SHAW AND SONS, LAW PRINTERS AND STATIONERS. AGBXCY nEPAKT3IJSNT, Os ac:'omit of iiicroa'^e of business in this flcp-irtment, S. & S. have found it necessary considn-ably to augment tlicir staff with competent assistance, and tire now enabled greatly to expedite all orders entrusted to their care. ;: S. & S. undertake the passing of Residuary and Succession Duty Accounts, tlie Stamping of Lipases, Conveyances, Assignments, and other legal documents, ob'ain Office Copies of Wills and other documents, insert Advertisements in the London Gazette and other papers, and the Inrolmentand Filing of Deeds ; also Law Writing and Lithography of every description at the shortest notice. From their intimate acquaintance with the requirements of tiie Legal Pro- fession in the Country in connection' with Agency Business, and the near proximity of their offices to Somerset House and the Eoyal Courts of Justice, they are exceptionally competent to undertake the care of all Agency Com- missions. ' ■ Tlie foUoiohig is an epi'oaie of the Scale of Charges connected with Agencij liusiness : — Filing Bill of Fale and obtaining Certificate ... Fihng Certiticates of Acknortledgments Attending for Office Copies ditto Passing Succession and Kesiduary Accounts, obtaining Assessment and Comniut:ition of Duties, and all Somerset House and Inland Bevenue Business... Obtaining the return of Duties overpaid, and paying additional Duties ... *Staraping a Deed „ Several Deeds ... first Is. Od.,follower.s Searches for Bankruptcies, Wills, Certificates of Birth \ .^ p Judgments, Lis Pendens, Crown Debts, &c., &c. ... ) " Attendance at Patent, Probate, Middlesex Registry, S Chancery, lurohnent, and other Offices ... ... > 2 6 Registering Probate at Banks ... ... ... ...) Registering Papers under Ctimpanies Acts ... ... 2 6 Registering Company and obtaining Certificate of In- corporation ... ... ... ... 10 6 to £1 Is. Delivery of Brief ... ... ... ... ... 26 Service of Writs and Enquiries according to time, but not less then 2 6 *No charge for attending- to Stamp Deeds, where SHAW & SONS supply the parchment or execute the engrossment. 7, S; & 9, Fetter Lane, 10, Crane Court, & Fleur-de-Lls Court, LONDON, E.G. SUAMT & SONS^ LIST OF BEST aOALITY PARCHIffENTS, •*.^. 6d. Followers 17 19 by 24 25s. 6d. „ 24 22 by 27 28.y. 6d. „ 27 PjiOUATE Skins, texted and black lined 15 by 20 17 )j » j> 19 by 24 23 )> j> >» 23 by 28 30 ,, „ „ 26 bv 29 40 „ Second and Third Qualities supplied, when ordered,;at a cheaper rate. PLAIN PARCHMENTS KEPT IN STOCK, THESE PRICES FLUCTUATE WITH MARKETS. Jiiniiar;i. 1882. SHAW AND SONS, 7; 8, & 9, Fetter Lane, 10, Crane tourt, & Fleur-cle-Lis Court LONDON, E.G. THE Conveyancing and Law of Property Act, 1881 , AND THE cS^lidtar^ ^^muiutiiti0ii ^ti 1881, WITH EXPLANATORY & PRACTICAL NOTES, AND PRECEDENTS IN CONVEYANCING. BY V^MERTOJST WHITE, M.A., 0/ Christ Church, Oxford, and of the Inner Temple, Barrister-at-Law . Author of '• Weekly Notes Digest of Cases not reported in the Laio Reports, 1S66— 1379." LONDON: SHAW AND SONS, FETTER LANE AND CBANE COURT, 1882. T LONDON : PEINTED BT SHAW AND SONS, PETTEE lANE, E.C. PREFACE The Conveyancing and Law of Property Act^ 1881, ■which came into operation on the 1st of January _, 1882, contains many important alterations in the law of real property, and will probably have the effect of curtail- ing to a considerable extent the length of deeds by rendering unnecessary the use of many " common form" conditions of sale, covenants for title, " general words," the "estate clause," and covenants for production of documents. The ordinary powers incident to the estate or interest of a mortgagee, viz., a power of sale, to insure, to appoint a receiver, and to cut and sell timber, will, unless a contrary intention is expressed, be implied in the mortgage deed. In wills and settlements powers of appointing new trustees and powers of sale by trustees are implied. Trustees have power to compound debts and to apply income at their discretion for the maintenance of infants. Powers of distress and entry are attached to rentcharges and other annual sums charged on land. Nearly forty years ago an attempt was made in this a 2 ^<]\\0% IV PREFACE. direction by Lord Brougham but Teithout success. In tbat Act reform was attempted by providing that certain sbort forms of covenants should be regarded as equiva- lent to certain lengthy forms there set out. The clauses implied by this Act seem to have been most judiciously chosen^ and those relating to contracts for sale are, as a rule, more advantageous to a vendor than to a purchaser. The general vrords^ and '' the estate ^^ clause^ which are to be implied seem to be those in most general use in modern conveyances^ and in hardly any case will it be necessary to exclude the operation of the Act. In ordinary conveyances for value it will be unneces- sary to insert the usual covenants for right to convey, quiet enjoyment, freedom from incumbrances, and further assurance, and in the case of leaseholds as to the validity of a lease. An acknowledgment and undertaking for safe custody is more effectual than the ordinary covenant for pro- duction of documents ; for it will be seen that the obli- gation created by an acknowledgment actually runs with the possession of the documents. The attempt (for it is much to be feared that it amounts to nothing more) to get rid of the practice of inserting recitals, by the provisions of the 53rd section. PREFACE. V does not seem to be of great promise. The practical eflFect apparently is to give unlimited constructive notice without putting the purchaser really on his guard. In the original draft of the bill (sect. 6) introduced by the Lord Chancellor^ into the House of Lords^ an attempt was made to restrict the present doctrine as to constructive notice. That section failed to become law upon the passing of the Act. It will be noticed that in contracts for sale various expenses of production of documents, &c., not in the vendor's possession, and of verifying a vendor's title, &c,, are, in the absence of express stipulation, thrown upon a purchaser; and the alteration of the law in this respect will, in some cases, probably induce a j)ur- chaser to hesitate before signing an open agreement to purchase. On a sale of leaseholds the usual covenant by an assignee for payment of rent and performance of covenants and indemnity is not included in the cove- nants implied by the Act, and it will probably be con- sidered advisable that the covenant should, for the vendor's protection, be inserted in the conveyance. A conveyance of freehold land may now be made by a person to himself jointly with another, or to his wife. "Vl PREFACE. without the help of the Statute of Uses. Limitations- in fee and in tail may be made by the use of those words without the words "heirs" and "heirs of the body.'^ Mortgagees may deem it advisable to restrict the mortgagor's power of making leases conferred by sect. 18j and give to themselves an absolute power of leasing on default. It is important to note that the consolidation of mort- gages is abolished^ except where one of the mortgages has been made before the Act or a contrary intention is expressed in the deed ; but it is anticipated, that mortgagees will think it safer to preserve their exist- ing right to consolidate. Relief against forfeiture of leases has been wisely extended and is applicable to those made either before or after the Act, notwith- standing any stipulations to the contrary. The residue of long terms of years where there is no rent, or merely a peppercorn rent_, may now, subject to certain restrictions, be enlarged by the termors into a fee simple. Whether the Act will be generally adopted is a question which time only will show. The obvious objection to the adoption of the provisions and powers implied by the Act is that the instrument will not PREFACE. VU show upon the face of it the nature of the provisions and powers contained therein : so that anyone con- struing such an instrument must either be thoroughly conversant with the contents of the Act or have a copy of it before him as a guide. The Solicitors Remuneration Act^ 1881^ makes important alterations in the remuneration of solicitors and introduces the principle of remuneration in con- veyancing and other non-contentious business by a scale of rates of commission or per-centage ; and pro- fessional charges will not hereafter depend upon the number of folios in each document, but rather upon the skill, labour, and responsibility involved in any particular business transaction on the part of the solicitor. M. W. 10, New Square, Lincoln's Inn, January, 1882. TABLE OF CONTENTS. CONVEYANCING & LAW OF PROPERTY ACT, 1881. I. — Preliminary. Sect. tage. 1. Short title ; commencement; extent 1 2. Interpretation of 13 roperty, land, &c 2 II. — Sales and other Transactions. Contracts for Sale. 3. Application of stated conditions of sale to all pur- chases ^ 4. Completion of contract after death 12 Discharge of Incuvihrances on Sale. 5. Provision by Coiu't for Incumbrances, and sale freed therefrom ... ... ... ... ... ••• 1<5 General TFords. 6. General words in conveyances of land, Ixiildings, or Covenants for Title. Covenants for title to be implied. On conveyance for value, by beneficial owner. Right to convey. Quiet enjoyment. Freedom from incumbrance. Further assurance. On conveyance of leaseholds for value, by beneficial owner. Validity of Lease. On mort- gage, by beneficial owner. Right to convey. Quiet enjoyment. Freedom from incumbrance. Further assurance. On mortgage of leaseholds, by bene- ficial owner. Validity of lease. Payment of rent 15 x contents. Sect. page, and performance of covenants. On settlement. For further assurance, limited. On conveyance by trustee or mortgagee. Against inciunbrances ... 18 Execution of Purchase Deed. 8. Eights of purchaser as to execution. ... ... ... 29 Production and Safe Custody of Title Deeds. 9. Acknowledgment of right to production, and under- taking for safe custody of documents ... ... 29 III. — Leases. 10. Eent and benefit of lessees covenants to run with rever- sion ... ... ... ... ... ... ... 34 11. Obligation of lessors covenants to run wdth reversion ... 35 12. Apportionment of conditions on severance, &c. ... 36 13. On sub-demise, title to leasehold reversion not to be rerj[uirecl ... ... ... ... ... ... 37 Forfeiture. 14. Eestrictions on and relief against forfeiture of leases ... 37 IV. — MOKTGAGES. veying ... ... ... ... ... ... ... 41 16. Power for mortgagor to inspect title deeds ... ... 42 17. Eestriction on consolidation of mortgages 43 Leases. 18. Leasing powers of mortgagor and of mortgagee in pos- session ... ... ... ... ... ... ... 45 Sale; Insurance; Receiver; Timber. 19. Pow-ers incident to estate or interest of mortgagee ... 49 20. Eegulation of exercise of powers of sale 52 21. Conveyance, receix^t, &c. on sale 53 CONTENTS. Xr SECT. PAGE,. 22. Mortgagee's receiiDts, discharges, &c 56 23. Amount and application of insurance money 57 24. Appointment, powers, remuneration, and duties of receiver... ... ... ... ... ... ... 59 Action respecting Mortgage. 25. Sale of mortgaged property in action for foreclosure, &c. 62 v. — Statutory Mortgage. 26. Form of statutory mortgage in scLedule 65 27. Forms of statutory transfer of mortgage in schedule ... 66 28. Implied covenants, joint and several 69 29. Form of re-conveyance of statutory mortgage in schedule ... ... ... ... ... ••• 70 VI. — Trust and Mortgage Estates on Death. 30. Devolution of trust and mortgage estates on death ... 70 VII. — Trustees and Executors. 31. Aj^pointment of new trustees, vesting of trust pro- perty, &c. ... ... ... ... ... ... 72 32. Eetirement of trustee 75 33. Powers of new trustee appointed, by court ... ... 77 34. Vesting of trust property in new or continuing trustees 77 35. Power for trustees for .sale to sell by auction, &c. ... 79 36. Trustees' receipts 81 37. Power for executors and trustees to compound, &c. ... 82 38. Powers to two or more executors or trustees 84 VIII. — Married Women. 39. Power for court to bind interest of married woman ... 85 40. Power of attorney of married woman 86 IX.— Infants. 41. Sales and leases on behalf of infant owner 87 42. Management of land and receipt and application of in- come diu'ing minority 89' XU CONTENTS. SECT. PAGE. 43. Application by trustees of income of property of infant for maintenance, &c. ... ... ... ... ... 94 X. — Rentcharges and other Annual Sums. 44. Remedies for recovery of annual sums charged on land 97 45. Redemption of quitrents and other perpetual charges... 100 XL — Powers of Attorney. 46. Execution under power of attorney ... ... ... 102 47. Payment by attorney under power without notice of death, &c., good 102 48. Deposit of original instruments creating powers of attorney ... ... ... ... ... ... 103 XII. — Construction and Effect of Deeds and OTHER Instruments. 49. Use of word grant unnecessary 105 50. Conveyance by a person to himself, &c. ... ... ... 105 51. Words of limitation in fee or in tail ... ... ... 106 52. Powers simply collateral ... ... ... 107 53. Construction of supplemental or annexed deed... ... 109 54. Receipt in deed sufficient... ... ... ... ... 109 55. Receipt in deed or endorsed, evidence for subsequent purchaser ... ... ... ... ... ... Ill 56. Receipt in deed or endorsed, authority for payment to solicitor... ... ... ... ... ... ... HI 57. Sufficiency of forms in Fourth Schedule 113 58. Covenants to bind heirs, &c 113 59. Covenants to extend to heirs, &c 115 60. Effect of covenant with two or more jointly 116 61. Effect of advance on joint account, &c 118 62. Grants of easements, &c., by way of use .. . 119 63. Provision for all the estate, &c 120 64. Construction of implied covenants 121 XIII. — Long Terms. 65. Enlargement of residue of long term into fee simple ... 121 CONTENTS. XIU SECT. PAGE. XIV. — Adoption of Act. 66. Protection of solicitor and trustees adopting Act ... 126 XV. — Miscellaneous. 67. Regulations respecting notice 128 68. Short title of 5 & 6 Will. 4, c. 62 129 XVI. — Court ; Procedure ; Orders. 69. Regulations respecting payments into court and appli- cations 130 70. Orders of court conclusive 132 XVII.— Repeals. 71. Repeal of enactments in Part III. of Second Schedule ; restriction on all repeals 133 XVIII.— Ireland. 72. Modifications respecting Ireland 134 73. Death of bare trustee intestate, &c 135 The First Schedule (Acts Affected) 136 The Second Schedule (Repeals) 137 The Third Schedule (Statutory Mortgage) 138 The Fourth Schedule (Short Forms of Deeds) 141 CONVEYANCING PRECEDENTS AND FORMS. NO. 1. General conditions of sale ... ... ... ... ... 145 2. Conveyance of freeholds to a purchaser in fee 151 3. Conveyance of freeholds subject to a lease for 99 years ... 152 4. Conveyance of a life estate in freeholds 153 5. Conveyance of freeholds by two tenants in common ... 153 6. Conveyance of freeholds by husband to wife 154 7. Conveyance of freeholds by a mortgagee, mortgagor not joining ... ... ... ... •.. ... ... 155 8. Conveyance of freeholds by a mortgagee and mortgagor... 156 XIV CONTENTS. NO. PAGE 9. Conveyance of the equity of redemption in freeholds to a mortgagee as purchaser ... ... ... ... 157 10. Conveyance of the equity of redemption in freeholds by deed annexed or indorsed 158 11. Conveyance of leaseholds to purchaser 159 12. Covenant to surrender copyholds ... ... ... ... 160 13. Enlargement of residue of long term into a fee simple ... 161 14. Mortgage of freeholds to one ... ... 161 15. Mortgage of copyholds 164 16. Mortgage of leaseholds 165 17. Further charge 166 18. Transfer of a mortgage of freeholds, mortgagor not being a party ... ... ... ... ... ... ... 167 19. Transfer of a mortgage of freeholds in which the mort- gagorjoins ... ... ... ... ... ... 168 20. Ee-conveyance of freeholds or leaseholds .. . ... ... 170 21. Marriage settlement 171 22. Appointment of a new trustee in place of one who retires ... ... ... ... ... ... ... 172 23. Deed discharging one of three (or more) trustees, and vesting the trust property in the two (or more) continuing trustees ... ... ... ... ... 173 24. Acknowledgment of right to production of documents of title 174 25. Power of attorney of a married woman to execute a deed 175 26. Power of attorney for a solicitor to execute a deed of conveyance on a sale ... ... ... ... ... 176 27. Statutory declaration by attesting witness 176 THE SOLICITORS REMUNEEATION ACT, 1881. Preliminary. SECT. PAGE 1. Short title; extent; interpretation 179 General Orders. 2. Power to make general orders for remuneration in con- veyancing, &c. ... ... ... ... ... ... 181 3. Comninnication to Incorporated Law Societj^ ... ... 182 4. Principles of remuneration 183 5. Security for costs and interest on disbursements ... 184 6. Order to be laid before houses of parliament, disallow- ance on address ... ... ... ... ... 184 7. Effect of order as to taxation 185 Agreements. 8. Power for solicitor and client to agree on form and amount of remuneration ... ... ... ... 1 85 9. Restriction on Solicitors Act, 1870 187 Index 189 TABLE OF CASES. A. PAGE Adams v. Angell, 5 Cli. D. 634 ; 25 W. E. 139 ; 46 L. J. Ch. 54 ; 36 L. T. Eep. 334 69 Alexander, ^e, 13 Ir. Ch. Ee. 137 84 Aleyn v. Belchier, 1 W. & T. Leading Cases, 415 ; 1 Eden, 132 109 Allen V. Eichardson, 13 Ch. D. 524 ; 49 L. J. Ch. 137 ; 28 W. E. 313 148 Anson v. Potter, 13 Ch. D. 141 ; 28 W. E. 91 ; 41 L. T. 582 82 Archbold V. Scully, 9 H. L. C. 360 123 B. Baker v. Gray, 1 Ch. D. 491 ; 24 W. E. 171 ; 45 L. J. Ch. 165 ; 33 L. T. Eep. 721 45 Baker v. Sebright, 13 Ch. D. 179 ; 28 W. E. 177 ; 49 L. J. Ch. 65; 41 L, T. Eep. 614 52 Banister, Ee, 12 Ch. D. 131 ; 27 W. E. 826 ; 40 L. T. 319 ... 132 Barrowv. Manning, W. N. 1880, p. 108 44 Beioley v. Carter, L. E. 4 Ch. 230 ; 37 L. J. 92 ; 19 L. T. 472 ; 17 W. E. 300 133 Bellamy v. Cockle, 2 W. E. 326 ; 18 Jur. 465 65 Berney ^;. Sewell, IJ. & W. 647 59 Bewley v. Atkinson, 13 Ch. D. 283 ; 49 L. J. Ch. 153 ; 41 L. T. 603 ; 28 W. E. 638 185 Blue i;. Marshall, 3 P. Wms. 381 83 Bolton V. London School Board, 7 Ch. D. 766 ; 26 W. E. 549 ; 47 L. J. Ch. 461 ; 38 L. T. Eep. 277 ... 8, 69, 151 Breary, A'e, W. N. 1873, p. 48 74 b XVin TABLE OF CASES. PAGE Breed's Will, In re, 1 Cli. D. 226 ; 24 W. E. 200 ; 45 L. J. Ch. 191 95 Brett V. Clowser, 5 C. P. D. 376 16, 148 Bulkeley v. Earl of Egliiiton, 1 Jur. N. S. 994 74 Camberwell and South London Building Society v. Holloway, 13 Ch. D. 754 ; 49 L. J. Ch. 361 ; 28 W. R. 222 ; 41 L. T. 752 11 Cator V. Reeves, 9 Ha. App. liii, n. ; 16 Jur. 1004 64 Charing Cross Advance, &c.. Bank, Ex ixirte, 16 Ch. D. 35 ; 50 L. J. Ch. 157 ; 29 W. R. 204 llO Chesworth v. Hunt, 5 C. P. D. 266 ; 28 W. R. 815 ; 40 L. J. C. P. 507 ; 42 L. T. Rep. 774 45 Clav V. Tetley, In re, 16 Ch. D. 3 ; 50 L. J. Ch. 264 ; 29 'W. R. 5" 13 Clive •'y. Carew, IJ. & H. 199 85 Clover V. Adams, 6 Q. B. D. 622 130 Colyei- v. Colyer, 3 De G. J. k S. 676 ; 11 W. R. 1051 ; 9 L. T. Rep. 214 42 Cotton, In re, 1 Ch. D. 232 ; 24 W. R. 243 ; 45 L. J. Ch. 201; 33 L. T. Rep. 720 95 Cracknall v. Janson, 11 Ch. D. 1 ; 27 W. R. 851 ; 48 L. J. Ch. 168; 40L.T. Rep. 640 ... 44 Crowe's Trusts, Re, 14 Ch. D. 304, 610 ; 28 ^Y. R. 885 : 42 L. T. 822 78 Cummins v. Fletcher, 14 Ch. D. 699 ; 28 W. R. 272 ; 49 L. J. Ch. 117 ; 41 L. T. Rep. 546 44 D. D'Aiigibau, Be, 15 Ch. D. 228 ; 28 ^Y. R. 311, 930 ; 49 L. J. Ch. 182, 756 ; 41 L. T. Rep. 645 ; 43 L. T. Rep. 135 ... 108 Dennison v. Halladay, 5 AV. R. Exch. 357 ; 4 Jur. N. S. 1002 ; 3 H. & N. 670 16 Dicker v. Angerstein, 3 Ch. D. 600 ; 24 W. R. 844 ; 45 L. J. Ch. 754- ... 57 Drew V. Nmin, 4 Q. B. D. 661 ; 48 L. J. 591 ; 40 L. T. 671... 103 TABLE OP CASES. XIX PAGE Dumpor's Case, 4 Co. Kep. 119 b ; 1 Sm. L. C. 47 37 Dunstau V. Patterson, 2 Phil. 345 42 ... E. Edwards u Slater, Tudor's Real Property L, C. 3rd Edit. 368 ; Hardr. 410 52 EUiott V. Merryman, 1 W. & T. L. C. 64 ; Barnard Cli. Rep. 78 82 Essex V. Daniell, L. R. 10 C. P. 538 ; 32 L. T. Rep. 476 ... 2J) F. Falkner v. Equitable Reversionary Interest, 7 W. R. 73 ... 147 Fernandes, iZc, W. N. 1878, p. 57 185 Fernie «. Maguire, 6 Ir. Eq. Rep. 137 82 Foster, iZc, 2 D. F. J. 105 184 Foster v. Harvey, 4 De G. J. & S, 59 64 Francis.^. Minton, L. R. 2 C. P. 543 ; 36 L. J. 201 121 Freeman V. Read, 4 B. & S. 174 53 G. 'Oalloway V. Corporation of London, L. R. 4 Eq. 90 186 >Gee V. Maliood, 5 App. Cas. 588 ; 26 W. R. 789 ; 27 W. R. 843 ; 48 L. J. Cli. 657 ; 40 L. T. Rep. 663 .07 General Finance &c., Co. 'v. Liberator Benefit &c. Society, lOCh. D.15; 27 W. R. 210;40L. T.600 151 George, In re, 5 Ch. D. 837 ; 26 W. R. 65 ; 47 L. J. Ch. 118; 37 L. T. Rep. 204 95 Graham v. Jackson, 6 Q. B. 811 ; 14 L. J. Q. B. 129 ... 176 drantv. Grant, 6 N. R. 347 74 Grant v. Holland, 3 C. P. D. 183 181 H. Hadgett V. Commissioners of Inland Revenue, 3 Ex. D. 46 ; 37L. T. 612; 26 W. R. 115 78 HaUiday v. Dennison, 4 Jur. N. S. 1002 ; 5 W. R. Ex. 357 16 Hare v. Overseers of Putney, 7 Q. B. D. 223 ; 50 L. J. U. C. 81 :29 W. R. 721 148 Hiatt V. Hillman, 19 W. R. 694 ; 25 L. T. Rep. 55 54 // 2 ' XX TABLE OF CASES, PAGE Hobson V. Bell, 2 Beav. 17 57 Honywood v. Honvwood, L. B. 18 Eq. 306 ; 22 W. R. 749 ; 43 L. J. Ch. 652 ; 30 L. T.Rep. 671 52, 90 Hungerford 17. Clay, 9 Mod. 1 45 Hurst -y. Hurst, 16 Beav. 372 64 Hutton V. Sealey, 6 W. R. 350; 4 Jur. N. S. 450 64 James v. Biou, 3 Swanst. 241 ... Jevonv. Bush, 1 Vern. 343 Jones v. Bailey, 17 Beav. 582 ... Jones V, Clifford, 3 Ch. D. 779 ; 45 L 979 ... Jones V. Smith, 2 Ves. Jun. 376 J. Ch. 809 ; 24 W. R. 42 83 64 9 44 K. Keech v. Hall, I Dougl. 21 ; 1 Sm. L. C. 574 45 Kennedy V. Green, 3 M. & K. 699 Ill Kenrick v. Wood, L. R. 9 Eq. 333 ; 39 L. J. Ch. 92 87 Kerr v. Pawson, 25 Beav. 394 j 6 W. R. 447 ; 27 L. J. Ch. 594 ; 31 L. T. 224 ; 4 Jur. N. S. 425 7 Law r. Glen, L. R. 2 Ch. App. 634 60 Lawrie v. Lees, 14 Ch. D. 249 ; 28 W. R. 779 ; 49 L. J. Ch. 636 ; 42 L. T. Rep. 485 10,102 Lewis, Re, 1 Q. B. D. 724 ; 35 L. T. 857 ; 45 L. J. 816 ; 24 W.R. 1017 185,186 Lloyd i;. Whitley, 17 Jur. 754 65 LowTides V. Norton, 6 Ch. D. 139 ; 25 W. R. 826; 46 L. J. Ch.613 90 Lowther v. Bentinck, L. R. 19 Eq. 166; 23 W. R. 156 ; 44 L. J. Ch. 197 ; L. T. Rep. 719 11, 86, 95 M. Macrae u EUerton, 4 Jur.'N. S. 967 64 Manchester and Milford Rail. Co., In re, 14 Ch. D. 653 ; 42 L. T.Rep, 714 59 130 TABLE OF CASES. XXI PAGE Master v. Hansard, 4 Cli. D. 718 ; 46 L, J. Ch. 505 ; 25 W. E. 570 ; 36 L. T. 535 114 Matthew -;;. Northern Assurance Co., 9 Ch. D. 80 ; 47 L. J, Ch. 562 ; 27 W. R. 57 ; 38 L. T. 468 Mears V. Best, 10 Ha. App. 41 ti^ Mennard v. Welford, 1 Sm. & G. 426 "3 Middleton v. Chichester, L. R. 6 Ch. 152 ; 19 W. R. 299 ; 40 L. J. Ch. 237 ; 24 L. T. Rep. 173 30 Mills V. Jennings, 13 Ch. D. 639 ; on App. W. N. 1881, p. 127 ; 28 W. R. 549 ; 49 L. J. Ch. 209 ; 42 L. T. Rep. 169 44 Moravian Society, jRe, 26 Beav. 101 73 Monle V. Garrett, L. R. 7 Ex. 101 ; 41 L. J. Ex. 62 ; 20 "W, R. 416 ; 26 L. T. 367 28 Moyse V. Gyles, 2 Vern. 385 106 N. National Mercantile Bank, Eximrte, 15 Ch. D. 42 ; 28 W. R. 399; 42 L. T. 64 Neame v. Moorsom, L. R. 3 Eq. 91 Newman v. Selfe, 33 Beav. 522 ; 10 Jm\ N. S. 251 Nunn V. Hancock, L. R. 6 Ch. 850 ; 40 L. J. Ch, L. T. 469 0. O'Brien v. Lewis, 11 W. R. 318 ; 9 Jur, N.S. 528, 620 ... 184 Ogle, Ex parte, L. R. 8 Ch. 715 ; 42 L. J. Bkcy. 99 ; 21 W. R. 938 84 Palmer v. Locke, 15 Ch. D. 294 ; 28 W. R. 926 108 Patman v. Harland, 17 Ch. D. 353 ; 29 W. R. 707 ; 50 L. J. Ch. 642 ; 44 L. T. Rep. 728 7 Pease v. Fletcher, 1 Ch. D. 273 ; 24 W. R. 158 ; 45 L. J. Ch. 265 ; .33 L. T. Rep. 644 60 Pember V. Mathews, 1 Bro, C. C. 52 28 Phillips v.-Gutteridge, 4 De G. & Jo. 531 ; 3 De G. J. & S. 332 64, 97 ... ... 158 ... 121 ... ... 64 .700; 25 • • • ... 132 XXll TABLE OF CASES, PAGE Pike V. Fitzgibbon, 17 Ch. D. 454 ; 29 W. R. 551 ; 50 L. J. Ch. 394 ; 44 L. T. Rep. 562 86 R. Raggett, In re, 16 Cli. D. 117 ; 29 W. R. 314 ; 50 L. J. Ch. 187 ; 44 L. T. Rep. 4 44 Ratcliffe V. Winch, 17 Beav. 216 83 Rayner v. Preston, 14 Ch. D. 297 ; 28 W. R. 808 ; 18 Ch. D. 1 148 Roach v. Wadham, 6 East. 289 28 Robinson v. Wheelwright, 21 Beav. 214 ; 6 D. M. & G. 535 . 85 S. Selby V. Pomfret, 1 J. & H. 336 ; 3 De G. F. & J, 595 ... 44 Shepheard's Settled Estates, Re, L. R. 8 Eq. 571 133 Siffkeu z). Davis, Kay, App. XXI 64 Sinunins v. Shirley, 6 Ch. D. 173 ; 26 W. R. 25 ; 46 L. J. Ch. 875 ; 37 L. T. Rep. 121 52 Smith V. Robinson, 13 Ch. D. 148 ; 28 W. R. 37 ; 49 L. J. Ch. 20 ; 41 L. T. Rep. 405 8 Sparke V. Montriou, 1 Y. & C. 103 43 Spencer's Case, 1 Sm. L. C. 68 ; 5 Co, Rep. 16 a 34 Sutton's Trusts, Re, 12 Ch. D. 175 ; 48 L. J. Ch. 350 ; 27 W. R. 429 130 ■ Sv/hibsLnks, Ex 2Mrte, 11 Ch. D. 525 ; 27 W. R. 898 ; 48 L. J. Bkcy. 120 ; 40 L. T. Rep. 825 110, 112 T. Taite v. Gosling, 11 Ch. D. 273 ; 48 L. J. Ch. 397 ; 40 L. T. 251 ; 27 W. R. 394 114,116 Talbot V. Marshfield, L. R. 3 Ch. 622 ; 19 L. T. Rep. 223 ; 37 L. J. 52 ... ... 86 Tassell r. Smith, 2 De G. & J. 713 45 Timstall, ii!c, 4 De G. & Sm. 421 74 Turner v. Skelton, In re, IZ Ch. D. 130 ; 28 W. R. 312 ; 49 L. J. 115; 41 L. T. 668 148 TABLE OF CASES. XXUl PAGE Twynam v. Pickard, 2 B. & Aid. 105 35 Tyrrel's Case, Tudor's Keal Property, L. C. 3rd Edit. 335 ; Dyer, 155 a 110, 155- V. Viney v. Chaplin, 4 Drew. 237 ; 2 De G. & J. 468 ; 27 L. J. Ch. 434 ; 4 Jiir. N.S. 619 29,112 W. Wadman v. Calcraft, 10 Ves. 67 38 WaddeU v. Wolfe, L. K. 9 Q. B. 515 ; 43 L. J. Q. B. 138 ... 9 "Wale V. Commissioners of Inland Revenue, 4 Ex. D. 270 ; 27 W. R. 916 ; 48 L. J. Ex. 574 ; 41 L. T. Rep. 165 ... G9 Ward v. Dickson, 7 W. R. 148 147 Ward V. Eyre, 15 Ch. D. 130 ; 49 L. J. 657 ; 28 W. R. 712 181 Watts V. Symes, 1 De. G. M. & G. 240 44 Whitfield V. Roberts, 5 Jur, (N.S.) 113 64 Wickham v. Nicholson, 19 Beav. 38 64 Wigham v. Measor, 5 W. R . 394 64 Wiles V. Gresham, 5 De G. M. & G. 770 84 Williams v. Hathaway, 6 Ch. D. 544 28 Wilton i;. Hill, 25 L. J. Ch. 156 85 Withington v. Withington, 16 Sim. 104 73 Woodford V. Brooking, L. R. 17 Eq. 425 ; 22 W. R. 683 ... 64 Wormald v. Muzeen, 17 Ch. D. 167 ; 29 W. R. 753 ; 50 L. J. Ch. 482 ; 45 L. T. Rep. 409 ; on App. 29 W. R. 795 ... 97 Wright V. Burroughes, 3 C. B. 685 35 Y. Yates V. Plumb, 2 Sm. &. Giff. 174 43 THE CONVEYANCING AND LAW OF PROPERTY ACT, 1881. 44 & 45 Vict. Chap. 41. An Act for simplifying and improving the prac- Sect. 1. tice of Conveyancing ; and for vesting in Trus- tees, Mortgagees, and others various powers commonly conferred by provisions inserted in Settlements, Mortgages, Wills, and other Instruments ; and for amending in various particulars the Law of Property; and for other purposes. \22nd August, 1881.] Be it enacted by the Queen^s most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present parliament assembled, and by the authority of the same, as follows : I. — Preliminary. 1 — (1.) This Act may be cited as the Con- short title • coin- veyancing and Law of Property Act, 1881, mencc- (2.) This Act shall commence and take effect ''^^^^^^ from and immediately after the thirty-first day of i Conveyancing and Law of Property Act, 1881. Sect. 1. December^ oue thousand eight hundred and eighty - one. (3.) This Act does not extend to Scotland. Coin- This Act comes into operation on the 1st of January, 1882^ nience- The Act does not extend to Scotland, but with slight modi- fications is applicable to Ireland (see post, sect. 72). Rules- for purposes of this Act may under sects. 69 and 72 be made at any time after the passing of the Act (22nd August, 1881), to take effect on or after its commencement. It is luent of Act /^ J ''^'*| important to notice that sects. 14, 15, 25, 31-33, 36, 37, 46^ y 47, 49, 53, 61, and 70 are retrospective. luterpre- 2. In this Act— tat ion or oi pro- ^- ^ Property, unless a contrary intention land",'&c. appears, includes real and personal pro- perty, and any estate or interest in any property, real or personal, and any debt, and any thing in action, and any other right or interest : (ii.) Land, unless a contrary intention appears, includes land of any tenure, and tene- ments and hereditaments, corporeal or incorporeal, and houses and other build- ings, also an undivided share in land : (iii.) In relation to land, income includes rents and profits, and possession includes receipt of income : (iv.) ]\Ianor includes lordship, and reputed manor or lordship ; (v.) Conveyance, unless a contrary intention appears, includes assignment, appoint- ment, lease, settlement, and other assur- 44 ^ 45 Vict. c. 41, s. 2. ! ance, and covenant to surrender, made Sect. 2. by deed, on a sale, mortgage, demise, or settlement of any property, or on any other dealing with or for any property ; and convey, unless a contrary intention appears, has a meaning corresponding with that of conveyance : (vi.) Mortgage includes any charge on any pro- perty for securing money, or money^s worth ; and mortgage money means money, or money's worth, secured by a mortgage; and mortgag or includes any person from time to time dcrivmgtitle ~under the original mortgagor, or entitled to re deem"a mortgage, according to his e state, interest, or rig ht, in the mort- gaged property ; and mortgagee includes any person from time to time deriving title under the original mortgagee ; and mortgagee in possession is, for the pur- poses of this Act, a mortgagee who, in right of the mortgage, has entered into and is in possession of the mortgaged property : (vii.) Incumbrance includes a mortgage in fee^ or for a less estate, and a trust for secur- ing money, and a lien, and a charge of a portion, annuity,. or other capital or annual sum ; and incumbrancer has a meaning corresponding with that of incumbrance, and includes every person entitled to the benefit of an incum- b2 i Conveyancing and Law of Property Act, 1881. Sect. 2. brance, or to require payment or dis- charge thereof: (viii.) Purchaser, unless a contrary intention appears, includes a lessee or mortgagee, and an intending purchaser, lessee, or mortgagee, or other person, who, for valuable consideration, takes or deals for any property ; and purchase, unless a contrary intention appears, has a mean- ing corresponding with that of purchaser; but sale means only a sale properly so called : (ix.) Rent includes yearly or other rent, toll, duty, royalty, or other reservation, by the acre, the ton, or otherwise ; and fine includes premium or fore-gift, and any payment, consideration, or benefit in the nature of a fine, premium, or fore-gift : (x.) Building purposes include the erecting and the improving of, and the adding to, and the repairing of buildings; and a building lease is a lease for building purposes or purposes connected there- with : (xi.) A mining lease is a lease for mining pur- poses, that is, the searching for, winning, working, getting, making merchantable, carrying away, or disposing of mines and minerals, or purposes connected there- with, and includes a grant or licence for mining purposes : (xii.) Will includes codicil : 44 6f 45 VicL c. 41, s. 3. (xiii.) Instrument includes deed, will, inclosure Sect. 2. award, and Act of Parliament : (xiv.) Securities include stocks, funds, and shares : (xv.) Bankruptcy includes liquidation by- arrangement, and any other act or pro- ceeding in law having, under any Act for the time being in force, effects or results similar to those of bankruptcy ; and bankrupt has a meaning correspond- ing with that of bankruptcy : (xvi.) "Writing includes print; and words re- ferring to any instrument, copy, extract, abstract, or other document include any such instrument, copy, extract, abstract, or other document being in writing or in print, or partly in writing and partly in print : (xvii.) Person includes a corporation : (xviii.) Her Majesty's High Court of Justice is referred to as the Court. CONTRACTS FOE, SALE. II. — Sales and other Transactions. 3. — (1.) Under a contract to sell and assign a Applica- term of years derived out of a leasehold interest in ^^^^1°^ land, the intended assign shall not have the right conditions to call for the title to the leasehold reversion. au'pm-*" The Act contains many important alterations, which are, chases, as a rule, more advantageous to the vendor than the pur- chaser. 