OJnrn^U lEaw irlinnl IGtbrary Digitized by Microsoft® Cornell University Library KD 829.U55 A concise explanation of Lord Birkenhead 3 1924 021 642 149 Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation witli Cornell University Libraries, 2007. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® A CONCISE EXPLANATION OE LOUD BIRKENHEAD'S ACT Digitized by Microsoft® Digitized by Microsoft® A CONCISE EXPLANATION OF LORD BIRKENHEAD'S ACT (THE LAW OF PROPERTY ACT, 1922) IN PLAIN LANGUAGE SIR ARTHUR UNDERBILL, ll.d. BENCHER OF LINCOLN'S INN AND SENIOB, CONYEYANCING- COUNSEL OF THE COUET ; AUTHOR OF A TREATISE ON THE LAW OF TRUSTS, ETC. " Rather to excite your judgment briefly than to inform it tediously " — Bacon. ^ LONDON : BUTTERWORTH & CO., Bell Yard, Temple Bae. SYDNEY: BUTTERWORTH & CO. (AUSTRALIA), LTD . CALCUTTA: BUTTERWORTH & 00. (iNDIA), LTD. WINNIPEG :' BUTTERWORTH & CO. (CANADA), LTD. WELLINGTON (N.Z.) : BUTTERWORTH & CO. (AUSTRALIA), LTD. 1922 Digitized by Microsoft® PBINTED IN ENGLAND BY Spottiswoodb, Ballantyne & Co. Ltd. COLOHBSTEB, LONDON AND EtON Digitized by Microsoft® PREFACE This little work is founded on a Course of Lectures which the writer delivered in Lincoln's Inn Old HaU during November 1922, at the request of his colleagues on the Council of Legal Education. It is not, of course, intended to be a de- tailed treatise on the Act, nor to justify the reader in dispensing with such a treatise in practice. But, as every lawyer knows, there are two kinds of professional knowledge, viz., a general and habitual knowledge of the broad principles of law, and a knowledge of where to find, when wanted, the minute details of the law, whether crystallised in statutes or cases. This work is confined to the first of these classes ; and it is hoped and believed wiU give the practitioner a sufficient general grasp of the broad principles of the new law of property, and will at all events assist him to understand the Act. The Act has been the work of many hands. Nevertheless, it is quite certain that but for Lord Birkenhead's enlightened recog- nition of the merits of the scheme, and his b Digitized by Microsoft® vi Preface persistence in pushing it through, it would have been a still-born child, for it is not a sub- ject which interests politicians. He has been the great parliamentary physician who has saved it from that, and it is meet that it should bear his name. Lord Haldane, too, has not hesitated to give his strong support to the present Act, which, indeed, has borrowed largely from his own BiU provisions which were most carefully and laboriously thought out in principle and detail by him in collaboration with the late Sir Philip Gregory, one of the Conveyancing Counsel of the Court. Nor must we forget the great labour bestowed by the late Solicitor-General, Sir Leslie Scott, both as Chairman of the Committee on Land Transfer (on which the writer had the honour to serve) and also as the mover of the BiU in the House of Commons. Sir Claud Schuster, K.C.B., K.C., the Lord Chancellor's permanent Secretary, and Mr. Alfred Topham, K.C., who were hard-working members of the same Com- mittee, also gave most valuable assistance. But the man who has put most work into the Act is undoubtedly Sir Benjamin Cherry, one of the Conveyancing Counsel of the Court, who has, as it were, been chief of the staff, and worked at the BiU with the utmost assiduity for the past three years with the advice and assistance of his colleagues, Mr. Benn and Mr. Eustace Russell, and Mr. Sanger of the Chancery Bar. Digitized by Microsoft® Preface vii The Councils of the Law Society, and several provincial Law Societies, have also given great assistance under the leadership of Sir Walter Trower, a past-president of the Law Society. The Act therefore is a lawyers' Act, labori- ously built up by skilled Conveyancers. But I am afraid that the professional reproach which stOl clings to the immediate male issue of the sea cook also applies to the lawyer, and some layman may quote Jeremiah : ' Can the Ethi- opian change his skin, or the leopard his spots ? then may ye also do good, that are accustomed to do evil.' But, if so, I would answer him out of the mouth of the prophet himself, ' And the vessel that he made of clay was marred in the hand of the potter ; so he made it again another vessel, as seemed good to the potter to make it.' Indeed, in all seriousness, the men who have been concerned in the work have had no selfish motives ; for have they not lived on their knowledge of the present complexities, and is it Hkely that they wiU better their positions by administering a new system ? At the same time, I do not beheve for a moment 'that the skilled conveyancer will be killed by the Act. The wise saying of King Solomon that ' with- out counsel purposes are disappointed ' will remain as true as ever, and he (or perchance she) who can express complicated transactions in exact and lucid language will in a humble and Digitized by Microsoft® viii Preface obscure way be as much in demand as his (or her) more brilliant and ambitious colleague in silk. Lastly, the writer would warn the pro- fession that the effect of the new Act must be gradual, for the past cannot be wiped out at once. For the next quarter of a century titles accrued under the present system will have to be investigated on the old lines. It is a case of ' sic vos non vobis fertis aratra boves,' and but few of those human oxen who have helped to drag this heavy plough wiU live to see the fruits of their labour. A. U. Lincoln's Inn, November 1922. Digitized by Microsoft® CONTENTS CHAPTER I PAGE Historical Sketch of the Present Law of Real Property, showing why it is un- necessarily Complicated and Archaic . 1 CHAPTER II Provisions of the Act intended to Simplify THE Law ...... 36 Section 1. — As to the Abolition of Copy- hold and Manorial Incidents and Customary Tenures . . .41 Section 2. — The New Devolution of Real and Personal Estate on Intestacy . 45 Section 3. — Abohtion of all Legal Estates except Fee Simples and Estates for Years ...... 53 Section 4. — Settlements of Land under the New Act 57 Section 5. — Preservation and Extension to Personal Estate of Equitable Estates Tail 64 Section 6. — Simphfication and Amend- ment of other isolated Rules of Law where the shoe has been found to pinch ...... 65 Digitized by Microsoft® Contents CHAPTER III Provisions intended to Factt,ttate Land PAGE Transfer directly 78 Section 1. — The Curtain Clauses . 78 ,, 2. — Death Duties and Bank- ruptcies .... 93 „ 3. — Mortgages .... 94 ,, 4. — Tenancy in Common . 99 ,, 5. — Infants' Property 102 „ 6. — Lunatics and Defectives 105 ,, 7. — General Effect on Convey- ancing .... 105 Appendix ....... 110 Index [1H12] Digitized by Microsoft® TABLE OF SECTIONS REFERKED TO SEOIION Page SECTION PAGE Section PAGE 1 . .53, 54, 57 51 . . . 87 97 69 S 55, 106 58 84 98 . . 66 3 . 90, 91 53 81,90 99 . . 66 4 56,57 54 81 100 . . 107 5 105 55 82 101 . . 71 6 91,92 56 83 103 . . 77 7 106 58 84 103 . . 77 8 106 59 84 104 . . 107 9 94 60 85 105 . . 107 10 100 61 104 106 . . 77 IS 59 62 72 107 . . 68, 107 15 93 63 85 109 . . 71 16 93 64 84 110 . . 71 17 64, 65, 68 65 85 Ill . . 72 18 65 66 85 112 . . 72 19 68 67 85 113 . . 73 20 . 54,91 68 86 114 . . 73 21 56 69 86 115 . . 67 22 53 70 86 116 . . 73 23 55 72 68 117 . . 72 24 69 73 69 118 . . 71 28 54 74 67 119 73 29 56 76 65 120 . 72 , 74, 75 30 56,84 77 65 121 . . 67 31 57 78 69 122 . . 72,75 32 91 79 70 123 . . 76 33 91 80 70 124 . . 72 36 83 81 96 125 . . 72 37 83 88 99 126 . . 72 38 63,83 83 70 128 . . 42.43 39 83 84 99 129 . . 43,44 40 83 85 99 130 . . 43 41 83 86 70 131 . 43 42 83 87 67 138 . . 43 43 83 88 67 135 . . 45 44 83 89 70 136 . . 43 45 84 90 6e , 67, 71 138 . . 43 46 83 91 71 139 . 4C !, 44, 45 47 85 93 71 140 . . 43 48 87 94 92 141 . . 43 49 87 95 92 142 . . 43 50 87 96 71 143 . . 43 Digitized by Microsoft® Xll Table of Sections Referred to Seotion 144 . 145 . 146 . 147 . 148 . 149 . 150 . 151 . 153 . 153 . 154 . 155 . 156 . 157 . PAGE SECTION PAGE . . 43 158 . . 53 . . 45 159 .. . 53 . . 69 160 .. . 53 . . 49 161 .. . 53,61 . . 42,49 162 . 53 . . 51 163 . . 53 49, 50, 51 164 . . 108 . . 52 165 . . 108 . . 68 166 . . 108 . . 52 167 . . 108 . . 50 168 . . 108 . . 53 169 108 . . 53 170 . . . 108 . . 53 171 . . 108 SEOnON PAGE 178 •■ • 108 178 .. ■ 108 174 .. ■ 108 175 .. ■ 108 176 . . 108 177 . . 108 178 . . 108 179 . . 108 180 ■ ■ 108 181 . . 108 182 . . 108 183 . . 108 188 . ■ 88 SCHEDULES SOHED. PAGE 1 . .55,93,106 2 94,96,96,97,98 3 . . 100, 102 SOHED. PAGE SOHED. PAGE 5 . . .59,60 14 . . 44 6 75,76,103.105 15 . . 45 12 . . . 42,45 13 . . . 44 Digitized by Microsoft® EXPLANATION OF LORD BIRKENHEAD'S ACT CHAPTEE I HISTORICAL SKETCH OF THE PRESENT LAW OF REAL PROPERTY, SHOWING WHY IT IS UN- NECESSARILY COMPLICATED AND ARCHAIC The Law of Property Act, 1922, is what Americans call a big proposition. It is big in every sense — in length, alone it is one of the largest Acts on the Statute-book, and in bold and drastic changes it stands on a level with the Judicature Act, 1873. However, although the new Act is extremely voluminous, a very large part of it is purely de- structive ; another large part (which is intended next session to be removed from this Act and incorporated in a series of consohdation Acts) merely amends and extends existing statutes (such as the Settled Land Act, the Conveyan- cing Acts, the Trustee Act, and the Land Transfer Acts), so that the new and very radical changes (what may be called the pith and marrow of the Act) do not occupy so great a space as at first sight they may seem to do. Digitized by Microsoft® 2 Explanation of Lord Birkenhead's Act What, then, is the object of the Act ? The object is twofold — (1) to simphfy the law relating to the ownership, settlement and devolution of land and houses — of immovables, as Continental lawyers call them ; and (2) as a most important corollary to obviate as much as possible the difficulty and consequent ex- pense of investigating the title to immovables on the occasion of sales, mortgages and other transactions, without inflicting any material injury upon anyone. With regard to simplification of the law, no one acquainted with the present law of real property can deny that it is complicated, cumbrous and archaic. It is based on a state of society (feudalism) which has for over two hundred years ceased to exist in this country ; and although feudalism was in itself origin- ally of great simplicity and well fitted to its age, the innumerable legislative attempts to amend it from time to time, so as to bring the law up to the requirements of a progres- sively commercial civilisation, combined with the perverted ingenuity of the Tudor and Jacobean lawyers to twist that legislation to uses which its authors never dreamt of, have resulted in a barbaric patchwork only compar- able to the pictorial efforts of a Futurist artist. Even those conveyancers who dissent from Lord Birkenhead's method of dealing with the matter almost universally admit that it is a Digitized by Microsoft® The Present Law of Real Property 3 desirable thing to simplify the law by sweeping these legal cobwebs of the past into those literary museums, the libraries of the four Inns. But there is another, and to most minds a still more important, aspect of the matter, and that is to render sales and purchases, mort- gages and other like transactions less expensive than they are now. The principal reason of this expense is this — that on every occasion on which land or houses are dealt with by sale or mortgage it is necessary for the purchaser or mortgagee to satisfy himself that the vendor or mortgagor has sufficient ownership or authority to enable him to give a good title, and this can only be done by a skilled mind investigating the history of the property (often very complicated) for a considerable period. That period was at one time no less than sixty years, but the Vendor and Purchaser Act, 1874, reduced this to forty years, which, although in theory not really safe, has, nevertheless, after nearly fifty years' experi- ence, proved to be sufficient in practice. But this forty years must begin with what con- veyancers call a ' good root of title,' and this, of course, you cannot always find without going beyond the forty years : for you cannot commence the title in nubibus, but must begin with some deed or will by which the absolute ownership was changed or mortgaged. Digitized by Microsoft® 4 Explanation of Lord Birkenhead's Act Now, laymen frequently ask, and some of the readers of this treatise may also possibly ask, why should there be any difference between land and goods ? If a man buys a horse, a motor-car, a watch, or stocks and shares, it never enters his mind to demand a history of the vendor's title. The answer is threefold. In the first place, lands and houses are fixed. They remain in situ, and can always be found. A watch, a horse, or a motor-car, on the other hand, may be stolen and never again seen, or, if seen, identified. With regard to stocks and shares, the ownership is registered in the company's books, and the title of the registered owner to sell or mortgage is guaranteed by law. Never- theless, if you pay £1,000 for a car, and it turns out to have been stolen by the vendor, and the true owner identifies it in your posses- sion, he can recover it unless it was sold in open market, and even then if the thief is con- victed.