to raise charges. IDS. l'.i'.i. 272. EXECUTORY BEQUEST, of term, 232. EXECUTORY DEVISE, defined. 50, 257 et seq. not preceded by freehold. 260. divesting preceding estate. 261. after determination of preceding estate. 262. alternate executory devises. 262. construction of gift as executory devise or remainder. 263. to children, 2>'.7. application of rule against perpetuities to, 319. EXECUTORY TRUST. See TBUST. EXTINCTION, of manor, 14. of copyhold, 73. FEALTY. in the case of freeholds. 18, 21, 157. copyholds, 70, 157. FEE. See Estate ix Fee Simple, &c. definition, 12. 22. base fee, 24, 28. FEOFFMENT. as a conveyance, 12, 32, 37. formality of writing or deed, 35, 36. superseded by grant, 3(3. tortious operation of, 40, 238. 382 INDEX. FEUDAL SYSTEM, 11. FIXE. See Copyhold. conveyance by, 20, 27. tortious operation of, 238. FORECLOSURE. See Mortgage. FORFEITURE. of fee for treason or felony, 20, 71, 72. by feoffment or fine, 40, 41. of copyhold, 71. waiver of, by lord, 72. for breach of condition, 169 et seq. relief against, 180. FORMEDOX. writ of, 2G. FRAXKALMOIGX, 18, 21. FRAUD. equitable relief for, distinguished from equitable estate, 184. in cases of notice, 360. in registration, 363. concealment of incumbrance, 366, 367. FREEHOLD. See Copyhold ; Seisin. tenure, 7. estate, 22. abeyance of, 33. future and contingent estates of, 33, 34, 227. in equitable estate, 341. conveyance, 33. FUTURE ESTATES.' freehold infuturo, 33, 227. lease for years in futuro, 81, 150, 227. future uses, 90, 94, 253. in reversion, 227. in remainder, 230. contingent remainder, 233. executory devise, 257. in equitable estates, 340 — 345. in copyholds, 228. GAVELKIXD, 17, 46, 66. GIFT, 103, 106. GOODS. as subject of property, 2. GRAXDCHILDREN. devise to, 322. appointment to when valid, 301, 333. construction ey-preg, 302. GRAND SERJEANTY, 16, 20. INDEX. 383 GRANT. meaning of term. 37, 1 t9. distinction between livery and grant, 37, 149. freehold now lies in grant, 36. rules of limitation in, 36. GRANTOR. limitation by, to himself, 36. to his heir, 37, 119. title of, by purchase. 37. GUARDIAN. in socage, 18, 20. HALF-BLOOD. now inheritable. 45. HEIR. See Descent ; Shelley's Case. fee extended to, 22. as word of limitation or purchase. 22, 23. 24. 11!) et seq.. 123, 217. limitation to heir of grantor. 37, 119. as devisee. 124. devise to heir of testator, 124 •■heir" with - additional description. 12.">. '•heir male." 122, 125. 131, 132, 249. •• heir now living," 122, 249. HEIR OF THE BODY. See Descent. grant restricted to, 23. fee conditional upon issue, 24. as a word of limitation or purchase, 25, 130, 131, 134. devise to, 136. meaning of, cmalified by context, 136, 249. •• heir male of the body." 132, 137. HEREDITAMENTS. corporeal, 37. incorporeal, 37. HERIOT. in freehold, 19, 21. in copyhold. 70. HOMAGE. 18. INCUMBRANCE. See Charges upon Land; Mortgages; Notice. INFANT. wardship, 18, 21. INFECDATION. 11, 12. INHERITANCE. See Descent ; Heir. INSURANCE. forfeiture under condition for, 130. power of, in mortgagee, 215, 216. INTERESSE TERMIXI. See Estate fob Years. 384 INDEX. INTEREST. upon charges, 196. on specific legacy, 197. on mortgage, 206, 213. distress for, under mortgage, 212. ISSUE. as word of limitation, 130. devise to, 137, 140. with words of limitation, 110. with words of distribution, 140. limitations and devises on failure of, 138, 139. when too remote, 323 et seq. JOINT OWNERSHIP, 78, 82. JOINTURE. power to appoint, 273, 286, 314. excessive execution of power to, 314. JUDGMENT. as a charge upon land, 361. interest affected. 