6 Conveyancing and Law of Property Act, 1881. Note to Previously to the Vendor and Purchaser Act, 1874, a S. 3, SS .l. sixty years' title was, subject to any stipulation to the con- Com- trary in the contract, required to be shown as the com- mence- niencement of title. By that Act forty years was substituted ment or j^g ^^iq root of title, and other important conditions were introduced. This section is supplemental to the provisions contained in sect. 2 of the Vendor and Purchaser Act, 1874 by which it was enacted that : — 37 & 38 "2. In the completion of any such contract of sale as Vict. c. 78, aforesaid (id. est, made after 31st December, 1874), and ^" subject to any stipulation to the contrary in the contract, the obligations and rights of vendor and purchaser shall be regulated by the following rules ; that is to say, "First. Under a contract to grant or assign a term of years, whether derived or to be derived out of a freehold or leasehold estate, the intended lessee or assign shall not be entitled to call for the title to the freehold. "Second. Recitals, statements, and descriptions of facts, matters, and parties contained in deeds, instruments. Acts of Parliament, or statutory declarations, twenty years old at the date of the contract, shall, except so far as they shall be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters, and descrip- tions. " Third. The inability of the vendor to furnish the pur- chaser with a legal covenant to produce and furnish copies of documents of title shall not be an objection to title in case the purchaser will, on the completion of the contract, have an equitable right to the production of such documents. " Fourth. Such covenants for production as the purchaser can and shall require shall be furnished at his expense, and the vendor shall bear the expense of perusal and correction on behalf of and by himself, and on behalf of and by neces- sary parties other than the purchaser. " Fifth. Where the vendor retains any part of an estate to which any documents of title relate he shall be entitled to retain such documents." Statutory It is declared by the present Act that certain statutory conditions. 44 6f 45 Vict. c. 41_, s. 3. 7 conditions there set out, and Avliich are those usiially in- Note to serted in an ordinary contract, shall be applicable to uHS. 3,SS.l. purchases unless a contrary intention is expressed, and shall have efl'ect subject to the terms and provisions of the contract. Sub-sect. 1 extends the provisions of sect. 2 of the Title to Vendor and Purchaser Act, 1874, and provides that the leasehold purchaser of a derivative lease shall not have the right to '■'^^•^i'^^^"' call for the title to the leasehold reversion (and see post, sect. 13, sub-sect. 1). This sub-section, seemingly, makes no alteration in the rule that a lessee has constructive notice of his lessor's title. Patman v. Harland, 17 Ch. D. 353. (2.) Where land of copyliold or customary tenure has been converted into freehold by en- franchisement, then^ under a contract to sell and convey the freehold, the purchaser shall not have the right to call for the title to make the enfran- chisement. This is the condition usually inserted in contracts for Title to the sale of enfranchised lands. Dart's V. & P. 5th Edit, enfran- 289. Where, however, the enfranchisement has taken place f "^^ under the Copyhold Enfranchisement Act, 1852, a good title to the lands enfranchised may be made without any proof of the lord's title. Kerr v. Paicson, 25 Beav. 394 ; 6 W. R. 447. (3.) A purchaser of any property shall not require the production, or any abstract or copy, of any deed, will, or other document, dated or made before the time prescribed by law, or stipulated, for commencement of the title, even though the same creates a power subsequently exercised by an instrument abstracted in the abstract furnished to the purchaser ; nor shall he require any infor- 8 Conveyancing and Law of Propei'iy Act. 18S1. Sect. 3. mation, or make any requisition, objection, or inquiry, with respect to any such deed, will, or document, or the title prior to that time, notwith- standing that any such deed, will, or other docu- ment, or that prior title, is recited, covenanted to be produced, or noticed; and he shall assume, unless the contrary appears, that the recitals, con- tained in the abstracted instruments^ of any deed, will, or other document, forming part of that prior title, are correct, and give all the material con- tents of the deed, will, or other document so recited, and that every document so recited was duly executed by all necessary parties, and per- fected, if and as required, by fine, recovery,, acknowledgment, inrolment, or otherwise. Com- The expression " the time prescriljcd hy law " appears to ™^"':^' refer to sect. 1 of the Vendor and Purchaser Act, 1874, ment or . . p . the title, substituting lorty years for sixty years as the root of title. But it is to be observed that in Bolton v. London School Board, 7 Ch. D. 766, it was held that a recital in a convey- ance more than twenty years old, that the vendor was seized in fee simple, was sufficient evidence of that fact, and that no prior abstract of title could l)e demanded except so far as the recital should be proved to be inaccurate and that in such cases a forty years title was not recjuii-ed. Powers. This sub-section provides a most stringent condition wliich precludes the purchaser from requiring the produc- tion of a document creating a power upon the exercise of which the title depends, or from making any inquiry with respect to the title prior to the time prescribed liy law or stipulated for its commencement. But it is anticipated that a piu'chaser may insist upon the objection where the vendor himself discloses a prior defective title. In Smith v. Robin- son, 13 Ch. D. 148, where there was a condition that no earlier or other title should be required or inquired into, it was held tliatthis condition did not preclude the purchaser 44 6)' 45 Vict. c. 41, s. 3. 9 from insisting on an objection to the prior title wliicli was Note tO not discovered througli any inquiry made by him, but was S.3, SS. accidentally disclosed by the vendor, and see also Waddell v. Wolfe, L. R. 9 Q. B. 515 ; and Jones v. Glijford, 3 Ch. D. 779. (4.) Where land sold is held by lease (not including under-lease) , the purchaser shall assume, unless the contrary appears, that the lease was duly granted ; and, on production of the receipt for the last payment due for rent under the lease before the date of actual completion of the pur- chase, he shall assume, unless the contrary appears, that all the covenants and provisions of the lease have been duly performed and observed up to the date of actual completion of the purchase. (5.) Where land sold is held by under-lease, the purchaser shall assume, unless the contrary appears, that the under-lease and every superior lease were duly granted; and, on production of the receipt for the last payment due for rent under the under-lease before the date of actual comple- tion of the purchase, he shall assume, unless the contrary appears, that all the covenants and pro- visions of the under-lease have been duly per- formed and observed up to the date of actual completion of the purchase, and further that all rent due under every superior lease, and all the covenants and provisions of every superior lease, have been paid and duly performed and observed up to that date. The production of the last receipt for rent is usually con- Eeceipt sidered sufficient evidence of the performance of and com- for rent, pliance with the covenants and conditions in the lease up 10 Conveyancing and Law of Property Act, 1881. Note to to the completion of the purchase. Dart's V. & P. 5th Edit. S, 3, SS, 5. 169. In Laivrie v. Lees, 14 Ch. D. 249, where, there being a continuing breach of covenant, there was a condition that the production of the last receipt for rent should be taken as conclusive evidence of the due performance of the lessee's covenants or of waiver of any breaches of them np to the time of the completion of purchase, it was held that the condition was binding and that the purchaser was bound to accept the title notwithstanding the breaches of covenant. {6.) On a sale of any property, the expenses of the production and inspection of all Acts of Par- liament_, inclosure awards, records, proceedings of courts, court rolls, deeds, wills, probates, letters of administration, and other documents, not in the vendor^s possession, and the expenses of all journeys incidental to such production or inspec- tion, and the expenses of searching for, procuring, making, verifying, and producing all certificates, declarations, evidences, and information not in the vendor^s possession, and all attested, stamped, ofiice, or other copies or abstracts of, or extracts from, any Acts of Parliament or other documents aforesaid, not in the vendor's possession, if any such production, inspection, journey, search, pro- curing, making, or verifying is required by a pur- chaser, either for verification of the abstract, or for any other purpose, shall be borne by the pur- chaser who requires the same; and where the vendor retains possession of any document, the expenses of making any copy thereof, attested or unattested, which a purchaser requires to be deli- vered to him, shall be borne by that purchaser. Expenses This condition is usually inserted in ordinary conditions action or otherwise to enforce such right of re-entry or ^'^^ * forfeiture, the lessee apparently must bring an action him- self before he can apply to the Court for relief. " The Court " is defined by sect. 2 (xviii.), as Her Majesty's High Court of Justice, and consequently the county courts have no power to entertain an aj)plication under tliis section. (3.) For the purposes of this section a lease includes an original or derivative under-lease, also a grant at a fee farm rent, or securing a rent by condition ; and a lessee includes an original or derivative under-lessee, and the heirs, executors, administrators, and assigns of a lessee, also a 40 Conveyancing and Lata of Property Act, 1881. Sect. 14. grantee under such a grant as aforesaid, his heirs and assigns ; and a lessor includes an original or derivative iinder-lessor, and the heirs, executors, administrators, and assigns of a lessor, also a grantor as aforesaid, and his heirs and assigns. (4.) This section applies although the proviso or stipulation under which the right of re-entry or forfeiture accrues is inserted in the lease in pursuance of the directions of any Act of Par- liament. (5.) For the purposes of this section a lease limited to continue as long only as the lessee abstains from committing a breach of covenant shall be and take effect as a lease to continue for any longer term for which it could subsist, but determinable by a proviso for re-entry on such a breach. (6.) This section does not extend — (i.) To a covenant or condition against the assigning, u nderle tting, parting with the possession, or disposing of the land leased ; or to a condition for forfeiture on the bankruptcy of the lessee, or on the taking in execution of the lessee^s interest; or (ii.) In case of a mining lease, to a covenant or condition for allowing the lessor to have access to or inspect books, accounts, records, weighing machines, or other things, or to enter or inspect the mine or the workings thereof. Covenants It is to be observed that tliis section does not a])ply (1.) excepted to a covenant against assigning or underletting, or to a 44 Sr 45 Vict. c. 41, s. 15. 41 condition for forfeiture on bankruptcy of lessee, or on the Note to taking in execution of the lessee's interest ; or (2.) in a S.14,S3.6. mining lease to a covenant for allowing the lessor to in- from spect the books or to enter the mine. As to the defibaition section, of " bankruptcy " and " mining lease," see sect. 2 (xi. and XV.). (7.) The enactments described in Part I. o£ the Second Schedule to this Act are hereby repealed. (8.) This section shall not affect the law re- lating to re-entry or forfeiture or relief in case of non-payment of rent. See note to sub-sect. 1. (9.) This section applies to leases made either before or after the commencement of this Act, and shall have effect notwithstanding any stipu- lation to the contrary. It will be noticed that this section is retrospective and cannot be excluded by any stijoulation to the contrary. IV. — Mortgages. lo. — (1.) Where a mortgagor is entitled to Obligation redeem, he shall, by virtue of this Act, have ^" "''"J" power to require the mortgagee, instead of re- tiunsfer conveying, and on the terms on which he would I.e!eonvcf- be bound to re-convey, to assign the mortgage ing. debt and convey the mortgaged property to any third person, as the mortgagor directs ; and the mortgagee shall, by virtue of this Act, be bound to assign and convey accordingly. 43 Sect- 15. Assign- ment of inortgag( debt. Exclusion by con- tract. Conveyancing and Law of Property Act, 1881. (2.) This section docs not apply in tlic case of a mortgagee being or having been in posses- sion. (3.) This section applies to mortgages made either before or after the commencement o£ this Act^ and shall have eflPect notwithstanding any stipulation to the contrary. Before this Act it was held tliat a mortgagor liaci no right to rccjuire the mortgagee to assign the mortgage debt when he was paid off ; all that could he demanded was the reconveyance of the mortgaged estate. Dav. Conv. ii. Part 2, 280 ; Dunstan v. Patterson, 2 Phil. 345. This section rescinds the ahove rule, excej^t in a case of a mortgagee heing or having been in possession (see sub- sect. 2). It also apparently has the effect of overruling the decision in Colycr v. Colyer, 3 De G. J. & S. 676, and the decision in James v. Biou, 3 Swanst. 241, where it was held hy Lord Eldon that " no mortgagee can be compelled to jilace another person in his stead as mortgagee." It is to be observed that the operation of this section cannot be excluded by any contract or stijnilation to the contrary (sub- sect. 3). Powei foi \Q, — (1.) A mortgagor, as long as his risrht luortgagov ^ , \ ■ , 111/ • ,. i • . to inspect to redeem subsists^ shall, by virtue 01 this Act, title deeds, ijg entitled from time to time, at reasonable times, on his request, and at his own cost, and on payment of the mortgagee's costs and expenses in this behalf, to inspect and make copies or abstracts of or extracts from the documents of title relating to the mortgaged property in the custod}'^ or power of the mortgagee. (2.) This section applies only to mortgages made after the commencement of this Act, and 44 &: 45 Vict. c. 41, s. 17. 4a shall have effect uotwitlistanding any stipulation Sect. 16. to the contrary. Hitlierto the general rule was that a mortgagee could Produc- iiot, be compelled to produce the title deeds imtil he was ''1°" "^ paid off : SparJce v. Montriou, 1 Y. & C. 103 ; but in Yates V. Plumh, 2 Sin. & Giff. 174, it was held that where a mortgagee was ordered to reconvey part of a mortgaged estate to the mortgagor he was compelled to produce the deeds relating to the Avhole estate Avhich he retained. Prid. Conv. 8th Edit, vol i. p. 198. This section virtually overrules the decision of SjKirJce v. Mo)dnou, supra, and provides that a mortgagor as long as his right to redeem subsists, notwithstanding any stipula- tion to the contrary, shall be entitled on payment of the mortgagee's costs to inspect and make copies of the docii- ments of title in his custody. With the expression "in the custody or power of the mortgagee "' coihpare the expression " not in the vendor's possession "' in sect. 3, sub-sect. 6, and the expression " pos- session or control" "with reference to documents in sect. 9, sub-sects. 2 and 9. The power of inspecting the title deeds in the custody of Restric- the nioitgagee is by this section restricted to the mort- tion on ^ gagoi', and does not compel the mortgagee to produce them P™^"ctioii-. to third parties. deecls.*^ IT. — (!•) A mortgagor seeking to redeem iJostric- any one mortgage, shall, by virtue of this Act, be *^°" °", *'. cjo^.»j^ } consouda- entitled to do so, without paying any money due tion of under any separate mortgage made by him, or by ^o^tgages., any person through whom he claims, on property other than that comprised in the mortgage which he seeks to redeem. (2.) This section applies only if and as far as a contrary intention is not expressed in the mort- gage deeds or one of them. 44 Conveyancing and Law oj Froperty Act, 1881. Sect. 17. (3.) This section applies only where the mort- gages or one of them are or is made after the commencement of this Act. Consolida- The restriction on consolidation of mortgages in tliis tion of section does not apply if a contrary intention is expressed ^ ^ "in the mortgage deeds or one of them (sub-sect. 2), and is applicable where one of the mortgages is made after the commencement of this Act. The rule respecting consolidation of mortgages originally was that when several distinct estates Avere mortgaged separately as secnrities for distinct debts by one mortgagor to one mortgagee, the latter had a right to hold all the estates as security for the aggregate of all the debts. Dav. Conv, ii. Part 2, 4th Edit. 289. This doctrine formerly only applied to legal mortgages absolutely conveyed by Avay of mortgage (Jones v. Smith, 2 Ves. Jun. 376), but is now ajjpli cable to legal or eqiiitable securities both in suits for foreclosure as well as redemption {JVatts v. Symes, 1 De G. M. & G. 240 ; Selby v. Pomfrd, 1 J. & H. 336 ; 3 De G. F. & J. 595 ; Gracknall v. Jamon, 11 Ch. D. 1) ; and is also applicable, notwithstanding that the fii-st secu- rity had proved worthless, and that the representatives of the mortgagor were not entitled to redeem the property comprised in the second mortgage except upon payment of both mortgage debts. Barroio v. Manning, W. N. 1880 p. 108. But in In re Puiggctt, 16 Ch. 117, it was held that the doctrine did not apply where one of the securities had ceased to exist. In Cummins v. Fletcher, 14 Ch. D. 699, it was held that consolidation only applies where default has been made on all the securities in respect of which it is claimed, and per James, L. J., " there can be no consolida- tion between a mortgage by A. for his own debt and a mortgage by A. and B . of other property for their partner- ship debt." Tendency The tendency of the decisions of the courts of late has of modern i^gg^ to restrict the doctrine of consolidation, which liad gradually been extended beyond its original limits. In Mills V. Jennings, 13 Ch. D. 639, on Ap]i. 28 W. E. 549, it 44 6r 45 Vict. c. 41, s. 18. 45 ■was held (reversing the case of Tassell v. Smith, 2 De G. & J. Note to 713) that the doctrme did not apply to a case in which one Sect. 17. of the mortgages was created subsequently to the assign- ment of the equity of redenqition to the person seeking to redeem ; and see Baker v. Gray, 1 Ch. D. 491. And in Chesu-orih v. Hunt, 5 0. P. D. 266, it was lield that the doc- trine of consolidation does not enable a hill of sale holder to tack a prior mortgage of other property of the grantor, and claim that the surplus proceeds of the goods, after dis- charging the sum secured by the bill of sale, shall be applied in satisfaction of the prior mortgage, so as to defeat the right of the execution creditor to such suri:»lus ; and see the Bills of Sale Act, 1878 (41 & 42 Vict. c. 31), s. 8. Leases. 18. — (1-) A mortgagor of land while in pos- Leasing session shall, as against every incumhrancer, Jnort"-a°or have, by virtue of this Act, power to make from and of time to time any such lease of the mortgaged ;|^°poss!(I!^ land, or any part thereof, as is in this section slon. described and authorized. Prior to this Act neither the mortgagor nor the mort- Powers of gagee could make a lease which would be binding on the leasing, otlier (Keech v. Hall, 1 Dougl. 21 ; Coote on Mortgages, 4th Edit. 709, 740), unless it seems there is an absolute necessity on the part of the latter to grant a lease (Hunger- ford V. Clay, 9 Mod. 1). This section confers upon a mortgagor or mortgagee in possession a power to make certain leases of the mortgaged land, and it is to be observed that this statutory power of leasing is applicable to all mortgages made after the com- mencement of the Act unless a contrary intention is ex- pressed in the mortgage deed (see sub-sect. 13). The section should therefore be expressly excepted if it is deemed advisable to exclude the power. As to the meaning of "incumbrancer," see sect. 2 (vii.). 46 Conveyancing and Law of Frojjerty Act, 1881. Note to If tlie lease of the mortgaged land is not made "as is iu o.l8,SS.i. tiiig section described and authorized," it -would seem that Applica- the Act would not apply, tion of -^^^- (2.) A mortgagee of land while in possession shall, as against all prior incumbrancers, if any, and as against the mortgagor, have, by virtue of this Act, power to make from time to time any such lease as aforesaid. (3.) The leases which this section authorizes are — (i.) An agricultural or occupation lease for any term not exceeding twenty-one years; and (ii.) A building lease for any term not exceed- ing ninety-nine years. (4.) Every person making a lease under this section may execute and do all assurances and things necessary or proper in that behalf. (5.) Every such lease shall be made to take effect in possession not later than twelve months after its date. (6.) Every such lease shall reserve the best rent that can reasonably be obtained, regard being had to the circumstances of the case, but without any fine being taken. (7.) Every such lease shall contain a covenant by the lessee for payment of the rent, and a con- dition of re-entry on the rent not being paid within a time therein specified, not exceeding thirty days. 44 Sf 45 Vict. c. 41, s. 18. 47 (8.) A counterpart of every sucli lease sliall Ijc Sect.J.8. executed by the lessee and delivered to tlie lessor, of which execution and delivery the execution of the lease l)y the lessor shall, in favour of the lessee and all persons deriving title under him, be sufficient evidence. (9.) Every such building lease sliall be made in consideration of the lessee, or some person by whose direction the lease is granted, having erected, or agreeing to erect Avithin not more than five years from the date of the lease, build- ings, new or additional, or having improved or repaired buildings, or agreeing to improve or repair buildings within that time, or having exe- cuted, or agreeing to execute, within that time, on the land leased, an improvement for or in connection with building purposes. For the definition of " building lease," see sect. 2 (x.). (10.) In any such building lease a peppercorn rent, or a nominal or other rent less than the rent ultimately payable, may be made payable for the first five years, or any less part of the term. (11.) In ease of a lease by the mortgagor, he shall, within one month after making the lease, deliver to the mortgagee, or, where there arc more than one, to the mortgagee first in priority, a counterpart of the lease duly executed by the lessee ; but the lessee shall not be concerned to see that this provision is complied with. A counterpart of tlie lease executed by the lessee is to he Counter- delivered to the mortgagee hy the mortgagor Avithin one P*^^ ^^ month of its being made. 48 Convey ancin (J and Law of Proper iij Act, 1881. Sect. 18. (12.) A contract to make or accept a lease under this section may be enforced by or against every person on whom the lease if granted would be binding, (13.) This section applies only if and as far as a contrary intention is not expressed by the mortgagor and mortgagee in the mortgage deed, or otherwise in writing, and shall have effect subject to the terms of the mortgage deed or of any such writing and to the provisions therein contained. Contrary It will be advisable before taking a lease to ascertain intention, -wliether there is any contrary intention expressed which, wonld exclude the application of this section, for it applies only if a contrary intention is not expressed by the mort- gagor or mortgagee in the mortgage deed, or othenoise in writing. (14.) Nothing in this Act shall prevent the mortgage deed from reserving to or conferring on the mortgagor or the mortgagee, or both, any further or other powers of leasing or having reference to leasing; and any further or other powers so reserved or conferred shall be exercise- able, as far as may be, as if they were conferred by this Act, and with all the like incidents, effects, and consequences, unless a contrary in- tention is expressed in the mortgage deed. (15.) Nothing in this Act shall be construed to enable a mortgagor or mortgagee to make a lease for any longer term or on any other con- ditions than such as could have been granted or imposed by the mortgagor, with the concurrence 44 «Sf 45 Vict. c. 41, s. 19. 49 of all the incumbrancers, if this Act had not Sect. 18. been passed. (16.) This section applies only in case of a mortgage made after the commencement o£ this Act ; but the provisions thereof, or any of them, may, by agreement in writing made after the commencement of this Act, between mortgagor and mortgagee, be applied to a mortgage made before the commencement of this Act, so, never- theless, that any such agreement shall not pre- judicially affect any right or interest of any mortgagee not joining in or adopting the agree- ment. (17.) The provisions of this section referring to a lease shall be construed to extend and apply, as far as circumstances admit, to any letting, and to an agreement, whether in writing or not, for leasing or letting. Sale; Insurance; Receiver; Timber. 19. — (1.) A mortgagee, where the mortgage Powers iu- is made by deed, shall, by virtue of this Act, g^'t-.^t" ^r ' have the following powers, to the like extent as if interest of they had been in terms conferred by the mort- ^'^^ S^S^^' gage deed, but not further (namely) : (i.) A power, when the mortgage money has becoDie due, to sell, or to concur with any other person in selling, the mort- gaged property, or any part thereof, either subject to prior charges, or not, and either together or in lots, by public 50 Conveyancing and Law of Property Act, 1881. Sect. 19. auction or by private contract, subject to such conditions respecting title, or evidence of title_, or other matter, as he (the mortgagee) thinks fit, -with power to vary any contract for sale, and to buy in at an auction, or to rescind any contract for sale, and to re-sell, without being answerable for any loss occasioned thereby; and (ii.) A power, at any time after the date of the mortgage deed, to insure and keep in- sured against loss or damage by fire any building, or any effects or property of an insurable nature, whether afiixed to the freehold or not, being or forming part of the mortgaged property, and the premiums paid for any such insurance shall be a charge on the mortgaged pro- perty, in addition to the mortgage money, and with the same priority, and with interest at the same rate, as the mortgage money ; and /• (iii.) A power, when the mortgage money has become due, to appoint a receiver of the income of the mortgaged property, or of any part thereof; and (iv.) A power, while the mortgagee is in pos- session, to cut and sell timber and other trees ripe for cutting, and not planted or left standing for shelter or ornament, or to contracts for any such cutting and sale, to be completed within any time 44 &; 45 Vict. c. 41, s. 19. 51 not exceeding twelve months from the Sect. 19. making of the contract. (2.) The provisions of this Act relating to the ioregoing powers, comprised either in this section or in any subsequent section regulating tlie exer- cise of those powers^ may be varied or extended by the mortgage deed^ and, as so varied or extended, shall, as far as may be, operate in the like manner and with all the like incidents, effects, and con- sequences, as if such variations or extensions were contained in this Act. (3.) This section applies only if and as far as a contrary intention is not expressed in the mort- gage deed, and shall have effect subject to the terms of the mortgage deed and to the provisions therein contained. (4.) This section applies only where the mort- gage deed is executed after the commencement of this Act. THs section provides that in mortgages made after the Mort- 31st of December, 1881, a mortgagee shall, if a contrary ^a-ec's; intention is not expressed, have the following powers :— 1^°^^ (1.) ^Vlien the mortgage money has become due, to sell by public auction or private contract, subject to such condi- tions as he thinks fit, with power to buy in at an auction, to vary or rescind any contract and re-sell without being answerable for loss ; (2.) At any time after date of mort- gage to insure the mortgaged property, and add premiums to principal which shall be a charge on the property witli interest at same rate ; (3.) Wlien mortgage money has become due to appoint a rce uivcr ; and (4.) While tlie mortgagee is in possession to cut and sell timber, or to con- tract for any such cutting and sale, to be completed within twelve months from the making of contract. These powers, E 2 52 Conveyancing and Law of Property Act, 1881. Note to and those contained in any subsequent sections regulating Sect. 19. the exercise thereof, may be varied or extended by the ~ mortgage deed, and shall operate as if such variations or extensions were contained in this Act. " Mort- The term " mortgagee " includes any person from time to i^agec." time deriving title under the original mortgagee, sub- sect. 2 (vi.) ; and it is therefore anticipated that the powers contained in this section can be exercised by an assignee, sect. 21, sub-sect. 4, and sect. 27, sub-sect. 2 : and as to the pro^dsions usually inserted in mortgage deeds, now con- ferred by statute, see sects. 26 and 61. Insiu-ance. With reference to the mortgagee's power of insuring under sub-sect. 2, the amount and application of the insur- ance money is specified in sect. 23 ; and as to the rights of a receiver to insure, see sect. 24, sub-sect. 7. It is to be observed that the necessity of inserting a covenant by the mortgagor to insure is not precluded by the statutory power contained in this section. The ordinary covenants in this respect in a mortgage deed being (1) the mortgagor's covenant to insure, and (2) a power for mort- gagee to insure on default, and a proviso that the mort- gagor will repay on deraand the money expended in pre- miums and interest thereon to the mortgagee, and that until such repayment the same shall l)e a charge on the land. Timber. As to what the term " timber " comprises, see Honyivood v. Honyicood. L. R. 18 Eq. 306. As to the meaning of " ornamental timber," see Baker v. Sebright, 13 Ch. D. 179 ; with respect to the right and power of cutting timber when the mortgagees are in possession, see Simmins v. Uliirley., 6 Ch. D. 173. Mines. The Act apparently makes no alteration with regard to the opening and working of mines, for which, see Fisher on Mortgages, 3rd Edit. 949. Regulation of exercise of power of sale. 20. A mortgagee shall not exercise the power of sale conferred by tins Act unless and until — (i.) Notice requiring payment of tlie mortgage 44 6i- 45 Vict. c. 41, s. 21. 53 money has been served on the mortgagor Sect. 20. or one of several mortgagors, and default has been made in payment of the mort- gage money, or of part thereof, for three months after such service ; or (ii.) Some interest under the mqrtgage_is__^ arrcar and unpaid for two month s after becoming due ; or (iii.) There has been a breach of some provision contained in the mortgage deed or in this Act, and on the part of the mort- gagor, or of some person concurring in making the mortgage, to be observed or performed, other than and besides a covenant for payment of the mortgage money or interest thereon. The power of sale conferred by the Act may be exercised Exercise by the mortgagee : — (1) three months after notice requiring o^ power payment of mortgage debt ; or (2) where some interest has ° *^ ^' begi in an'eju;_foiitwq,mflnths ; or (3) where there has been a breach of some provision contained in the mortgage deed or in the Act on the part of the mortgagor. The notice nmst,be in Avriting. As to the regulations Notice, respecting notice, see sect. 67 ; and see also sect. 2 (xvi). " Month" meails a calendar month. 