^ It is, ho we ver, so difficult to find a stolen article when once it has been sold and its ap- pearance altered, that the risk is not appreciated by the pubhc. In the case of land, on the other hand, the real owner can always lay his hand on it, so that it is quite impossible for a thief to steal, hide, and finally sell it to another free from any appreciable danger of the true owner reclaiming it. '■ Sale of Goods Act, sec. 24. Digitized by Microsoft® The Present Law of Real Property 5 A second reason for investigating the title is that land (unlike goods or stocks) may be the subject of easements, restrictive covenants, and rent charges. For instance, the next-door neighbour may have a right of way through the property, or a previous vendor may have imposed on the property a restriction against its use for any other than residential purposes, or the like ; or the vendor or his predecessors in title may have created rent charges on it, or, still worse, upon it and other adjacent land together ; and if a purchaser or mortgagee refrains from investigating the title he will take the property subject to these incum- brances. Lastly, the property may be mortgaged, and as there is (outside of Yorkshire and Middlesex) no register of mortgages, it is only by investigating the title and inspecting the deeds that he can safeguard himself against that danger. Chattels, on the other hand, can only be mortgaged by dehvering them into the cus- tody of the mortgagee (usually the benevolent being who presides at the sign of the Three Balls) by way of pledge, or by executing a duly registered bill of sale. But as that register is open to pubhc inspection, and is, in fact, regu- larly published in trade journals, this plays havoc with the credit of the mortgagor, and biUs of sale are only given in the last resort. For these reasons, then, an investigation of Digitized by Microsoft® 6 Explanation of Lord Birkenhead's Act the title is in the nature of things necessary before a prudent purchaser or mortgagee accepts it. There is, in fact, only one way of avoiding it, viz,, by a State Register of titles such as already exists (and is in the County of London compulsory), in which the Registrar is armed with the power of certifying that a title is absolutely good, the State guaranteeing the correctness of the certificate and compensating anyone who is injured by its incorrectness. The desirability of such a department of the State is a very contentious question, upon which the writer has no intention of adven- turing. If land, like stocks and chattels, were only capable of being held absolutely, and if a pur- chaser or mortgagee were free from investi- gating trusts, the investigation of titles would present very little difficulty or expense, for the history of every title would merely consist of the production of conveyances, mortgages, and wills, and proofs of intestacies during the past forty years. But, in point of fact, this simplicity does not exist, because the Courts of Common Law to some extent. Courts of Equity to a greater extent, and ill-considered legislation most of all, have introduced complexities which cannot be mastered without long study and practice, and form a body of law unparalleled in any other civihsed country, except America, for Digitized by Microsoft® The Present Law of Real Property 7 useless and tedious technicalities. Lord Birken- head's Act endeavours successfully to meet this by keeping equities, -with some few excep- tions, off the title, thus making the history of each title a very simple and straightforward account of sales, mortgages and leases, and putting all settlements and trusts behind a curtain. Now, in the opinion of the writer, the new Act cannot be appreciated, or indeed under- stood, unless one first understands the nature of the complexities and technicalities of the present system, and that system can only be grasped by tracing its history. The rest of this chapter is therefore devoted to an elementary account of the history of our land law down to the present date. In the second and third chapters it will be shown how these com- plexities and technicalities have been destroyed or minimised by the new Act. Whatever may have been the governing principle of land ownership before the Con- quest, that great event had the effect of sub- jecting the land of England to feudal tenure. In theory the Sovereign alone owned the land. All other persons having proprietary rights in it were 'tenants' either of the King himself (tenants-in-chief), or of some inter- mediate lord ; and in its inception every tenant owed not only some kind of duty or service to his immediate lord, but also, if the service Digitized by Microsoft® 8 Explanation of Lord Birkenhead's Act was military, did homage to him {i.e., swore to become his man), or, if the service was not military, performed the ceremony of fealty {i.e., promised to be faithful ' to him). The lord, on his part, undertook the tenant's pro- tection. In the case of tenants holding directly under the Crown (tenants-in-chief), this service (with the exception of grants made direct to the Church) usually took the form of knights' service, i.e., each of the great tenants had to find a certain number of knights and men-at-arms duly equipped for the King's wars when called upon ; and failure to perform the service involved distraint by the King on the defaulter's chattels. This tenancy, in consideration of service fixed and definite, was, and stiU is, called freehold, as being only fit for freemen. It could only take two forms. It might be personal to the grantee for his life, or it might be given to him and his family for ever ; and the extent of the tenant's interest was called his ' estate ' {i.e., his ' status '). If given to the grantee without his heirs being named, he took for life only. But if the gift was to him and his heirs the estate so granted was, and stiU is, called a fee simple. But until the year 1290 it was by no means the absolute estate which it now is. In short, it was in- ahenable without the licence of the lord, and on the death of the tenant in possession Digitized by Microsoft® The Present Law of Real Property 9 devolved on that tenant's heir. The ' heir ' was the person designated by law and not by the tenant, and depended, and still depends, on primogeniture — the eldest or only son, if there be one ; if not, all the daughters in common ; or, if the tenant die childless, then his eldest next of kin in a manner which it is needless to describe. Neither a tenant nor his heir could disclaim the tenancy and so get rid of their services to the lord. On the other hand, a tenant in fee simple could always subinfeudate to a sub-tenant of himself. A fee simple might, however, be given subject to a condition of reversion to the lord on the happening of some stated event as, for instance, the failure of issue. Grants were made by the King to his great nobles of large tracts of land called Honours or Baronies, nearly all of which have for practical purposes disappeared by reason of escheats and forfeitures. Thus, Sussex was divided into the six great Honours of Chi- chester, Arundel, Bramber, Lewes, Pevensey, and Hastings, each having its castle and forest. The County of Chester (except the episcopal estates) was an ' Honour ' of itself, belonging to the Earl, and so forth. The tenants-in-chief of these honours in turn granted to subtenants of wealth and station considerable tracts of land called manors, mainly on corresponding terms, the Digitized by Microsoft® 10 Explanation of Lord Birkenhead'' s Act lord of each manor relieving the lord of the honour of his burden to the King by furnish- ing a certain number of knights and men-at- arms for the King's wars as part of the army which the tenant-in-chief had to provide. The manor may be said to have been the political unit of landlordship, and the manorial system was practically at one time universal throughout England, so that probably every rood of land formed part of some manor ; and it was this which constituted the real feudal system of government and land tenure, of which scarcely a trace now remains. By reason of escheats and forfeitures of honours, nearly all manors (indeed the great bulk of freehold lands) are now holden directly under the Crown. The modern system of landlord and tenant under a lease, or a tenancy from year to year at a rent (with all due deference to politicians who assume the contrary), has not, and never has had, anything to do with feudalism, and took its rise in an entirely different way, as will be shown later on. The lord of a manor had, of course, to provide for the performance of his duties to his overlord, and also for the cultivation of the soil. This he did by ' subinfeu dating ' portions of the manor to sub-tenants for life, or, more usually, in fee simple. It was the case of the old rhyme of the great and the Digitized by Microsoft® The Present Law of Real Property 11 lesser fleas. In most large manors some lands were subinfeudated on terms of military ser- vice, and other lands for services in money or in kind or in labour, such as ploughing so many acres of the lord's land, and the like (called Common Socage tenure). These tenants (whether military or socage) were the freehold tenants of the manor, and the essence of this freehold tenure was that their services were fixed and certain. Then some of the rougher land was allocated as the waste or common of the manor — not common (as politicians sometimes pretend) to all the public — but common to the lord and his tenants for certain defined purposes, such as grazing of cattle, cutting of turf for fuel, and the like. The property, however, re- mained in the lord. Finally, the lord appropriated certain lands for his own occupation, called the demesne lands of the manor ; and these included for a long period the villages and cottages occupied by the villeins or serfs who were not freemen, who were the precursors of the modern copy- holder. Tt is a mistake to regard these villeins as slaves in the modern sense. They appear to have been villagers (whence viUein), rooted to the soil, and bound to perform such reason- able, but quite unfixed, services as the lord might require of them, herein differing from freeholders, whose services were fixed and Digitized by Microsoft® 12 Explanation of Lord Birkenhead's Act certain. But as regards all the world except their lord they were in the same position as freemen. As, however, the lord neither fed nor clothed his villeins nor paid them wages, they had to be sustained by the fruits of their own labour on parts of the lord's demesne allotted to them for that purpose. To this allotment (by no means small), and to this cottage, the villein was admitted ' at the will of the lord,' i.e., as Tenant at WiU. But when he died someone had to succeed him, and a custom grew up naturally on each manor to make some provision for his widow, and to admit one of his sons as his customary heir. In some manors the Common Law was followed, and the eldest son was deemed the customary heir; in others the youngest son was chosen, for reasons somewhat obscure ; and yet again in others all the sons were admitted as Tenants in Coparcenary {i.e., in common). Indeed, it is said that there are no less than 103 special customs of descent in England. Again, the right of a tenant's widow to dower (called Freebench) differed, and stiU differs, in various manors. Sometimes she takes half or even the whole of the lands for life, in others one-third; in some during widowhood and chastity, in others apart from these quahfications, and in others again she may take her one-third in fee. Further, her right may depend on Digitized by Microsoft® The Present Law of Real Property 13 whether she was the first, second, or third wife. Unlike the widow of a freeholder, she was not, untU 1833, entitled to freebench out of an equitable estate, but only where her husband was actual tenant on the Court RoUs, unless he succeeded as heir and died before ad- mittance. Again, a copyholder is restricted in his power of leasing to leases for one year, and is restrained from committing waste, and in either case forfeits his land unless he has got the lord's licence, which is not given for nothing. In every case a person seeking admission to copyholds, whether as heir, devisee, or purchaser, had to come to the lord's Court and pray admission, and in general had, and still has, to pay the lord a fine — sometimes fixed by custom, and sometimes arbitrary — and to pay the steward a fee, and to do fealty ; and on the death of the tenant a rehef (the earhest form of death duty) and sometimes a heriot — generally the tenant's best beast or best chattel — are due to the lord. In later ages, when Court RoUs were kept, his title was the entry on the Court Roll, and a copy of it being handed to him the tenure became known as Copyhold. In its inception the tenure was, and is to this day, always untruly expressed to be a tenancy at the will of the lord. By custom it Digitized by Microsoft® 14 Explanation of Lord Birkenhead's Act came to be considered a gross hardship for the lord to refuse to admit a customary heir, and ultimately the custom of admission, having been continued for centuries, was declared by the King's Courts to be binding in law; and if the lord refused admission, the prerogative writ of mandamus could be claimed to compel him to admit on payment of the customary fine. Thus, copyhold became a recognised estate of inheritance ; but with the exception that copy- holds can now be compulsorily enfranchised and turned into freehold in fee simple, and that no particular form of disposing of them by will is now required, the law of copyholds remains the same as above to the present day. Generally, copyhold tenure is the last shadow of the feudal system. It is entirely and hopelessly out of date, and has been con- demned to death by the new Act. In the thirteenth century another estate in land was invented, viz., an estate for years. At Common Law an interest limited to a term of years did not confer any estate {i.e., a right in rem) in the land. Between the lessor and the lessee there was only the relation of contracting parties ; with the result that, if the lessee was evicted by the lessor, his remedy was to recover damages for breach of contract, or, if by a third party, to recover damages for tort. But, as feudalism died out. Digitized by Microsoft® The Present Law of Real Property 15 commercialism grew up ; and men, anxious to make a living by agriculture, preferred to take farms for terms of years at money rents, rather than become feudal freehold tenants. Then, when the inconvenience of the tenant having no right in rem became acute, a statute was passed in 1278, known as the Statute of Gloucester, by which a lessee for years was placed in possession of an ' estate ' — a right in rem good as against the whole world — and this was subsequently extended by another statute, 21 Henry VIII, c. 15. Now there is no limit to the length of the term for which an estate for years may be granted, so long as the term is mentioned. It may be for one year, or it may be for fifty thousand years — it may be subject to a rent payable to a lessor, or it may be as free from rent as an. estate in fee simple. An estate for, say, ten thousand years free of rent is, in point of dominion, indistinguishable from an estate in fee simple ; but it is widely different in its legal incidents. For instance, it is deemed to be less in law than an estate for life, although paradoxically it may in certain cases, by virtue of the Conveyancing Act, 1881, be enlarged into a fee simple. In the first place, it devolves on death exactly like a chattel, or money, or stocks, and hence it is called a ' chattel real.' Primo- Digitized by Microsoft® 16 Explanation of Lord Birkenhead's Act geniture has no part in it. It is merely a portion of a deceased owner's personal estate, and if he dies intestate is distributed in ac- cordance with the Statutes of Distribution in precisely the same way as his money, his furniture, his stocks and shares, or his cattle. In the second place, the legal ownership is not capable (like the legal ownership of free- holds) of being cut up into a series of successive interests. The law only recognises an absolute owner of a term of years, just as it only recog- nises an absolute owner of stocks or shares. It can, therefore, only be settled on persons in succession by means of a trust, just hke stocks and shares. It will be seen, therefore, that an estate for a term, say, of 20,000 years, has quite different legal incidents to an estate in fee simple. From what has been stated it wiU be seen that, down to 1270 or thereabouts, the EngKsh system of land-holding was simple enough, but •quite different from that which now prevails. The tenant in fee simple was merely a tenant, he was not the absolute owner. The lord of a manor occupied a kind of official position with governing powers and courts of his own. But he could not be de- prived of this position for anything less than treason or felony. He could neither disclaim it, nor alienate it, either by act inter vivos, or Digitized by Microsoft® The Present Law of Real Property 17 by -will. His copyholders, as we now call them (villeins as they were then called), were his servile men, and at that date were true tenants at will, and, of course, could not alienate. The tenant in fee could lease for any number of years, but a copyholder has never, except in a few manors, been able to lease for more than a year without licence of his lord. A lessee (at first merely a hcensee) became in 1278 the owner of an estate in the land, and could, apart from express contract, alienate as he thought fit. There were no settlements in the modern sense on persons in succession, because the law effectually settled even fee simple land from father to son. There was no difficulty about conveyancing, because no sales, but only subinfeudations, were allowed. However, this ancient simplicity ceased towards the end of the thirteenth century. By that date it had become very common, instead of granting lands in fee simple {i.e., to a man and his heirs generally), for a lord to grant them to the grantee and the heirs of his body, either generally, or by a particular wife, with a condition that on failure of issue the property should revert to the grantor. This was in- tended, no doubt, to prevent subinfeudation, which had been found to be embarrassing to the original lords. Quite early, however, the Royal Courts, which were then (as they have always been) strongly averse to the creation of Digitized by Microsoft® 18 Explanation of Lord Birkenhead's Act perpetuities, insisted that the condition attached to such a fee was performed once for all when a child was born capable of inheriting, even if it died the next hour, and that thereupon the tenancy became a fee simple. This led to the first great Real Property Statute, known as the Statute de donis conditionalihus, in the year 1285. By this Statute it was enacted that thence- forth ' the will of the giver according to the form in the deed of gift manifestly expressed should be observed, so that they to whom the land was given under such condition shall have no power to alien the land so given, but that it shall remain unto the issue of them to whom it was given after their death, or shall revert unto the giver or his heirs if issue fail,' and so on. This Statute was the first to comphcate our law of land, for it invented a new statutory estate, ever since known as an ' Estate Tail,' which had the effect of preventing freehold lands granted in conditional fee from being either sold or subinfeudated for longer than the life of the tenant for the time being ; and these estates tail descended for some two hundred years from father to son Avlthout any possibihty of the entail being broken. It appHed, however, exclusively to freeholds, so that copyholds can only be entailed by special custom, and lease- holds not at all. In the absence of custom, Digitized by Microsoft® The Present Law of Real Property 19 an attempt to entail copyholds creates a fee conditional enlarged into a fee simple on the birth of issue. An attempt to entail leaseholds vests the lease in the first person who would be tenant in tail by purchase. This Act, however, did not touch the multitude of freehold tenants who held in fee simple, and consequently the second great Real Property Act, known to lawyers as the Statute of Quia Emptores, was passed shortly afterwards in the year 1290. By this Act (which is also in force to the present day), after reciting that divers freehold tenants of great men and other lords had sold their lands and tenements to be holden in fee of themselves and not of the chief lord of the fee, ' whereby the same lords have many times lost their escheats, marriages, and wardships of lands and tenements belonging to their fees,' it was enacted that from henceforth it should be lawful for every freeman to sell, at his own pleasure, his lands and tenements or part of them, so that the purchaser should hold the same of the lord of the same fee by such services and customs as the vendor held them. The Act was expressly confined to estates in fee simple. This was an epoch-making Act, and although it did not extend to tenants-in-chief, so as to allow them to alienate without Royal licence, it has generally been accepted that, after it was passed, subinfeudation of freeholds in fee simple became impossible, and, as a corollary, Digitized by Microsoft® 20 Explanation of Lord Birkenhead's Act no new manors could be created.^ It crystal- lised tlie existing feudal relations, and pro- hibited any further extension of them. The Statute Quia Emptores made freehold tenancies in fee simple saleable free from the rights of the vendor's heir, although, curiously enough, subject to his widow's right to dower (i.e., to have a life estate in one-third of his lands). The widow's right was ultimately able to be barred by a collusive action called a fine. Subject to the widow's dower when not so barred, the power of disposing of lands by will crept in by a side wind, viz., by the invention of ' uses,' as to which I shall say something further on. Thus matters stood for some two hundred years, when, in the reign of Edward IV, the judicial process called a Common Recovery was used for the purpose of effectually enlarging the statutory estate tail created by de donis conditionalibus into a fee simple. I will not bore you with any account of this extraordinary invention. The Western world was young then, and, like most young things, apparently de- lighted in ' make-believes ' and paradox. For instance, there is a report in the year-books of the sixteenth century of a case where it was held that ' to say of an attorney that he hath no more law than Cheney's bull is actionable, because a bull hath no law ' ; and there is a ' This has been recently questioned in an vmreported case. Digitized by Microsoft® The Present Law of Real Property 21 note added : ' Quaere whether it would be actionable to say of an attorney that he hath no more law than the man in the moon ? for no one knoweth how much law the man in the moon hath ! ' Such trivialities as these were then solemnly debated, and the Common Recovery lasted down to 1833, when it was abolished, the Attorney-General of the day describing it as ' involving enormous and unnecessary expense and necessitating the conduct of proceedings through no less than twenty offices, in each of which danger, delay, and expense had to be faced.' The Statute of 1833 substituted a simple deed of conveyance, executed with the consent of a protector of the settlement, if any, and enrolled within six months in Chancery. But neither quia emptores nor the Common Recovery enabled fee-simple owners (and, of course, not tenants in tail) to dispose of their lands by mil. Ecclesiastical lawyers, however, invented the device called a use, the original sanction for which was spiritual terror. There is no doubt that ' Uses ' (the pre- decessors of the modern trusts) were at an early stage resorted to (on the analogy of the Roman law of fidei-commissa) as a means of disposing of real estate by will. The property was either conveyed or, before quia emptores, subinfeudated to a friend of the would-be testator, who undertook to hold it ' to the use ' of the grantor for his life, and, after his Digitized by Microsoft® 22 Explanation of Lord Birkenhead's Act death, to the use of such person or persons as he should nominate by will. The Courts of Law steadily refused to recognise these uses, and they were evidently notoriously customary for some time before even the Courts admin- istering Equity interfered ; for there is a complaint of the Commons that many feoffees to uses (trustees as we should now call them) aUenated and charged the property confided to them, for which they stated there was no remedy. However, a remedy was found by John Waltham, Bishop of Sahsbury and Lord Keeper in the reign of Richard II, who in- vented the Chancery Writ of Subpoena. By this writ a trustee was Hable to be summoned into the King's Chancery, and compelled to answer on oath the allegations of the beneficial claimant, and to do justice, failing which, he was incontinently laid by the heels untU he obeyed. The Chancery Court recognised the feoffee to uses — i.e., the trustee — as the legal owner with legal rights against the entire world — rights in rem, as we call them — but imposed a duty on that right and made him perform his trust under pain of imprisonment, i.e., treated the rights of the beneficiaries as rights in personam. Hence arose that collateral system of Equity as opposed to Common Law, which remained quite distinct down to the Judicature Act, 1873, when jurisdiction was given to all Courts to administer both Law Digitized by Microsoft® The Present Law of Real Property 23 and Equity. This distinction between rights in rem and rights in personam should be kept well in mind, for it is the foundation-stone of the new Act. Protection having been given by the Chancellor to uses, it is said that half the lands in the kingdom became vested in ' feoffees to uses,' i.e., in trustees. In the words of an ancient common lawyer, ' the parents of the use were Fraud and Fear, and a Court of Con- science was the Nurse.' So early as the reign of Richard III, Parha- ment began to interfere with uses, by enacting that the person to whose use land was held might grant it, or suffer a recovery of it. In the reign of Henry VII, the infant heir of the cestui que use of land held by knight's service was made liable to wardship and relief, and, later in the same reign, the Idnd was made hable to execution or judgments against him, and to rehef and heriot where the tenure was socage. Finally, in the reign of Henry VIII, the institution of uses had become so popular that the great Barons again took alarm, and in 1536 was passed the celebrated ' Statute of Uses,' which is repealed by the new Act, and has (doubtless quite contrary to its authors' intention) introduced into the law of real property more pedantic quibbles and absurd distinctions and rules than any other Act Digitized by Microsoft® 24 Explanation of Lord Birkenhead'' s Act on the Statute-book. It commences with a preamble setting forth that whereas by ' the common laws of this realm lands, tenements, and hereditaments be not devisable by testa- ment, nor ought to be transferred from one to another but by solemn livery and seisin, matter of record, writing made bona fide without covyne or fraud, yet nevertheless dyverse and sundry imaginations, subtle inventions and practices have been used whereby the heredita- ments of this realm have been conveyed from one to another by fraudulent feoffments, etc., craftily made to secret uses, intents and trusts, and also by wills and testaments sometime by writing, and for the most part made by such persons as be visited by sickness, in their extreme agonies and pains, or at such time as they have had scantlye any good memory or remembrance ; at which times they being provoked by greedy covetous persons lying in a wait about them, do many times dispose indiscretely and unadvisedly their lands and inheritances ; by reason whereof divers and many heirs have been unjustly at sundry times disinherited, the lords have lost their wards, marriages, reliefs, heriots and escheats, and scantlye any person can be certainly assured of any lands by them purchased, nor knowing surely against whom they shaU use their actions or executions for their rights, titles and duties.'' After proceeding in this Digitized by Microsoft® The Present Law of Real Property 25 exalted strain at considerable length, the Statute enacted that, ' for the extirpying and extinguyshment of all such subtle practices,' where any person should stand seised of lands or hereditaments to the use, confidence, or trust of another in fee simple, fee tail, for Ufe, or for years or otherwise, such latter persons should be deemed to be in lawful seisin and possession of such lands, etc., for such like estates as they had in use, trust, or confidence of or in the same. It cannot be supposed that the authors of the Act reaUsed what the Courts very soon made plain, viz., that in addition to the old fee simples and Life estates of the Common Law, and the old statutory estate tail, this Act enabled all sorts of shifting ownerships to be created by means of uses which the Statute immediately converted into corresponding legal estates in rem in place of the former beneficial interests in ^personam. This Statute is at the bottom of the com- phcation of EngHsh land titles. By its aid, coupled with the Statute de donis, the modern ' strict settlement ' of land was made possible ; and whereas copyholds, leaseholds and chattels have always been held to be outside the Statute, and incapable of being settled on per- sons in succession by means of it, freehold land has ever since been capable of being tied up in a tangle of partial legal interests, which has Digitized by Microsoft® 26 Explanation of Lord Birkenhead'' s Act rendered the title to it incomprehensible to anyone but skiUed real property lawyers. The Statute even enabled A. to have the usufruct of land, subject to a power given to B., who had no estate or interest in it, to deprive him of it and seU it to another. This Act was not at first poptdar, as it at once stopped the power of disposing of lands by will ; for a grant by A. to B. to such uses as A. might appoint, and subject thereto to the use of A., immediately revested the estate in A. So loud was the outcry that, five years after the Act became law, a fresh Act had to be passed (1541), by which everyone except tenants in capite was empowered to dispose of his lands by will ' at his free will and pleasure.'' This latter Act led to extraordinary conse- quences ; for it was held that these wide words empowered the testator to do by will at law everything which he could have done in Equity before the Statute of Uses by means of a use ; and, as a coroUary, that he could create future legal interests by will without a use, which he could only do by deed inter vivos with the aid of a grantee to uses. Moreover, it was subse- quently held that, as before the Statute of Uses a man could, by means of a use in a wUl, create future interests in leaseholds, enforceable in a Court of Equity, the Statute of Wills enabled him by wiU to create future legal (as dis- Digitized by Microsoft® The Present Law of Real Property 27 tinguished from trust) interests in leaseholds, althougli by deed inter vivos he could only create corresponding equitable interests by means of a trust. Here we surely have technicahty and complexity in excelsis. The Statute of Uses and the Statute of Wills, in point of fact, became instruments for creating a tangle of limited ownerships in rem unknoMTi to the Common Law. Moreover, the very object of the Statute of Uses was soon defeated, for the Courts held that there could not be ' a use upon a use,' and that under a conveyance to A. and his heirs to the use of B. and his heirs to the use of C. and his heirs, the Statute vested the legal fee in B. once for all, and was spent in the effort, and that C.'s interest was merely that of a beneficiary under a trust. The old equitable uses, the destruction of which was the sole object of the authors of the Statute, con- sequently reappeared under the modern name of trusts, and have been extended to all kinds of property. In fact, this Statute has been responsible for almost all the intricacies of Real Property Law. By