362. against donee of power, 277. KNIGHT SERVICE, 6. LAND. as a subject of property, 2 et seq. action for recovery of. See Ejectment. LEASE. See Estate for Years ; Power. LEASEHOLD, 6. 31. LEGACIES. liability of land to discharge legacies, 155, 194, 195. construction of, as to vesting, 343. as charge on personalty, 344. marshalling as applied to, 370. LEGAL ESTATE. legal and equitable title, 98. subservient to equitable estate, 98. union of legal and equitable titles, 99. protection of legal estate, 350 — 355. equitable remedies incident to, 353. auxiliary to, 354. LICENCE. effect of, upon conditions, 179. statutory amendment of law, 179. to copyholder to lease, 64, 70. LIEN. for unpaid purchase-money, 210, 221 — 223. when lost, 221. for purchase-money paid in advance, 222. LIFE. See Estate for Life ; Estate for Years. * INDEX. 385 LIMITATION. of actions for the recovery of land. 12, 57, 68. of estates, in deed, 1 1 7. 1 19 et seq., L29 et seq., 144, ] 19 et seq. in will. 1215 et seq., 134 et seq., 1 16, I 19 et seq. of future estates. See Future Estates. conditional, distinguished from condition, 162, 168. LIS PENDENS, 361. LIVERY. feoffment by, 32. distinction between grant and. 37. MALES. preference of in descent, 45. MAX DA MI'S. to compel admittance of copyholder, 68. MANDEVILLE'S CASE; rule in, 132, 136, 141. MANOR. See Copyhold; Court. definition, 13. extinction, 14. severance of, 74. MARRIAGE. of ward, 19, 21. estate determinable upon, 165. estate during. 165. condition in restraint of. 17(5. as a consideration, 106. MARSHALLING, doctrine of, 369. securities, 370. assets, 370. in favour of legatees, 370. against devisees, 371. MERGER. of equitable in legal estate, W. of estate pur autre vie in estate fur life, 1 15. of estate for life in remainder, 2:1'.'. destruction of contingent remainder by, 239. MIDDLESEX. register of deeds, 362. MORTGAGE. See MARSHALLING. agreement for a mortgage, 21 s. form of mortgage of freehold, 171. 202. of leasehold. 218, 219. of copyhold, 218. of equitable estates and interests, 219. by trust for sale, 207. covenant to pay principal and interest 2i 6. separate bond for debt and interest, 206. by deposit of title deeds, 21G, 217. mortgage or conditional purchase, 203, 204. L.P.L. C C 386 INDEX. MORTGAGE— continued. rights of mortgagor, possessory, 211, 212, 213. redemption, 203, 204. leasing, 274, 286. equity of redemption, an estate, 208. assets for payment of debts, 285. notice to redeem, 204. rights of mortgagee, extent of charge, 213. distress, 212. foreclosure, 205—208, 217. sale, 205. repairs, 215. receiver, 215. insurance, 216. leasing, 274, 286. tacking, 364. consolidation, 368. mortgagee not a trustee, 216, 352, bound to account, 215. sale by court in lieu of foreclosure, 206, 217. devolution of estate of mortgagee, 213, 214. conveyance of land by vesting order, 214. debt a primary charge on the land. 207. puisne mortgage, concealment of prior charge, 366, 367. priority by notice, 219, 220, 349, 350. MORTGAGEE. See Mortgage. MORTGAGOR. See MORTGAGE. MOVABLES AND IMMOVABLES, 2, 6, 31. NEGLIGENCE. priority lost by, 347. as to custody of deeds, 347. NOTICE. purchaser for value without, 111, 351 et seq. actual and constructive, 356. from possession of land, 359. of deeds and their contents, 357 — 359. from form and defect in deeds, 348, 359. matter of search and inquiry, 356, 361 — 363. to agent, 360. fraud of agent, 360. as affecting title and priority, 219, 220, 349, 350. to determine tenancy, 152, 158, 160. to redeem mortgage, 204. OCCUPANCY. See Estate for Life. PARCENERS, 46. PATERNAL LINE. preferred in descent, 46. PERPETUITIES rule stated, 317. period of gestation allowed, 317 320. INDEX. 