13 & 14 Vict. c. 21, Month. .s. 4 ; Anon., Barnardiston, G. C. 324 ; 2 Eq. Ca. Abr. 605 ; Freeman v. Read, 4 B. & S. 174. 21. — (1-) A mortgagee exercising the power Con vey- of sale conferred by this Act shall have power, by ^gjuj*^ ^^^ deed, to convey the property sold, for such estate on sale. and interest therein as is the subject of the mort- gage freed from all estates, interests, and rights to section. 54 Conveyancing and Law of Proper Uj Act, 1881. Sect. 21. whicli the mortgage lias priority, but subject to all estates, interests, and rights "vvhich have priority to the mortgage ; except that, in the case of copy- hold or customary land, the legal right to admit- tance shall not pass by a deed under this section, unless the deed is sufficient otherwise by law, or is sufficient by custom, in that behalf. Estate and By Lord Cranwortli's Act (23 & 24 Vict. c. 145), s. 15, interest \}^^ person exercising tlie power of sale had power by deed I to convey or assign to and vest in the purchaser the pro- bv 23 & 24 perty sold for all the estate and interest therein which the Vict.c.l45, person Avho created the charge had power to dispose of, ®' °* except that in the case of copyhold hereditaments the bene- ficial interest only should be conveyed to and vested in the V>s this purchaser by such deed. A mortgagee under this section has only power to convey the property "for such estate and interest therein as is the subject of the mortgage." See mail V. Hillman, 19 W. E. 694. (2.) Where a conveyance is made in professed exercise of the power of sale conferred by this Act, the title of the purchaser shall not be im- peachable on the ground that no case had arisen to authorize the sale, or that due notice was not given, or that the power was otherwise improperly or irregularly exercised ; but any person damnified by an unauthorized, improper, or irregular exer- cise of the power shall have his remedy in damages against the person exercising the power. (3.) The money which is received by the mort- gagee, arising from the sale, after discharge of prior incumbrances to which the sale is not made subject, if any, or after payment into Court under this Act of a sum to meet any prior incumbrance, shall be held by him in trust to be applied by him. 44 6c 45 Vict. c. 41, 6-. 21. 55 firsts in payment o£ all costs, charges, and Sect. 21. expenses, properly incurred by him, as incident to the sale or any attempted sale, or otherwise ; and secondly, in discharge of the mortgage money, interest, and costs, and other money, if any, due under the mortgage ; and the residue of the money so received shall be paid to the person entitled to the mortgaged property, or authorized to give receipts for the proceeds of the sale thereof. As to discharge of incumbrances on sale, see sect. 5, Where real and jsersonal estate are mortgaged together Surplus the mortgagees should require the mortgagor to point out proceeds clearly the person who is to receive the surplus proceeds of sale in order that they may not be involved in any question Avhich may arise between his heir and executor as to the division of such mixed surplus. Dav. Conv., 4th Edit., Vol. I., p. 258 n. (4.) The power of sale conferred by this Act may be exercised by any person for the time being entitled to receive and give a discharge for the mortgage money. (5.) The power of sale conferred by this Act shall not affect the right of foreclosure. (6.) The mortgagee, his executors, adminis- trators, or assigns, shall not be answerable for any involuntary loss happening in or about the exer- cise or execution of the power of sale conferred by this Act or of any trust connected therewith. (7.) At any time after the power of sale con- ferred by this Act has become exerciseable, the person entitled to exercise the same may demand and recover from any person, other than a person 56 Conveyancing and Law of Property Act, 1881. Sect. 21. having in the mortgaged property an estate, interest, or right in priority to the mortgage, all the deeds and documents relating to the property, or to the title thereto, which a purchaser under the power of sale would be entitled to demand and recover from him. Mort- 22.— (1.) The receipt in writing of a mort- gagee s ' . ^ . ° receipts, g^gec shall be a sufficient discharge for any money discharges, arising under the power of sale conferred by this Act, or for any money or securities comprised in his mortgage, or arising thereunder ; and a person paying or transferring the same to the mortgagee shall not be concerned to inquire whether any money remains due under the mortgage. (2.) Money received by a mortgagee under his mortgage, or from the proceeds of securities com- prised in his mortgage, shall be applied in like manner as in this Act directed respecting money received by him arising from a sale under the power of sale conferred by this Act ; but with this variation, that the costs, charges, and expenses payable shall include the costs, charges, and expenses properly incurred of recovering and receiving the money or securities, and of conver- sion of securities into money, instead of those incident to sale. Mort- This section provides that the receipt in ^\■Titing (sect, 2 gagee s_ (xvi.)) of a mortgagee (sect. 2 (vi.)) is a sufficient dis- ^tlno-^'^ charge for any money or securities arising under the power of sale comprised in a mortgage ; and the mortgagee there- fore will be the person entitled to exercise the power of sale conferred by this Act (sect. 21, sub-sect. 4). As to the writing. 44 ^ 45 Vict. c. 41, c. 23. 57 person entitled to exercise the power when the mortgage Note to money has been advanced on a joint account or in distinct Sect. 22. sums, see sects. 28 and 61. The section further j)rovides that a person paying or As to transferring the same to the mortgagee shall not be con- "J[j."jj"jg^j cerned to inquire whether anything is owing on the security. P"'"'^ ^^^'*' As to this, see Dicker v. Angerstcin, 3 Ch. D. 600, in wloich the usual clause relieving the purchaser from making inquiry was held effectual. The difficulties of a mortgagee selling under a power of sale, which contains no provision protecting the purchaser from seeing that default has been made in payment of the mortgage money, are shown in the case of Hobson v. Bell, 2 Beav. 17 : Dav. Conv., Vol. II., Part II., 4th Edit. 79. 23 —(1.) The amount ofan insurance effected Amount by a mortgagee agamst loss or damage by tire (..^tion of under the power in tliat behalf conferred by this insuranca -i^ I • 1 money. Act shall not exceed the amount specihed m the mortgage deed, or, if no amount is therein specified, then shall not exceed two third parts of the amount that would be required, in case of total destruction, to restore the property insured. Tlie amount and application of the insurance money is set Amount _ out in this section (and see sect. 19, sub-sect. 2, with reference '""^1 ^PP|.^' CtltlOll ot to the power conferred upon the mortgagee to insui-e). The ;,isui-auce mortgagee has power under tliis section either to applj^ the uioney. insurance money in making good the damage incurred or in discharge of the money due under his mortgage. This provision seems to press hardly on the mortgagor as in some cases he may have the means of paying the interest Avhich becomes due on the mortgage, but yet Tje unable to incur the expenses of rebuilding the premises. It may, therefore, be deemed advisable to insert the stipulation that the insurance money shall be appHed in reinstating the buildings, and to exclude by special con- tract, the operation of the act (sub-sect. 4). 58 Conveyancing and Law of Projierty Act, 1881. Sect. 23. (2.) An insurance shall not, under the power conferred by this Act, be effected by a mortgagee in any of the following cases (namely) : (i.) Where there is a declaration in the mort- gage deed that no insurance is required : (ii.) Where an insurance is kept up by or on behalf of the mortgagor in accordance with the mortgage deed : (iii.) Where the mortgage deed contains no stipulation respecting insurance, and an insurance is kept up by or on behalf of the mortgagor, to the amount in which the mortgagee is by this Act authorized to insure. (3.) All money i-eceived on an insurance effected under the mortgage deed or under this Act shall, if the mortgagee so requires, be applied by the mortgagor in making good the loss or damage in respect of which the money is received. (4.) Without prejudice to any obligation to the contrary imposed by law, or by special contract, a mortgagee may require that all money received on an insurance be applied in or towards discharge of the monev due under his mortgage. Metropo- litan Building Act. By the provisions of the Metropolitan Building Act, 14 Geo. 3, c. 78, s. 83, the insurance offices upon the request of any person interested in any building destroyed by fire, are bound in certain cases to cause the insurance money to be laid out in rebuilding or reinstating the property. This would be an " obligation to the contrary imposed by law " reiened to in sub-sect. 4. See also the Ecclesiastical Dilapidations Act, 1871 (34 & 35 Yict. c. 4.3). 44 ^)' 45 Vict. c. 41, 5. 24. 59* 24. — (1.) A mortgagee entitled to appoint a Sect. 24. receiver under the power in that behalf conferred Appoint- by this Act shall not appoint a receiver until he ™^^^.^[.^^ has become entitled to exercise the power of sale remuuera- conferred by this Act, but may then, by writing ^'°5'Jo^. under his hand, appoint such person as he thinks receiver, fit to be receiver. This section takes the phxce of, and to a certain degree Keceivevs. extends the powers conferred upon receivers under Lord Cramvorth's Act (23 & 24 Vict. c. 145), ss. 11-30, which sections are repealed by sect. 71 of this Act. Sub-sect 1 provides that a mortgagee entitled to appoint Appoint- a receiver under the power conferred by this Act (sect. 19) "i*^'^.^ «^ shall not make such appointment until he has become entitled to exercise the power of sale (see sect. 20). The mortgagee by virtue of sect. 20, sub-sect. 2, cannot appoint a receiver until some interest under the mortgage is in arrear for two months, whereas when a receiver is appointed in a mortgage deed it is the usual practice to insert a stipulation that the receiver should not act unless the interest is in arrear, and consequently the provision contained in this Act as compared with that usually inserted in a mortgage deed favours the mortgagor rather than the mortgagee. For the distinction between a "receiver" and a "manager," l)istiuc- see III re Manchester and Milfonl Railway Co., 14 Ch. D. ^^°^J^^^' 653. receiver The rule, before the Judicature Act, was that if tlie moxt- and gagee having the legal estate neglected to take the precau- manager, tion of an agreement with the mortgagor for the appoint- ment of a receiver, he could not obtain such appointment by order of court. Berney v. Sewell, 1 J. & "W. 647. By the Judicature Act, 1873, sect. 25, sub- sect. 8, a receiver may be appointed l)y an interlocutory order of the Court in all cases in whicli it shall appear to the Court to be just or convenient that such order should be made, and any such order may be made either unconditionally or upon such terms and conditions as the Court shall think just. rents. •60 Conveyancing and Law of Property Act, 1881. Note to Under this section the appointment of a receiver was ex- S.24,SS.l. tended to the whole property comprised in the security, as to part of which the incumbrancer was a legal, and as to part an ec^mtable mortgagee. Coote on Mortgages, 4th Edit. 1118 ; Fmse v. Fletcher, 1 Ch. D. 273. Applica- As to the application of surplus rents in the hands of a tion of receiver appointed by deed where there is a second mort- ^"^fe^^ gage, and as to the rights of the second mortgagee where payments are made by the receiver to the first mortgagee in excess of liis interest, see Law v. Glenn, L. E. 2 Ch. App. 634. Dav. Conv., 4th Edit, Vol. II., Part II. 104. (2.) The receiver shall be deemed to be the agent of the mortgagor ; and the mortgagor shall be solely responsible for the receiver's acts or defaults^ unless the mortgage deed otherwise pro- vides. (3.) The receiver shall have power to demand and recover all the income of the property of which he is appointed receiver,, by action^ distress, or otherwise, in the name either of the mortgagor or of the mortgagee, to the full extent of the estate or interest which the mortgagor could dis- pose of, and to give effectual receipts, accordingly, for the same. (-4.) A person paying money to the receiver shall not be concerned to inquire whether any case has happened to authorize the receiver to act, (5.) The receiver may be removed, and a new receiver may be appointed, from time to time by the mortgagee by writing under his hand. (6.) The receiver shall be entitled to retain out of any money received by him, for his remunera- tion, and in satisfaction of all costs, charges, and expenses incuiTcd by him as receiver, a commis- 44^f45 Vict. c. 41, s. 21. 61 sion at such rate, not exceeding five per centum Sect. 24. on the gross amount of all money received, as is specified in his appointment, and if no rate is so specified, then at the rate of five per centum on that gross amount, or at such higher rate as the Court thinks fit to allow, on application made by him for that purpose. (7.) The receiver shall, if so directed in Avriting by the mortgagee, insure and keep insured against loss or damage by fire, out of the money received by him, any building, effects, or property com- prised in the mortgage, whether affixed to the freehold or not, being of an insurable nature. (8.) The receiver shall apply all money received by him as follows (namely) : (i.) In discharge of all rents, taxes, rates, and outgoings whatever i gaged property ; and outgoings whatever affecting the mort- (ii.) In keeping down all annual sums or other payments, and the interest on all prin- cipal sums, having priority to the mort- gage in right whereof he is receiver ; and (iii.) In payment of his commission, and of the premiums on fire, life, or other insu- rances, if any, properly payable under the mortgage deed or under this Act, and the cost of executing necessary or proper repairs directed in writing by the mort- gagee ; and (iv.) In payment of the interest accruing due '62 Conveyancing and Law of Property Act, 1881. Sect. 24, in respect of any principal money due under the mortgage ; and shall pay the residue of the money received by him to the person who^ but for the possession of the receiver_, would have been entitled to receive the income of the mortgaged property^ or who is otherwise entitled to that property. Action respecting Mortgage. .saifiof 25. — (!•) Any person entitled to redeem property Tn mortgaged property may have a judgment or action for order for sale instead of for redemption in an. cWe &c. action brought by him either for redemption alone, or for sale alone, or for sale or redemption, in the alternative. (2.) In any action, whether for foreclosure, or for redemption, or for sale, or for the raising and payment in any manner of mortgage money, the Court, on the request of the mortgagee, or of any person interested either in the mortgage money or in the right of redemption, and, notwithstanding the dissent of any other person, and notwithstand- ing that the mortgagee or any person so interested does not appear in the action, and Avithout allow- ing any time . for redemption or for payment of any mortgage money, may, if it thinks fit, direct a sale of the mortgaged property, on such terms as it thinks fit, including, if it thinks fit, the deposit in Court of a reasonable sum fixed by the Court, to meet the expenses of sale and to secure performance of the terms. (3.) But, in an action brought by a person in- terested in the right of rcd^'mption and seeking a 44 6f 45 Vict. c. 41, s. 25. G3 sale, the Court may, on the application of any Sect. 25. defendant, direct the plaintiff to give such security for costs as the Court thinks fit, and may give the conduct of the sale to any defendant, and may give such directions as it thinks fit respecting the costs of the defendants or any of them. (4.) In any case within this section the Court may, if it thinks fit, direct a sale without pre- viously determining tlie priorities of incum- brancers. (5.) This section applies to actions brought either before or after the commencement of this Act. (6.) The enactment described in Part II. of tlie 15 & it; Second Schedule to this Act is hereby repealed, g^^^g '^' ' (7.) This section does not extend to Ireland. This sectiou repeals section 48 of the Cliancery Proce- Sale of dure Amendment Act, 1852 (15 & 16 Vict. c. 86), wliicli mortgaged gave the Court power in any suit for the foreclosure of ? o e- ^ ^ ^^ the equity of redemption in any mortgaged propertj^, closure ac- upon the request of the mortgagee, or any subsequent tion. incumbi'ancer, or of the mortgagor, or any person claim- ing under them respectively, to direct a sale of sucli property instead of a foreclosure of such equity of redemp- tion, on such terms as the Court may think fit ; and if the Court shall so think fit, without previously determining tlie priority of incumbrances, or giving the usual or any time to redeem, provided that if such request shall be made by any such subsequent incumbrancer, or by the mortgagor, or by any person claiming under them respectively, the Court shall not direct any such sale without the consent of the mortgagee or the persons claiming under him, unless the party making such request shall deposit in Court a rea- sonable su:n of money, to be fixed by the Court, for tlie 64 Conveyancing and Law of Projjerty Act, 1881. Note to pnrpose of securing tlie performance of such terms as the S.25,SS.7. Court may think fit to impose on the party making such request. This section is, in reality, a re-enactment, in an ex- tended form, of the repealed section. As a general rule, the mortgagor and all persons having any interest in the equity of redemption are " persons en- titled to redeem" under sub-sect. 1 (Seton, ] 051 ; and see sect. Parties to 16, supra) ; and all persons having an interest in themort- action. gj^gg security or equity of redemption should be made par- ties to the action. Decisions It may be convenient to state a few of the principal deci- on sect. 48 sions on the repealed section, which are, to a great extent, V- \^ ^R^ authorities upon the present section. The Court has a ' discretionary power in dii-ecting a sale. In Hutton v. Sealeyy 6 W. E. 350, it was held that, although the mortgage deed contained an express power of sale and foreclosure was not prayed for in the bill, a sale might, under that section, be directed (and see Macrae v. EUerton, 4 Jur. N. S. 967) ; but it must not operate injuriously or oppressively on any per- sons interested (Hurst v. Hurst, 16 Beav. 372). Power of The Court may direct a sale, although the third incum- court to brancer refuses, if the rest consent ( TFicJJtam v. Nicholson, ^losu"^°^^'- ^^ -^^^^"- ^^^ ' ^^^^ ^* *^^ request of the mortgagee, if the tion. mortgagor be bankrupt (Gator v. Reeves, 9 Ha. App. liii. n.; 16 Jur. 1004) ; and in the absence of the mortgagor, against whom the action has been taken ^sro confesso (Woodford v. Brooking, L. E. 17 Eq. 425 ; but see Jones v. Bailey, 17 Beav. 582) Coote on Mortgages, 4th Edit. 999 ; also when it may be beneficial for an infant mortgagor (Mears v. Best, 10 Ha. App. li. ; Wigham v. Measor, 5 W. E. 394 ; Siffken V. Davis, Kay, App. xxi.), or where the rents are not suffi- cient to keep down the interest on the first mortgage (Phillifs V. Gutteridge, 4 De G. & Jo. 531) ; and without the consent of the mortgagor (Newman v. Selfe, 33 Beav. 522) ; and also where leasehold property is unlet and can- not be let and is consequently improductive (Foster v. Harvey, 4 De G. J. & S. 59) ; but not if the property is likely to be sold for less than its value (Hurst v. Hurst, 16 Beav. 372). 44 Sr 45 Vict. c. 41, s. 2G. 65 The deposit fsee sub-sect. 2) must be sufficient to cover, Note to at a rough estimate, all possible expenses of an abortive S.2 5,SS .7. attempt at a sale {Bellamy v. Cockle, 2 W. R. 326) ; and a Deposit, reserved bidding to be fixed sufficient to cover the amount found due to the plaintiffs, the mortgagees (JVliitfield V. Eoherts, 5 Jur. N. S. 113). An immediate sale is not generally ordered except under Time for special circumstances, but a period of six months is the redemp- usual time {Lloyd v. Wliittey, 17 Jur. 754 ; Seton, 1047). *^°°- V. — Statutory Mortgage. 26. — (1.) A mortgage of freehold or lease- Form of hold land may be made by a deed expressed to be statutory „ . . mortgage made by way of statutory mortgage, being in the in schedule form given in Part I. of the Third Schedule to this Act, with such variations and additions, if any, as circumstances may require, and the pro- visions of this section shall apply thereto. (2.) There shall be deemed to be included, and there shall by virtue of this Act be implied, in the mortgage deed — First, a covenant with the mortgagee by the person expressed therein to convey as mortgagor to the effect following (namely) : That the mortgagor will, on the stated day, pay to the mortgagee the stated mortgage money, with interest thereon in the meantime, at the stated rate, and will thereafter, if and as long as the mortgage money or any part thereof remains unpaid, pay to the mortgagee interest thereon, or on the unpaid part thereof, at the stated rate, by equal half-yearly payments, the first thereof to be made at the end of six 66 Conveyancing and Law of Property Act, 1881. Sect. 26. calendar months from tlie clay stated for payment of the mortgage money : Secondly, a proviso to the effect followiug (namely) : That if the mortgagor, on the stated days^ pays to the mortgagee the stated mortgage money, with interest thereon in the meantime, at the stated rate, the mortgagee at any time thereafter, at the request and cost of the mortgagor, shall re-convey the mortgaged property to the mortgagor, or as he shall direct. Form of The form of statutory mortgage set out in the Third statutoiy Schedule, Part I. of this Act, is concise, and can be adopted mortgage, j^j^ simple mortgages of land, with such variations and addi- tions as circumstances may require (sub-sect. 1). By this sec- tion the covenants for payment of principal and interest in the iisual way, and a proviso for the re-conveyance of the mort- gaged property to the mortgagor, eras he shall direct (sect. 15, sub-sect. 1), are implied ; general words, sect. 6 ; covenants for title are implied by sect , 7 ; the ordinary powers incident to the estate or interest of a mortgagee, viz., power of sale, to insure, to appoint a receiver, and to cut timber are conferred by sects. 19 — 24 ; by sect. 28, implied covenants are deemed to be joint and several. Under sects. 58 and 59, covenants bind the " heii's and assigns " or " executors, administrators, and assigns," as the case may require ; sect. 63 provides for " all the estate " clause ; and by sect. 64, the words in implied covenants and provisoes are construed as meaning the singular or plural number, or the mascuUue or feminine gender, as the case may require. Forms of QY. — (1-) A transfer of a statutory mortgage transfer of may be made by a deed expressed to be made by mortgage ^g^y Qf statutory transfer of mortgage, being in in schedule. •' '' 44 .^' 45 Vict. c. 41, s. 27. 67 such one of the three forms (A.) and (B.) aucl (C.) Sect. 27. given in Part II. of the Third Schedule to this Act as may he appropriate to the case, with such variations and additions, if any, as circumstances may require, and the provisions of this section shall apply thereto. (2.) In whichever of those three forms the deed of transfer is made, it shall have effect as follows (namely) : (i.) There shall become vested in the person to whom the benefit of the mortgage is ex- pressed to be transferred, who, with his executors, administrators, and assigns, is hereafter in this section designated the transferee, the right to demand, sue for, recover, and give receipts for the mort- gage money, or the unpaid part thereof, and the interest then due, if any, and thenceforth to become due thereon, and the benefit of all securities for the same, and the benefit of and the right to sue on all covenants with the mortgagee, and the riglit to exercise all powers of the mortgagee : (ii.) All the estate and interest, subject to re- demption, of the mortgagee in the mort- gaged land shall vest in the transferee, subject to redemption, (3.) If the deed of transfer is made in the form (B.), there shall also be deemed to be included, and there shall by virtue of this Act be implied therein, a covenant with the transferee by the F 2 68 Conveyancing and Laio of Property Act, 1881. Sect. 27. person expressed to join therein as covenantor to the effeet following (namely) : That the covenantor -will, on the next of the days by the mortgage deed fixed for payment of interest, pay to the transferee the stated mortgage money, or so much thereof as then remains unpaid, with interest thereon, or on the unpaid part thereof, in the meantime, at the rate stated in the mortgage deed; and will thereafter, as long as the mortgage money, or any part thereof, remains unpaid, pay to the transferee interest on that sum, or the unpaid part thereof, at the same rate, on the successive days by the mortgage deed fixed for payment of interest. (4.) If the deed of transfer is made in the form (C), it shall, by virtue of this Act, operate not only as a statutory transfer of mortgage, but also as a statutory mortgage, and the provisions of this section shall have effect in relation thereto, accordingly ; but it shall not be liable to any increased stamp duty by reason only of it being designated a mortgage. Form of The three forms (A.), (B.), and (C.) of a statutory transfer statutory of mortgage are applicable to the following cases : — (1.) I al^^ er o w'jjgj.g ^j^g mortgagee makes a simple transfer to the trans- ° feree, the mortgagor not joining ; (2.) AYhere there is a transfer in which the mortgagor enters into fraeh covenants for payment of the jjrincipal and interest ; and (3.) Where the mortgagor joins and conveys to the transferee, and which operates not only as a transfer of mortgage but also as a new mortgage to the transferee. The statutory form (C.) of transfer, it is to be observed, sufficiently expresses an intention to keep the original 44 Sr 45 Vict. c. 41, s. 28. G9 mortgage alive for tlie purpose of protecting tlie purchaser Note to _ against mesne incumbrances : Adams v. Angell, 5 Ch. b.z7,SS.4» D. 634. It is advisable that the transferee of a mortgage should Mortgagor make the mortgagor a party to the deed, if his concurrence ^ P^rty. can be obtained, for the purpose of admitting that the mortgage debt is still owing. When the deed of transfer is made in the form (C.) it is Stamp .not liable to any increased stamp duty, by reason only of ^^^tj* it being designated a mortgage. So it was decided in JValc V. Commissioners of Inland Revenue, L. R. 4 Ex. D. 270, where an instrument being in substance a " transfer of a mortgage " within the meaning of the Stamp Act, was held liable to be stamped as a transfer and not as a mortgage. The recital in form (C.) — " And whereas, B. is seized in fee simple of the land comprised in the said mortgage, sub- ject to that mortgage," — seems to be inserted in the deed so as to gain the benefit conferred by sect. 2, sub.-sect. 2, of the Vendor and Purchaser Act, 1874 : Bolton, v London School Board, 7 Ch. D. 766 ; and see sect. 3, sub.-sect. 3, siqora, by which recitals contained in the abstracted instru- ments of documents forming part of the prior title are to be assumed by the purchaser to be correct unless the contrary appears. 28. In a clccd of statutory mortgcage^ or of Implied statutory transfer of mortgage, where more per- Joi^^and * sons tlian one are expressed to convey as mort- several. gagors, or to join as covenantors, the implied covenant on their part shall be deemed to be a joint and several covenant by them; and where there are more mortgagees or more transferees than one, the implied covenant with them shall be deemed to be a covenant with them jointly, unless the amount secured is expressed to be secured to them in shares or distinct sums, in whicli latter case the implied covenant with them shall be 70 Conveyancing and Law of Property Act, 1881. Sect^28. deemed to be a covenant with eacli severally in resjDect of the share or distinct sum secured to him. Implied By tins section when tlie mortgagors are more than one covenants, in number the implied covenant on their part is joint and joint and several, and everv mort"agor is held to have received the severul .^ o o whole amount of the anoney advanced ; but when the mortgagees or transferees are more than one in number, the implied covenant with them is a joint covenant, unless the mortgage debt is secured to them in distinct sums, in which case the implied covenant with them is deemed a covenant with each severally in respect of the distinct sum seciired to liim. Form of 2 9 . A re-conveyance of a statutory mortgage ance of ^^J ^^ made by a deed expressed to be made by statutory -nrav of statutory re-conveyance of mortgage, in scbecfule being in the form given in Part III. of the Third Schedule to this Act, with such variations and additions, if any, as circumstances may require. Statutory The form of a deed of statutor}^ re-conveyance of mort- re-convey- ^^^ ^^^^ -^^ ^^^ Third Schedule, Part. III., can be used ance of ® ^ . . _ tit , . mort"-ao-e. ^^v ^™- ^ very simple case, and that that was the intention of the legislature appears from the words used in this sec- tion, viz., " with such variations and additions, if any, as cir- cumstances may retj^uire." These words would also permit the statutory form of re-conveyance, with the necessary alterations, to be by indorsement on the mortgage deed. As C. in the statutory form is expressed to convej' as mortgagee, there will be an implied covenant against in- cumbrances. See sect. 7, sub-sect. 1 (F.). A^I. — Trust and Mortgage Estates on Death. Devolution 30. — (!•) Where an estate or interest o£ in- mor"4^e" hcritance, or limited to the heir as special occu- 44 Sr 45 Vict. c. 41, s. 30. 