the sixteenth century the feudal system had become moribund, and in the reign of Charles II the coup de grace was given to it by the aboUtion of aU feudal incidents and military tenures and the conversion of aU fee simple lands into socage tenure. Needless to say, this Act took away all the Digitized by Microsoft® 28 Explanation of Lord Birkenhead's Act reasons for the complexities which depended on feudal considerations, while leaving those com- plexities themselves untouched. Tenure re- mained a nominis umbra in theory, but in practice it was converted into ownership free from all feudal duties and services. In the meantime, however, during, or just prior to, the Commonwealth, Sir Orlando Bridgeman (one of our great Real Property counsel) had invented the modern strict settle- ment of freehold land which prevails to the present day. By this system, which was in- tended to defeat the cutting off of entails by a common recovery, a settlor who is entitled in fee simple conveys the land to A. (generally his solicitor) and his heirs to the use that his (the settlor's) wife may receive a small rent-charge by way of pin money during his life, and, subject thereto, to the use of himself for life, with remainder to the use of trustees for a long term (500 or 1,000 years) upon trust by mort- gage or sale, if necessary, of that term to raise a fixed sum as portions for his younger children, and also to pay his widow a jointure or rent- charge of a fixed amount during her life, and subject as above to the use of the settlor's first and other sons successively in order of seniority in tail male, with remainder to them in tail general, with divers other remainders in favour of daughters and collateral relations, with an ultimate remainder to the use of the settlor Digitized by Microsoft® The Present Law of Real Property 29 himself in [fee simple. When an eldest son comes of age, he is approached, and it is put to him that if he will bar his estate tail and cut it down to an estate for life with remainder to his first and other sons succes- sively in tail male, etc., his father will grant him an immediate rent-charge to last during his father's life. The son, like some territorial Esau, invariably consents, and thus, down to 1882, the great entailed estates were practi- cally made inalienable; because, directly a next tenant in tail in remainder attained twenty-one, he was induced to cut himself down to a life estate only, and so put it out of his power to bar the entail by means origin- ally of a common recovery, or, since 1833, by an enrolled deed. This system of strict settle- ment, no doubt, preserved large estates in families for generations, because, as a rule, the man in possession and his eldest son of age were only life tenants, so that unless there was an express power of sale- — which was, I think, rare before the middle of the last century — no one could make a title to a purchaser. How- ever, this tying up of the land became poHtic- ally a danger ; and ultimately, in order to put an end to the fetters imposed by strict settlement, the Settled Land Act, 1882, was passed, a Statute which has practically rendered settled land saleable and largely capable of being leased. The broad policy on which the Settled Digitized by Microsoft® 30 Explanation of Lord Birkenhead's Act Land Act was founded was (in the words of the late Lord Justice Chitty ^) 'to render land a marketable article notwithstanding the settle- ment.' Its main purpose is the welfare of the land itself, and of aU interested therein, includ- ing the tenants. The scheme adopted is to faciUtate the striking off from the land of fetters imposed by settlement ; and this is accom- pUshed by conferring on tenants for hfe in possession, and others considered to stand in a like relation to the land, large powers of deahng with it by way of sale, exchange, lease and otherwise, and by zealously guarding those powers from attempts to defeat or fetter their exercise. At the same time, the rights of persons claiming under the settlement are carefully preserved in the case of a sale, by shifting the settlement from the land to the purchase money, which has to be paid into Court or into the hands of trustees. The money so paid can be applied in a variety of ways for the extension of the property or the release of incumbrances, or can be invested in securities, according to the direction of the tenant for life, or may be applied in the execu- tion of permanent improvements. The Act also contains elaborate clauses for the working out of the general idea, and, speaking broadly, may be said to give the tenant for hfe or other limited owner powers of management as large » Be Mundy and Roper's Contract (1899), L.R. 1 Ch. 275. Digitized by Microsoft® The Present Law of Real Property 31 and varied as those of an absolute owner, but making provision for safeguarding capital money arising from the sale of settled land. Lord Birkenhead's Act extends these prin- ciples by applying them, or enabhng them to be appHed, to all, or nearly all, cases where there is a legal owner who would otherwise be fettered in dealing with his property by equities of third parties. But the Act of 1882, although a great one, did not simphfy either the law or titles to land, but only extended the powers of limited owners by enabhng them to sell and lease other persons' property, and, where a sale of settled land is made, the purchaser has not only to trace the history of the ownership for forty years, but has to wade through a long settle- ment (or, more frequently, a chain of long settlements) to ascertain whether the vendor is the tenant for life, and, if so, who (if any) are the trustees to whom the purchase money must be paid. Nevertheless, the Settled Land Acts have proved so extremely beneficial both to land-owners and the general pubhc that it is out of the question to meddle with the general principle. The reader must keep these Acts in mind in considering Lord Birkenhead's Act, as they have a most important bearing on it — indeed that Act is in principle only an extension of the principle of the Settled Land Acts, or of Digitized by Microsoft® 32 Explanation of Lord Birkenhead'' s Act the principles underlying settlements made by means of a trust for sale. From what I have said, you will, I hope, have grasped what a very artificial and un- necessarily complex and technical system our present law of real property is. To summarise the matter, I think that this is due to six cardinal causes, viz. : (1) Three collateral systems of holding land have been evolved (viz., freehold, copyhold and leasehold), where there was originally one only, each system having its own law of descent and its own method of conveyance. (2) In the second place, mainly owing to the Statute of Uses, freehold land can be settled on persons in succession so as to vest a hmited legal ownership in rem in each successive holder, whereas the legal ownership of chattels and of leaseholds and, to some extent, of copy- holds, can onl}^ be an absolute ownership ; so that, if you desire to settle them, you must vest that legal ownership in a trustee and make him undertake to hold it in trust for the successive beneficiaries. In consequence of this possibility of creating limited or partial legal estates in freehold land, it was often quite impossible before 1883 (when the great Settled Land Act of 1882 came into operation) to deal with free- holds by sale, mortgage, or lease, unless the owners of all these partial interests were in existence and sui juris and could be gathered Digitized by Microsoft® The Present Law of Real Property 33 together and persuaded to be unanimous, or unless the Court, since the middle of the last century, ordered a sale, which could only be done under exceptional circumstances and with considerable expense.^ It would, therefore, be quite possible (if no investigation of the title were made by a purchaser or mortgagee) for a person in possession of land as life tenant only, to purport to sell it absolutely (or, as we lawyers say, ' in fee simple ') to a purchaser, who might have his title unquestioned until the hfe tenant died (perhaps fifty years after), but would then find himself liable to ejectment. (3) Courts of Equity have invented the doctrine that if a person buys or takes a mort- gage or lease of property with notice that the vendor, mortgagor, or lessor is a trustee of it, he must investigate the trust, and satisfy himself that the trust instrument or some Statute authorises the transaction. (4) With regard to all three tenures, con- current ownership is allowed. This may con- sist of ' joint tenancy ' or ' tenancy in common.' In the former, on the death of one joint tenant, his interest passes to the survivors. In tenancy in common, on the other hand, on the death of one of the co-owners, his share passes under his will or intestacy, and may thus become further divided. Not infrequently a house or two may 1 Under the Settled Estates Acts. Digitized by Microsoft® 34 Explanation of Lord Birkenhead's Act thus become owned by thirty or forty persons in different undivided shares, with the result that it is impossible to deal with the property in any way without an expensive action for partition or sale by the Chancery Division. (5) Restrictive covenants are also a great and increasing source of difQculty. In many cases they have proved a great blessing where a large area has been developed as a residential estate. But what would be a blessing in May- fair or Belgravia may only too probably be ruinous in a manufacturing district ; and people are so imitative that small builders have in numerous cases imposed silly restrictive covenants on purchasers, where they are wholly unsuited to the style of the neighbourhood. In such cases the houses are simply depreciated in value instead of being made more valuable. (6) Lastly, a perpetual or temporary rent, or even a series of perpetual or temporary rents (the former very common in Lancashire and the latter everywhere), may be reserved out of land, which, of course, adds to the complexity of the title. These rents, whether created by conveyances of the land in fee simple, or by leases and sub-leases, cause very great expense to railway companies and other bodies taking land compulsorily, because such bodies have to purchase every interest in the land, and, therefore, may have to buy out not only the owner in fee simple, but a ground lessee, a Digitized by Microsoft® The Present Law of Real Property 35 sub-lessee for a long term of years at an im- proved ground rent, a sub-sub-lessee at a higher rent, and perhaps an occupying tenant. Of these complexities, it will be shown later on that (1), (2), (3), (4), and (5) are capable of being, and have by the new Act been, so dealt with as to reduce the present chaos to some semblance of simplicity. With regard to (6) nothing can be done, because the people them- selves, in certain parts of England, have evolved the practice of bujdng land at a chief (perpetual) rent instead of purchasing it for a lump sum ; and, in the same way, builders have in other parts (notably London), evolved the analogous system of taking long leases (99 years) at small ground rents ; reckoning that during that long term they will not only be able to recoup themselves their capital expenditure on bricks and mortar, but also to make a hand- some profit. It was, therefore, useless to attempt to get rid of these systems. Indeed, it is very doubtful whether London could have been built upon any other system than that of long building leases, or alternatively of freeholds subject to chief rents. Digitized by Microsoft® CHAPTER II PROVISIONS OF THE ACT INTENBED TO SIMPLIFY THE LAW In the last chapter it was pointed out that there are three collateral systems of land hold- ing at the present day in England, viz., Free- hold, Copyhold, and Leasehold. Each of these has different incidents, not only as regards the extent of dominion, but also in relation to methods of conveyance, methods of settlement on persons in succession, and methods of devolution on intestacy. They flourish side by side without the least advantage to anyone except a few dryasdust specialists, like the writer, who have spent a lifetime in acquiring the lean and wasteful learning which overlays them. Worse still, the law of freeholds is over- burdened with technicalities for which no reasons now exist, such as contingent remainders, shift- ing uses, executory limitations, and the rule in Shelley's Case, the rule as to words of limitation and the like — words of fear unwelcome to the student's ear. Moreover, the equitable doctrine of constructive notice, although modified by the Conveyancing Act, 1882, is a frightful im- Digitized by Microsoft® Provisions to Simplify the Laiv 37 pediment to transactions in land ; and tenancy in common, where it exists, presents perhaps the greatest of all the existing difficulties. In this and the following chapter attention will be called to the manner in which the new Act deals with these matters. But, before doing this in detail, it is considered desirable to adopt the excellent and time-honoured plan of the Law Reporters and to give the reader something in the nature of a ' head-note.' First, then, the Act simplifies, by assimila- tion, the law relating to real and personal property, so far as the essentially different natures of immovable and movable property will permit, in six ways, viz. : [a) By abolishing copyhold and manorial incidents and all customary tenures like Gavel- kind and Borough English, while compensating lords and stewards of manors. (&) By abohshing primogeniture, and pro- viding that both land and personal estate shall devolve on intestacy in the same way. That way, however, will not be that now apphcable to either real or personal estate. The heir at law is disestabhshed and disendowed, and a com- pletely new code is contained in Part 7 of the Act, under which a husband and wife are placed on precisely the same terms with regard to each other's property, and the property of an intestate child. Digitized by Microsoft® 38 Explanation of Lord Birkenhead's Act (c) By abolishing all kinds of legal owner- ship' of land except fee simples and terms of years absolute — incidentally repeahng the Statute of Uses, and consigning contingent remainders and those bugbears, shifting uses and executory limitations, to the legal lumber room, where, I am sure, all law students wish them to remain. (d) By allowing settlements of land to be made in equity, by the medium of a trust, in the same way as settlements of long lease- holds are now made, whether by deed or will. (e) WhUe abolishing the estate tail at law, yet preserving it in equity by the medium of a trust, and extending it to stocks, shares, chattels, and leasehold interests. (/) By making divers other incidental amend- ments intended to simplify and improve the existing law. Secondly, as the above-mentioned changes, while greatly simpUfying and, it is submitted, improving the law, would not of themselves make the investigation of titles easier, or the safety of purchasers and mortgagees greater, if the equitable doctrine of notice were untouched, the Act radically amends that doctrine. The provisions as to this have been called ' the curtain provisions,' because they place naked equitable interests decently behind a