387 PERPETUITIES— continued. rule applies independently of event. 326. application of rule to remainders, '21", 241, 818. to executory devises and springing uses, 319 to terms of years, 31 ( J, 331. to limitations to persons by description, 321 to class of persons, '.V22, 326. to children 'and grandchildren, 322' 333. upon failure of issue, 323. after limitations in tail, 330. in alternative of remote event, 328. limitations restricted by duration of estate, 329. directions postponing possession, 328. application of rule to powers, 332, 331. direction to accumulate rents and profits, 335. PERSONAL ESTATE. primary assets for debts, 193. exoneration of, by testator, 194, 195. from mortgage debt. 209. PORTIONS. charged on land, 155, 343. power of charging, 286. construction of, as to vesting, 343. satisfaction by advancement, 34."). presumption against double portions, 345. POSSESSIO FMATRIS, 45. POSSESSION. of land and of goods compared, 2. of lessee for years, 31, 149 et seq. distinguished from seisin of freehold, 37. of tenant at will, 156 et seq. of tenant by sufferance, 159 et seq. of copyholder, G7. of mortgagor, 211 — 213. of mortgagee, 215. as constructive notice, 359. POSSIBILITY. doctrine of remote, 241, 242. POSTHUMOUS CHILD. See Child ; Perpetuity. POWER power of appointing and revoking uses, 88, 2G9 et seq. created by will. 271. definition of, appendant or appurtenant, 278. collateral or in gross, 278. simply collateral, 271). general and particular, 280. distributive and exclusive, 281, 282, 315. power held in trust, 308. construction of, as to estates to be appointed, 283. as to priority of operation, 285. as to duration, 334. power may co-exist with estate, 275. 388 INDEX. POWER— continued. construction of devise as conferring power or estate. 272. donee of power acquiring the fee, 27 .">. suspension of by conveyance, 276. conveyance with reservation of power, 277. judgmi ni againsl donee of power, 277. to trustees and executors, 272. to raise charge for debts and legacies, 273. to lease, sell, &c, 272, 273, 285. time of execution, 2*7. consent to execution, 290, 292. form of execution, by deed or will. 290, 295, 305. by general devise. 296. delegation of power. 292 — 294. execution by attorney, 293. uses appointed under, 270. application of the rule against perpetuities, 271, 332. operation upon property or interests, 273, 274. non-execution not aided in equity. 306. partial execution, 297. execution reserving power of revocation, 298, 315. execution in excess of power, as to objects, 300. as to estate, 302. illusory appointment, 315. defective execution aided in equity, 304. execution in fraud of power, 311. contract or covenant to execute, 307/ PRECATORY TRUST. See Trust. PRIMOGENITURE, 46. PRIORITY. See Equitable Estate ; Legal Estate Notice ; Power. PROPERTY. subjects of, 2. civil law of, 4, 5. English law of, 5. real and personal, 6. PROVISO FOR CESSER. See Conditional Limitation. PUR AUTRE VIE. See Estate for Life. PURCHASE. words of, distinguished from limitation, 117. estate of purchaser, 85, 105, 157, 158. for value without notice, 111, 351. from trustee, 111, 352. by trustee, 116. re-purchase by trustee, 111, 353. as root of descent, 43, 41. PURCHASE MONEY. receipt for, power to give, 112, 200, 201. endorsed on deed, 348. in body of deed. 349. liability of purchaser to see to application of, 200. lien of vendor for, 221. charged primarily on the land, 225. lien of purchaser for payments on account of, 222. [NDEX. :isu 0Z77.4 EMPTORES. statute of, 12, 76. REAL ACTIONS. distinguished from personal actions, C>. abolished. 