71 pant, in any tenements or hereditaments, corporeal Sect. 30. or incorporeal, is vested on any trust, or by way estates on of mortgage, in any person solely, the same shall, tl^atli. on his death, notwithstanding any testamentary disposition, devolve to and become vested in his personal representatives or representative, from time to time, in like manner as if the same were a chattel real vesting in them or him ; and accordingly all the like powers, for one only of several joint personal representatives, as well as for a single personal representative, and for all the personal representatives together, to dispose of and otherwise deal with the same, shall belong to the deceased's personal representatives or repre- sentative, from time to time, with all the like incidents, but subject to all the like rights, equi- ties, and obligations as if the same were a chattel real vesting in them or him; and, for the pur- poses of this section, the personal representatives, for the time being, of the deceased, shall be deemed in law his heirs and assigns, within the meaning of all trusts and powers. (2.) Section four of the Vendor and Purchaser 37 & 38 Act, 1874, and section forty-eight of the Land 3g*^^'3g' Transfer Act, 1875, are hereby repealed. Vict. c.87. (3.) This section, including the repeals therein, applies only in cases of death after the commence- ment of this Act. This section rej^eals the 4th section of the Vendor and Devolution Purchaser Act, 1874 (37 & 38 Vict. c. 78), which provided Jj[*^^"*^|J°^ that the legal personal representatives of a mortgagee of a estates ° freehold or copyhold estate to whicli the mortgagee shall 7^ Conveyancing and Law of Property Act, 1881. Note to have been admitted, might, on payment of all sums secured S.30,SS.3. \,Y the mortgage, convey or surrender the mortgaged estate, whether the mortgage was in form an assurance subject to redemption, or an assurance upon trust ; and also repeals the 48th section of the Land Transfer Act, 1875 (38 & 39 Vict. c. 87), which is as follows : — Section 5 of the Vendor and Purchaser Act, 1874, shall he repealed on and after the commencement of this Act, except as to anything duly done thereunder before the commencement of this Act ; and, in- stead thereof, be it enacted that, upon the death of a bare trustee intestate as to any corporeal or incorporeal heredita- ments of which such trustee was seized in fee simple, such hereditaments shall vest like a chattel real in the legal personal representative from time to time of such trustee ; but the enactment of this section, substituted for the afore- said section of the Vendor and Purchaser Act, 1874, shall not ajjply to lands registered imder tliis Act. Alteration An important alteration is made by this section in the made by law as to the devolution of trust and mortgage estates ^^^ in cases of death after the 31st December, 1881, so that trust and mortgage estates will, upon any death after that date, notwithstanding any testamentary disposition, vest in the personal representatives like a chattel real, with all the like incidents, rights, equities, and obligations, and the personal representatives will be deemed his heirs and assigns within the meaning of all trusts and powers. The expression, " not^vithstanding any testamentary dis- position," makes the section imperative. As to the statutory power to convey given to the personal representatives of a vendor dying before completion of con- tract, see sect. 4. VII. — Trustees and Executors. Appoint- 31. — (1.) Where a trustee, either original or ^^^^ °^ substituted, and whether appointed by a court or trustees, otherwise, is dead, or remains out of the United vestmg of g;^^g(jQj^ f q^. ^q^q than twelve months, or desires 41 ^ 45 Vict. c. 41, s. 31. 73 to be disclmrged from the trusts or powers reposed Sect. 31. in or conferred on him, or refuses or is unfit to trust pro- act therein, or is incapable o£ acting therein, then P'^^'^y* ^^• the person or persons nominated for this purpose by the instrument, if any, creating the trust, or if there is no such person, or no such person able and willing to act, then the surviving or continu- ing trustees or trustee for t he time bein g, or the personal representatives of the last surviving or continuing trustee, may, by writing, appoint another person or other persons to be a trustee or trustees in the place of the trustee dead, remain- ing out of the United Kingdom, desiring to be discharged, refusing or being unfit, or being in- capable, as aforesaid. The provisions contained in this and the following sec- Appoint- tions were, to a great extent, embodied in sects. 11 to 30 nient of of Lord Cranworth's Act (23 & 24 Vict. c. 145), which J'^JJ *^'"^" are repealed by sect. 71 of this Act. Certain powers and provisions, which were omitted in that Act, are now pro- vided for in this enactment, such as the case of a trustee Residence remaining out of the United Kingdom for more than abroad, twelve months (sub-sect, 1), for prior to this Act it was held that the residence abroad of a trustee was not in itself a sufficient cause for ajipointing another in his place. Be Moravian Society, 26 Beav. 101 ; Withington v. IVith- ington, 16 Sim. 104 ; but see Mennard v. Welford, 1 Sm. & G. 426. The expression " where a trustee is dead " is explained by sub-sect. j6 as including the case of a person nominated trustee in a will, but dying before the testator ; and the the expression " a continuing trustee," as including a re- fusing or r etiring trustee, if willing to act in the execution of the provisions of this sectioiTT" Expenses incuTrecTlnthe appointment of new trustees are usually borne by the trust estate. 74 Conveyancing and Law of Froptrty Act, 1881. Sect. 31. (2.) On an appointment of a new trustee, the number of trustees may be increased. (3.) On an appointment of a new trustee, it shall not be obligatory to appoint more than one new trustee, where only one trustee was originally appointed, or to fill up the original number of trustees, where more than two trustees were originally appointed; but, except where only one trustee was originally appointed, a trustee shall not be discharged under this section from his trust unless there will be at least two trustees to perform the trust. "Whether The courts have held that it is not necessary to adhere original ^^ |^|^g original number of trustees appointed, and have trustees allowed two trustees to be appointed in the place of three must be {Bidkdey v. ^arl of Eglinton, 1 Jur. (n.s.) 994) ; and two adhered to. trustees instead of one {Re Timstall, 4 De G. & Sm. 421 ; In re Breary, W. N., 1873, p. 48) ; but would not, as a rule, appoint an only trustee (Grant v. Grant, 6 N. E. 347)» It is to be observed that by sub-sect. 3 there must be at least two trustees to perform the trust, except where only one trustee was originally appointed, before a trustee can be discharged under this section from his trust. (4.) On an appointment of a new trustee any assurance or thing requisite for vesting the trust property, or any part thereof, jointly in the per- sons who are the trustees, shall be executed or done. As to the vesting of trust property in new or continuing trustees, see sect. 34. (5.) Every new trustee so appointed, as well before as after all the trust property becomes by law, or by assurance, or otherwise, vested in him, 44 ^ 45 Vict. c. 41, s. 32. 75 shall have the same powers, authorities, and dis- Sect. 31. crctioiis, and may in all respects act, as if lie had been originally appointed a trustee by the instru- ment, if any, creating the trust. As to the powers of a new trustee appointed by the court Powers of with respect to trust property before it is legally vested in ^*^"' *'^"^" him, see sect. 33. (6.) The provisions of this section relative to a trustee who is dead include the case of a person nominated trustee in a will but dying before the testator; and those relative to a continuing trus- tee include a refusing or retiring trustee, if willing to act in the execution of the provisions of this section. (7.) This section applies only if and as far as a contrary intention is not expressed in the instru- ment, if any, creating the trust, and shall have , effect subject to the terms of that instrument and to any provisions therein contained. (8.) This section applies to trusts created either before or after the commencement of this Act. It is important to notice that this section applies, unless a contrary intention is expressed, to trusts created either before or after the commencement of this Act . 32. — (1.) Where there are more than two Retho- trustees, if one of them by deed declares that he ™^ste° is desirous of being discharged from the trust, and if his co-trustees and such other person, if any, as is empowered to appoint trustees, by deed consent to the discharge of the trustee, and to the vesting 76 Conveyancing and Latv of Properly Act, 1881. Sect. 32. in the co-trustccs alone of the trust property, then the trustee desirous of being discharged shall be deemed to have retired from the trust, and shall, by the deed, be discharged therefrom under this Act, without any new trustee being appointed in his place. Retire- This section provides that where there are more than two ment of trustees, one of them, unless a contrary intention is ex- trustee, pressed, may by deed be discharged from the trust 'without any new trustee being aj^pointed in his place. It is to be noticed that there must be more than two trustees, and before a trustee can avail himself of the ojieration of this section the consent by deed of his co-trustees to the retire- ment must be obtained, whereas, by sect. 31, a trustee may be appointed by writing (sect. 2, xvi.). Vesting of By sect. 34, sub-sect. 2, it is provided that the declaration trust pro- in a deed discharging a trustee will, without any conveyance perty. ^^ assignment, vest the trust property in the continuing trustees alone as joint tenants ; but should the trust pro- perty comprise any of the estates and interests excepted from the operation of that section (see sect. 34, sub-sect. 3). it will be necessary that a deed of conveyance or transfer should be executed in the ordinary way. (2.) Any assurance or thing requisite for vest- ing the trust property in the continuing trustee alone shall be executed or done. (3.) This section applies only if and as far as a contrary intention is not expressed in the instru- ment, if any, creating the trust, and shall have effect subject to the terms of that instrument and to any provisions therein contained. (4.) This section applies to trusts created either before or after the commencement of this Act. 44 ^^ 45 Vict, c. 41, s. 34. 77 33. — (1.) Every trustee appointed by the Sect. 33. Court of Chancery _, or by the Cliancery Division Powers of of the Court, or by any other court of competent "^^^' *^^!' ' J -' ^ tee appoin- jurisdiction, sliall, as well before as after the trust ted by property becomes by law, or by assurance, or ^o^"^*- otherwise, vested in him, have the same powers, authorities, and discretions, and may in all res- pects act, as if he had been originally appointed a trustee by the instrument, if any, creating the trust. (2.) This section applies to appointments made either before or after thecommencementof this Act. This section is in reality a re-enactment of a part of Powers of sect. 27 (now reijealed, see sect. 71, post), of Lord Cranworth's "^^^^ ^^^s- Act (23 & 24 Vict. c. 145), with this alteration, tliat a ^3^1^^^°'"' trustee appointed by the court now can act before the trust court, property lias become vested in him as if he had been an original trustee. See sect. 31, sub-sect. 5. 34. — (1.) Where a deed by which a new Vesting of trustee is appointed to perform any trust contains *^^!!* V^'°' a declaration by the appointor to the effect that new or any estate or interest in any land subject to the ^°"*'"""^» trust, or in any chattel so subject, or the right to recover and receive any debt or other thing in action so subject, shall vest in the persons who by virtue of the deed become and are the trustees for performing the trust, that declaration shall, with- out any conveyance or assignment, operate to vest in those persons, as joint tenants, and for the purposes of the trust, that estate, interest, or right. By this section it is provided that where, after the Vestino- 31st December, 1881, a new trustee is appointed by a deed, trust jro- 78 Conveyancing and Law of Property Act, 1881. Note to containing a declaration that the trust propertj^ shall vest S.34,SS.l. in such trustee, such declaration shall, without any convey- pcrt'v~in ^^^^ ^^ assignment, vest the property in " the persons -who new or by virtue of the deed become and are the trustees." coutinuiiig It appears to be questionable whether the Act aj)plies to trustees. ^|^g ^^^^ q£ ^^ appointment of a new trustee to act with continuing trustees, because it can scarcely be said that the latter are " persons who by virtue of the deed become and are the trustees for performing the trust," and such declara- tion as mentioned in this section would therefore have the effect of vesting the whole estate in the new trustees alone. With respect to the mode of vesting trust estates, see Lewin on Trusts, 7th Edit, ch. XXIV., s. 6. And with regard to the trust property expressly excepted from the operation of this section, see sub-sect. 3, post. It is to be noticed that this section only aj^plies when a trustee is appointed ly deed, therefore if a trustee has been appointed by writing (see sect. 31) it is evident that the section is inapplicable, unless the trustees are re-appointed on their " being desirous of retiring." Li re Crowe's Trusts, 14 Ch. D. 610. .Stamp. ^y s^c*- "^S <^f the Stamp Act, 1870 (33 & 34 Vict. c. 97), it is provided that a conveyance or transfer made for effectuating the appointment of a new trustee is not to be charged with any higher duty than 10s. ; but in the case of Hadgctt y. Commissioners of Inland Revenue, 3 Ex. D, 46, it was held that an order of charity commissioners, by which, new trustees of a charity are appointed, and the property of the charity vested in them, did not come within this pro- viso, but was chargeable under sect. 8 of that Act. (2.) "Where a deed by which a retiring trustee is discharged under this Act contains such a declaration as is in this section mentioned by the retiring and continuing trustees, and by the other person, if any, empowered to appoint trustees, that declaration shall, without any conveyance or assignment, operate to vest in the continuing 44 Sr 45 Vict. c. 41, s. 35. 70 trustees alone, as joint tenants, and for the pur- Sect. 34. poses of the trust, the estate, interest, or right to which the declaration relates. As to the retu'ement of trustees, see sect. 32. (3.) This section does not extend to any legal estate or interest in copyhold or customary land , or to land conveyed by way of mortgage for securing money subject to the trust, or to any such share, stock, annuity, or property as is only transferable iu books kept by a company or other body, or in manner prescribed by or under Act of Parliament. It is to be noticed that the provisions of this section do Property not apply to all descriptions of trust property, copyholds, ^^^^^^^ppj.. customary lands, lands conveyed by way of mortgage for ^^j^^^ ^^ securing money subject to trusts, and stock transferable in section, books kept by a company being expressly excluded from the operation of this section. (4.) For purposes of registration of the deed in any registry, the person or persons making the declaration shall be deemed the conveying party or parties, and the conveyance shall be deemed to be made by him or them under a power conferred by this Act. (5.) This section applies only to deeds executed after the commencement of this Act. 35. — (1-) Where a trust for sale or a power Power for of sale of property is vested in trustees, they may g^ie tTsell sell or concur with any other person in selling, all byauctiou, or any part of the property, either subject to 80 Conveyancing and Law of Property Act, 1881. Sect. 35. prior charges or not, and either together or in lots, by public auction or by private contract, subject to any such conditions respecting title or evidence o£ title, or other matter, as the trustees think fit, with power to vary any contract for sale, and to buy in at any auction, or to rescind any contract for sale, and to re-sell, without being answerable for any loss. Power for This section extends the provisions contained in the trusteesfor i^^ ^nd 2nd sections of Lord Cranworth's Act, and as those ^ e se , ggg^^Qjjg gj^,g j^q|. repealed by this Act, thev -^Till read in con- junction with this section. By Lord Cranworth's Act it was enacted that : — 23 & 24 "1. In all cases where by any will, deed, or other Vict. c. 145, instrument of settlement, it is expressly declared that Trustees trustees or other persons therein named or indicated shall empowered have a power of sale, either generally, or in any particular to sell may event, over any hereditaments named or referred to in or sell in lots, from time to time subject to the uses or trusts of such will, bv auction '^^^^'^^5 '^'^ other instrument, it shall be lawful for such trustees or private or other persons, whether such hereditaments be vested in contract, them or not, to exercise such power of sale by selling such. hereditaments either together or in lots, and either by auction or private contract, and either at one time or at several times, and (in case the power shall expressly authorize an exchange) to exchange any hereditaments which for the time being shall be suly'ect to the uses or trusts aforesaid for any other hereditaments in England, or Wales, or in Ireland (as the case may be), and upon such exchange to give or receive any money for equality of exchange. Sale may " 2. It shall be lawful for the persons making any such be made sale or exchange to insert any sucli special or other stipiula- under tions, either as to title or evidence of title, or otherwise, in ditions ^^^ conditions of sale, or contract for sale or exchange, as and trus- they shall think fit, and also to buy in the hereditaments tees may or any part thereof at any sale by auction, and to rescind or buy in, &c. ^ary any contract for sale or exchange, and to re-sell the 44(^45 Vict. c. 41, s. ^6. 81 laereditaments wliich sliall be so Louglit in, or as to -wliicli Note tO the contract shall he so rescinded, witliovit being respon- S.35,SS.l. sible for any loss which may be occasioned thereby, and no 3)urchaser under any such sale shall be bound to inquire whether the persons making the same may or may not have in contemplation any particular reinvestment of the pur- chase money in the purchase of any other hereditaments or otherwise." And by sect. 32 it was declared that none of the powers conferred by the statute should be exerciseable if it was declared in the instrument creating the power that they should not take effect. It will be noticed on comparison that the power of sale conferred by this section on trustees is with respect to " property," whereas in Lord Cranworth's Act (sect. 1) it is in reference to " hereditaments," id. est., laud. See note to .sect. 42, sub-sect. 5 (iii.). (2.) Tins section applies only if and as far as a contrary intention is not expressed in the instru- ment creating tlie trust or power, and shall have effect subject to the terms of that instrument and to the provisions therein contained. (3.) This section applies only to a trust or power created by an instrument coming into ■operation after the commencement of this Act. It Avill be observed that this section applies only to a trust or power created by an instrument coming into opera- tion after the commencement of this Act, 31st December, 1881, whereas the provisions contained in Lord Cran- worth's Act extended only to persons entitled or acting under an instrument executed after the passing of that Act ■(28th August, 1860). Sect. 34. 36. — (!•) The receipt in writing of any trus- Trustees' tees or trustee for any money, securities, or other ^ ^^^^ j)ersonal' property or effects payable, transferable. 83 Conveyancing and Law of Property Act, 1881. Sect. 37. or deliverable to tliem or liim 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. Trustees' This section, wliicli is retrosj^ective (sub-sect. 2), re-enacts receipts, and extends the provisions relating to trustees' receipts con- tained in sect. 29, of Lord Cranworth's Act (now rej)2aled by sect. 71, jpost), which provided that the receipts in writing of any trustees or trustee for any money payable to them or him by reason or in exercise of any trusts or powers should be good discharges. It will be observed that in that section the woixls used are " for any money," in this section the words are " for any money, securities, or other personal projierty or effects." As to the principle the courts went upon that a purchaser should be recLuired to see to the application of his purchase money, see Elliott v. Merryman; White and Tudor's Leading; Cases, Vol. I., 4th Edit. 64; and Lewin on Trusts, 7th Edit. ch. XVIIL, s. 2. It is anticipated that notwithstanding, the powers conferred by this section, it will still be unsafe- to pay to a trustee when the holder of the money is aware of the intention of the trustee to commit a breach of trust- ^eeFernicv. Maguire, 6 Ir. Ecj. Rep. 137. Keceipts The power of giving receipts by anticipation is exenqjlified by iintici- in the recent case of Anson v. Potter, 13 Ch. D. 141, in patiou. which it was held that where a fund subject to a life estate is settled, the tenant for life and the trustees of the settled reversion could give a good discharge for it before the- reversion fell in. (2.) This section applies to trusts created either before or after the commencement of this Act. Applica- tion of purchase uiouoy. 37. — (1-) An executor may pay or allow any Power for GXGCUtOl'S and trus- debt or claim on any evidence that he thinks suffi- tecs to cient. 44 ^ 45 Vict. c. 41, 5. 37. 83 (2.) An executor, or two or more trustees act- Sect. 37. ing together, or a sole acting trustee wliere, by compound, the instrument, if any, creating the trust, a sole &«• trustee is authorized to execute the trusts and powers thereof, may, if and as he or they think fit, accept any composition, or any seciirity, real or personal, for any debt, or for any property, real or personal, claimed, and may allow any time for payment of any debt, and may compromise, com- pound, abandon, submit to arbitration, or other- wise settle any debt, account, claini, or thing whatever relating to the testator's estate or to the trust, and for any of those purposes may enter into, give, execute, and do such agreements, instruments of composition or arrangement, releases, and other things as to him or them seem expedient, without being responsible for any loss occasioned by any act or thing so done by him or them in good faith. This section is a re-enactment, in an extended form, of Power for sect. 30 of Lord Cranwortli's Act (now repealed by sect. 71, ^^^{^^^°g^ 2)0st). The powers conferred upon executors by the re- \^^q^ ^q pealed section are now extended to trustees. The word compound, '' executor " is substituted for " executor?," and the more &c. comprehensive words " debt, or for any property, real or per- sonal," are here inserted instead of the word " debt " in the repealed section. Previously to this Act it was held that a trustee might, imder certain circumstances, release or compound a debt, but he was bound to exercise a sound discretion (Blue v. Marshall, 3 P. Wms. 381 ; Eatdiffe v. TFinch, 17 Beav. 216) ; but where a trustee releases without any considera- tion (Jevon V. Bush, 1 Vern. 343) ; or where trustees of a bond debt on the bankruptcy of the obligor concurred with Lis other creditors in consenting to the fiat l^eing annulled G 2 84 Conveyancing and Law of Property Act, 1881. Note to ^^ t^^s payment of a composition, and it being impossible to S.37,SS.2. show tliat the bankrupt ayouW liave obtained his certificate, ~~" or that the debt might not have been recovered in full {Wiles V. Gresham, 5 De G. M. & G. 770) ; or where the debt is sold by the trustee for an inadequate consideration by the trustee {In re Alexander, 13 Ir. Ch. Ee. 137), it has been held that the trustees were liable to make good the full amount of the debt. Lewin on Trusts, 7th Edit, ch. XXII., s. 1. It is anticipated that, notwithstanding the apparently unlimited power to compromise, &c. , conferred upon trustees by tliis section, a cestui que trust vnll be able to call the trustee to account if his conduct is fraudulently and manifestly injurious to the trust estate. A trustee is not liable on the ground that he does not accept terms of compromise. Ex parte Ogle, L. E. 8 Ch. App. 715. (3.) As regards trustees, ttis section applies only if and as far as a contrary intention is not expressed in the instrument^ if any, creating the trust, and shall have effect subject to the terms of that instrument and to the provisions therein contained. (4.) This section applies to executorships and trusts constituted or created either before or after 4 the commencement of this Act. It is to be noted that this section is retrospective and diflers in this respect from the 30th section of Lord Cran- worth's Act, which, by sect. 34 of that Act, extended only to instruments executed after the passing of that Act, i.e., 2Sth August, 18G0. This section is not applicable if a con- trary intention is expressed in the instrument creating the trust. Powers to 38. — (1 •) Where a power or trust is given to more"^ "" o^' vestcd in two or more executors or trustees executors jointly, then, unless the contrary is expressed in or trustees. 44 Sf 45 Vict. c. 41, s. 39. 85 the instrument, if any, creating the power or trust, Sect. 38, the same may be excreised or performed by the survivor or survivors of them for tlie time bein^. (3.) This seetion applies only to executorships and trusts constituted after or created by instru- ments coming into operation after the commence- ment of this Act. Where a power or trust is vested in two or more executors or trustees jointly, the same may, unless tlie contrary is expressed in the instrument (sect. 2 (xiii.)), be exercised or performed by " the survivor or survivors of them." The frecjuent repetition of these words will now be done away with. VIII. — Married Women. 39. — (1.) Notwithstanding that a married Power for woman is restrained from anticipation, the Court ^imj i^. may, if it thinks fit, where it appears to the court terest of to be for her benefit, by judgment or order, with woman. her consent, bind her interest in any property. (2.) This section applies only to judgments or orders made after the commencement of this Act. The effect of this section is apparently to reverse the Power of decision oi Robinson v. Whedwriglit, 21 Beav. 214, in which c^^^t^^o case it was held that where there is attached to the separate ^gj-est of estate of a married woman a clause against anticipation, the married court has no power to release it from that restraint, even ui woman. cases where it would manifestly be for her benefit to do so ; but see Wilton v. Hill, 25 L. J. Ch. 156, where it was held that a married woman having property to her separate use, without power of anticipation, had power to bind the corpus of the estate by a compromise entered into by her ; and in CUvq v. Carew, 1 J. & H. 199, it was hold that a 86 Conveyancing and Law of Property Act, 1881. Note to Sect. 39. Court. " For her benefit." Settled Estates Act. wife's property, settled by herself on marriage to her separate use, without power of anticipation, could not be applied to make good loss occasioned by her own breach of trust in making away with other property in which she had, by the same settlement, reserved to herself a life interest only. As the " Court" is defined as Her Majesty's High Court of Justice (sect. 2 (xviii.)), it is evident that the county courts have no jurisdiction to make an order under this section. It is thought that an order for jmyment of debts with her consent {Lowtherx, Bentinck, L. E. 19 Eq. 166) ; or money advanced to set up a married woman in business {Talbot v, Marshfield, L. K. 3 Ch. App. 622) would probably be included in the expression " for her benefit " within the meaning of this section ; and see also Pike v. Fitzgibhon, 17 Ch. D. 454. It is to be noticed that under sect. 50 of the Settled Estates Act, 1877 (40 & 41 Vict. c. 18), the legislature apparently endeavoured to break ujd to a certain extent the one excej»tion to the general law that all property should not be inalienable. By that section it is declared that no clause or provision in any settlement restraining anticipa- tion shall prevent the Court from exercising, if it shall think fit, any of the powers given by this Act, and no such exercise shall occasion any forfeiture, anything in the settlement contained to the contrary notwithstanding. Power of 40. — (1-) A married woman, whether an married infant or not, shall, by virtue of this Act, have woman. power, as if she were unmarried and of full age, by deed, to appoint an attorney on her behalf for the purpose of executing any deed or doing any other act which she might herself execute or do ; and the provisions of this Act relating to instruments creating powers of attorney shall apply thereto. (2.) This section applies only to deeds executed after the commencement of this Act. 44^45 Vict. c. 41, 5.41. 87 This section provides that a married woman, "wlietlier an Note to infant or not, may, by deed, executed after the 31st Sect. 40. December, 1881, appoint an attorney for the purpose of Powers of •executing any deed or doing any other act which she might attorney of herself execute or do. married In Kcnrick v. Wood, L. R. 9 E.^. 333, it was held that "'°™'"^- where a married woman, who was entitled to the income of property held on trust for her separate use, with a restraint on anticipation, joined with her husband in a power of attorney to receive and to sue for any moneys due to them or either of them, the trustee was not justified in paying the attorney the Avife's separate income. The execution of a power of attorney by a grantor should. Execution as a general rule, be attested by two witnesses. The at- of power of torney should exercise his powers in th £name of his pri n- '\°^^^^' cipal, and use and sign his principal's name instead of his . own: 9 Co. V6, Stra. 765. As to the execution and attes- / , • tation of a power of attorney to be exercised in the colonies, * j^-f^^..^ see Dav. Conv. I., 4th Edit. 491 ; and see also 15 & 16 Vict. . -i,.i:^C /^ c 86, s. 22. // ^ ' fi/4l^ As to the provisions of the Act relating to powers of ''^ . o n^ .attorney, see sects. 46-48. I^^ ^'/ /^^ 4- - IX. — Infants. 41. Where a person in his own right seised of ^''^l*^' »"•! or entitled to land for an estate in fee simple, or ijJhalf of for any leasehold interest at a rent, is an infant, infant the land shall he deemed to be a settled estate ^'^ 41 within the Settled Estates Act, 1877. Vict. c.18. The Settled Estates Act, 1877, enacts that in case of Settled hereditaments of any tenure, or any estate or interest in such Estates hereditaments, limited to or in trust for any persons byway Act, 1877 of succession, the Court {i.e., the Chancery Division), may \r- , ^ •, g\ authorise leases of estates so settled subject to certain restrictions as to length of term, amomit of rent, and other- wise. Sect. 4. 88 Conveyancing and Law of Property Act, 1881. Note to T^>^* power of authorising leases may be exercised either Sect. 41. loy approving particular leases or by vesting powers of leasing in trustees. Sect. 10. On the execution by the person directed by the Court to execute a particular lease, the lease takes effect as if the person executing were then alxsolutely entitled to the whole estate or interest which is bound by the settlement. Sect. 12. Wlien the Court vests the power of leasing in trustees, such power is to o^^erate as if it had been originally con- tained in the settlement, and if necessary by way of revoca- tion and appointment of the use or otherwise. Sect. 13. The court may authorise sales of the Avhole or any part of a settled estate or of the timber (not being ornamental timber) growing on such estate. Sect. 16. The Court may sanction proceedings for the protection of a settled estate, and may charge the costs of the proceed- ings on the estate or direct tliem to be raised by sale or other\vise. Sect. 17. The Coiu't may reserve a fee farm rent on land sold for building purposes (sect. 18), and may sell the land excepting the minerals (sect. 19), and may authorise the dedication of any part of the estate for roads and other works. Sects. 20,^ 21. On such, sales or dedications the Court may direct what person or persons shall execute the conveyance, which shall take effect as if made in execution of a power contained in the settlement, and if necessary by way of revocation and appointment of the use or otherwise. Sect. 22. Sect. 34 gives the Court power to direct the ai^plication of the money arising from such sales {inter alia), to redeem- ing land tax, paying off incumbrances, purchasing other hereditaments to be settled to the same uses. Effect of This section seems to extend these powers to neaily every section. interest except that of a lease held at no rent, or for which the consideration is a premium. Mode of It is presumed that the method of application to the applyinjT to Court will be by petition under sect. 23 of the Settled the Court. Estates Act, in the manner prescribed by rule 5 of the orders 44 Sr 45 Vict. c. 41, s. 42. 