legal curtain by providing that, so far as possible. Digitized by Microsoft® Provisions to Simplify the Law 39 equities shall not be abstracted or disclosed, and shall be ignored by purchasers even with notice of them, whenever the material interests of the beneficiaries are protected, either by the Settled Land Acts or by an express or statu- tory trust for sale vested in trustees who are to have the legal estate, and to whom all capital moneys are to be paid. These curtain provisions are supplemented, in various parts of the Act, by other incidental provisions limiting the doctrine of constructive notice of equities which would not be overridden by a Settle- ment or a Trust for sale. The curtain provisions are really an exten- sion of the principle of the Settled Land Acts which, in the words of Lord Justice Chitty in ReMundy and Roper's Contract, [1899] 1 Ch. 279, 'conferred on tenants for hfe in possession, and others considered to stand in a hke relation to the land, large powers of dealing with it by sale, exchange, lease, or otherwise, while at the same time the rights of persons claiming under a settlement are carefully preserved in the case of a sale by shifting the settlement from the land to the purchase money which has to be paid_into Court or into the hands of trustees.' Thirdly, if mortgages were continued as at present, in the form of a conveyance to the mortgagee of the legal estate, and if aU equities were kept ofE the title, the legal ownership of the real owner, the mortgagor, would disappear, Digitized by Microsoft® 40 Explanation of Lord Birkenhead's Act and he would simply be left with an equity of redemption. To obviate this divorce of the real ownership from the legal ownership, the Act provides that all mortgages are to take effect only by demise or subdemise for long terms, or by way of charge, the mortgagee, nevertheless, on sale having power to convey the fee simple to a purchaser. Fourthly, the Act abohshes tenancy in common at law, while permitting it to continue in equity, but only subject to a trust for sale. This is a most beneficial provision, for the experience of most practitioners is that settle- ments on persons in succession, with all their complexities, give less trouble in the investiga- tion of titles than tenancy in common, which, after aU, is substantially a settlement on persons concurrently instead of successively, but with- out the convenience of a tenant for life, with whom, since 1882, one can deal under the Settled Land Acts. Incidentally, the Partition Acts are repealed as being no longer necessary. Fifthly, the Act makes provisions for more easily deahng "wdth the estates of infants and lunatics. And, sixthly, the Act makes divers amend- ments of the Settled Land Acts, Conveyancing Acts, Trustee Acts, and Land Transfer Acts, which, however, are so interwoven with the other parts of the Act as to be conveniently noticed either in this chapter under the head of Digitized by Microsoft® Provisions to Simplify the Law 41 ' Simplification,' or in the next chapter under the head of 'Facilities for Land Transfer.' The above is considered to give a fair general head-note, or sketch, of the fundamental objects of the Act and the broad reasons why those objects are desirable, and the rest of this chapter will be devoted to the consideration in more detail of the provisions which relate to the simplification and assimilation of the law relating to real and personal estate (which, of course, indirectly facilitate dealings in land), and the next chapter wiU be devoted to those provisions which relate to the facilitation of land transfer directly. Sectiok 1. — As to the Abolition of Copyhold and Manorial Incidents and Customary Tenures. As already stated, we have at the present time three distinct systems of law : the freehold and copyhold, founded on tenure and feudal theory which has long ceased to exist in reahty ; and the leasehold, founded on ownership and regulated by contract. StiU more absurdly, we have local customs of descent and method of conveyance, such as Gavelkind in Kent and Port- land, and Borough Enghsh and its variants in other parts of the country. It is difficult to conceive any argument in favour of such an arrangement, except ' J'y suis, j'y reste.' Indeed, one might imitate a Digitized by Microsoft® 42 Explanation of Lord Birkenhead^ s Act distinguished Admiral and ask, ' What is the use of copyhold and customary tenure ? ' but, not having the traditional midshipman to give the appropriate reply, the writer leaves it to Lord Birkenhead to supply it, which he has done emphatically in the Act, by providing that, as from its commencement (1st January, 1925), every parcel of copyhold land shall be enfranchised and cease to be of copyhold or customary tenure and shall become freehold (sect. 128 and Schedule 12, subsect. 1), sub- ject (pending payment of compensation) to manorial incidents having money values, such as fines and heriots, but free from other cus- tomary suits and services, including the lord's right to escheat, for which is substituted a right in the Crown as bona vacantia. Land is no longer to be subject to the local customs of Borough English, or Gavelkind, or any other of the 103 customary modes of descent, nor to special occupancy, dower, freebench, or tenancy by the curtesy (except as to dower, free- bench, or curtesy which is actually being enjoyed at the commencement of the Act, and except the expectant freebench of women now married in one or two manors where expectant freebench cannot be barred without the wife's consent (sect. 148)). There are certain highly technical provisions in the 12th Schedule to the Act with regard to the effect of the Statutory enfranchisement on settlements of copyhold. Digitized by Microsoft® Provisions to Simplify the Law 43 but the effect of them is to convert all interests under settlements, which would otherwise have affected the legal estate, into equitable interests. But it may be said. How about the un- fortunate lords of manors ? Are they to be bereft of their fines and forfeitures and other manorial incidents as well as their escheats, suits, and services ? The answer is. Yes, within a measurable period. These rights are essen- tially either rights to money or rights capable of compensation in money, and the lords are fully protected by a code, contained in Part V (sects. 128-132) and Part VI (sects. 138-144) of the Act, the net result of which is that all manorial incidents, including quit rents, chief rents, fines, reliefs, heriots, dues, fees payable to stewards, forfeitures and rights to timber (but excluding the picturesque and really nominal services incident to grand and petty serjeanty (sect. 136)), are to cease either (a) when, within five years after the Act comes into effect, the lord and tenant agree on compensation, or (6) where the lord or tenant within the like period serves a notice on the other to have the compensation fixed by the Ministry of Agri- culture under the Copyhold Act, 1894, with certain amendments, or (c) at the expiration of ten years. But (by sect. 128) until they do cease they are to remain as at present (with the exception of forfeiture for the conveyance Digitized by Microsoft® 44 Explanation of Lord Birkenhead's Act or attempted conveyance of an estate of free- hold in the land and for alienation without licence, whether by way of sale, lease, naort- gage, or otherwise, which go by the board directly the Act comes into force). However, until the manorial incidents are extinguished, every assurance is to be produced to the steward of the manor within six months on pain of becoming void (sect. 129). It wiU be seen, therefore, that while all copyholds at once assume the incidents of freeholds, all manorial incidents, except those just specified, will, either by agreement, or by order of the Ministry of Agriculture, or by reason of the indifference of the lord, expire at any rate within ten years of the Act coming into operation, although the claim for com- pensation survives for an additional five years, i.e., fifteen years in all. The interests of the stewards of manors are similarly safeguarded; and the principles and details of both sets of compensation are worked out with meticulous care in the 13th and 14th Schedules to the Act. Compensation for loss of any right to for- feiture is restricted to 20 per cent, of the annual value of the land, and no compensation is to be paid for any other advantage to the tenant, unless extinguishment of the incident occasioning the advantage is a loss to the lord as well as an advantage to the tenant (sect. 139). Digitized by Microsoft® Provisions to Simplify the Law 46 Unless the compensation is paid in a gross sum within thirty days after its ascertainment, it is (in the absence of agreement) to be dis- charged by twenty equal annual instalments with interest at 5|- per cent, per annum (sect. 139), and the payment is to be secured by a terminable rent-charge issuing out of the land. In the same way as with regard to copy- holds, the Act does away with the very incon- venient system of perpetually renewable leases on payment of fines, the lessees' tenure being converted into a long term and the fines being compounded for (sect. 145 and Schedule 16, and as to perpetually renewable copyholds, sect. 135, Schedule 12, subsect. 8 (e)). Section 2. — The new Devolution of Real and Personal Estate on Intestacy. Some of the worst complexities of the existing law arise out of the different devolu- tions of freeholds, copyholds, and leaseholds on intestacy. Subject to a prior charge of £500 in favour of the widow of a man who dies without issue conferred by the Intestates Estates Act, 1890, ordinary freeholds now devolve on the heir at law, subject to dower in one-third in favour of a widow and to tenancy by the curtesy in favour of a widower who has had a child born ahve by the deceased wife. The heir at law, if a child of the de- ceased, is the eldest son, or, if no son, aU the Digitized by Microsoft® 46 Explanation of Lord Birkenhead's Act daughters as tenants in common. But in Kent and Portland, where Gavelkind prevails, aU the sons take as tenants in common. In other places -where Borough English prevails, the youngest son takes ; and in some other places this cult of the youngest extends to other re- lations. Copyholds, again, go to the customary heir, who may be the eldest or the youngest, or aU the sons, and so on. Leaseholds, on the other hand, form part of the personal estate, and, subject to the rights of a widow or widower of the deceased, go to his next of kin. To show the absurdity of the thing, the writer owns a house standing on about half a rood of land. The greater part of the site is freehold in fee simple, but a few square yards of the garden, kitchen and dining-room are held for a term of 2000 years at a peppercorn rent, with a covenant to keep a wall in repair (which is now useless to anyone), and a proviso for re-entry on breach of that covenant. Were the writer so foohsh as to die intestate, the greater part of the house would go to his heir subject to his widow's right to a life estate in one-third of it for her dower, while the leasehold part of the dining-room and kitchen would go as to one- third to the widow absolutely and as to two- thirds to his next of kin. What does that elusive abstraction ' the plain man ' think of that ? Surely it is a reductio ad absurdum. And this difference with regard to devolution Digitized by Microsoft® Provisions to Simplify the Law 47 leads to an additional complexity known to lawyers as ' equitable conversion.' If a man by his will directs his real estate to be sold, and the proceeds divided between A. and B., and B. dies in the testator's lifetime, there is a lapse of B.'s share ; and the question at once arises to whom B.'s moiety of the purchase money belongs. It is settled that, in that simple case, it is payable to the testator's heir, and does not devolve as part of his personal estate. For the direction to convert into money was merely for the purposes of the will, and, so far as these purposes have failed, the heir is not to be disinherited in favour of the next of kin. But if the heir happens to die intestate between the dates of the testator's death and the actual sale, who takes B.'s moiety then ? Much htiga- tion and fine-drawn distinctions have accumu- lated around points such as these, aU of which would vanish if freeholds devolved as chattels real do, viz., as personal estate. However, although the existing law of leasehold devolution is better than that of free- hold or copyhold devolution, there are strong reasons for making a completely new code both as to real and personal estate. For instance, if the law of freehold and copyholds were assimi- lated to that of leaseholds, without amendment of the latter, then, in the event of a man djdng intestate, the widow, instead of taking one- third of the lands for her hfe, would become Digitized by Microsoft® 48 Explanation of Lord Birkenhead's Act absolutely entitled to one-third of the lands in fee simple, or to half if the deceased died with- out issue. On the other hand, if a married woman should die intestate (whether with or without issue), her widower would become absolutely entitled in fee simple to the whole of her lands to the exclusion of her children, instead (as at present) of taking, at most, a hfe estate ('estate by the curtesy') lq her freeholds. Analogous results would take place with regard to copyholds. Similarly, with regard to children of an intestate, subject to the widow's third they would take as tenants in common. Again, on the death of a cMld unmarried and intestate, the father would take all and the mother nothing; and even if the mother survived the father, she would rank only as a sister of the intestate, sharing the property with his brothers and sisters. All this is bad enough with regard to pure personalty ; yet on the second-reading debate Lord Cave and Lord PhiUimore both seemed to think that ' the existing rules which have been in operation for many generations ' ought not to be disturbed. It seems to the writer that the practical answer is that, now women have votes and seats in Parliament, the existing rules were not liliely to escape drastic alteration. Moreover, the existing rules have this additional disadvan- tage, that if apphed to land they would create innumerable tenancies in common, which of all Digitized by Microsoft® Provisions to Simplify the Law 49 kinds of landed proprietorship is the worst to deal with, although no doubt under the Bill the undivided shares would come behind a trust for sale. The Act, therefore (Part VIII), abolishes heirship, dower, curtesy, and escheat (sect. 148), and repeals the existing statutes of dis- tribution, sect. 25 of the Statute of Frauds and the Intestates Estates Act (sect. 150, subsect. 