12. HEAL PROPERTY. distinguished from personal property. 6. RECEIPT. See Purchase Money. RECEIVER. power in mortgagee to appoint, 215. RECOVERY. used as conveyance, 26, 27. 41. REDEMPTION. See MORTGAGE. RE-ENTRY. See CONDITION. REGISTRATION, of title, 363. of deeds, 362. as notice, 362. of Crown debts, 3G1. of lis pendens, 361. of judgments, 361. RELEASE. distinguished from a grant, 39. conveyance by lease and release, 39. superseded by statutory grant, 40. RELIEF, 19, 20. REMAINDER. See Contingent Remainder creation of, 28, 230. limitation of, after fee simple, 231. after fee tail, 231. after term of years, 231. in particular estates. 232. tenure of, 233. construction in favour of vesting, 245. in equitable estates. 341. RENT. service, 16, 53. distress for, 16. passes with reversion, 229. reservation of in lease under power, 285. condition of re-entry for non-payment of, 174, accumulation of, 335. charges upon rents and profits, 199. REVERSION. creation of, 28, 29, 228. limitation of remainder to grantor or his heirs, 228. in particular estate, 228. tenure of particular estate to, 229. grant of, 229. in equitable estate, 341. 390 INDEX. REVOCATION. See Power. RIGHT. to things, 1. against persons, 2. of entry, 42. assignment of, 42. of action, 42. SALE. See Conversion ; Mortgage ; Power. SCIXTILLA JUIUS. See Uses. SEARCH. for incumbrances, 356, 357, 361, 362, 363. notice presumed from, 356, 357, 362, 363. SEIGNORY. definition, 11. release of, to copyholder, 73. SEISIN. of freehold, 12, 32. livery of, 32. abeyance of, 33. limitations shifting, 33. as'root of descent, 43. of heir, 44. of purchaser, 44. of disseisor, 40, 44. to support uses, 91. of copyhold, 63. SEIZURE QUOUSQUE. See Copyhold. SERJEANTY. grand serjeanty, 16, 20. petit serjeanty, 17, 20. SERVICES. of tenure, 15, 17. knight service, 15, 16. of socage tenure, 15, 16. rent service, 16. in villenage, 53. SETTLEMENT. See Powers. SHELLEY'S CASE, rule stated, 247. application of rule, 24, 121, 131. 248. to wills, 123, 135, 138. estate of freehold in the ancestor, 249. lease for life with remainder for years to executors, 251. limitations of estate pur autre vie, 250. terms of years, 250. uses, 252. uses appointed under powers, 271. executory devises, 258. equitable estates, 182, 183, 342, 343. copyholds, 62. limitations must be contained in same instrument, 249 . INDEX. 391 SOCAGE TENURE, 16, 17, 20. SOLICITOR. possession of deeds by, 358. notice to. imputed to client, 3.">7, 360. where employed by opposite parties. 360. fraud of, 360. SON. as a word of limitation or purchase, 143. eldest preferred in descent, 46. SPECIAL TAIL. See Estate in Fee Tail. SPECIALTY. See Debt. SPECIFIC PERFORMANCE. effect of right to under Judicature Act, 1873. ..151, 153. right to, as creating a trust, 220. as effecting a conversion of the property, 223. 221. 225. of agreement to give a mortgage, 218. SPRINGING USES. See Uses. STEWARD. of manor, 54, 68, 70. SUB-TENURE, 11, 12. SUFFERANCE. tenancy at, 159, 211. SUIT OF COURT, 13. SURETY. right to tack against, 365. consolidate against, 368. SURRENDER. See Copyhold. TACKING. See Mortgage. TENANCY. See Estate in Fee Simple, &c. TENANT. See Estate at Will, &c. by sufferance, 159. holding over, 159, 160. TENANT RIGHT, 59. TENURE. immediate, 11. sub-tenure, 11. in capita, 12. converted into common socage, 20. between tenant and reversioner, 34, 229. remainderman, 233. of lessee at will, 157. of copyholder, 52, 53, 158. TERM. See Estate for Years. 