8» mider the Settled Estates Act, of December, 1878 ; and Note to not by suminons at cliambers under sect. 69, sub-sect. 3, of Qect. 41. this Act. 42. — (1.) If and as long as any person wlio Manage- would but for this section be beneficially entitled |"j^"^ .^^^^ to the possession of any land is an infant, and receipt and being a woman is also unmarried, the trustees tjonoT^;,^. appointed for this purpose by the settlement, if come dur- any, or if there are none so appointed, then the ||.^^^ i»"ioi" persons, if any, who are for the time being under the settlement trustees with power of sale of the settled land, or of part thereof, or with power of consent to or approval of the exercise of such a power of sale, or if there are none, then any per- sons appointed as trustees for this purpose by the court, on the application of a guardian or next friend of the infant, may enter into and continue in possession of the land ; and in every such case the subsequent provisions of this section shall apply. This section renders it unnecessary for tlie future to insert Manage- the usual clauses providing for management during j"'-'i^t of minorities in settlement of real estate. See Dav. Conv. III., receipt and p. 999, et seq. The word settlement seems intended to in- applica- clude will ; the more general word instrument is used in tion ofin- sub-sect. 7, and the words " comes into operation," in sub- p°'"® '}"^- sect. 8, seem adapted to the case of a will ; unless they are j(;,? intended to mean " comes into operation as regards the infant's interest," so as to apply to the case of an instrument made before the Act ; what the term " instrument " in- cludes, see sect. 2 (xiii). The method of applying to the court is by summons at l\rode of chambers. Sect. 69, sub-sect. 3. applying to Court. 90 Conveyancing and Law of Pi'opei'ty Act f 1881. Sect. 42. (2.) The trustees shall manage or superintend the management of the land, with full power to fell timber or cut underwood from time to time in the usual course for sale, or for repairs or other- wise, and to erect, pull down, rebuild and repair houses, and other buildings and erections, and to continue the working of mines, minerals, and quarries which have usually been worked, and to drain or otherwise improve the land or any part thereof, and to insure against loss by fire, and to make allowances to and arrangements with tenants and others, and to determine tenancies, and to accept surrenders of leases and tenancies, and generally to deal with the land in a proper and due course of management ; but so that, where tlie infant is impeachable for waste, the trustees shall not commit waste, and shall cut timber on the same terms only, and subject to the same restrictions, on and subject to which the infant could, if of full age, cut the same. Sub-sect 2 enables the tnifjtees " to deal with the land in a proper and due course of management ; " whereas the power usually given is to deal with the land as if they were the absolute owners. The difference is not practically great, for the court would no doubt restrain an undue exercise of the power. Eestrictlon The last part of the section deals with the case of an where the infant who is impeachable for waste, and seems practically infant is only to restrict the trustees in pulling down buildings and \A9 for' ^^^ cutting timber for sale, except where the timber is usually waste. felled at fixed intervals and forms in fact the crop. See Honytuood v. Honywood, L. R. 18 Eq. .306 ; and Lowndes v. Norton, 6 Ch. D. 139. As to what is " timber," see note to sect. 19. It should be noticed that this sub-sect, enables the trustees only to continue workmg mines wluch have 44 ^ 45 Vict. c. 41, s. 42. 91 usually been worked, . 837). A like con- struction may possibly be given to this section although the Avords " income of the property " are substituted for the Income of words, in the repealed section, "income to which such I'^'^P'-'i'tj'' infant may be entitled in resjsect of" the property. It ■will be necessary to consider in a particular case whether there is not an expression of contrary intention within the meaning of sub-sect. 3. Payment to the parent is expressly authorised by In re Payment Cotton, 1 Ch. D. 232, on the ground that the word " guar- ^^^ parents dians " in the 26th section of Lord Cranworth's Act includes (j;„^^g' the father as guardian by nature. The payment may be for the benefit of the infant. Por the It was held to be for the " benefit " of the cestui que trust, ^^'^f ^^^^ in Loiuther v. Bentinck, L. E. 19 Eq. 166, to pay his debts, and no doubt this section will receive as liberal a con- struction. See note to sect. 39. It should be noticed that the j)Ower arises only where When the the contingency is the infant attaining twenty-one, or the V^wcv occurrence of some event before his attaining that age. ai'isses. In a case, therefore, where, as In re Breed's Will, 1 Ch. D. 226, the contingency is attaining tAventy-five or marriage, the power does not arise at all ; and does not merely, like the power given by Lord Cranworth's Act, stop at minority. (2.) The trustees shall accumulate all the residue of that income in the way of compound interest, by investing the same and the resulting income thereof from time to time on securities on which they are by the settlement, if any, or by 96 Conveyancing and Law of Property Act, 1881. Sect. 43. law^ aiitliorized to invest trust moncy^ and shall hold those accumulations for the benefit of the person "who ultimately becomes entitled to the property from which the same arise ; but so that the trustees may at any time, if they think fit, apply those accumulations, or any part thereof, as if the same were income arising in the then current year. For a list of f^ome of tlie investments authorized Ly law, see I.ewin on Trusts, ch. XIV., s. 4 ; Seton on Degrees, 488. (3.) This section applies only if and as far as a contrary intention is not expressed in the instru- ment under which the interest of the infant arises, and shall have effect subject to the terms of that instrument and to the pronsions therein contained. "Trusts of The trusts of the surjDlus accumulations are, Ly sub-sect. 3, accuinu- subject to the terms of the instrument under which the ]ated fund, interest of the infant arises ; it is presumed tliat if the trust be, for example, for the infant for life, that would be a sufficient expression of contrary intention, and that it would not be necessary expressly to declare that the accu- mulation should go to the personal representative of the infant. (4.) This section applies whether that instru- ment comes into operation before or after the commencement of this Act. Sub-sect. 4 makes the section retrospective, so that the power given by this section is substituted for that given by sect. 26 of Lord Cranwoilh's Act (repealed sect. 71,^J0si), in any case to which this section applies. It is presumed, hoAvever, that where a power lias actually 44 Sf 45 Vict. c. 41, s. 44. 97 come into operation under Lord Crauworth's Act, it will Note to not be affected by tliis Act. See sect. 71, sub-sect. (2). S.43,S8.4. X. — B-ENTCHARGES AND OTHER AnNUAL SuMS. 44. — (1 •) Where a person is entitled to receive Remedies out of any land, or out of the income of any laud, covery of any annual sum, payable half-yearly or otherwise, annual whether charged on the land or on the income of ^hl^ted the land, and whether by way of rentcharge or on laud, otherwise, not being rent incident to a reversion, then, subject and without prejudice to all estates, interests, and rights having priority to the annual sum, the person entitled to receive the same shall have such remedies for recovering and compel- ling payment of the same as are described in this section, as far as those remedies might have been conferred by the instrument under which the annual sum arises, but not further. This section seems designed to avoid the necessity of Powers of inserting in settlements powers of distress and entry, or distress, 1 Gutrv &c of creating terms to secure jointures and other annual pay- •" ments out of the income of land. It applies to annual pay- ments (other than rent Incident to a reversion) charged upon land or upon the income of land. As to the distinction between annuities charged on land and on the income of land, and the remedies of annuitants, see Pliilli])s \. Gutteridge, 3 D. J. & S. 332 ; Jarman on Wills, vol. II., p. 306, note (/) ; Seton on Degrees, 963 ; and the recent cases of Gee v. Mahood, 5 App. Cas. 588, and Wormald v. Murxen, 17 Ch, D. 167 (reversed on Appeal, 29 W. R. 795). It seems probable that the words in sub-sect. 1, " charged Powers on the land or on the income of the land," mean charged on only affect the income in such a way as to charge the land. Unless *^*'^ ^'"^^^ the land is charged the powers given by the following ^ '^^^ H 98 Convey anciny and Law of Property Act, 1881. Note to sections cannot operate, for they are all confined to " the S.44,ss.l. land charged." (2.) If at any time the annual sum or any part thereof is unpaid for twenty-one days next after the time appointed for any payment in respect thereof, the person entitled to receive the annual sum may enter into and distrain on the land charged or any part thereof, and dispose accord- ing to law of any distress found, to the intent that thereby or otherwise the annual sum and all arrears thereof, and all costs and expenses occa- sioned by non-payment thereof, may be fully paid. The powers given by this section are powers to enter and distrain if the annual sum is in arrear for twenty- one days. (3.) If at any time the annual sum or any part thereof is unpaid for forty days next after the time appointed for any payment in respect thereof, then, although no legal demand has been made for payment thereof, the person entitled to receive the annual sum may enter into possession of and hold the land charged, or any part thereof, and take the income thereof, until thereby or other- wise the annual sum and all arrears thereof due at the time of his entry, or afterwards becoming due during his continuance in possession, and all costs and expenses occasioned by nonpayment of the annual sum, are fully paid ; and such posses- sion when taken shall be without impeachment of waste. Power to take possession in case of nonpayment for forty days. 44 c^- 45 Vict. c. 41, s. 44. 99 (4.) In the like case tlic person entitled to the Sect. 44. annual charge, Avhether taking possession or not, may also by deed demise the land charged, or any 2Jart thereof, to a trustee for a term of years, with or without impeachment of waste, on trust, by mortgage, or sale, or demise, for all or any part of the terra, of the land charged, or of any part thereof, or by receipt of the income thereof, or by all or any of those means, or by any other reasonable means, to raise and pay the annual sum and all arrears thereof due or to become due, and all costs and expenses occasioned by nonpayment of the annual sum, or incurred in compelling or obtain- ing payment thereof, or otherwise relating thereto, including the costs of the preparation and execu- tion of the deed of demise, and the costs of the ■execution of the trusts of that deed ; and the sur- plus, if any, of the money raised, or of the income received, under the trusts of that deed shall be 2Daid to the person for the time being entitled to the land therein comprised in reversion imme- •diately expectant on the term thereby created. Power ill the like case {i.e., presumably nonpayment for forty days) to demise the laud and pay the aimuity, &c., by mortgage or sale of the term thus created. In sub-sects. (2), (3), and (4) the powers are given to Arrears, recover all arrears, but it is presumed that this will not prevent the statutes of limitation from operating. It may be observed that a covenant for payment is not implied by this section, and the expression of a contrary intention will render the section inapplicable. (5.) This section applies only if and as far as a contrary intention is not expressed in the instru- H 2 loo Conveyancing and Law of Property Act, 1881. Sect. 44. ment under which the annual sum arises, and shall have effect subject to the terms of that instrument and to the provisions therein con- tained. (6.) This section applies only where that in- strument comes into operation after the com- mencement o£ this Act. Eedemp- 45. — (!•) Where there is a quitrent, chief- tion of rent, rentcharsre, or other annual sum issuing out quitrents -' ... n i j -k \ and other of land (m this section referred to as the rent), perpetual ^^^ copvliold commissioners shall at any time, on the requisition of the owner of the land, or of any person interested therein, certify the amount of money in consideration whereof the rent may be redeemed. Redemp- This is an extension of some of the powers of the copy- tion of iiold commissioners under 15 & 16 Vict. c. 51, and 21 & 22 ^'^^*^^ f'/*^ Vict. c. 94, to lands which are not copyholds but holden of pernetual ^ manor, or which are otherwise subject to a perpetual charges. rentcharge. (2.) Where the person entitled to the rent is absolutely entitled thereto in fee simple in pos- session, or is empowered to dispose thereof absolutely, or to give an absolute discharge for the capital value thereof, the owner of the land, or any person interested therein, may, aftfer serv- ing one month's notice on the person entitled to the rent, pay or tender to that person the amount certified by the commissioners. The owner By sub-sect. (2) the operation of tlie section seems to be ©f the contined to cases where the owner of the rent is entitled to 44 ^ 45 Vict. c. 41, s. 45. 101 the rent in fee simple in possession, or empowered to (lis- Note to pose thereof absolutely, or to give a discharge for the S.4 5,SS .2. capital value of the rent. rout must be abso- (3.) On proof to the commissioners that pay- lutely ment or tender has been so made, the}'- shall ^ ' certify that the rent is redeemed under this Act ; and that certificate shall be final and conclusive, and the land shall be thereby absolutely freed and •discharged from the rent. (4.) Every requisition under this section shall be in writing ; and every certificate under this :section shall be in writing, sealed with the seal o£ the commissioners. (5.) This section does not apply to tithe rent- charge, or to a rent reserved on a sale or lease, or to a rent made payable under a grant or license for building purposes, or to any sum or payment issuing out of land not being perpetual. By sub-sect. 5 the section is not to apply to tithe rent- Section charge, to rent reserved on a sale or lease, or made payable i^ot to under a grant for building purposes, or to any payment not ^?^ ^ ? perpetual. * These restrictions will leave but a narrow field for the ■operation of this section ; especially if it be incumbent on the person making the requisition to show that the annual sum issuing out of his land was not reserved upon a sale of .some kind. (G.) This section applies to rents payable at, or created after, the commencement of this Act. The section applies to rents created before as well as -after the 31st December, 1881. (7.) This section does not extend to Ireland. 102 Conveyancing and Laiv of Property Act, 1881, XI. — Povv'ERs OF Attorney. Sect. 46. 46. — (1-) The clouec of a, power of attorney Executiou may, if lie thinks fit, execute or do any assurance,. power of instrument, or thing in and with his own name attorney, and signature and his own seal, where sealing is required, by the authority of the donor of the power ; and every assurance, instrument, and thing so executed and done shall be as effectual in law, to all intents, as if it had been executed or done by the donee of tlie power in the name and ■with the signature and seal of the donor thereof. (2.) This section applies to powers of attorney created by instruments executed either before or after the commencement of this Act. Execution This section alters the rule stated as settled law in of deed by Uiwrw v. Zees, 14 Ch. D. 249, 256, that where an attorney ° ■ describes himself as an attorney, and professes to grant as- an attorney and execute as an attorney, hut does not execute in the name of and on behalf of his principal, that is a bad execution. The form of power generally given enables the attorney to do any act in the name of the principal, and the prin- cipal, and not the attorney, is generally made a party to- the deed executed under the power. See Dav. Conv. I., 4th Edit., 43, 475. This section will probably alter that practice. The section applies to powers of attorney already created. Payment 4:7. — (!•) Any pcrson making or doing any by attor- payment or act, in good faith, in pursuance of a power power of attorney, shall not be liable in respect 44 Sr 45 Vict. c. 41, s. 48. 103 of the payment or act by reason that before the Sect. 47. payment or act the donor of the power had died without or become hmatic, of unsound mind, or bank- °"^'?^ ^ ' . ' death, &c. rupt, or had revoked the power, if the fact of good. death, lunacy, unsoundness of mind, bankruptcy, or revocation was not at the time of the payment or act known to the person making or doing the same. This section extends the indemnity given by Lord St. Indem- Leonards' Act (22 & 23 Vict. c. 35, s. 26) to any person "^*^J'- acting in pursuance of a power of attorney and to the cases of revocation by hinacy, &c. See Lewin on Trusts, ch. XIV. s. 6. It is, perhaps, doubtful whether hmacy or unsoundness of mind has of itself the efl'ect of revoking a power of attorney, and this section does 3iot enact that it shall have that effect. See Dreiv v. Niinn, 4 Q. B. D. 661. (2.) But this section shall not affect any right against the payee of any person interested in any money so paid ; and that person shall have the like remedy against the j)ayee as he would have had against the payer if the payment had not been made hj him. Sub-sect. (2) does not affect the right of persons inte- rested in the money to follow it in the hands of the person, to whom it is jiaid, as if he were the original debtor or trustee. (3.) This section applies only to payments and acts made and done after the commencement of this Act. 48. — (1.) An instrument creating a power Deposit of of attorney, its execution being verified by afii- ^^^^^ 104 Conveyancing and Law of Property Act, 1881. Sect. 48. davit, statutory declaration, or other sufficient ments evidence, may, with the affidavit or declaration, pmvers^f ^^ ^^^^ ^^ deposited in the central office of the attorney. Supreme Court o£ Judicature. (2.) A separate file of instruments so deposited shall be kept, and any person may search that file, and inspect every instrument so deposited, and an office copy thereof shall be deliA'cred out to him on request. (3.) A copy of an instrument so deposited may be presented at the office, and may be stamped or marked as an office copy, and when so stamped or marked shall become and be an office copy. (4.) An office copy of an instrument so depo- sited shall without further proof be sufficient evidence of the contents of the instrument and of the deposit thereof in the central office. (5.) General rules may be made for purposes of this section, regulating the practice of the central office, and prescribing, with the concur- rence of tlie commissioners of Her Majesty^s treasury, the fees to be taken therein. (6.) This section applies to instruments creat- ing powers of attorney executed either before or after the commencement of this Act. Custody of This section provides a means of safe custody for tlie docu- originals of instruments creating powers of attorney, and of ments. producing copies which shall he evidence of the contents Copies. ^£ ^^ instrument (not merely of the terms of the power of Evidence. ^^^^^^^^^^ 44 Sr 45 Vict. c. 41, s. 50. 105 As to the general rules under sub-sect. (5), see sect. C9, Note to sub-sect. (8), x>ost. Sect. 48. The section applies to instruments executed either before or after the Act. XII. — Construction and Effect of Deeds and OTHER Instruments. 49. — (1.) It is hereby declared that the use Use of of the word grant is not necessary in order to o-rant un- convey tenements or hereditaments, corporeal or necessary, incorporeal. (2.) This section applies to conveyances made before or after the commencement of this Act. This section is merely declaratory of the law (see Dav. Conv., 4th Edit., voL I., p. 75 ; Wmiams' R. P., 13th Edit. 203), and will probably not affect the use of the word in practice. 50. — (1.) Freehold land, or a thing in Convey- action, may be conveyed by a person to himself p"rson^to jointly with another person, by the like means by himself, which it might be conveyed by him to another ^' person; and may, in like manner, be conveyed by a husband to his wife, and by a wife to her husband, alone or jointly with another person. (2.) This section applies only to conveyances made after the commencement of this Act. Tliis section is supplementary to sect. 21 of Lord St. Lord St. Leonards' Act (22 & 23 Vict. c. 35), whereby " any person Leonards' shall have power to assign personal property now by law assignable, including chattels real, directly to himself and 106 Conveyancing and Law of Property Act, 1881. Note to Sect. 50. Convey- aiicc by a person to hiiiisulf and another. " Him- self." another person, or otlier persons or corporation, by tlie like means as he might assign the same to another." This section gives the like power "with respect to any freehold hereditament or any chose in action. See sect. 2, (ii.) and (xvii.). With respect to freeholds the effect is merely to enable the instrument to operate without the help of the Statute of Uses. See "Williams' Eeal Property, 11th Edit., pp. 189, 227. The latter part of the section enables a husband to convey to his \vife, or a wife to her husband, property which, he or she might convey to another. It does not extend the wife's power of dealing with her property, nor relieve her from any of the formalities now necessary. Unless the word "himself" in sect. 21 of Lord St. Leonards' Act includes the assignor's wife, the assignor seemingly has still no jiower to assign personalty or chattels real to his wife alone or jointly v.dth. another, and if he attempts to do so the property will vest entirely in the other person. Williams' Personal Property, 9th Edit. 454; but see Moijsc v, Gijles, 2 Vem. 385. Queer e, whether this section applies to a case where a person who owns lands adjacent to the glebe lands sells them to be annexed to the glebe, and has to convey as private person to himself as j)arson. There is nothing in the section to prevent personal pro- perty vested in the wife from vesting in the husband ; the conveyance should therefore state that the property is for her separate use. It may be observed that if a technical construction is placed upon the Avord "jointly," it might have the effect of making this section inajiplicable to a conveyance by a man to himself and another as tenants in common, but it is anti- cipated that the word will not be so construeil. The section applies only to conveyances made after 31st Deeember, 1881. Words of r- T limitation Ol. — (1.) Ill a deccl it shall be sufficient,, in in tail °^ ^^^ limitation of an estate in fee simple^ to use '■ Jointly." 44 Sr 45 Vict. c. 41, s. 52. 107 the words in fee simple, without the word heirs ; Sect. 51. and in the limitation of an estate in tail, to use the words in tail without the words heirs of the body; and in the limitation of an estate in tail male or in tail female, to use the words in tail male, or in tail female, as the case requires, Avithout the words heirs male of the body, or heirs female of the body. (2.) This section applies only to deeds executed after the commencement of this Act. This section, which ajjplies only to deeds executed after Words of the commencement of the Act, will render the law clear limitation for the future (if it was doubtful before) as to the meaning J" J^? °^" of the words fee simple, tail, and tail male or female when used in a deed as words of limitation. The effect of this section, in enabling the draftsman to shorten some instruments, may be seen by a comparison of Form IV., Sched. IV., with the forms in Dav. Conv., 3rd Edit., vol. 111., pt. 11., pp. 1040 and 119G. The estate to be taken must be clearly marked out, or limited either by the proper words conferring an estate iu fee simple, tail, tail male or female, or by the use of the expressions in this section. A conveyance to a man and^ his assigns for ever, or to a man and the issue of his body will not confer a fee simple or estate tail respectively, but a life estate only will be given. "Williams' E. P., lOtli Edit. 143. 52. — (1-) A person to whom any j)ower. Powers whether couiiled with an interest or not, is siven **'^JP^y , ^ ^ . coUaters may by deed release, or contract not to exercise, the power. (2.) This section applies to powers created by instruments coming into operation either 108 Conveyancing and Laiv of Pi'operty Act, 1881. Sect, 52. Different iinds of powers. Power simply- collateral •could not be re- leased. Power in gross. Married women. Infants. before or after the commencement; of this Act. The following exi^osition of the different kinds of powers is given by Jessel, M. E., in the case of Re D'Augibaii, 15 Ch. D, 232 : — " The first power, a power simply collateral, I understand to be a power given to a person who has no interest whatever in the property over which the power is given. The second power, a power in gross, is a power given to a person who has an interest in the property over which the power extends, but such an interest as cannot be affected by the exercise of the power. The most fandliar instance is that of a tenant for life with a power of appoint- ment after his death. Then the third kind of power is a power exerciseable by a person who has an interest in the property, which interest is capable of being afiected, dimi- nished, or disposed of to some extent by the exercise of the power. That power is commonly called a power appen- dant or appurtenant." Before this Act a power simply collateral could not be released or extinguished with respect to land which it affected, and a power to be exercised for the benefit of another could not be released. See notes to Edwards & Slater, Tudor's Leading Cases, 3rd Edit, 368. A power appendant or in gross might have been released, but aj^parently a covenant not to exercise a power in gross is void. Palmer v. Locke, 15 Ch. D. 294. A married woman may release or extinguish a power under sect. 77 of the Fines and Eecoveries Act (3 & 4 Will. 4, c. 74), or if the power relates to reversionary per- sonalty under Malins' Act (20 & 21 Vict. c. 57) by a deed acknowledged in which her husband concurs. It is pre- sumed that these formalities will still be necessary. Powers over personalty, collateral or in gross, may be exercised by an infant. Powers over real estate cannot be exercised by an infant, unless the power be expressly made exerciseable during minority, nor can an infant exercise a power by -wilL Be D'Augibau, 15 Ch. D, 228. This section probably enables an infant to release or contract to release any power which he might exercise, but 4i ^ 45 Vict. c. 41, s. 54. 109 probaWy does not add otherwise to the value of an infant's Note to deed or contract. Se ct. 5 2. This section in no "way affects the e(|uital)le doctrines as Doctrine to frauds on powers, as to which see Aleyn v. Belchier, of fraud 1 AYhite and Tudor's Leading Cases, 4th Edit. 377. ou power It should l)e noticed that the marginal note is '' powers jjg-gcted simply collateral." This will not restrict the meaning of jviarginal the section. note. 53. — (1.) A deed expressed to be supple- Co'istruc- mental to a previous deed, or directed to be read suppie- as an annex thereto, shall, as far as may be, be mental or read and have effect as if the deed so expressed jeed. or directed were made by way of indorsement on the previous deed, or contained a full recital thereof. (2.) This section applies to deeds executed either before or after the commencement of this Act. It is difficult to see what the exact effect of this section Supple- will he. It is clearly intended to provide for shortening mental or deeds by omitting recitals which will be convenient enouch '^'^"^xed . deed, while the deeds are physically annexed or actually accom- pany each other ; but a deed in which the recitals are im- plied in this way may, Avhen taken by itself, be very unin- telligible, and apparently will give constructive notice of everything in the previous deed. For examjile, the deeds of statutory transfer of mortgage in the Third Schedule, Part II. (A.), (B.), and (C.) are stated by recital to be supplemental to an indenture of statutory mortgage, and the deed of statutory re-conveyance in Part III. to be supj^lemental to the transfer of mortgage, which is itself supplemental to the original mortgage deed. 54:. — (1-) A receipt for consideration money ^^^"P*'"^ or securities in the body of a deed shall be a suflfi- cient. 110 Conveyancing and Law of Projieriy Act, 1881. Sect. 54. cient discharge for the same to the person paying or delivering the same, "u-ithout any further receipt for the same being indorsed on the deed. (2.) This section applies only to deeds executed after the commencement of this Act. Pieceipt in Sr 45 Vict. c. 41, s. QQ. 127 guilty of neglect or brcacli of duty, or become Sect. 66. in any way liable, by reason of his omitting, in good faith, in any such instrument, or in con- nexion with any such contract or transaction, to negative the giving, inclusion, implication, or apj)lication of any of those powers, covenants, provisions, stipulations, or words, or to insert or apply any others in place thereof, in any case where the provisions of this Act would allow of his doing so. (2.) But nothing in this Act shall be taken to imply that the insertion in any such instru- ment, or the adoption in connexion with, or the application to, any contract or transaction, of any further or other powers, covenants, pro- visions, stipulations, or words is improper. (3.) Where the solictor is acting for trustees, executors, or other p^'sons in a fiduciary position, those persons shall also be protected in like manner. (l.) Where such persons are acting without a solicitor, they shall also be protected in like manner. As to proper or usual powers in executory trusts, see Lewin on Trusts, 6tli Edit. 112. So long as a solicitor acts in good faitli, he sliall not be deemed negligent for omitting to modify tlie provisions of the Act. If he does modify the powers, &c., given by the Act, he is left under his present liability. Trustees, executors, &c., whether employing a solicitor or not, enjoy a similar immunity. .128 Conveyancing and Law of Projierty Act, 1881. Sect. 67. Hegiila- tions re- specting notice. Notice iu >vritin2'. XV. — Miscellaneous. BY. — (1.) Any notice required or authorized by this Act to be served shall be in writing. The notice required by tliis section shall be in Avriting, or (sect. 2 (xvi.)) in print, or partly in writing and partly in print. (2.) Any notice required or authorized by this Act to be served on a lessee or mortgagor shall be sufficient^ although only addressed to the lessee or mortgagor by that designation^ without his name, or generally to the persons interested without any name, and notwithstanding that ( in pursuance of any former Act repealed by that Act, notwithstanding any exception in such former Act. Sect. 40 of the Settled Estates Act provides that an Act "iinder the authority of the Court, and purporting to be in pursuance of that Act, shall not be invalidated except as against some person whose concurrence ought to have been obtained, or who ought to have had notice, but has not ; and see Bcioleij v. Carter, L. E. 4 Ch. 230 ; Re Shepheard's Settled Estates, L. E. 8 Ecp 571. (3.) This section applies to all orders made before or after the commencement of this Act, except any order which has before the commence- ment of this Act been set aside or determined to be invalid on any ground, and except any order as regards which an action or proceeding is at the commencement of this Act pending for having it set aside or determined to be invalid. This section is retrospective, but does not apply where the order has been attached before the commencement of the Act. XVII. — Repeals. 