3), and substitutes an entirely new code of intestacy, to the following effect : (1) The personal representative is to hold all real and personal estate upon trust to sell it, with full power to postpone the sale without Uability for loss occasioned thereby, the whole income in the meanwhile being treated as in- come. In deahng with the estate the personal representative is, for the purposes of adminis- tration, to have the same powers as he now has with regard to personal estate, plus (prac- tically) aU the powers of a life tenant under the Settled Land Acts as extended by the Act (sect. 147). (2) After payment of funeral and testa- mentary expenses and debts, the proceeds of the sale are to be distributed thus : (a) If the intestate leaves a spouse and no issue, the whole of what the Act calls ' personal chattels ' go to the spouse (sect. 150). These personal chattels are defined Digitized by Microsoft® 50 Explanation of Lord Birkenhead^ s Act by section 154, subsection 1 (iii), and include all furniture and household and garden goods, animals, vehicles, and other articles except those acquired for business purposes, and except money and securities for money. It is opined that the exception of chattels acquired for ' business purposes ' will give rise to numerous originating summonses. (6) In addition, the surviving spouse takes £1,000 absolutely, "whether the intestate leaves issue or not, in place of the £500 given to the widow only of an issueless intestate husband by the Intestates Estates Act, 1890. (c) If the deceased leaves issue, the income of half the residue, and if he or she leaves no issue, the whole income, is to be held in trust for him or her during life (sect. 150). (d) Subject thereto, the residue is to be held (sect. 150) upon what the Act calls ' Statutory Trusts.' (c) Where the intestate leaves a child or children the statutory trusts are a trust for such of them hving at the death of the intestate as shall attain twenty-one or marry, and the issue living at the intestate's death who shaU attain twenty- one or marry of any child of the testator Digitized by Microsoft® Provisions to Simplify the Law 51 who may have predeceased him equally per stirpes (sect, 149). (/) If the statutory trusts in favour of issue of the intestate fail by reason of there being no issue, or none who live to attain twenty-one or marry, the residue is held in trust for the intestate's parents equally, or the only survivor of them, or, faihng them, then (by the combined operation of sects. 149 and 150) for such of the intestate's brothers and sisters of the whole blood living at his death as being male attain twenty-one or being female marry earlier, and the issue hving at the intestate's death who shall attain twenty-one or marry, of such of his brothers and sisters of the whole blood as shall have predeceased him. Failing them, then upon similar trusts for his brothers and sisters of the half blood and their issue ; and failing them, for the intestate's grandparents or the survivor; and failing them (sects. 149 and 150), for such of his uncles and aunts of the whole blood living at the intestate's death, as attain twenty-one or marry earher, and the issue who shall attain twenty-one per stirpes of such of them as shall have predeceased the intestate. Failing them, upon similar statutory trusts in favour of his uncles and aunts of the half blood and their issue; and faihng them, for the Digitized by Microsoft® 52 Explanation of Lord Birkenhead's Act intestate's husband or wife absolutely; and failing such surviving spouse, then the resi- due goes as bona vacantia to the Crown or the Duchy of Lancaster or the Duchy of Cornwall. It wiU be seen that relationship for purposes of intestacy (both as to real and personal estate) ceases with the issue of uncles and aunts, and that more remote relatives are disestabhshed and disendowed. The Act contains a power of advancement of infant next of kin, and also provisions as to bringing advances made by the intestate to his issue into hotchpot, and also a useful pro- vision that the personal representatives of the intestate may permit any infant next of kin contingently entitled on attaining twenty-one or marriage, to have the use or enjoyment of any personal chattels. There is also a pro- vision enabling the life interest of a widow or widower of the deceased to be redeemed by a capital payment so as to free the residue for distribution. The Act does not affect the right in equity of any person to take 'by purchase' as heir, i.e., as 'persona designata' (sect. 151). Death duties are not interfered with, so that legacy duty will continue with regard to pure personalty, and succession duty with regard to land (sect. 153). Digitized by Microsoft® Provisions to Simplify the Law 53 By Part IX, sections 155-163, Part I of the Land Transfer Act, 1897, is repealed and re-enacted in a better form. This is rendered necessary by the other changes in the Act. An assent by a personal representative to the vesting in any person who may be interested in any real estate to which the trustee or in- testate was entitled is to have the effect of a conveyance (sect. 158). But merely allowing such person to take possession is not to operate as an assent (sect. 159). And section 163 confers on personal representatives all the powers, discretions, and duties imposed by law on trustees for sale, including all powers conferred by the Act itself on such trustees (sect. 163). Section 3. — Abolition of all Legal Estates except Fee Simples and Estates for Years. As already stated, the Act converts all copyhold and customary estates into freehold. We now come to the abohtion of all legal estates in freehold (whether they be freeholds ah initio or freeholds arising by the statutory enfran- chisements of copyholds) except absolute fee simples and estates for years. With regard to this it is by section 1 enacted as follows : The only estates, interests, or charges in or over land (including in the word land incor- poreal hereditaments (sect. 22)), which, after the commencement of the Act, shall be capable of Digitized by Microsoft® 54 Explanation of Lord Birkenhead's Act subsisting or being conveyed or created at law, shall consist of : (a) An estate in fee simple absolute in possession. (6) A term of years absolute. (c) An easement, right or privilege in or over land in fee or for years. {d) A Like estate in mines and minerals apart from the surface, and vice versa. (e) A rent-charge in fee or for years. (/) Land tax and tithe rent-charge and similar legal obhgations. (g) Rights of entry in respect of a legal term of years or annexed to a legal rent-charge. And all other estates, interests and charges in or over land, including determinable and conditional fees and rights of pre-emption, whether statutory or contractual (sect. 20 (1)), are to be converted at once by force of the Act into equitable interests, and are by section 28 preserved as such, and made only available sub- ject to the rule against perpetuities (sect. 20 (1) (c) ). The Statute of Uses is by subsection 7 of section 1 repealed, and any provision in any statute or other instrument requiring land to be settled to uses is to take effect as a direction to settle the land on corresponding trusts. If there is any legal estate outstanding at the commencement of the Act, whether in a term of years or in the fee simple, it is to vest Digitized by Microsoft® Provisions to Simplify the Law 55 automatically (section 2 and Schedule 1, sub- sects. (1), (2), and (3)) in the person who would have been entitled, on payment of the costs of investigating the title and of the conveyance, to call for a conveyance of it. However, these provisions are not to operate (Schedule 1, section 8): (a) to vest in a mortgagee of a term any nominal leasehold reversion held in trust for him, or any legal estate except a term of years ; (6) to vest any legal estate in an undivided share of land ; (c) to vest any legal estate in an infant ; {d) to affect prejudicially any priorities between mortgagees subsisting at the com- mencement of the Act ; (e) to invaUdate any limitation or trust which would have been capable of taking effect as an equitable Hmitation or trust ; nor (/) to vest any legal estate in a purchaser or his representatives without conveyance. By section 23 it is provided that where an easement, right, or privilege for a legal estate is created, it is to enure for the benefit of the land to which it is intended to be annexed. The writer would have thought that this was unnecessary, but no doubt the draftsman had some good reason for it. Perhaps some reader may be thinking. Digitized by Microsoft® 56 Explanation of Lord Birkenhead's Act ' How about powers affecting the legal estate ? ' Powers operating on the legal estate under the Statute of Uses will, of course, go by the repeal of that Act. So also powers operating under executory devises and bequests are to take effect only in equity. Similarly, because (as will be seen in sect. 4) the Act provides that any equit- able tenant for life is to be the legal owner custodian and trustee of the fee simple, the statutory powers of the Settled Land Acts will no longer be required to pass the legal estate, for the fee simple will be conveyed by virtue of the estate so vested in the tenant for life. In fact, so far as the writer can see, the only powers enabling a person who is not the owner of the legal estate to convey it which are re- tained are {a) powers of attorney, (b) statu- tory powers of selling and leasing (which powers the donee of the powers may exer- cise in the name of the owner of the legal estate (sects. 29 and 30)), (c) conveyances executed by order of the Court, {d) vesting declarations under the Trustee Act, and (e) some new statutory powers created by the Act itself, e.g., the power of a mortgagee of a long term to convey the fee simple when he exercises his power of sale. AU these are, by sections 21, 29, and 30, to operate in the same manner as if they had been con- veyances executed by the owner of the legal estate. Digitized by Microsoft® Provisions to Simplify the Law 57 Lastly, the legal estate provisions are not to affect the Statutes of Limitation, nor the law as to the acquisition of easements by prescrip- tion (sect. 31). Section 4. — Settlements of Land under the new Act. The abohtion of legal estates for life or in tail, and the repeal of the Statute of Uses, of course, make it impossible to continue the ancient custom by which strict settlements of land have since the time of Sir Orlando Bridge- man been effected by the creation of a succes- sion of partial or limited legal estates. The Act, nevertheless, while disaUoAving legal limitations, allows settlements giving corre- sponding equitable interests to be made by way of trust (sects. 1 and 4). Here, however, a difficulty occurred when the scheme of the Act was being first considered. Of course the simplest course woTild have been to vest the legal ownership which is the subject of the settlement in the trustees. But in that case purchasers, lessees, and mortgagees would have to deal with the trustees. The trustees, and not the beneficial Ufe tenant, would have been the legal landlords ; all leases would have had to be in their names ; all rents would have been payable to them ; all covenants by the tenants would have had to be enforced in their names ; and actions for trespass and other Digitized by Microsoft® 58 Explanation of Lord Birkenhead' s Act injuries would have had to be commenced and prosecuted in their names. In such circum- stances it would be difficult to get any private trustees to act ; and, if trustees were obtained, the difficulty of dealing with a recalcitrant or indolent trustee would prove insuperable. Moreover, the beneficial tenant for life would, in fact, have been reduced to the position of an annuitant. Such a system would be altogether contrary to the policy of the Settled Land Acts, which was to place beneficial tenants for life and other persons in analogous situations in the position of trustees for their successors, and to confer upon them large statutory powers of selling, leasing, and, in proper cases, mortgaging the settled land, while safeguard- ing the material interests of their successors by causing all capital money arising from sale or mortgage to be paid either to the trustees or into Court. This poUcy, which is obviously right, was intended not merely for the benefit of the persons interested under the settlement, but also of the tenants of the land, so as to give the beneficial owner for the time being a free hand in its development and management ; and the promoters of the Act, therefore, recognised that it was hopeless to dream of reversing it by vesting all rights in trustees with whom alone third parties should henceforth deal — a course which would have resulted in imposing Digitized by Microsoft® Protrisions to Simplify the Law 59 additional costs of management, and in placing the trustees' advisers in a stronger position than those of the tenant for life. The Act solves this riddle by adopting part of Lord Haldane's Bill of 1914 (which part was approved by the Bar Council), and makes it compulsory that the fee simple or term which is the subject of the settlement shall be vested from time to time (by deeds or assents other than the settlement itself) in the person who, under the settlement, would have the powers conferred upon tenants for life and other limited owners by the Settled Land Acts (section 12 and Schedule 5,, clause 1(4)). By these vesting documents, trus- tees for the purposes of the Settled Land Acts are always to be named, and (where desired) ex- tensions of the Settled Land Act powers are to be given. These extensions will, however, rarely be necessary, as the Act itself (as will be seen later on) greatly extends those powers in accordance with the practice in well-drawn settlements. On the death of a life tenant, the fee simple or term of years which is the subject of the settlement is (by Schedule 5, clause 6) to vest in his personal representatives upon trust, subject to the personal representatives being satisfied that any death duties and costs will be provided for, to convey the settled land by a vesting assent to the tenant for life of full age or statutory owner or the person of full Digitized by Microsoft® 60 Explanation of Lord Birkenhead^ s Act age (if any) who has become absolutely entitled under the settlement. For the purpose of raising costs or duties the personal representa- tives are authorised to transfer or create such legal estates taking priority to the settlement as may be required. Such vesting assent is, by Schedule 5, clause 2, to contain the follow- ing statements, viz., (1) that the land is vested in the tenant for life upon the trusts from time to time affecting the settled land ; (2) the names of the Settled Land Act trustees ; (3) any powers conferred by the settlement in extension of the Settled Land Act powers ; and (4) the name of any person who has power to appoint new Settled Land Act trustees. A purchaser or mortgagee is not to go behind these documents, i.e., he is not to be entitled to call for the settlement, nor to know anything about the trusts of it, but is to assume that the person in whom the fee simple or term is so vested has all the statutory powers of a life tenant, and that the trustees named are properly constituted Settled Land Act trustees without further enquiry (Schedule 5, clause 13) ; but of course he has to pay capital money to these trustees or into Court. Instead, therefore, of a purchaser or mort- gagee being worried with the question whether the vendor or mortgagor is in fact a tenant for life, or a person having the powers of a tenant for life, and whether the trustees are properly Digitized by Microsoft® Provisions to Simplify the Law 