3D2 INDEX. TITLE. to land, 4. legal and equitable, 98. TITLE DEEDS. See MORTGAGE ; Notice. TRUST. See Accumulation ; Com ebsioh ; Equitable Estate active and passive, 01. executory and executed, 181 — 183; distinguished from uses, 97. creation of, 101. declaration of, 101, 105. precatory trusts, 102, 109, 284, 308. constructive trust, 102. created by contract, 105. resulting trust, 104. formality of writing, 101. parol evidence, 102. voluntary declaration of, 105, 106. effect of voluntary agreement, 106. effect of imperfect gift, 106. the cestui que trust or beneficiary, 97. right to possession, 98, 157, 159. right to dispose of legal estate, 98, 99. the trustee, 97. estate and office of, 110. appointment of new trustees. Ill, 113. power to sell. Ill, 197—199. power to give receipts, 112, 200 — 202. duty to account, 114. remuneration of, 114. purchase of trust estate, 111, 116. :>>2, 353. profits of trust, 115. depositing title deeds in breach of trust, 34S. liability for negligence, 115. liability for default of co-trustee, 115. indemnity of, 115. estate of trustee by devise, 128. notice to, of assignment, 349, 350. trustees to preserve contingent remainders, 239 for conversion. See Conversion. for accumulation. See Accumulation. TRUSTEE. See Trust. UNDERLEASE. reversion upon, 229, 232. no remainder upon, 232. mortgage by, 219. USAGE. immemorial, 56. USES. See Copyhold ; Powers. origin and description of, 78. disposition of, 80. by will, 48, 80. descent of, 80. index. 393 USES — continued. Statute of Uses, 80 et seq. creation of under, 82. application to terms of years, 81, 96. to wills, 48, 95, 96. to copyholds, 95. declaration of uses, 83. payment of consideration, 83, 85, 86. resulting uses, 83, 251. operation of the Statute of Uses, 90 et seq. seisin to support uses, 91. upon possession of terms of year-. 92. limitations of uses, 87. to grantee of legal estate, 92. upon a use, 93. to grantor or his heirs general or in tail, 89, 251, 255. as remainders, 87, 250, 252. contingent uses ami doctrine of scintilla juris, 90. springing and shifting uses, 88, 253, 254. construction of future uses as remainders, 255. rule against perpetuities applied to, 319. VENDOR. trustee for purchaser of land agreed to be sold, 85, 105. 157. 158. liability to account for rents and profits. 221. lien for unpaid purchase money. 210, 221—223. when lost. 221. VESTED. meaning of term, 32. construction in favour of vesting, 215. VILLENAGE. origin of. 52. pure villenage, 58. villein socage, 58. VOLUNTARY CONVEYANCE, no resulting trust upon, 105, 106. for purpose which fails, 101. voluntary declaration of trust. 105, 106. void against purchaser or creditor. 105. voluntary agreement. 106. imperfect gift. 100. WAIVE It. of forfeiture of copyhold. 72. under condition, 171 et seq. effect of, 179. statutory restriction of effect of, 179. 180. "WARDSHIP. 18, 20. WASTE. land of manor, 13. approvement of, by lord. 13. by copyholder. 71. by tenant at will. 158. L.P.L. D D 394 index. WIDOW. estate during widowhood. 165. power to charge jointure, 273, 314. WIFE. purchase in name of, 103. WILDS CASE, rule in, 142. WILL. See Power. land not devisable at common law. 48. use of land devisable, 48, 80. Statute of Wills, 49. devise of copyholds. 65. devise of future estates, 50. executory devise, 257 et scq. application of the rule in Shelley's Case, 258. construction of wills, 50 technical terms, 51. 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