71. — (1.) The enactments described in Part Repeal of III. of the Second Schedule to this Act are j^guts in hereby repealed. l':"t HI- of Second (2.) The repeal by this Act of any enactment ^';^^';?"|'^' shall not affect the validity or invalidit}^, or any on all operation, effect, or consequence of any instru- ^'epcals. ment executed or made, or of anything done or 134 Conveyancing and Law of Property Act, 1881. Sect. 71. suffered, before the commencement of tins Act, or any action, proceeding, or tiling then pending- or uncompleted ; and every such action, proceed- ing, and thing may be carried on and completed as if there had been no such repeal in this Act ; but this provision shall not be construed as qualifying the provision of this Act relating to section forty of the Settled Estates Act, 1877, or any former Act repealed by that Act. Repeal of This section, whicli repeals sects, 11 to 30 of Lord enact- Cramvortli's Act, provides that the repeal shall not affect ments. ^^ operation, effect, or consecLuence of any instrument executed or made before 31st December, 1881, so that where Lord Cranworth.'s Act has been relied on this Act will not alter the effect of a deed or will already made. For the provision of this Act relating to sect. 40 of the Settled Estates Act, 1877, see ante, sect. lO. XVIII.— Ireland. Modifica- ijg. — (1.) In the application of this Act to spTcting Ireland the foregoing provisions shall be modified Ireland, ^g -^^ ^j^jg section provided. (2.) The Court shall be Her Majesty's High Court of Justice in Ireland. (3.) All matters within the jurisdiction of that Court shall, subject to the Acts regulating that Court, be assigned to the Chancery Division of that Court ; but general rules under this Act may direct that any of those matters be assigned to the land judges of that division. (4.) The proper office of the Supreme Court of Judicature in Ireland shall be substituted for the central ofiice of the Supreme Court of Judicature. 44 Sr 45 Vict. c. 41, s. 73. 135 (5.) General rules for purposes of this Act for Sect. 72. Ireland shall be deemed Rules of Court within the Supreme Court of Judicature Act (Ireland), 1877, v°ict.c.^57, and may be made accordingly, at any time after s. 69. the passing of this Act, to take effect on or after the commencement of this Act. It may Ije noticed that sects. 25 and 45 are the only sec- tions in the Act that do not extend to Ireland. 73.— (1.) Section five of the Vendor and Death of Purchaser Act, 1874, is hereby repealed from and ^^^^I^^q after the commencement of this Act, as regards intestate, cases of death thereafter happening ; and section 37'^ gg seven of the Vendor and Purchaser Act, 1874, is Vict.c. 78. hereby repealed as from the date at which it came into operation. (2.) This section extends to Ireland only. Sect. 5 of the Vendor and Purchaser Act, 1874, had been already repealed as to England by sect. 48 of tbe Land Transfer Act, 1875 (38 & 39 Vict. c. 87), except as to any- thing duly done thereunder before the 1st January, 187G. Sect. 48 of the Land Transfer Act is repealed by ante, sect. 30, sub-sect. (3), as to cases of death after 31st Dj cember, 1881. SCHEDULES. THE FIRST SCHEDULE {a) 'ACTS AFFECTED. Part I, Sched. 1 & 2 Vict. c. 110. — An Act for abolishing arrest on mesne process in cbnl actions, except in certain cases ; for extending the remedies of creditors against the pro- perty of debtors ; and for amendmg the laws for the relief of insolvent debtors in England. 2 & 3 Vict. c. 11.— An Act for the better protection of pur- chasers against judgments, Crown debts, lis pendens, and fiats in bankruptcy. 18 & 19 Vict. c. 15. — An Act for the better protection of purchasers against judgments, Cro"5\ii debts, cases of lis pendens, and life annuities or rentcharges, 2-2 & 23 Vict. c. 35. — An Act to further amend the law of property and to relieve trustees. 23 & 24 Vict. c. 38. — An Act to further amend the law of property. 23 &; 24 Vict. c. 115. — An Act to simplify and amend the practice as to the entry of satisfaction on Crown debts and on judgments. (a) This schedule was referred to in sect. 5 of the Act as originally dravsai ; it does not seem to be connected with the Act as it now stands. It is quite possible that, for instance, in case of a sale by a mortgagee under sect. 21 questions might arise as to the effect of these Acts in connection with this Act ; but it is difficult to see how this schedule could help to indicate an answer. 44 ^ 45 Vict. c. H, Sched. 137 27 & 28 Vict. c. 112. — An Act to amend tlie law relating to future judgments, statutes, and recognizances. 28 & 29 Vict. c. 104.— The Crown Suits, &c., Act, 1865. 31 & 32 Vict. c. 54.— The Judgments Extension Act, 1868. Sched. Part TI. 5 & 6 Will. 4, c. 62, — An Act to repeal an Act of the pre- sent session of parliament, intituled " An Act for the more effectual abolition of oaths and affirmations taken, and made in various departments of the state, and to substitute declarations in lieu thereof; and for the more entire suppression of voluntary and extra-judicial oaths and affidavits ;" and to make other provisions for the abolition of imnecessary oaths. THE SECOND SCHEDULE. Repeals. A description or citation of a portion of an Act is inclu- sive of the Avords, section, or other part, first or last men- tioned, or otherwise referred to as forming the beginning, or as forming the end, of the portion comprised in the description or citation. 22 & 23 Vict. c. 35 - in part. 23 & 24 Vict. c. 126 in part. Part I. An Act to further ^ amend the law of^ property and to re- ^ lieve trustees - - ) Sections four to nine. The Common Law Pro- } cedure Act, 1860 - ji Section two. in part ; namely, — in part ; namely, — 138 Conveyancing and Laiv of Property Act, 1881. Sched. 15 & 16 Met. c. 86 - in part. 8 & 9 Yict. c. 119 23 & 24 Tict. c. 145 in part. Part II. An Act to amend the"! practice and course | of proceeding in tlie J>in part; namely ,- High Court of Chan- | eery. J Section forty-eight. Part III. An Act to facilitate the conveyance of real property. An Act to give to' trustees, mortgagees, and others certain powers now com- )in part ; namely,- monly inserted in settlements, mort- gages, and wills Parts II. and III (sections eleven to thirty) THE THIED SCHEDULE. STATUTORY MORTGAGE. Part I. Deed of Statutory Mortgage. This Indenture made by Avay of statutory mortgage the day of 1882 between A. of [c&c] of the one part and M. of [ject to the existing tenancies, all easements, f^uit rents, and other incidents of tenure (if any) affecting the same. And where two or more lots are included in one tenancy, the rent shall be apportioned between such lots as specified in the particulars, and the tenant shall not be refjuired to concur in or consent to such apportionment. 13. Tlie property shall from the day of sale be at the risk of the purchaser, but the purchaser shall be entitled to the (b) benefit of any insurance kept up by the vendor, and shall on completion of the purchase repay to the vendor the payments, or an apportioned part thereof (as the case may be), which shall have been made by the vendor ia keeping up such insurance from the day of sale until com- pletion of the purchase. 14. Each purchaser shall from the said day of be entitled to the possession or to the receipt of the rents and profits of the property purchased by him, and all outgoings up to that day shall be paid by the vendor, and all current rents and outgoings shall, if neces- .sary, be (c) apportioned between the vendor and purchaser for the purposes of this condition. (a) See In re Turner and SAsUon, 1^ Ch. D. 130 ; Allen v. Hichardson, 13 Ch. D. 524; Brett v. Cloit-ser, 5 C. P. D. 37G, 388. (i) See Hayner v. Frestoii, 18 Ch. D. 1. (c) Under the Apportionment Act, 1870 (33 & 34 A'ict. 0. 35 j, the rent of the property would be apportionable, but it may be prudent to make some condition as to outgoings. See Ihire v. Overseers of Fnineri, 7 Q. B. D. 223. Precedents — Conditions of Saic. 149 15. On puyinent of the balance of the purchase money Forms. (including,' the amount of the aforesaid valuation), the vendor shall make and execute a proper assurance of the property to the purchaser such assurance to he prepared hy and at the expense of the purchaser, and to he left Ijy him for execution at the olUce aforesaid, not less than days before the said day of next, and if the purchaser is desirous of having the execution of the conveyance attested by some person appointed by him he shall leave a {d) notice in writing to tliat eltect, at the office aforesaid, not less than days before the said day of next. 16. Siicli of the documents of title in the vendor^s possession as relate to more than one lot shall be delivered to the (e) purchaser of the largest part in value of the lots to which the same relate, if all such lots shall be sold, and he shall give to the purchasers of the other lots to which the same relate an acknowledgment in writing of their right to production of the documents of title and to delivery of copies thereof, and also shall give to the pur- chasers aforesaid an undertaking in writing for safe custody thereof. If all the lots to which any documents relate are not sold, such documents shall be (/) retained by the vendor, and he shall give to the purchasers of such of the same lots as are sold the usual acknowledgment and undertaking of the right to production and delivery of copies thereof. Every acknowledgment and undertaking under this con- dition shall be prepared by and at the expense of the per- son entitled to request production, and shall be perused by (cZ) Unless the purchaser gives some notice he is not entitled to have the conveyance executed in bis presence or in that of his soHcitor. See sect. 8, ante, p. 29. [e) In the absence of conditions the purchaser of the largest lot in value is entitled to the custody of the title deeds. Dart's V. & P. 144. (/) Where a vendor retains part of the estate ho is entitled to retain the title deeds. Vendor and rurchaser Act, 1874, sect- 2 (5) ; and see sect. 9, ante, p. 29. 150 Conveijancing and Law of Property Act, 1881 JForms. w on l>elialf of tLe giver of tlie acknowleclgraont and luitlertaking at his own expense. 17. If the purchaser shall fail to comply witli the above conditions the vendor may rescind the contract, and retain the deposit as liquidated damages, or he may resell the property either by public aiiction or by private contract, with or without notice to the purchaser and subject to such conditions as the vendor may think fit, and the deficiency, if any, on such resale, together with all expenses attending the same and all costs, losses, damages and expenses by reason of such default, shall be made good ^to the vendor by the defaulter, and in case of non-payment the same shall be recoverable by the vendor as liquidated damages. Form of Agreeme.nt for Comjjletion of the Purchase referred to in the above conditions. Memorandum of agreement made the day of between A.B. of &c. the vendor of the one part and CD. of &c. the purchaser of the other part Whereby it is witnessed that 6'.7). is the purchaser of the property described as lot in the foregoing particulars at the- price of £ subject to the above conditions of sale (a) and A.B. and CD. do on their respective parts agree to complete the sale and purchase according to the said conditions As witness the hands of the parties. Received the sum of £ the deposit on the said purchase Dated the day of (a) In the case of a sab by private contract add [so far as- the same are applicable to a sale by private contract]. Precedents — Conveyance of Freeholds, Sfc. 1^31 Forms. No. 2. — Conveyance of Freehohh to a Parchascr in Fee. This Indenture made the day of between A.B. of &c. \yen(lor'\ of tlie one part and CD. of &c. [imrchascr] of the other part. V^hereas {a) A.B. is seised in nninc umbered fee simple in possession of the (6) hereditaments hereinafter expressed to be hereby con- veyed Now THIS Indenture Witnesseth that in consideration of £ now paid by CD. to A.B. for the pnrchase of the fee simple of the hereditaments expressed to be hereby conveyed (of which sum A.B. hereb}' acknowledges the receipt) A.B. as beneficial owner hereby conveys to CD. All &c. \_'parcels] (c) To hold nnto and to the use of CD. {d) in fee simple (e) {add if required) ; and A.B. hereby (/) acknowledges the right of CD. to production of the documents of title mentioned in the schedule hereto and to delivery of copies thereof and hereby undertakes for the safe custody thereof. In witness, &c. THE SCHEDULE ABOVE EEFERRED TO. ((f) Tliis recitiil has been inserted in order to obtain prospec- tively the protection conferred by sect. 2 of the Vendor and Purcliaser Act, 1871, which makes recitals in deeds twenty years old, sufncient evidence of the truth of the facts, and that the deed may then furnish a good commencement of title. {Bolton V. London School Board, 7 Ch. D. 766; General Finance, cfe. Co. v. Liberator Benefit, ij'c. Societt/, 10 Ch. D. 15, and sec sect. 3, sub-sect. 3, ante, p. 8.) (6) A conveyance of land includes all buildings thereon and evei-ything appurtenant thereto (sect. G, and for the definition of land see sect. 2 (ii) ). The word land has an extended meaning when used in the Act, but its meaning is not apparently thereby extended when used in a conveyance. (c) The general words are implied by sect. 6, and " all the estate " clause is implied by sect. G'i. Any of the above forms miy be obtained of Shaw & Sons, Fetter Lane, London, neatly lithographed on draft paper. 153 Convey ancwy and Law of Property Act, 1881. Foims. {d) After the 31st December, 1881, it will be sufficient to use tlic words "in fee simple" without the word "heirs" in the limitation of an estate in fee simple. Sect. 51. (e) The declaration barring dower can be here inserted if required. Covenants for title by a vendor are implied by sect. 7. if) This takes the place of the covenants for production of title deeds inserted in documents prior to this Act, (sect. !))• Considering the object stated in note (a), it seems unwise, should the recital be used, to insert this list of documents in the deed itself, and thus furnish means of disproving the recital, and in this case it may be deemed advisable to have an acknowledgment independently of the conveyance. No. 3. Conveyance of Freeholds subject to a Lease for 99 Years. This Indenture made the day of between A.B. of &c. [vendor'] of the one part and CD. of &c. [purchaser'] of the other part Whereas by an inden- ture dated the day of and made between [2Mrties] A.B. demised the hereditaments hereinafter men- tioned to E.F. for the term of 99 years from the day of then last at the yearly rent of £ and nuder and suljject to the covenants and conditions therein contained Now this Indenture witnesseth that in consideration of £ paid to A.B. by CD. for the purchase of the fee simple of the here- ditaments hereinafter mentioned (of which sum A.B. hereby acknowledges the receipt) A.B. as beneficial owner hereby conveys to CD. All &c. [parcels] together with the full benefit of the rent covenants and other the benefits and advantages reserved by the said indenture of lease To hold subject to the said indenture of lease unto and to the use of CD. in fee simple. In witness, &c. Any of the above forms may be obtained of Shaw & Sons, Fetter Lane, London, neatly lithographed on draft paper. Precedents — Conveyance of Life, ^c. 153 >T . Forms. No. 4. Conveyance of a Life Estate in Freeholds. Tliis Indenture made the dixy of between A.B. of &c. [yencloi-] of tlie'one part and G.D. of &c. [inircliaser] of the other part Whereas by an inden- ture dated &c. and made between ['parties'] being a settle- ment made in consideration of the marriage shortly afterwards solemnised between A.B. and the hereditaments hereinafter mentioned stand limited to the use of A.B. during his life withou.t impeachment of waste with remainders over Now this Indenture witnesseth that in consideration of £ paid to A.B. by CD. for the purchase of the life estate of A.B. in the said hereditaments (of which sum A.B. hereby acknowledges the receipt) A.B. as beneficial owner hereby conveys to CD. All &c. {jKirceW] To hold unto and to the use of CD. dining the life of A.B. In witness, &c. No. 5. Conveyance of FreehoJih hy Tico Tenants in Common. This Indenture made the day of between A.B. of &c. [the owner of one moiety] of the first part CD. of &c. [the owner of the other moiety] of the second jmrt and E.F. of &c. [purchaser] of the third part [Eecite the will of O.H. devising the property to his ttro sons A.B. and CT). in fee simple in equal shares as tenants in common, — the death of G.H. and prohate of his icill] Now THIS Indenture witnesseth that in consideration of the sum of £ paid by E.F. to A.B. and CD. for the purchase of the fee simple of the hereditaments herein- after mentioned (of which sum ^1.7?. and CD. do hereby Any of the above forms may be obtained of Shaw & Sons, Fetter Lane, London, neatly lithographed on draft paper. 154 Convey ancin/j and Law of Property Act, 1881. Forms, aclcnowlodge tlie receipt) A.B. as beneficial owner of one moiety of and in the hereditaments hereinafter mentioned And CD. as beneficial owner of tlie other moiety of and in the said hereditaments do hereby respectively convey to E.F. All &c. [^parcels] To hold unto and to the use of E.F. in fee simple (a). In witness, &c. (rt) Tlie covenants iraplicJ by sect. 7, relate to each pei'son conveying as far only as regards the share of subject-matter conveyed by bini. Xo. 6. Conveyanca of Freeholds by liashand to Wifa (a). This Indenture made the day of between A.B. of &c. [liushand] of the one part and C.B. [u'i/e of A.B.] of the other part AYitnesseth that in consideration of the sum of £ paid to A.B. by C.B. out of money belonging to her for her (b) separate use for the purchase of the fee simple of the hereditaments hereinafter mentioned (the payment whereof out of money belonging to G.B. for her separate use A.B. hereby adinits, and of which sum A.B. hereby acknowledges the receipt) A.B. as beneficial j owner hereby conveys to C.B. hio wife All &c. [parcels] To hold unto and to he use of C.B. in fee simple for lier separate use. In witness, &c. (a) Freehold land may by sect. 50, be conveyed by a husband to Lis wife alone or vice versa. {b) Although a husband can now convey dh-ect to his wife, it is assumed that such a conveyance will be voidable to the same extent and under the same circumstances as an ordinary voluntary settlement by the husband to a trustee for the benefit of his wife, unless there is 'evidence to show that the wife out of money belonging to her for her separate use purchased the Any of the above forms may be obtained of Shaiv & Sons, Fetter Lane, Loudon, neatly lithographed ou draft paper. Precedents — Conveyance of Freeholds, Sfc. 155- lands from her husband for a sum reasonably equivalent to its FormS. money value. Apparently section 50 does not do away with the necessity of the husband's concurrence in a conveyance by the wife to another person, although the property was conveyed by her husband to her for her separate use. On the question of consideration see Dart 5th Edit. 890. It may be mentioned that there is no use in stating imaginary considerations ; it is true that sect. 55 makes the receipt for consideration " sufficient " evidence in favour of a subsequent purchaser without notice, but then as the law stands a voluntary conveyance cannot be avoided against a purchaser for value tuith notice tliat his vendor is a volunteer. The mere absence of expressed consideration will not make the conveyance inoper- ative; so long as the words "to the use of" the grantee are inserted, the use cannot result. See notes to Tyrrell's Case, Tudor's Leading Cases. Qiicere whether this is not also the case by virtue of sect. 50. The formalities prescribed by the Fines and llecoveries Act must still be observed in conveyances by a married woman. No. 7. Conveyance ef Freeholds by a Mortijagce, Mortgagor not joining. This Indenture made the day of between A.B. of &c, ^mortgagee'] of the one part and CD. of &c. [^purchaser'] of the other part Whereas by an inden- ture dated the day of and made between E.F. [inortgagorl of the one part and'^.U. of the other part tbe hereditaments hereinafter mentioned were conveyed by E.F. to A.B. in fee simple by way of {a) mortgage for securing £ and interest {h) Now this Inden- ture WITNESSETH that in consideration of £ paid by G.D. to A.B. for the purchase of the fee simple of the hereditaments hereinafter mentioned (the receipt v/hereof Any of the above forms may be obtained of Shaw & Sons, Fetter Lane, London, neatly lithographed on draft paper. l^o Conveyancing and Law of Property Act, 1881. Forms. A.B. hereby acknowle(lf,fes) A.B. as mortgagee (c) and in exercise of the power of sale vested in liini hy the said indenture hereby conveys to CD. All &c. [parcels] To hold the same unto and to the use of CD. (d) in fee simple (e) discharged from the equity of redemption and all claims under the before-mentioned indenture (/). In Avitness, &c. (a) If the mortgage is made in the statutory form the proviso for redemption is by sect, 26 implied in the mortgage deed. (h) The mortgage deed recited in this conveyance is assumed to be one made after the 31st December, 1881. If the mortgage is of a prior date, the power of sale, &c., contained in the mort- gage deed should be in recital. (c) When the conveyance is made in professed exercise of an implied power of sale the purchaser is protected by sect. 21 (2). (d) Sect. 51. (e) Sect. 7. (f) A covenant against incumbrances by the mortgagee is implied under sect. 7, sub-sect. 1 (F). No. 8. Conveyance of Freeholds hy a Mortgagee and. Mortgagor. This Indenture made the day of between A.B. of &c. [mortgagorl of the first part CD. of &c. [mortgagee] of the second part and E.F. of &c. [pur- clucser] of the third part Wliereas by an indenture dated the day of and made between A.B. of the one ]iart and CD. of the other part the hereditaments hereinafter mentioned were conveyed by A.B. to CD. in fee simple by way of mortgage for securing £ and interest (a) And whereas the said principal sum of £ remains due but all interest thereon has been Any of the above forms may be obtained of Shaw & Sons, Fetter Lane, London, neatly lithographed ou draft paper. Precedents — Conveyance of Equity of Redemption. 157 paid as CD. hereby cacknowledges Now this Indenture Forms. WITNESSETH that ill consideration of the sum of £ paid by the direction of A.B. to G.D. (of which sum G.D. hereby acknowledges the receipt) and of the sum of £ paid to A.B. making together the total sum of £ paid by E.F. for the purchase of the fee simple of the hereditaments hereinafter mentioned (of which total sum of £ A.B. hereby acknowledges the payment and receipt in manner before-mentioned) CD. (b) as mort- gagee and by the direction of A.B. as beneficial owner hereby conveys and A.B. as beneficial owner hereby con- veys and confirms to E.F. All &c. [parcels] To hold the same unto and to the use of E.F. in fee simple discharged from all moneys secured by and from all claims under the before-mentioned indenture. In witness, &c. (a) When a mortgage deed is made in the statutory form the proviso for redemption with re-couveyance is implied (sect. 2G). (b) The covenant by mortgagee against incumbrances is implied. Sect. 7, sub-sect. 1 (F). No. 9. Conveyance of the Equity of Redemption in Freeliolds to a Mortgagee as Purchaser. This Indenture made the day of between A.B. of &c. [mortgagor and vendor] of the one part and G.D. of &c. [jmrchaser] of the other part Whereas by an indenture dated the day of and maih; between [parties] the hereditaments hereinafter mentioned were conveyed by A.B. to CD. in fee simple by way of mortgage for securing £ and interest tliereon at the rate of per centum per annum And wlierea-i the said principal sum of £ remains due to G.D. but all interest thereon has been jiaid up to the date of Any of the above forms may be obtained of Shaw & Sons, Fetter Lane, London, neatly lithographed on draft paper. 158 Conveyancing and Law of Properly Act, 1881. Forms, these presents And Avhereas A.B. lias agreed to sell to CD. the fee simple in possession of the said hereditaments at the price of £ And it has been agreed that the said mortgage debt of £ should be retained by C.T). out of the said purchase money Now this Inden- ture WITNESSETH that in consideration of the siim of £ whereof £ has been retained by CD. in full satisfaction of the said mortgage debt from which CD. hereby releases A.B. and the remaining £ has been paid by CD. to A.B. (the receipt whereof A.B. doth hereby acknowledge) A.B. as beneficial owner hereby con- veys to CD. All &c. \imrcch'\ To hold unto and to the use of CD. in fee simple. In witness, &c. Xo. 10. Conveyance of the Equity of Redemption in Freeholds hy Deed annexed or indorsed. This Indenture made the day of between A.B. of !\'c. of the one part and CD. of &c. of the other part supplemental to (a) [an in- denture of mortgage made the day of between {'parties)] Whereas A.B. has agreed to sell to CD. the fee simple in possession of the hereditaments com- prised in [the above mentioned indenture of mortgage] for the sum of £ Now this Indenture witnessetii (b) [Conveyance of Freeholds'] In witness, &c. (a) If tlie conveyance is indorsed on the mortf^agc deed, omit the words between the brackets and insert [the within written indenture of inortgase]. (b) The niortp^agee may then give tlie mortgagor a receipt for the mortgage debt as part payment. See Hx parte Xational Mercantile Batik, 15 Ch. D. 42. Any of the above forms maj' be obtained of Sbavv & Sons, Fetter Lane, London, neatly lithographed on draft paper. Precedents — Conveyance of LeaseJiolda, S)C. 159 No. 11. Forms. Conveyance of Leaseholds to Purchaser. This Indenture in;ule the day cif 1-)i?t\veen A.B. of &c. [vendor] of the one part and CD. of &c. [purchaser] of the other ^xart Whereas by an inden- ture of lease dated the day of and made between [jiarties] All &c. [jmrcels from lease] were demised nnto A.B. (a) [his executors administrators and assigns] from tlie day of for the term of years at the yearly rent of £ and subject to covenants by the lessee and conditions therein contained Now this Indenture witnebseth that in consideration of £ paid to A.B. by CD. for the j^urchase of the lessee's interest in the said lease (of whicli sum A.B. hereby acknowledges tlie receipt) A.B. as beneficial owner herebj- conveys to a.D. All those the hereditaments and premises comprised in and demised by the hereinbefore recited indenture of lease To hold unto CD. for the residue of the said term of years at the yearly rent and subject to tlie cove- nants by the lessee and the conditions in the sad lease reserved and contained and henceforth to be paid per- formed and observed And CD. hereby covenants (/;) with A.B. that he CD. v/ill henceforth pay the rent by the said lease reserved and perform all the covenants by the lessee therein contained And will at all times hereafter keej) indemnified A.B. and his estate and effects froin and against the payment of the said rent and the observance and performance of the said covenants and conditions and from all actions claims and demands whatsoever for or on account of the same or in anywise relating thereto. In witness, &c. ((*) If tliG recital is of a lease crranted prior to the 31st December, 1881, the words in brackets should bo inserted. If Any of the above forms may be obtained of Sliaw & Sons, Fetter Lane, London, neatly lithographed on draft paper. 