61 constituted Settled Land Act trustees, he is presented with a certified life tenant and certified trustees with whom he can safely- deal. The above statement speaks of the ' personal representatives ' of the tenant for life, but it must not be assumed that this means his general personal representatives ; for it has been recognised by the framers of the Act that it would not be desirable to cast upon the general personal representatives of a de- ceased life tenant the duties above referred to. Consequently, by section 161, provisions are made by which, at the option of the de- ceased tenant for life or his general personal representatives, or the Settled Land Act trustees, or any person beneficially interested under the settlements, special personal representatives may be appointed in regard only to the settled land, and such representatives ought to be the same persons as the Settled Land Act trustees. The section is rather complicated, but the net result appears to be as follows : (a) Where the deceased does not appoint such special personal representatives, his general personal representatives may disclaim the office in regard only to the settled land. (6) Whether such disclaimer is made or not, the Settled Land Act trustees, or any per- son beneficially interested in the settled land, may apply to the Chancery Division for an Digitized by Microsoft® 62 Explanation of Lord Birkenhead's Act order appointing special or additional personal representatives in respect of the settled land, and in making such appointment the Court (unless special considerations apply) is to appoint the same persons as are Settled Land Act trustees of the settlement. (c) Where a testator dies after the 31st December, 1924, in default of any express appointment of the Settled Land Act trustees to be special executors in regard to the settled land, he is to be deemed to have ap- pointed the persons who at his death are the Settled Land Act trustees to be his executors in regard to the settled land. These provisions (which are part and parcel of the curtain scheme) no doubt add to the complexity of the Act and will probably give rise to questions of construction : but, unless the policy of the Settled Land Acts is departed from, they appear to be necessary ; at all events they will be simpler than the present system. On the death of a life tenant, the onus of ascertaining who is the next person entitled under the settlement is thrown on the special personal representatives of the deceased; but, seeing that they will be the same persons as the Settled Land Act trustees, this appears to be no hardship, and, anyhow, is no more than the onus already cast on general executors of deter- mining who is the devisee under a will, or the Digitized by Microsoft® Provisions to Simplify the Law 63 heir under an intestacy. Moreover, in case of doubt, the special personal representative can apply to the Court for directions. Of course, an assign of a life estate will not, as now, take a legal life estate, because legal hfe estates are abolished. But, so far as assignments made before the Act comes into operation are concerned, the existing rights of such assigns are preserved by sect. 38, sub- sect. 1. Viscount Cave, in the debate on the second reading in the House of Lords, animadverted on the aboUtion of the legal life estate, saying, ' The existence of trusteeships with regard to shares and stocks and personal estate has led to many very serious frauds and many a sad loss. The effect is to put the disposition of the property in the hands of one or two men who sometimes combine to make away with it. With the present system of settling land this is impossible.' With great respect to the noble and learned Lord, that might be so if there were no such things as the Settled Land Acts. But with these Acts permitting of free sale and the payment to trustees of the pro- ceeds, it seems impossible to contend that since 1882 legal limitations have given any greater protection than equitable trusts of stocks or shares. Moreover, as above stated, the hfe tenant of land is always, under the Act, to be the trustee of the fee simple. Digitized by Microsoft® 64 Explanation of Lord Birkenhead's Act Section 5. — Preservation and Extension to Per- sonal Estate of Equitable Estates Tail. The Act not only retains equitable estates tail, like it retains equitable life estates, (sect. 17), under the name of ' entailed in- terests,' but extends them to stocks and other pure personal estate, so as to carry out stiU further the assimilation of the law of real and personal estate. This has caused some criti- cism among the learned, apparently on the ground that it is in some way illogical or absurd to apply the Statute de donis to personalty. It is, doubtless, owing to stupidity on the writer's part that he cannot foUow this. The Statute de donis was, of course, passed for feudal reasons, but its enacting part was simply ' that the- will of the giver according to the form in the deed of gift manifestly expressed shall be observed.' This principle is surely as apphc- able to trusts of pure personalty as to trusts of land. Possibly the critics may say, ' You abolish the heir with one hand and re-estab- lish the heir of the body with the other.' But why not ? It is all a matter of words. Many people stiU wish, wisely or not, to keep per- sonal chattels in their male descendants. That can be done for a long period now (practically 100 years) by trusts expressed at great length, so long as one keeps within the rule against perpetuities. But surely it is simpler and Digitized by Microsoft® Provisions to Simplify the Law 65 better to do it by creating an estate tail in a few words than by a complicated trust. More- over, it is already done by the Settled Land Act in relation to capital money arising from settled land, and is frequently done by deed by the device of directing the stock to be ultimately invested in the purchase of land, with power to postpone such investment. With every respect to the critics, therefore, I fail to see any objection in reason or logic to extending de donis to personal estate. While retaining equitable estates tail, section 17 of the Act abolishes the special pro- tector (a very rare bird in practice). It also abolishes the necessity of enrolhng disentaihng assurances (sect. 76), and empowers a tenant in tail in possession to dispose of the entailed property by will (sect. 77), so that the entail only takes effect in case of intestacy. Section 6. — Simplification and Amendment of other isolated Rules of Law where the shoe has been found to pinch. (1) The so-called rule against double possibilities (gifts to the unborn child of an unborn child) is abolished (sect. 18). No longer wiU a student tell an astonished exam- iner that by the Statute of Limitations every limitation of real estate to the unborn child of an unborn child who answers any particular Digitized by Microsoft® 66 Explanation of Lord Birkenhead's Act description, as for instance has red hair, is void for remoteness, an answer actually given to the writer when he was one of the examiners to the Council of Legal Education. (2) The ordinary rule against remoteness is modified, so that where a trust is now void for remoteness on the ground that it post- pones vesting to the attainment of an age beyond twenty-one (say twenty-five) the hmi- tation is to be good, but twenty-one is to be substituted for the later age (sect. 99). This is a most beneficent provision, for there have been numerous cases where ill-drawn marriage settlements have been drafted without recourse to Lincoln's Inn, where the children of the marriage have lost their property through vesting having been postponed until twenty- five. (3) Section 98 removes doubts which some have held as to the application of the rule against perpetuities to powers of distress and entry by way of indemnity against a rent- charge, and to grants, exceptions, or reserva- tions in relation to minerals where the owner- ship of them is severed from that of the surface. (4) Section 90 is extremely important, as it empowers official arbitrators appointed for the purposes of the Acquisition of Land (Assess- ment of Compensation) Act, 1919, or the Court, to modify or discharge restrictive covenants Digitized by Microsoft® Provisions to Simplify the Law 67 affecting freeholds, and those affecting lease- holds for terms exceeding seventy years where fifty years have elapsed (sect. 90 (11)), when by reason of changes in the character of the property in the neighbourhood the restriction ought to be deemed obsolete, or when their continued existence would impede the reason- able user of the land. (5) The provisions of the Conveyancing Act, 1881, as to maintenance are widened, and no longer confined to cases where the infant is, or would be on attaining twenty-one, entitled (sect. 88) ; and by section 121, trustees are given a statutory power of advancement out of capital. (6) Section 115 is a sort of shorthand clause which merely enables what we call wastrel trusts to be inserted in an instrument under the description of an ' ahmentary trust.' (7) The necessity of taking the acknowledg- ments of married women is aboUshed. This is merely anticipating events by a few years, as the necessity of these examinations is now confined to ladies who were married before 1883 (sect. 74). (8) Section 87 contains an important simplification of the law of property, by enact- ing that a contingent or future specific devise or bequest, and a contingent residuary devise, and a specific or residuary devise of land to Digitized by Microsoft® 68 Explanation of Lord Birkenhead'' a Act trustees upon trust for persons whose interests are contingent or executory, shall carry the intermediate income, thus overruling Earl of Bective v. Hodgson, 10 H. L. C. 656, and Re Inman, [1893] 3 Ch. 518. (9) Section 107 makes a very useful amend- ment in the law, viz., that where two or more persons die under circumstances which render it doubtful which of them survived the other or others, they shall be deemed to have died in order of seniority. (10) By section 72, a conveyance of free- holds without words of limitation is to convey the fee simple or other the whole interest of the grantor unless a contrary intention appears, thus in effect extending the provisions of the Wills Act to conveyances inter vivos. The provision extends to conveyances to a cor- poration sole. (11) Section 152 enacts that where a will is expressed to be made in contemplation of a marriage it is not, as now, to be revoked by the solemnisation of the marriage. It is astonish- ing that such an obvious amendment should not have been made during the eighty-five years which have elapsed since the Wills Act. (12) The venerable rule in Shelley's Case is abolished by section 17, subsection (2) ; and by section 19 a Hmitation of real or personal property in favour of the heir of a deceased Digitized by Microsoft® Provisions to Simplify the Law 69 person, which under the existing law would have passed the fee simple of real estate to the heir as 'persona designata, is to confer a corresponding equitable interest on the person who would have been the heir if the Act had never been passed. (13) The reservation of a legal estate by a grantor of land is, by section 24, to operate as a regrant without any execution of the deed by the grantee. (14) Covenants by a man with himself and others are to be valid (sect. 97). (15) The inconvenient doctrine of inter esse termini is abohshed, and all reversionary leases are to take effect at once as legal terms, but no lease at a rent is to be made to commence later than twenty-one years from its date (sect. 146). (16) By section 78 relief is given against forfeiture of leases, even in breach of a covenant against assigning, underletting, parting without possession, or disposing of the land. It also provides that a power of distress by way of indemnity against a rent is not to be a Bill of Sale, and that the benefit of all covenants and powers given by way of indemnity against a rent are to be annexed to and run with the land. (17) Section 73 contains a useful code as to the execution of deeds by corporations, and Digitized by Microsoft® 70 Explanation of Lord Birkenhead's Act also provides that, where any property is vested in a corporation sole, it shall pass to and vest in, and be deemed always to have passed to or vested in, the successors of such corporation. This sets right a not very well-known rule, that personal estate does not so pass. The same section also amends another rule, by providing that a vacancy in a corporation sole, or in the head of a corporation aggregate, shall not afiect the validity of an acquisition, or of a contract entered into by the corporation. (18) Section 79 amends the Conveyancing Act, 1881, in relation to powers of attorney, which, if relating to land, must be filed ; and section 80 extends these provisions not only to the attorney, but also to persons deriving title under him; and, most important of all, pro- vides that a statutory declaration by an attorney to the effect that he has not received notice or information of the revocation of his powers shall, if made immediately before or within three months after any payment to or act by him, be taken to be conclusive proof of non- revocation. (19) Section 83 amends the Conveyancing Act in small details contained in sections 5, 19, and 23 of the Conveyancing Act, 1881, and section 8 of the Conveyancing Act, 1911; sec- tion 86 extends section 42 of the Act of 1881 to contingent interests of infants; and section 89 excludes from the periods named in the Digitized by Microsoft® Provisions to Simplify the Law 71 Thellusson Act accumulations made under any- statutory power during infancy, to the intent that any express trust for accumulation for any other authorised period shall not be deemed to be invaUdated by reason of such statutory accumulations. (20) Section 90 amends the law by permitting the creation of rent-charges out of another rent ; section 91 amends section 45 of the Act of 1881 so as to render the redemption of rent-charges easier where the title is doubtful ; and section 93 renders the apportionment of tithe rent-charge simpler. (21) Section 96 brings the law relating to covenants running with the land into hne with the new Act. (22) Section 101 amends section 65 of the Act of 1881 by making it apply where a yearly rent not exceeding £1 has not been paid for twenty years, of which five years must be after 1924. (23) Section 109 restricts the number of trustees to four. The object is, of course, to prevent land being made unsaleable by the appointment of (say) fifty trustees. On the other hand, section 110 enables an additional trustee, where the number does not exceed three, to be appointed although there is no vacancy. (24) Section 118 gives large protection to trustees in the distribution of an estate after Digitized by Microsoft® 72 Explanation of Lord Birkenhead's Act advertising for claims. By section 117 the same protection is given to a personal representative, wlio assigns leaseholds to a legatee, as he now has under Lord St. Leonard's Act, 1859, where he has sold the leaseholds. This is a most beneficial provision, for, as the law stands, executors under such circumstances remain liable for rent and covenants during the con- tinuance of the lease. (25) Section 120 gives trustees enlarged powers and protection in the administration of an estate ; and section 125 gives them the now customary power to appoint and pay agents, including one of themselves, while section 62 does the same for Settled Land Act trustees. (26) Section 122 enables trustees who have power to apply capital for any purpose to raise it by way of mortgage. (27) Section 124 frees purchasers and mort- gagees from the onus of seeing that money is wanted ; while section 111 frees them from enquiry whether a new trustee was properly appointed. (28) Section 126 prescribes what is to be done with money falling in under any policy of insurance against fire and the like. (29) Section 112 merely sets at rest a doubt whether a vesting declaration under section 12 of the Trustee Act, 1893, is effective where the Digitized by Microsoft® Provisions to Simplify the Law 73 estate, interest or right is not expressly referred to. It also does away with the necessity of any vesting declarations after 1924 by declaring that the mere appointment of new trustees is to vest the trust property in the persons who will be trustees after the appointment. It also excludes customary land from the exception of copyholds in subsection 3 of section 12 of the 1893 Act, where they pass by common law assurance. (30) Section 113 shghtly amends the ' Vest- ing Order ' section (26) of the Trustee Act, 1893, by extending it to trustees appointed out of Court, and to the case of a corporate trustee ^ which has been dissolved. (31) Section 114 authorises the making of vesting orders of property with a view to the application of corpus or income for the benefit of an infant. Section 116 extends all the powers and provisions of the Act of 1893 to trustees for the purposes of section 42 of the Convey- ancing Act (trustees for management of an infant's land). (32) By section 119 the powers of invest- ment conferred on trustees by the Trustee Act, 1893, are enlarged thus : (a) They may contract not to call in the debt for a period not exceeding seven years if interest is paid and covenants observed. 