160 Conveyancing and Law of Property Act, 1881. Forms, the lease is of a later date these words may be omitted. Sect. 58. (i) The covenant for ])ayment of rent and performance of covenants and indemnity is not included in the implied cove- nants set out in the Act, and must therefore iu proper cases be inserted for the vendor's protection. Sect. 7. No. 12. Covenant to surrender Gopyliolds (a). This Indenture made the day of between A.B. of «&;c. [vendor] of the one j^art and CD. of &c. [purchaser] of the other part (b) Whereas A.B. is seised for an unincumbered estate of inheritance in fee simple according to the custom of the manor of iu the county of of the lieredilaments and premises hereinafter covenanted to be surrendered and has agreed to sell the same to C.I), for the sum of £ Now this Indenture witnesseth that in pursuance of the said agreement and in consideration of the sum of £ paid to A.B. hy CD. for the purchase of the absolute inheritance in possession of the hereditaments and premises hereinafter covenanted to be surrendered (of which sum A.B. hereby acknowledges the receipt) He A.B. as beneficial owner hereby covenants with CD. that he A.B. will forthwith at the cost of CD. surrender or cause to be surrendered into the hands of the lord of the manor of in the county of according to the custom of the said manor All &c. [parcels] To the use of CD. according to the custom of the said manor by and under the suits ser- vices rents fines and hcriots therefor due and of riglit accustomed. In witness, &c. (a) By sect. 7, sub-sect. 5, it is enacted that a conveyance includes a deed conferring the right of admittance to copyhold Any of the above forms may be obtained of Shaw & Sons, Fetter Lane, London, neatly lithographed on draft paper. Precedents — Enlargement of Residue of Term, Sfc. 161 or customary land. The covenants for title by vendor are by FormS. virtue of that section implied; and see also sect. 2 (v.) ante, p. 3. (&) See note (a), ante, p. 151. No. 13. Enlargement of Residue of Long Term into a Fee Simple (a). To all to wliom these presents shall come A.B. of &c. sends greeting Whereas these presents are supplemental to an indenture of lease dated the day of and made between [parties] And whereas the residue of the term 'created by the said indenture of lease is now vested in A.B. absolutely and A.B. is beneficially entitled to the possession of the hereditaments and premises demised by the said indenture of lease [(&) or as the case may 6e] Now these presents witness that A.B. as the person so beneficially entitled hereby declares that from and after the execution of these presents the term created by the said indenture of lease shall be and the same is iereby enlarged into a fee simple. In witness, &c. (a) By sect. 65 the residue of a long term may now be enlarged into a fee simple, subject to certain conditions and obligations there set out. As to the stamp duty required, see note to sect. 65, ante, p. 126. (J) Viz. in the case of a trustee, executor, &:c., as to the persons who may enlarge the term into a fee, see sect. 65, sub- sect. 2, ante, p. 123. No. 14. Mortgage of Freeholds to one. This Indenture of Mortgage made the (hiy of between A.B. of &c. [mortgagor'] of the one part Any of the above forms may be obtained of Sliaw & Sous, Fetter Lane, Loudon, neatly lithographed on draft paper. M 162 Convey anciny and Laio of Property Act, 1881. Forms, ami CD. of &c. [mortgagee] of the other part Whereas A.B. is seised in unincumbered fee simple iu possession of tlie hereditaments hereinafter expressed to be hereby conveyed Now this Indenture witnesseth that in consideration of the sum of £ paid to A.B. by CD. (of which sum A.B. hereby acknowledges the receipt) A.B. hereby covenants with CD. to pay to him on the day of the su.m of £ with interest thereon in the meantime at the rate of £ per cent, per annum and also as long after that day as any principal money remains due under this mortgage to pay to CD. interest thereon at the same rate by equal half- yearly payments on the day of and the day of And this Indenture also WITNESSETH that for the same consideration A.B. as beneficial owner hereby conveys to CD. All &c. [23arcels'\ To hold unto and to the use of CD. in fee simple subject to the proviso for redemption following (namely) that if A.B. or any person claiming under him shall on the day of pay to CD. the sum of £ and interest thereon at the rate aforesaid then CD. or the person claiming under him will at the request and cost of A.B. or the persons claiming under him re-convey the said hereditaments and premises to A.B. or the persons claiming under him (a) And A.B. hereby covenants (b) with CD. as follows : [That he A.B. will not at any time hereafter make or enter into any agreement to make any lease (c) of the said hereditaments and premises or any part thereof Avithout the previous consent in writing of CD.] [And it is hereby agreed and declared that A.B. shall not be entitled to redeem the said hereditaments and premises without first paying to CD. any money that may be due to CD. on any other mortgage executed by A.B. or by any person through whom he claims (dj] [And it is furtlu-r agreed and declared that CD. may at any time Any of the above forms may be obtained of Shaw & Sons, Fottei' Lane, London, neatly lithographed on draft paper. Precedents — Mortgage of Freehold to one. 163 •without any fiu'ther consent on the part of A.B. demise or FomiS. enter into any agreement to demise tlie said hereditaments " and premises or any part tliereof upon any terms he thinks fit provided always that this power sliall not be exercised until such time as he is by law empowered to sell provided also that no lessee under the aforesaid power shall be bound to inquire whether such time has arrived or be affected by notice that such time has not arrived ; And it is further agreed that the said power may be exercised by the j)erson who for the time being is by law empowered to sell (c)] {Here add covenant as to (/) Jire insurance or any other special covenant required.) In vidtness, &c. S {a) A mortgagor can under sect. 15 compel the mortgagee to transfer to any third person instead of re-conve^iiig the mortgaged property. {b) Covenants for title are implied by sect. 7. The usual powers of sale, to insure, to appoint, a receiver aud to cut timber are implied by sect. 19. (c) A mortgagor while in possession has power under this Act to make leases of the mortgaged land under certain conditions specified in sect. 18. This covenant should be omitted if the mortgagee does not consider it necessary thus to restrict the mortgagor's powers of leasing. (f?) This agreement should be inserted in the deed if it is intended to exclude the operation of sect. 17 with regard to the restriction on consolidation of mortgages. (e) As to the leasing powers of mortgagor and mortgagee see sect. 18. If the intention is that the mortgagee should not be restricted this clause should be inserted. (/) -^ mortgagee's power to insure is implied in every mortgage deed by sect. 19. As to restrictions on the exercise of that power, see sect. 23, and also see note thereto on p. 57, ante as to the advisability of inserting a stipulation in the deed that the insurance money shall be applied in re-iastating the buildings. Any of the above forms may be obtained of Shaw & Sons, Fetter Lane, Loudon, neatly lithographed on draft paper. m2 164 Conveyancing and Law of Property Act, 1881. Forms. No. 15. Mortgage of Copyholds. This Indenture of mortgage made the day of between A.B. of «S:c. [mortgagor] of the one part and CD. of &c. [mortgagee] of the other part Witnesseth that in consideration of £ paid to A.B. by CD. (of which sum A.B. hereby acknowledges the receipt) A.B. hereby covenants with CD. to pay to him on the day of the sum of £ with interest thereon in ithe meantime at the rate of per cent, per annum and also as long after that day as any principal money remains due under this mortgage to pay to CD. interest thereon at the same rate by equal half-yearly payments on the day of and the day of And this Indenture also WITNESSETH that for the same consideration A.B. as beneficial owner hereby (a) covenants with CD. that the A.B. will forthwith at his own cost effectually surrender or cause to be surrendered into the hands of the lord of the manor of according to the custom of the said manor All &c. [joarcels] To the use of CD. according to the custom of the said manor by and under the rents fines suits and services therefor due and of right accustomed subject nevertheless to a proviso for making void the said surrender in case A.B. or any person claim- ing under him shall on the day of pay to CD. the sum of £ with interest thereon at the rate aforesaid. [Here insert covenants by A.B. as in precedent, No. 14] In "Witness, &c. (a) See sect. 7, sub-sects. 4, 5. Any of the above forms may be obtained of Sliaw & Sous, Fetter Lane, London, neatly lithographed on draft paper. Precedents — Mortgage oj Leaseholds. 165 No. 16. Forms. Mortgage of Leaseholds. This IxDENTUKE made the day of l^etween A.B. of &c. [mortgagor'] of the one part and CD. of &c. [mortgagee] of the other part AVhereas by an indenture of lease dated &c. and made between [parties] All &c. [jmrcels] were demised unto A.B. from the day of for the term of years at the yearly rent of £ and under and subject to covenants and conditions therein contained and on the part of the lessee to be observed and performed WITNESSETH that in con- sideration of £ paid to A.B. by CD. (of which sum A.B. hereby acknowledges the receipt) A.B. hereby covenants with CD. to pay to him on the day of the said sum of £ with interest thereon in the meantime at the rate of per cent, per annum and also as long after that day as any principal money remains due under this mortgage to pay to CD. interest thereon at the same rate by equal liaK-yearly payments on the day of and the day of And this Indenture also witnesseth that for the same consideration A.B. as beneficial owner hereby conveys to CD. All those the hereditaments and premises comjjrised in and demised by the hereinbefore recited indenture of lease To hold unto CD. for the residue of the said term of years (a) except the last three days thereof subject to the proviso for redemption [as in precedent, No. 14] {h) (c) And it is hereby agreed that after a sale under the power given by law to a mortgagee A.B. or the person or persons in whom for the time being the said term of years granted by the said inden- ture of lease shall be vested shall stand possessed of the hereditaments sold for and during the last three days of Any of the above forms may be obtained of Shaw & Sous, Fetter Lane, London, neatly lithographed on draft paper. 166 Conveyancing and Law of Froperty Act, 1881. Forms, the said term upon trust for the purchaser to be conveyed as he may direct. In witness, &c. {a) A mortgage of leaseholds is generally made by way of demise when the rent reserved by the lease is not a nominal one, or when the covenants are onerous. Unless the last few days are reserved the mortgage deed will operate by way of assignment as the word "convey" includes an assignment. See sect. 2 (v.), ante, p. 2. (6) Covenants for title are implied by sect. 7, and in a con- veyance by way of mortgage of leasehold property the further covenants that the lease is valid and for payment of rent and performance of covenants are also implied. See sect. 7, sub-sect. 1 (D). (e) As to the mortgagor covenanting to insure the premises. See note (/) ante, p. 163. No. 17. Furtlier Charge. This Indenture made the day of between A.B. of &c. [mortgagor] and CD. of &c. [mortgagee] and supplemental to an indenture of mortgage dated the day of 188 and made between the same parties for securing the sum of £ and interest at per cent, per annum on property known as situate &c. and containing acres as thereia mentioned WITNESSETH that in consideration of the further sum of £ paid to A.B. by CD. (of which sum A.B. hereby acknowledges the receipt) A.B. hereby covenants with CD. to pay to him on the day of 188 the said simi of £ with interest thereon in the meantime at the rate of Any of the above forms may be obtained of Shaw & Sons, Fetter Lane, London, neatly lithographed on draft paper. Precedents — Transfer of a Mortijage, Sfc. 167 per cent, per annum and also as long after that clay as any Forms, principal money remains due under this mortgage to pay to CD. inttrest thereon at the same rate hy equal half- yearly payments on the day of and the day of and further that all the property comprised in the before-mentioned indenture of mort- gage shall stand charged with the payment to G.D. of the sum of £ and the interest thereon herein- before covenanted to be paid as well as the sum of £ and interest secured by the same indenture. In witness, &c. No. 18. Transfer of a Mortgage of Freeholds, Mortgagor not hehnj a ixirty. Tliis Indenture made the day of between A.B. of &c. [mortgagee^ of the one part and G.D. of &c. [transferee'] of the other part "Wliereas by an inden- ture of mortgage dated the day of and made between E.F. of the one part and A.B, of the other part In consideration of the sum of £ paid to E.F. by A.B. E.F. conveyed the hereditaments herein- after described and mentioned unto and to the use of A.B, in fee simple subject to a proviso therein contained for the redemption of the same lands on payment by E.F. unto A.B. of the sum of £ with interest for the same at the rate of £ per cent, per annum on the day of And whereas the said sum of £ together with £ for interest thereon from the day of is now owing to A.B. on the said security And whereas G.D. has agreed to pay to A.B, the said sums of £ and £ making Any of the above forms may bo obtained of Shaw & Sons, Fetter Lane, London, neatly lithographed on draft paper. 168 Conveyancing and Law of Property Act, 1881. Forms. tD^ether tlie sum of £ upon having such transfer of the said mortgage debt and of the securities for the same as is hereinafter contained Now this Indenture WITNESSETH that iu pursuance of the said agreement and in consideration of the sum of £ paid to A.B. hy O.B. (of which sum A.B. hereby acknowledges the receipt) he -4.1?. hereby conveys and transfers unto G.D. All that the said principal sum of £ secured by the hereinbefore recited indenture as aforesaid and all interest henceforth to become due in respect of the same- and the full benefit of the covenants and other powers and provisions contained in the same indenture for securing the payment of the said principal sum and interest to have receive and take the said principal sum and interest and all other the j)remises hereby conveyed and trans- ferred imto G.D. absolutely And this Indenture also WITNESSETH that in further pursuance of the said agree- ment and for the consideration aforesaid A.B. as mortgagee hereby conveys unto G.I). All &c. [2xirceZs] To hold unto and to the use of G.J), in fee simple subject to^such equity of redemption as is now subsisting in the said hereditaments and premises under or by virtue of tlie hereinbefore recited indenture. In witness, &c. No. 19. Transfer of a Morfgnje of Freeholds, in which the Mortgagor jo ins. This Indenture made the day of between A.B. of &c. [mortgagee'] of the first part G.D. of &c. [mortgagor] of the second part and E.F. of &c. [trans- feree] of the third part "Wliereas by an indenture of mortgage dated &c. and made between G.D. of the one Any of the above forms may be obtahicd of Shaw & Sous, Fetter Lane, London, neatly lithogi'aphed on draft i^aper. Precedents — Transfer of a Mortgage, Sfc. 16^ part and A.ll of the other part CD. in consideration of the Forms. sum of £ conveyed the hereditamentss hereinafter mentioned and described unto and to the use of A.B. sub- ject to a proviso therein contained for the redemption of the hereditaments upon payment by CD. to A.B. of the sum of £ -with interest for the same at the rate of jjer cent, per annum on the day of And Avhereas the said sum of £ is still owing to A.B. on the security of the hereinbefore recited indenture but all interest for the same has been paid up to the date of these presents And whereas E.F. at the request of CD. has agreed to jmy to A.B. the sum of £ on having a transfer of the said mortgage debt and the interest thereof and the securities for the same in manner hereinafter mentioned Now this Indenture WITNESSETH that in consideration of the sum of £ paid to A.B. by E.F. (of which sum A.B. hereby acknow- ledges the receipt) A.B. hereby conveys unto E.F. All that the said principal sum of £ secured by the hereinbefore recited indenture as aforesaid and all interest henceforth to become due in respect of the same and the full benefit of the covenants and other powers and ^h-o- visions contained in the same indenture for securing the payment of the said principal sum and interest To have and take the said principal sum and interest unto E.F. absolutely And this Indenture also witnesseth that for the same consideration A.B. as mortgagee hereby conveys and CD. as beneficial owner hereby conveys and confirms unto E.F. All &c. [jtarcels] To hold the same unto and to the use of E.F. in fee simple subject to such right or e(piity of redemption as is now subsisting thereui under and by virtue of tlie hereinbefore recited indenture of mortgage {a). In witness, &c. (a) The covenant by the transferor against incumbrances is implied. Sect. 7, sub-sect. 1 (F). Any of the above forms may be obtained of Shaw & Sons, Fetter Lane, London, neatly lithographed ou draft paper. 170 Conveyancing and Law of Property Act, 1881. Forms. No. 20. Re-conveyance of Freeholds or Leaseholds. This Indenture made the day of between A.B. of &c. [mortgagee] of the one part and CD. of &c. [mortgagor] of the other part and supplemental to an indenture of mortgage dated the day of and made between the same parties for securing the principal sum of £ and interest at ipev cent, per annum on property at being the hereditaments and premises therein mentioned WITNESSETH that in consideration of the said principal sum of £ and all interest due under the said indenture of mortgage having been paid to A.B. by CD. (of which principal sum and interest A.B. hereby acknowledges the receipt) A.B. as (a) mortgagee hereby conveys to CD. all the heredita- ments and premises mentioned in the said indenture of mortgage To hold the same unto and to the use of CD. in fee simple (or in the case of leaseholds for the residue of the term created by the said indenture of lease (h) mentioned in the said indenture of mortgage) freed and absolutely discharged from all principal money and interest secured by the said indenture of mortgage and all claims and demands on account thereof respectively or any part thereof respec- ively or in anywise relating thereto. In witness, &c. (a) The covenant against incumbrances on the part of the mortgagee is implied. Sect. 7, sub-sect. 1 (F). (b) This form of re-conveyance of leaseholds assumes that the mortgage was made by way of assignment. If made by way of demise insert the words [except the last days thereof]. Any of the above forms may be obtained of Shaw & Sons, Fetter Lane, London, neatly lithographed on draft paper. Precedents — Marriage Settlement. 171 Xo. 21. Forms. Marriage Settlement. This Indenture made the clay of between A.B. of &c. [intended husband] of the first part €.D. of &c. [intended wife] of the second part and E.F. of &c. and G.H. of &c. [trustees] of the third part WITNES- SETH that in consideration of the intended marriage between A.B. and CD. A.B. as settlor hereby conveys to KF. and G.H. All &c. [parcels] To bold the same nnto E.F. and G.H. in fee simple to the use of A.B. in fee simple until the marriage and after the marriage to the use of A.B. during his life without impeachment of waste with remainder after his death to the use that CD. if she sur- vives him may receive during the rest of her life a yearly jointure rentcharge of £ to commence from his death and to be paid by equal half-yearly payments the first thereof to be made at the end of six calendar months from bis death if she is then living or if not a proportional part to be paid at her death and subject to the before- mentioned rentcharge to the use of KF. and G.H. for a term of 500 years without impeachment of waste on the trusts hereinafter declared and subject thereto to the use of tbe first and other sons of A.B. and CD. successively according to seniority in tail male witli remainder [here insert, if thought desirable, to the use of the same first and other sons successively according to seniority in tail with remainder] to the use of all the daughters of A.B. and CD. in ecj^ual shares as tenants in common in tail with cross remainders between them in tail with remainder to the use of A.B. in fee simple. [Insert trusts of term of 500 years for raising portions; also, if required, j^otcer to charge jointure and poHions on a future marriage ; also powers of sale, exchange, and partition, and other powers and provisions, if and as desired.] In witness, &c. Any of the above forms may be obtained of Shaw & Sons, Fetter Lane, London, neatly lithographed on draft paper. 172 Conveijancing and Law of Property Act, 1881. Forms. Ko. 22. A])2:)ointriient of a Keiv Trustee in flace of one who retires. This Indenture made the day of between A.B. of &c. [the lyerson empoicered to appoint ti-ustees] of the first part CD. of &c. [the retirinrj trustee'] of the second part E.F. of &c. and G.H. of &c. [the continuing trustees'] of the tliird part and M. IF. of &c. [the new tncstee'] of the fourth part And supplemental to an indenture made the day of between &c. (a) [fne indenture creating the trust] WITNESSETH that A.B. in exercise of the power for this purpose given him by the said indenture hereby appoints M. IV. to be a trustee under the said indenture (b) And CD. hereby declares that he is desiroiis of retiiing and being discharged from the trusts created by the said indenture And A.B. E.F. G.H. and M.W. hereby consent to the discharge of CD. from the said trusts and to the vesting in E.B'. G.H. and M.W^ alone of the property subject to the said trusts (c) And A.B. CD. E.F. G.H. and M.W. hereby declare that all estates and interests vested in CD. E.F. and G.H. by the- said indenture [or indentures or any of them] and subject to- the said trusts shall henceforth be vested in E.F. G.H. and M.JV. as joint tenants and for the pui-poses of the saict trusts. In wdtness, &c. (a) If there have been subsequent appointments of new trustees, this indenture should bo made supplemental to them. If the trusts are created by will, the will and probate must be recited. If trustees have died or gone abroad, &c., these facts should be recited. (I) By sect. 31 (5) a trustee appointed by writing may as well before as after the trust property is vested in him act in all respects as if he had originally been appointed by the instru- ment creating the trust. Any of the above forms m:iy be obtained of Shaw & Sous, Fetter Lan(>, Loudon, neatly lithographed on draft paper. Precedents — Deed Discharging Trustee, Sfc. 173 (e) If there is no retiring trustee this declaration and consent FonnS> must be omitted, and in that case the declaration vesting the property will be made by the appointor alone. Sect. 34 (1). When a trustee is to be discharged the appointor and confirming trustees must consent (sect. 32) and the vesting declaration must be made by the appointor and the continuing and retiring trustees. Sect. 34- (2). No. 23. Bud, discharging one of three {or more) Trustees and vesting the Trust Property in the two (or more) continuing Trustees {a). (&) This Indenture made the day of iDetween A.B. of &c. [the retiring trustee'] of the one part and CD. of &c. [the other person, if any, empoivered to appoint trustees'] of the second part and E.F. oi &c. and G.H. of &c. [continuing trustees] of the third part And (c) supplemental to an indenture made the day of &c. [The deed creating the trust and the last appointment of new trustees, or if the trust is created hy a will recite the ivill and probate] WITNESSETH that A.B. herehy declares that he is desirous of retiring and being discharged from the trusts created by the said indentures [or loill] And {d) CD. E.F. and G.H. hereby consent to the retirement and discharge of A.B. from the said trusts and to the vesting of the property in CD. and E.F. subject to the said trusts And A.B. CD. E.F. and G.H. hereby declare that all estates and interests in the proi:)erly (c) subject to the said trusts shall henceforth be vested in E.F. and G.H. as joint tenants and for the purposes of the said trusts. In witness, &c. (a) See sect. 32, ante, p. 76. (b) One of two or a sole trustee cannot retire in this way. Any of the above forms may be obtained of Shaw & Sons, Fetter Lane, London, neatly lithographed on draft paper. 174 Conveyancing and Law of Froperty Act, 1881. Forms. ip) Sect. 53, ante, p. 109. (cZ) If there is any person other than the continuing trustees empowered to appoint trustees, that person should be a party and should join in the consent and vesting declaration. (e) This declaration will not vest some kinds of property. See sect. 3-i (3). Ko. 24. Acknoivledgmcnt of right to iwoduction of Documents of Title (a). Whereas by an indenture dated the day of and made between [2mrties] certain freehold here- ditaments known as were conveyed by A.B. unto and to the use of CD. in fee simple And whereas tbe documents of title mentioned in the schedule hereto relate as well to the hereditaments comprised in the hereinbefore recited indenture as to other hereditaments and are in the possession of A.B. And it has been agreed that A.B. shall retain the said documents of title and shall enter into the acknowledgment and undertaking hereinafter con- tained. Now A.B. hereby acknowledges the right of CD. to production of the said documents of title and to delivery of copies thereof and A.B. hereby undertakes for the safe custody thereof. Dated the day of 188 . The Schedule above referred to. [To contain list of documents retained by A.B.'\ (a) Sect. 29, ante, p. 29. Any of the atove forms may be obtained of Shaw & Sons, Fetter Lane, London, neatly lithographed on draft paper. Precedents — Power of Attorney, Sfc. 175- No. 25. Forms. Power of Attorney of (a) a Married Woman to execute a Deed. Know all Men by these presents that I G.B. [appointor] the wife of ^.5. of &c. hereby appoint M.TV. of &c. my attorney in my name and stead and on my behalf to receive from [imrchaser'] or his agent or attorney the sum of £ together with all interest (if any) for the same sum being the price agreed to be paid by the said [pur- chaser] to me for the purchase of certain hereditaments known as situate &c. [and containing acres or thereabouts] and upon the receipt of the said sum of £ Avith interest as aforesaid in my name (h) and on my behalf and as my act and deed to sign seal and deliver a certain indenture already prepared and engrossed bearing date on or about the day of and expressed to be made between [jyarties] and being a conveyance of the said hereditaments and premises unto and to the use of the said [jmrchaser] in fee simple [or otherwise as the case may be] [And (c) also in my name and on my behalf to indorse and sign on the said indenture a proper and effec- tual receipt for the said sum of £ and for all interest (if any) due thereon] And also in my name and on my behalf to execute and do all other deeds and things which my said attorney may consider expedient or neces- sary for conveying the said hereditaments and premises unto and to the use of the [inirchaser] in fee simple [or, to the uses hereinbefore mentioned] I hereby undertaking to ratify and confirm all that my said attorney shall lawfully do or purport to do in or about the premises by virtue of these presents. In witness, &c. (a) A married woman, whether au infant or not, may by sect. 40 appoint an attorney for the purpose of executing any deed. Any of the above forms may be obtained of Shaw & Sous, Fetter Lane, Loudon, neatly lithographed ou draft paper. 176 Conveyancing and Laiv of Property Act, 1881. Forms. &c. This power of attorney will enable the attorney to execute any deed which the married woman might execute, but where she is an infant it will not make the deed of any greater validity than if she herself had executed it. A married woman appa- rently cannot avoid the formalities prescribed by the Fines and Recoveries Act merely by executing the deed by an attorney. See Graham v. Jackson, 6 Q. B. 811. Shelford, 8th Edit. 375. As to the execution of a power of attorney, see note to sect. 40, ante, p. 87. (6) See sect. 46, ante, p. 102. (c) Sect. 54 makes the receipt in the body of the deed a suffi- cient discharge. No. 26. Power of Attorney for a Solicitor to execute a Deed of Conveyance on a Hale. Know all Men by tliese presents that I A.B. of &c. hereby api^oint CD. of &c. a solicitor of to be my attorney on my behalf to sign seal and deliver a certain indenture already engrossed dated the day of and expressed to be made between [iiarties] being a conveyance of certain hereditaments known as and sitiiate at unto and to the use of E.F. in fee simple [or as the case may he] And also on my behalf to execute and do all other deeds and things which C. D. may consider expedient or necessary for conveying the heredita- ments and premises as aforesaid. In witness, &c. No. 27. Statutory Declaration by Attesting Witness. I A.B. of [residence and description of deponent] do solemnly and sincerely declare 1. That I saw [name of appointor] sign seal and as his Any of the above forms may be obtained of Shaw & Sons, Fetter Lane, London, neatly lithographed on draft paper. Precedents — Statutorij Declaration, Sjc. 177 Act aud deed deliver the indenture [or deed iwU] liereunto Forms. iinnexed marked with the letter " M." 2. That the signature " " set and subscribed to the said indenture [or deed iM] is of the iM'oper hand- Avriting of the said [ctpiminto)-] Aud I make this solemn Declaration conscientiously- believing the same to be true and by virtue of the pro- visions of an Act made and passed in the 6th year of the reign of His late Majesty William the Fourth intituled the (a) Statutory Declarations Act, 1835, Declared at, &c, (a) Sect. 68, ante, p. 129. Any of the above forms may be obtaiaed of Shaw & Sons, Fetter Line, Loudon, neatly lithographed on draft paper. THE SOIJCITORS EEMUNERATION ACT, 1881. 44 & 45 Vict, Chap. 44. An Act for making better provision respecting gect. 1. the Remuneration of Solicitors in convey- ancing and other non-contentious Business. [22nd Auffust,lSSl.'] Be it enacted by the Queen^s most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present parliament assembled, and by the authority of the same, as follows : Preliminary. 1. — (1.) This Act maybe cited as tlic Soli- Short citors Remuneration Act, 1881. ^: f^^; (2.) This Act does not extend to Scotland. tfitrou." (3.) In this Act— '^ Solicitor '^ means a solicitor or proctor quali- fied according to the statutes in that behalf: " Client '^ includes any person who, as a princi- pal, or on belialf of another, or as trustee or executor, or in any other capacity, has N 2 180 Solicitors Remuneration Act, 1881. Sect. 1. power^ express or implied, to retain or em- ploy, and retains or employs, or is about to retain or employ, a solicitor, and any person for the time being liable to pay to a solicitor, > for his services, any costs, remuneration, charges, expenses, or disbursements : '* Person " includes a body of persons corporate or unincorporate : "Incorporated Law Society ^^ means in Eng- land, the society referred to under that title in the Act passed in the session of the twenty-third and twenty fourth years of Her Majesty's reign, intituled " An Act to amend the Laws relating to Attorneys, Solicitors, Proctors, and Certificated Con- veyancers " ; and, in L'eland, the society 29 & 30 referred to under that title in the Attorney Vict. c. 84. and Solicitors Act, Ireland, 1866 : '* Provincial law societies or associations^' means all bodies of solicitors in England incor- porated by Royal Charter, or under the Joint Stock Companies Act, other than the Incorporated LaAV Society above mentioned. Principle This Act makes important alterations in the remunera- ot retnun- ^j^^^ ^^ solicitors, and introduces the principle of remunera- Solicitors. *io^ ^^ conveyancing matters by a scale of rates of commis- sion or percentage ; and professional charges will not hereafter depend upon the number of folios in each docu- ment, but rather according to the skill, labour, and respon- sibility involved in any business transaction on the part of the solicitor. '■ Solici- -^ solicitor is defined by this section as meaning one tor." (palified according to the statutes on that behalf. The 44 ^ 45 Vict. c. 44, s. 2. 181 statutes principally affecting solicitors are as follows : — Note to 6 & 7 Vict. c. 73 ; 23 & 24 Vict. c. 127 ; 33 & 34 Vict. Sect 1. c. 28 ; the JucUcature Act, 1873 (36 & 37 Vict. c. 66), s. 87, amended by the Judicature Act, 1875, s. 14 ; 37 & 38 Vict. c. 68 ; the Legal Practitioners Act, 1876 ^39 & 40 Vict. c. 66) ; and the Solicitors Act, 1877 (40 & 41 Vict. c. 25 ss. 15—21). As to the meaning of "privileges" in sect. 87 of the "Privi- Judicature Act with regard to solicitors, see Grant v. ^^S^^' Holland, 3 C. P. D. 183. The term "client," as defined in this section, has a more "Client." extensive meaning than that placed upon it in sect. 3 of the Attorneys and Solicitors Act, 1870 (33 ■& 34 Vict. c. 28), and includes trustee or executor, or person in any other capacity ; and see TFard v. Eyre, 15 Ch. D. 130. This section interprets the term "person" as including a "Person, body of persons, corporate or iinincorporate. By sect. 3 of 33 & 34 Vict, c. 28, it was defined as including a corpora- tion only. The definition of "Provincial law societies or associations," " Provhi- as set out in this section, will apparently exclude a great '^^''^] ^'i^^ , „ ^ , • i.- j> ii, f e societies or number of country law societies irom the operation oi associa- the Act, as above two-thirds of those societies are not tions." Avithin either of the qualifications required by the defini- tion. The Act came into operation on the 22nd August, 1881. General Orders. 2. In England the Lord Chancellor, the Power to Lord Chief Justice of England, the Master of j,r!^i orders the Eolls, and the president for the time being for ^emu- <.i-r IT n-j_ ij_i Iteration lu of the Incorporated Law Society, and the pre- convey- sident of one of the provincial law societies or ancing, &c. associations, to be selected and nominated from time to time by the Lord Chancellor to serve 183 Solicitors Remuneration Act, 1881. Sect. 2. during the tenure of office of sucli president, or any three of them, the Lord Chaneellor being one, and, in Ireland, the Lord ChaneeUor, the Lord Chief Justice of Ireland, the Master of the Rolls, and the president for the time heing of the Incorporated Law Society, or any three of them, the Lord Chancellor being one, may from time to time make any such general order as to them seems fit for prescribing and regulat- ing the remuneration of solicitors in respect of business connected with sales, purchases, leases, mortgages, settlements, and other matters of conveyancing, and in respect of other busines s not being business in a ny action, or transacted (m aiTy courlf, T5r m the chambers of any judge or master, and not being otherv.ise contentiou s business, and may revoke or alter any such order. A new scale of remuneration in conveyancing and otlier non-contentious business has been recently issued by the Council of the Incorporated Law Society, and Avliich will probably be submitted to the Lord Chancellor. Communi- 3. One month at least before any such Inco")OT- general order shall be made, the Lord Chancellor ated Law shall causc a copy of the regulations and pro- visions proposed to be embodied therein to be communicated in writing to the Council of the Incorporated Law Society, who shall be at liberty to submit such observations and suggestions in writing as they may think fit to oflFer thereon; and the Lord Chancellor, and the other persons hereby authorized to make such order, shall take Societv. 41 cj- 15 Vki. c. U, s. k 183 into cousideratiou any such observations or sug- Sect^S. gestionswliiehmay be submitted tothcm by thesaid couneil within one month from the day on wliich such communication to the said council shall have been made as aforesaid, and, after duly con- sidering the same, may make such order, either in the form or to the effect originally communi- cated to the said council, or "with such alter- ations, additions^ or amendments, as to them may seem fit. 4. Any general order under this xVct may i^-indples as regards the mode of remuneration, prescribe ncratioa that it shall be according to a scale of rates of coinmis_sion or per-centage, varying or not in different classes of business, or by a gross sum^ or by a fixed sum for each document prepared or perused, "without regard to length, or in any other mode, or partly in one mode and partly in another, or others, and may, as regards the amount of the remuneration, regulate the same with reference to all or any of the following, among other, considerations ; (uamcly_,) The position of the party for whom the soli- citor is concerned in any business^ that is, whether as vendor or as purchaser, lessor or lessee, mortgagor or mortgagee, and the like : The place, district, and circumstances at or in which the business or part thereof is tran- sacted : 184 Solicitors Remuneration Act, 1881. Sect. 4. The amount of tlie capital money or of the rent to -n^hicli the business relates : The skill_, labour,, and responsibility involved therein on the part of the solicitor : The number and importance of the documents prepared or perused, without regard to length : The average or ordinary remuneration obtained by solicitors in like business at the passing of this Act. Security for costs, and in- terest on disburse- ments. Order to bo laid before houses of parlia- ment; dis- allowance on address. 5. Any general order under this Act may authorize and regulate the taking by a solicitor from his client of security for future remunera- tion in accordance with any such order^ to be ascertained by taxation or otherwise^, and the allowance of interest. With respect to the dealings between solicitors and clients it was held that a solicitor could not take a securit)- from his client, nor apply one taken for future costs {Be Foster, 2 D. F. J. 105), nor, previously to the Attorneys and Solicitors Act, 1870, accept a promise from his client of a gift for professional services beyond his legal remu- neration. Seton on Decrees, 646 ; O'Brien v. Lerns, II AV. E, 318 ; but see sect. 4 of that Act, g_ (1.) Any general order under this Act shall not take effect unless and until it has been laid before each house of parliament, and one month thereafter has elapsed. (2.) If within that month an address is pre- sented to the Queen by either house, seeking the 44 ^ 45 Vict. c. 44, s. 8. 185 disalloAvance of tlie order, or part thereof, it Sect. 6. shall be lawful for Her Majesty, by order in council, to disallow the order, or that part, and the order or part disallowed shall not take effect. 7. As long as any general order under this Effect of Act is in operation, the taxation of bills of costs taxation. of solicitors shall be regulated thereby. Agreements. 8. — (1.) With respect to any business to Po.^'ei- for which the foregoing provisions of this Act relate, and client whether any general order under this Act is in to agree operation or not, it shall be competent for a soli- and citor to make an agreement Avith his client, and amount of for a client to make an agreement with his soli- tion. citor, before or after or in the course of the tran- saction of any such business, for the remunera- tion of the solicitor, to such amount and in such manner as the solicitor and the client think fit, either by a gross sum, or by commission or per- centage, or by salary, or otherwise; and it shall be competent for the solicitor to accept from the client, and for the client to give to the solicitor, remuneration accordingly. For the judicial construction placed upon the word " agreement," see Ee Lewis, 1 Q. B. D. 724 ; Bewleij v. Atkmso7i, 13 Ch. D. 283, 299 ; and Ee Fernandes, W. N. 1878, p. 57. As to an agreement between a client and a solicitor that the latter should be paid a fixed salary, clear of all ex- 186 Solicitors Remuneration Act, 1881. Note to penses of his office, see Galloimy v. Corporation of London, S.8j_S.l.L. E. 4E(i. 90. (2.) The agreement shall he in T^riting, signed by the person to be bound thereby or by his agent in that behalf. This suh-section provides that the agreement shall be in writing, signed by the person to be bound thereby, whereas, in sect. 4 of the Attorneys and Solicitors Act, 1870, it was necessary that both parties should sign the agreement. Re Lewis, 1 Q. B. D. 724. For a definition of the words " in writing,'"' see sect. 2 (xvi.) of the Conveyancing and Law of Property Act, 1881, p. 5, ante. (3.) The agreement may, if the solicitor and the client think fit, be made on the terms that the amount of the remuneration therein stipu- lated for either shall include or shall not include all or any disbursements made by the solicitor in respect of searches, plans, travelling, stamps, fees, or other matters. (4.) The agreement may be sued and recovered on or impeached and set aside in the like manner and on the like grounds as an agreement not relating to the remuneration of a solicitor ; and if, under any order for taxation of costs, such agreement being relied upon by the solicitor shall be objected to by the client as unfair or un- reasonable, the taxing master or officer of the court may inquire into the facts, and certify the same to the court ; and if, upon such certificate, it shall ajjpear to the court or judge that just 44 ^ 45 Vict. c. 4.4, s. 9. 187 cause lias been shown cither for cancelling the Sect. 8. agreement, or- for reducing the amount payable under the same, the court or judge shall have power to order such cancellation or reduction, and to give all such directions necessary or proper for the purpose of carrying such order into effect, or otherwise consequential thereon, as to the court or judge may seem fit. 9. The Attorneys and Solicitors Act, 1870, Eestric- shall not apply to any business to which this Act Soi"citoi-s relates. Act, 1870. 33 &34 Vict. c. 28. INDEX. ABSTRACT OF TITLE, what, purchaser entitled to call for, 5. verification of, purchaser bears expense of, 10. on sale of jsroperty in lots, 11. tracing or getting in legal estate, 11. ACCOUNT, effect of advance on joint, 118. ACCUMULATIONS, ultimate trusts of, during minority, 92, 9G. investments authorized by law, 9G. ACKNOWLEDGMENT, of right to production of documents, 29. binds person who retains them, 30. obligations imposed by, 31. costs of specific performance of, 31. no right to damages for loss, 32. form of, 174, ACT, commencement of, 1. ACTION, relief against forfeiture of leases, 38. sale of mortgaged property in, 62. power for trustees and executors to compromise, 83. ADOPTION OF ACT, protection of solicitors and trustees, 12G. ADVANCE, effect of, or joint account, &c., 118. AFFIDAVIT, verifying power of attorney, form of, 176. AGENT, execution of deed by an, 102. Index. AGREEMENT, in writing as to leasing powers in mortgage, 49. between solicitor and client as to costs, 185. ' ALL THE ESTATE," conveyance shall pass, 120. ANNEXED DEED, construction of, 109. ANNUAL CHARGES ON LAND, remedy for recovery of, 97. redemi)tion of, 100. ANTICIPATION, RESTRAINT ON. See Married WOMAX. APPLICATION, under the Act, how made, 39, 88, 89. of purchase-moneys uucler power of sale in mort- gage, 54. of insurance money, 58. of money by receiver, 61. person papng to trustee exonerated from seeing to, 82. of income for maintenance, 91. APPOINTMENT, of receiver by mortgagee, 59. of new trustees, 72. of attorney by married Avonian, 86. of trustees to manage infant's land, 89. APPORTIONMENT, of conditions on severance, &c., 36. ARBITRATION, power for executors and trustees to submit to, 83. ARREARS, power to recover all, of annual sums charged on land, 99. ASSIGNMENT, of reversion, 34. of mortgage debt, 41. ASSIGNING, covenant against, excepted from section, 40. ASSIGNS, of sub-leaae, no right to call for title to reversiou, 5. Index. ASSIGN'S — coniinucd. covenants to bind heirs and, 113. absence of word, in covenant by lessee, effect of, 114. ATTESTING WITNESS, rights of purchaser as to execution of purchase deed 29, 112. ATTORNEY, POWERS OF. Sec Table of Contents. of married woman, 86. donee of, may execute deed in his own name, 102. payment by attorney without notice of death, &c., 102. deposit of instruments creating, in central otfice, lO;}. AUCTION, power for trustees to sell by, 79. to buy in at, SO. AUTHORITY, receipt in deed, for payment to solicitor, 112. BANKRUPTCY, definition of, 5. forfeiture of lease on, 40. of donor of power of attorney, 103. BARE TRUSTEE, death of, intestate, 135, BENEFICIAL OWNER, covenants for title implied on conveyance by, 19 — 27. mortgage by, 22 — 27. BENEFIT, of lessee's covenants to run with reversion, 34. of married woman, 85. meaning of term "for her benefit," 8G. of infant, 91, 95. BOND, binds heirs and real estate, 115. Avith two or more jointly, effect of, IIC. BREACH OF COVENANT. Sec Covenant. BUILDING LEASE, definition of, 4. may be granted by mortgagor or mortgagee, 46. BUILDING PURPOSES, definition of, 4. Index, CERTIFICATE, of copyhold commissioners, land discharged from rent- charge by, 101. CHARGES, on land. See Annual Charges, CHATTELS REAL, power to assign, under Lord St. Leonard's Act, 105. CHIEF RENT, redemption of, 100. CHOSES IX ACTION, vesting of, in new trustees, 77. conveyancing of, by a person to himself, &c., 105. CLIENT, definition of, 179. CODICIL, will includes, 4. COLLATERAL POWERS. ^Sec Powers. COMMENCEMENT OF CONVEYANCING ACT, 1. COMMENCEMENT OF TITLE, 6—9. COMMISSION, receiver entitled to, 60. COMMON LAW PROCEDURE ACT, 38, 137. COMPENSATION, for loss of or inj ury to documents, 33. COMPLETION OF CONTRACT, after death of vendor, by personal representatives, 12. COMPOUND, power for executors and trustees to, 83. COMPROMISE, power of executors and trustees to, 83. CONDITION, incident to reversion, notwithstanding severance, 34. apportionment of, on severance, &c., 36. Avaiver of, of re-entry, 37. CONDITIONS OF SALE. .S^ec Table of Contents. application of stated, to all purchases, 5. no ri^lit to call for title to leasehold reversion, 5. Index. CONDITIONS OF SALE— continued. title to enfranchised copyholds, 7. production of documents, 7. requisitions as to prior title, 8. recitals assumed to he correct, 8, lease assumed to have been duly granted, 9. underlease duly granted, 9. receipt for last payment, evidence, 9. expenses of production and inspection, 10. on sale of property inlets, 11. discretion in trustees for sale as to, 80. CONSIDERATION, receipt for, in deed or indorsed, 109 — 112. CONSOLIDATION OF MORTGAGES, restriction on, 43. CONSTRUCTION, and effect of deeds and other instruments, 105 — 121. of supplemental or annexed deed, 109. of implied covenants, 121. CONTRACT, for sale, conditions implied in, 5. completion of, after death of vendor, 12. on sub-demise, title to leasehold reversion not to be re(|uired, 37. under seal binds heirs and real estate, 115. with two or more jointly, effect of, 116. CONTRARY INTENTION, as to, 48. CONVEYANCE. See Table of Contents. definition of, 2. by personal representatives of vendor, 12, what included in, of land, 15. of a manor, 17. covenants implied in, 18. by way of mortgage, 22. by way of settlement, 25. by trustee or mortgagee, 26. rights of purchaser as to execution of, 29. by mortgagee exercising power of sale, 53. execution of, under power of attorney, 102. i;se of Avord "grant" unnecessary in, 105. by a person to himself or to wife, 105. Avife to husband, 105. Avords of limitation in, 106. o Index. CONVEYANCE— co?iti?iwcfZ. of easements, &c., by way of use, 119. shall pass " all the estate," &c., 120. forms of, 143. COPIES, conditions as to, 10. right to, under acknowledgment, 31. power for mortgagor to make, 42. as to, of instruments deposited in central office, 104. COPYHOLD COMMISSIONERS, power to certify that rent is redeemed, 100. COPYHOLDS. See Table of Contents. converted into freeholds by enfranchisement, 7. completion of contract for sale of, after vendor's death, 13. covenants for title as to, 27. as to conveyance by mortgagee exercising power of sale, 53. excepted from operation of section, 79. COSTS, of acknowledgment of right to production of docu- ments, 31. discretion of court as to, in granting relief against for- feitures, 39. incident to sale, by mortgagee, 55. incurred by receiver, to be retained out of money- received, 60. security for, in sale of mortgaged property, 63. of appointment of new trustees, 73. the court has an absolute discretion as to, 131. as to solicitors' costs. See Solicitoes' Remuneration Act, 179—187. power to make general orders as to, in non-contentious business, 181. security for future, and interest on disbursements, 184. effect of order as to taxation of, 185. agreements between solicitor and client as to, 185. COUNTERPART OF LEASE, mortgagor to deliver to mortgagee a, 47. COUNTY COURTS, no power to entertain an application, 39, 86. have no jurisdiction ia matters under Conveyancing Act, 130. Index, COURT, definition of, 5, 14. provision by, for incumbrances, and sale freed there- from, 13. application to the, how made, .39, 88, 81). powers of new trustees appointed by, 77. may appoint trustees to manage infant's land, 89. regulations res^jecting payments into, and applications, 130. orders of, conclusive, 132. interpretation of, with respect to Ireland, 13-1. COVENANTS, for title, 18 — 28. See Covenants for Title. as to production of documents, 32. lessee's run with reversion, 34. benefit of lessee's, to run with reversion, 34. obligation of lessor's to run with reversion, 35. lessor's run with reversion, 35. breach of, restrictions on re-entry or forfeiture for, 38. as excepted from section 14, 40. implied in statutory mortgage, 65. implied in transfer of mortgage, 67. in cases of several mortgagors and mortcrao'ees. 69. ° ' to bind heirs, &c., 113. to extend to heirs, &c., 115. effect of, with two or more jointly, 117. construction of implied, 121. COVENANTS FOR TITLE, implied in conveyance for value, by beneficial owner, 19. of leaseholds for value, 21. on mortgage, 22. of leaseholds, 24. on settlement, 25. by trustee or mortgagee, 2(3. where a person conveys by direction of another, 26. by husband and wife, 27. as to copyholds, 27. run witli the land, 28. CUSTODY, undertaking for safe, of documents, 29. place provided by Conveyancing Act for safe, of original instruments, 104. o 9, Index. C.USTO:\rAEY FREEHOLDS. Bee Copyholds. DAMAGES, for loss or destruction of documents, 33. for irregular exercise of power of sale, 54. DEATH, completion of contract after vendor's, 12. devolution of trust and mortgage estates on, 71. of trustee before testator, 75, of infant under 21, trusts of accumulations, 92. payment Ijv attornev luider power without notice of, 103." DEBT, power for executors and trustees to compound, &c., 82. DEEDS. See Table of Coxtent.s. execution of purchase, right of purchaser as to, 29. production and safe ciistody of title, 29. right to damages for loss of, 32. power for mortgagor to inspect title, 42. restriction on production of title, 43. person entitled to exercise power of sale may recover, 56. vesting trust property in new trustees, 77. execution of, by an agent, 102. construction and eflect of, 105 — 121. of supplemental or annexed, 109. receipt in, sufhcient, 109. evidence of payment. 111. authority for payment to solicitor', 112. DEFIXITIOX of words IX CONVEYAXCING ACT, 2. DEMISE FOR A TERM OF YEARS, l^erson entitled to annual charge may, 99. DEPOSIT, of sum to cover expenses of abortive sale, 65. of original instruments creating power.s of attorney, 103. DESTRUCTION OF DOCUMEXTS. no right to damages for, conferred by acknowledg- ment, 32. right to damages conferred by undertaking, 33. DEVOLCTIOX, of trust and mortgage estates on death, 71. Index. DISCHARGE, of incumbrances on sale, 13. receipt of mortgagee sufficient, for money under power of sale, 56. trustee sufficient, for trust money, 82. married woman sufficient, for accumula- tions, 92. in deed sufficient, 110. of survivor of joint mortgagees a complete, 118. DISCRETION, of court as to relief against forfeiture of leases, 39. as to sale of mortgaged property, 62. as to binding interest of married woman, 85. as to order for costs, 131. DISTRESS, for recovery of annual sums charged on lands, 97. DOCUMENTS, production of, 7. purchaser to bear expense of inspection, 10. acknowledgment of right to production, 29. inspection of, how enforced, 31. undertaking for safe custody of, 32. may be deposited in central office, 104. EASEMENTS, when implied in conveyance, 16. grants of, by way of use, 119. EDUCATION OF INFANT. See Maintenance. ENFRANCHISEMENT, purchaser cannot call for title to make, 7. ENLARGEMENT of residue of term, 121. See Long Terms. ENTRY, as to powers of trustees during minority by, 89. remedy for recovery of annual sums by, 97. EQUITABLE MORTGAGE. See ]\[ortgage. EQUITY OF REDEMPTION. See Mortgage. ESTATE, right, title, &c., provision for all the, 120. Index. ESTATE TAIL, Avbat words of limitation in deed sufficient to create, 107. EVIDENCE, office copy of deposited instrument to be sufficient, 104. receij^t in deed or indorsed, for subsef[ueut purchaser. 111. EXECUTION, of purchase deed, rights of purchaser as to, 29. as to, of power of attorney, 87. under power of attorney, 102. EXECUTOES. may pay debts on evidence they tliinlc sufficient, 82. power for, to compound, &c. , 83. powers of, may be exercised by sursdvor, 85. covenants binding on, 114. protected in adojjting Act, 127. EXPENSES, as to documents, &c. , not in vendor's possession, 10. of mortgagor's inspection of title deeds, 42. of sale of mortgagee, 55. incurred by receiver, 60. in management of infant's land, 91. EXTENT OF ACT, does not extended to Scotland, 2. with modifications is applicable to Ireland, 2. EEE SIMPLE, what words of limitation in deed sufficient, 106. enlargement of residue of long term into, 122. PINE, definition of, 4. EORECLOSURE. See Mortgage. FORFEITURE OF LEASE. See Lease. FORMS. See Table op Contexts. of statutory mortgage, 65. transfer of mortgage, 66. re-couveyance, 70. hidex. FORMS — continued. sufficiency of statutory, 113. further charge, 142. conveyance on sale, 143. marriage settlement, 144. FREEHOLDS, vesting of trust property in neAV trustees, 77. conveyance of, by a person to himself, &c., 105. FURTHER CHARGE. See Table of Contents. GENERAL ORDERS, under Solicitors Remuneration Act,181. GENERAL WORDS, implied in conveyance of land, 15. of buildings, 16. of manor, 16. intention to exclude, 16. mines and minerals omitted in statutory forms of, 16. GOVERNMENT SECURITIES, definition of, 14. GRANT, use of word, unnecessary, 105. of easements, &c., by way of use, 119. GUARDIAN, management of land, &c., during minority by, 89. payments to, for infant's maintenance, 94. HEIRS, limitation of estate in fee simple without the word, 107. covenants to extend to, 115. HEIRS AND ASSIGNS, personal representatives deemed, 71. covenants to bind, 113. « HIMSELF," what is included in the word, 106. HUSBAND, covenants for title implied in conveyance by, 27. conveyance by, to wife, 105, Index, IMPLIED CONDITIONS OF SALE, 5, IMPLIED COVENANTS. See Covenants. INCOME, detinitioii of, 2. power for mortgagee to appoint receiver of, 50. application by trustees of infant's, 9L INCORPORATED LAW SOCIETY, interpretation of term, 180. INCUMBRANCER, definition of, 3. notice to, 15. INCUMBRANCES, definition of, 3. discharge of, on sale, 13. implied covenant against, 26. sale subject to, by trustees, 80. INDEMNITY, to person acting in pursuance of power of attorney, 103. INDORSED RECEIPT. See Receipt. INDORSEMENT, supplemental or annexed deed read as if made by way of, 109. INFANT, trustees mav apply income, &c., for maintenance of, 91. female, on marriage entitled to accumulations, 92. married woman, power of, to appoint an attorney, 86. land of, in certain cases, shall be deemed a settled estate, 87. owner, sale and leases on behalf of, 87. management of infant's land by trustees, 89. may exercise powers over personalty, 108. INHERITANCE, covenants relating to land of, 113. INQUIRY, purchaser relieved from making, 56. INSPECTION OF DOCUMENTS. See Documents. Index. INSTRUMENT, definition of, 5. INSURANCE, mortgagee's powers as to, 52. amount and application of, money, 57. trustee's of infant's land may effect, 90. INSURE, breacii of covenant to, relief against forfeiture, 38. INTERPRETATION OF WORDS IN CONVEY- ANCING ACT, 2. INVESTMENTS, authorized by law, 92, 96. IRELAND, modifications in Conveyancing Act respecting, 134. JOINT ACCOUNT, effect of advance on, 118. JOINT AND SEVERAL, implied covenants, in statutory mortgage, 69. " JOINTLY," construction of word, 106. JOURNEYS, expenses of, to be borne by purchaser, 10. JUDICATURE ACT. Hee Statutes. JURISDICTION, orders of court not to be invalidated for want of, 132. LANCASTER, COUNTY PALATINE OF, rules for regulating proceedings in, 131. LAND, definition of, 2. sale of, freed from incumbrances, 14. general words in conveyances of, 16. remedies for recovery of annual sums charged on, 97. covenants relating to, of inheritance, 113. LAND TRANSFER ACT. Hec Statutes, 38 & 39 Vict. c. 87. Index, LEASE, assumptions to be made by purchaser of, 9. implied covenant as to validity of, 24. rent and benefit of lessee's covenants to run with reversion, 34. obligation of lessors covenants to run with, rever- sion, 35. aj^portioninent of conditions on severance, &c., 36, relief against forfeiture of, 38. by mortgagor or mortgagee in possession, 45. counterpart of, delivery of, 47. of infant's land, 87. LEASEHOLD, title to, reversion cannot be called for, 5. implied conditions of sale in purchase of, 9. implied covenants for title on conveyance of, 21 on sub-demise, title to, reversion not to be required, 37. LESSEE, as to service of notice on, 128. LESSOE. &e Lease. LIEN, incumbrance includes a, 3. absence of indorsed receipt no notice of vendor's, 111. LIMIT AT lOX, words of, in fee or in tail, 106. LONG TERM. See Table of Contents. enlargement of residue of, into fee simple, 121. LOSS OF DEEDS. See Deeds. LOTS, stated conditions as to sale of property in, 11. power for trustees for sale to sell property in, 80. LUNACY, payment by attorney ruider power "svithout notice of, 103. MAINTENANCE, trustees may apply income for infant's, 91, 95. MANAGEMENT, powers of. See Ttustees. Index. MANAGEE, distinction Letween receiver and, 59. MANOR, detinitioii of, 2. several words included in conveyance of, 17. MARRIED WOMAN, implied covenants for title by, 27. power for Court to hind interest of, 85. _ may appoint an attorney, although an infant, 8G. may release or extinguish a power, 108. METROPOLITAN BUILDING ACT, provisions of, as to insurance money, 58. MINES AND MINERALS, omitted in general words, 16. as to opening and working of, 52. trustees of infant's land may continue the working 1 of, 90. fee simple in, ac(|uired by enlargement of long term, 125. MINING LEASE, defined, 4. forfeiture of, on breach of covenant for inspection, 40. MONTH, meaning of, 53. MORTGAGE. See Table of Contents. definition of, 3. implied covenants for title in, 22, 24. assignment of, debt, 42. restriction on consolidation, 43. statutory powers implied in, 49. action respecting, 62. form of statutory, 65. forms of statutory transfer of, 66. form of reconveyance of statutory, 70. devolution of trust and, estates on death, 70. not vested in new trustees by declaration, 77. effect of advance on joint account, &c., 118. MORTGAGEE, definition of, 3. obligation on, to transfer instead of reconveying, 41. to allow inspection of deeds, 42. Index. MORTGAGEE— confiiinefZ. powers incident to estate or interest of, 49. regulation of exercise of power of sale, 52. receipts of, discharges for purchase-money, 56. amount and application of insurance money, 57. entitled to appoint a receiver, 59. questions arising in case of a sale hy, 136. MORTGAGEE IN POSSESSION, definition of, 3. sect. 15, not applicable to a, 42. leasing powers of, 45. power of, to cut and sell timber, 50. MORTGAGOR, definition of, 3. implied covenants for title by, 22, 24. power for, to inspect title deeds, 42. leasing powers of, 45. should be a party to transfer of mortgage debt, 69. as to service of notice on, 128. NEW TRUSTEES. Sec Trustees. NOTICE, constructive, of lessor's title, 7. to incumbrancers, 15. by lessor to lessee of breach of covenant, 38. by mortgagee recpiiring payment of mortgage debt, 52. as to redemption of quit-rents, &c., 100. absence of indorsed receipt no, of vendor's lien. 111. regulations respecting, 128. OBJECTIONS, as to prior title restricted, 8. OBLIGATIONS UNDER SEAL. Bee Bond. OFFICE COPY, of instrument dej)Osited to be evidence, 104. ORDERS OF COURT, to be conclusive, 132. ORDERS, GENERAL. See General Orders. PALATINE COURT. See Lancaster. Index. PARENT, income for infaut'.s maintenance may be paid to, 94. PARTIES, to action for foreclosure and sale, 62. PARTY, mortgagor should Le made a, 69. PAYMENT, into court of a siim to meet prior incumbrance, 54. by attorney under power -without notice of death, &c., 102. necessity for, to some one projierly authorized, 110. of purchase money to vendor's solicitor, 112. regulations respecting, into court, 130. PERSON, definition of, 180. PERSONAL REPRESENTATIVES, have statutory power to convey, 12. trust and mortgage estates vest in, 71. PLACE OF ABODE, service of notice at, 128. POSSESSION, includes receipt of income, 2. POSSESSION OR CONTROL, 30. POST, ser\'ice of notice by, 129. POWERS, documents creating, when to be produced, 7, 8. leasing, of mortgagor and of mortgagee in posses- sion, 45. incident to estate or interest of mortgagee, 49. of new trustees appointed by court, 77. for trustees for sale to sell by auction, &c.,79. for executors and trustees to compound, &c., 82. may be exercised by survivors, 84. of court to bind interest of married woman, 85. of attorney, of married Avoman, 86. execution under, 102. payment in pursuance of, protected, ll>2. simply collateral, 107. dilferent kinds of, 108. Index. POWEKS— con!!in?fCfL in gross, 108. doctrine of fraud on, not affected, 109. persons entitled to exercise, of enlarging tenn into a fee, 124. PEEMIUM, included in fine, 4. paid by mortgagee for insurance a charge on pro- perty, 50. PEIVATE CONTRACT, power for trustees to sell hy, 80. PRIVILEGES, conveyance of land includes easements and, 16. PRODUCTION, of documents. Sec Documents. PROPERTY, definition of, 2, 81. PROVINCIAL LAW SOCIETY, definition of, 180, PROVISO, for redemption implied in statutory mortgage, G6. PURCHASE-MONEY, ■whether purchaser is recj[uii'ed to see to apj)licatioai of, 82. payment of, to vendor's solicitor, 112. PURCHASER, definition of, 4, 111, 131. right of, to make requisitions, &c., restricted, 7. rights of, as to execution of conveyance, 29. receipt in deed evidence for subsequent, 111. application to Court by, 131. QUIT RENT, redemption of, 100. REASONABLE TIME, 38. RECEIPT, for rent, evidence to purchaser, 9. mortgagee's, in ■writing, 56. Index. BECEIVT— continued. power for mortgagee to give, for purcliase-money, 56. by anticipation, 82. in deed sutftcient, 110, evidence for subsequent purelmser, 111. authority for payment to solicitor, 112. RECEIVER, power of mortgagee to appoint, 50. appointment, powers, remuneration, &c., of, 59. distinction between manager and, 59. RECITALS, in deeds twenty years' old to be evidence, 8, G9. in abstracted documents Avlien assumed to be cor- rect, 8. RECONVEYANCE. See Table of Contents. transfer instead of, obligation on mortgagee, 41. statutory form of, 70. REDEMPTION, action for, sales in, 62, time for, 65. proviso for, in statutory mortgage, 66. of quit-rents and other perpetual charges, 100. RE-ENTRY, apportionment of right of, on severance, &c., 36. right of, for breach of covenant restricted, 39. condition of, in lease by mortgagor or mortgagee in possession, 46. REGISTRATION, of deed vesting trust property in new trustees, 77. RELIEF AGAINST FORFEITURE. See Lease. REMUNERATION, of receiver, 59. of solicitors in respect of conveyancing, &c., business, 179—187. power for solicitor and client to agree on amount of, 185. RENT, definition of, 4. receipt for, evidence to purchaser, 9. runs with reversion, 34. application of surplus, 60. Index. EEXT — continued. ultimate trust of accumulated, during minority, 93. enlargement of long term subject to nominal, 122. EENT-CHAKGE, redemption of, 100. KEPEAL OF ENACTMENTS, 8 eSc 9 Vict. c. 119 (Lord Brougham's Act), 133, 138. 15 & 16 Vict. c. 86, s. 48 (Chancery Procedure Act)^ 63, 138. 22 & 23 Vict. c. 35, ss. 4—9 (Lord St. Leonard's Act) 41, 137. 23 & 24 Vict. c. 126, s. 2 (Common Law Procedure), 41, 137. 23 & 24 Vict. c. 145. ss. 11—30 (Lord CranAvorth'ft Act), 133, 138. 37 & 38 Vict. c. 78, s. 4 (Vendor and Purchaser), 71. ss. 5, 7 135. 38 & 39 Vict. c. 87, s. 48 (Land Transfer), 71 EEQUISITIONS, restrictions on, by implied conditions of sale, 5 — 11. KESIDENCE ABROAD, appointment of new trustee, 73. EESTRAINT ON ANTICIPxVTION, court may bind interest of married woman notwith- standing, 85. EETIEEMENT OF TRUSTEE. >S'ce Trustee. EETROSPECTIVE, what sections in Conveyancing Act are, 2. EEVERSION, title to, not to be called for, 5, 7, 37. rent and benefit of lessee's covenants run with, 34. oliligation of lessor's covenants run with, 35. apportionment of conditions on severance, &c. of, 36. EIGHTS, LIBEETIES, AND PRIVILEGES, grant of, by way of use, 119. EULES, power to make, for purposes of Conveyancing Act, 131, as to Ireland, 135. SAFE CUSTODY OF DOCUMENTS. See Documents. Index. SALE, definition of, 4,11. conditions of, application of stated, to all purchases, 5. condition as to, of property in lots, 11. completion of contract for, after vendor's death, 12. discharge of incumbrances on, 14. execution of deed on, rights of purchaser as to, 29. surplus proceeds of, 55. by trustees under a trust or power, 79. of infant's land under the Settled Estates Act, 87. SALE, POWER OF, incident to estate of mortgagee, 51. regulation of exercise of, 52 conveyance under, 53. mortgagee can give receipt for money arising under 56. SCHEDULE, of Acts affected, 1.36, of Acts repealed, 137. of statutory forms, 138. of short forms of deeds, 141. SCOTLAND, Act does not apply to, 2. SEARCHES, implied condition of sale as to expenses of, 10. of tile of deposited instruments in central office, 104. SECURITIES, definition of, 5, 14. receipt for, by trustees, 81. to be a sufficient discharge, 110. SECURITY FOR COSTS. See Costs. SEPARATE PROPERTY, restraint on anticipation may be dispensed with by the Court, 85. SERVICE, of notice on lessee by lessor, regulations as to, 38. by post to place of abode, 129. SETTLED ESTATES ACT, tendency to aboli.-li "restraint on anticipation," 86. extension of, to infant's land, 87. P Index. SETTLED ESTATES ACT— contimoecl. orders under, not invalidated as against purchaser, 133. SETTLEMENT. See Table op Contents. implied covenant in, 25. form of marriage, 144. SEVERANCE. See Reversion. SHARES, not vested in new trustees by declaration, 79. SOLICITOR, receipt in deed authority for payment to, 112. protection of, adopting act, 126. persons in fiduciary position acting without a, pro- tected, 127. definition of, 179. remuneration of, 180, 183. agreements between clients, and, 185. SOLICITORS REMUNERATION ACT, 179—187. SPECIALTY, diflerence between, where heir is named and where not named, 115. STAMP, on acknowledgment, 30. on statutory transfer of mortgage, 69. on conveyance on aj^pointment of new trustee, 78. on deed converting long term into a fee simple, 126. STATUTES, 32 Hen. 8, c. 34 (Condition of Re-entry), 34. 14 Geo. 3, c. 78, s. 83 (Insurance), 58. 11 Geo. 4 & 1 Will. 4, c. 47 (Fraudulent Demises), 115. 3 & 4 Will. 4, c. 74, s. 77 (Fines and Recoveries), 108. 3 & 4 Will. 4, c. 104 (Simple Contract Debts), 115. 5 & 6 Will. 4, c. 62 (Statutory Declarations), 129. 1 & 2 Vict. c. 110 (Judgments), 136. 2 & 3 Vict. c. 11 (Judgments), 136. € & 7 Vict. c. 73 (Solicitors), 181. S & 9 Vict. c. 99, s. 5 (Crown Lands}, 37. c. 106, s. 9 (Amendment of Law of Real Property), 123. c. 119 (Lord Brougham's Act), 138. Index, STATUTES— co?i^^^■fo^^^S^