1 See note 1, page 88 infra. Digitized by Microsoft® 74 Explanation of Lord Birkenhead'' s Act (b) They may leave two-thirds of the purchase money of land sold by them on mortgage of it without a fresh valuation. (c) They may concur in any scheme for reconstruction of a Company whose securities they rightly hold, or for the sale of any part of its property, or for its amal- gamation, or for the release or variation of any rights or liabihties attached to such securities, and accept any securities of any denomination in the reconstructed, pur- chasing or new Company. (d) If new securities in any Company are offered to trustees who have a prefer- ential right to subscribe for them, they may accept and pay for them out of trust capital, or renounce the right, or assign it for the best consideration they can reason- ably obtain. (e) These powers are to apply only if and so far as they are not negatived by the trust instrument ; and where anyone's con- sent to a change of investment is required such consent is to be necessary to the exercise of the new powers. (33) Section 120 further increases the powers of trustees in relation to pajdng trust money into, or depositing documents with, a bank, paying calls on shares, agreeing or ascertaining values of choses in action, accepting securities Digitized by Microsoft® Provisions to Simplify the Law 75 in place of cash, agreeing and allowing out-of- pocket payments made by others, including duties and costs, and executing releases. They are also excused from placing any distringas notices and from obtaining stop orders in respect of choses in action in which they are interested. They may also, once in three years, have their accounts audited at the cost of the estate. (34) Subsection 9 of section 120 contains an important alteration, as it empowers trustees for sale to sell any part of the property, whether the division be horizontal, vertical or otherwise. This does away with the necessity of appli- cations to the Court under section 44 of the Trustee Act of 1893 where it is desirable to sell mines and surface separately. (35) Section 122 authorises trustees who are empowered to raise capital money for any purpose, to do so by mortgage, sale, conversion, or calling in of any part of the trust property ; but this is not to extend to Settled Land Act trustees. (36) Schedule 6, clause 8, contains a new and very important provision, giving to the Chan- cery Division power to direct a settlement of the property of a lunatic or defective, or any part of it, and particularly (a) where the lunatic is the holder of a title of honour and the property would not, but for such settlement, devolve Digitized by Microsoft® 76 Explanation of Lord Birkenhead's Act with that title ; or (b) where the property has been acquired by gift or intestacy ; or (c) where by reason of the change in the law of intestacy made by the Act itseK or otherwise, or to any change in circumstances since the lunatic, while sane, executed a will, or to any absence of infor- mation, or on account of the former management of the property or the expenditure of money in improving or maintaining the same, any person might suffer injustice if no such settlement were ordered. Moreover, any person having a spes successionis may apply to the Court for such a settlement. Schedule 6, clause 8, subclause (6), contains directions in detail as to what the Court is to consider in making any such settle- ment, which, inter alia, is to contain a power of revocation or appointment by the lunatic in case of recovery. (37) Of equal, if not greater, importance is section 123, which authorises the Court to confer on trustees, either generally or in any particular instance, the necessary powers for carrying out any sale, lease, mortgage, surrender, release, or other disposition, or any purchase, investment, expenditure, or other transaction which the Court may deem expedient. This is an epoch-making clause, extending the principle of Be New, [1901] 2 Ch. 534, to all cases, and not merely confining it to cases of salvage. No doubt the Court will exercise this new power with great care, but few will doubt its utiUty. Digitized by Microsoft® Provisions to Simplify the Law 77 (38) Section 106 removes the restriction on Trade Union purchases and leases to one acre. (39) Lastly, section 102 amends the Com- mons Act, giving the public rights over commons, and section 103 further restricts the enclosure of commons ; but as this has no connection with the rest of the Act, it is not proposed to comment upon it here. Digitized by Microsoft® CHAPTER III PROVISIONS INTENDED TO FACILITATE LAND TRANSFER DIRECTLY The last chapter was devoted to those parts of the new Act which are intended to simplify (mainly by assimilation) the law of real and personal property, and thus, incidentally and indirectly, to facilitate land transfer. Section 1. — The Curtain Clauses. We now come to those parts which are intended to facilitate land transfer directly, and the most important of these is the very consider- able modification of the equitable doctrine of notice. These provisions are commonly referred to as ' the curtain clauses,' and their general principle is that the legal estate in all land should be vested in some person or persons authorised to sell, exchange, partition, or lease it, and in certain cases to mortgage it, so as to override aU equities other than certain excepted ones. The overridden equities are transferred from the land itself to the purchase money, if sold, or to the land taken in exchange on a partition, or to the rents and profits of the land leased. Digitized by Microsoft® Provisions to Facilitate Land Transfer 79 This is, I need scarcely say, an extension of the principle of the Settled Land Acts. Now, practically, land owning may be reduced to four categories : (1) The land may be held by an absolute owner free from any equities whatever ; or (2) It may be settled land, i.e. hmited to the use of persons in succession ; or (3) It may be land vested in trustees upon an express or statutory trust for sale ; or (4) It may be vested in some person or persons (say, for instance, in fee simple), but subject to equitable rights of third parties, which, under the existing law, he has no power to override, because he is neither a tenant for hfe under the Settled Land Acts, nor a trustee for sale. Let us consider each of these categories in order. (1) Where land is vested in someone abso- lutely in fee or for a term of years, and no one else is equitably interested, obviously the exist- ing law is sufficient. (2) But a large proportion of the land of the kingdom is settled on persons in succession; and, although that fact must necessarily com- plicate titles, it is hopeless in this country to forbid settlements as has been done in Austraha and several Continental States. Indeed, many Digitized by Microsoft® 80 Explanation of Lord Birkenhead's Act people would regard a proposal to aboUsh settlements as being almost as objectionable and immoral as a proposal to abolish marriage itself. The Settled Land Acts have, however, already largely freed settled land from the fetters of strict settlement ; for the tenant for life (or one of the persons to whom section 58 of the Settled Land Act, 1882, gives the powers of a tenant for life) can freely sell, exchange, or partition — can (within certain limits) lease, and for certain purposes mortgage, so as to bind everyone entitled under the settlement, whether at law or in equity. But these powers, although they have made settled land saleable, and have been found most useful, and indeed have been the salvation of the landowning class during the past decade, have not simplified titles much, because it has always been necessary for a purchaser to satisfy himself that his vendor is a tenant for hfe or one of the persons falling under section 58 of the Act of 1882, and that the trustees are properly constituted trustees for the purposes of the Settled Land Acts. That, of course, necessitates the perusal of long and complicated settlements. As already stated in Chapter II, the new Act does away with that difficulty, by providing that the fee simple or term of years, the subject of the settlement, is to be vested by a separate deed in each tenant for hfe as he comes into possession, and that by each such deed Settled Land Act trustees are Digitized by Microsoft® Provisions to Facilitate Land Transfer 81 to be nominated, and that a purchaser is not to see the settlement, but only those simple vesting deeds on the faith of which he is entitled to act. He is told that the land is settled land, but he gets a certified life-tenant able to convey the legal estate, and certified trustees to whom capital money may be paid. Moreover, the new Act considerably extends the list of persons who are to have the Settled Land Act powers of a hfe-tenant. In the first place, section 63, subsection 1, of the new Act provides that where a person of full age (including a married woman restrained from anticipation (sect. 54)) is beneficially seised or entitled in possession of or to a legal estate {i.e. entitled in fee or for a term of years), subject to any estates, interests, charges, or powers of charging, subsisting or capable of being exercised under a settlement, he shall have the powers of a tenant for life under that settle- ment. In Be Monckton, [1917] 1 Ch. 224, the late Mr. Justice Neville seems to have decided that that was already the law, but that case has been received with considerable doubt, to which the new Act puts an end. The result is that whoever has ultimately acquired the beneficial fee simple or term of years under a settlement wiU be able to exercise the Settled Land Act powers, although he is not a hfe-tenant, nor one of the persons referred to in section 58 of the 1882 Act. This is a satisfactory treatment of Digitized by Microsoft® 82 Explanation of Lord Birkenhead's Act the question ; for if it be right that a tenant for hfe should have the statutory powers of over- riding family charges by transferring them from the land to the purchase money, there seems to be no reason for taking away those powers when, instead of being a tenant for life, some person comes into the ultimate fee simple or term of years which was settled. The new Act does not, however, stop here, but considerably extends the present Settled Land Act powers. These extensions are too numerous to mention in detail, but the chief of them are as follows : By section 65, clause ii of subsection (1) of section 58 of the Act of 1882 (which gives the powers of a tenant for hfe to a tenant in fee simple with an executory hmitation over on failure of issue or other event) is amended so as to extend it to a person entitled to a term of years subject to a like executory hmitation. By the same section, clause ix of subsection (1) of section 58 of the Act of 1882 is extended to implied and constructive trusts, and the word ' forfeiture ' is to include, and to be deemed to have always included, cesser or determination by any means, and so as to add, after the words 'expenses of management,' the words 'or to a trust for accumulation of income for any purpose.' Unless expressly forbidden, a tenant for life under future settlements is to have full power Digitized by Microsoft® Provisions to Facilitate, Land Transfer 83 to sell the mansion house (sect. 37). A tenant for life is also to have powers to sell in consider- ation of a rent-charge (sects. 43 and 39), and to sell to a statutory company in consideration of securities of the company (sect, 40), to grant water rights (sect. 41), to grant buUding, mining, and agriculture or occupation leases for 999, 100, and 50 years respectively (sect. 42), to impose restrictions and reserve easements, and to sell timber at a valuation (sect. 36), to acquire land out of capital money, subject to certain specified incumbrances such as Crown rents, restrictive covenants, liability to repair walls, dykes, etc. (sect. 38), and even to accept leases {ib., subsect. (3)-(5)) ; to give options to purchase or lease the settled land (sect. 44), to compro- mise claims and release restrictions, and (most important of all) to carry out any transaction not otherwise authorised, which, in the opinion of the Court, would be for the benefit of the settled land or the persons interested under the settlement, and which could have been carried out by an absolute owner (sect. 46). Where there is under a settlement no person of full age able to exercise the statutory powers of a tenant for life, then the trustees of the settlement are to have all those statutory powers (sect. 56). This is retrospective. Section 12 of the Settled Land Act, 1890, which authorises certain dealings between the tenant for life and the trustees, is repealed and Digitized by Microsoft® 84 Explanation of Lord Birkenhead's Ad re-enacted in an extended form in section 58, enabling tlie trustees to sell, lease, or mort- gage, or otherwise dispose of, the settled land to the hfe tenant, to advance capital money to him on mortgage, to purchase land from him, and to exchange land with him (sect. 58). Section 30 provides that all leases or tenancy agreements authorised by the Conveyancing Acts or the Settled Land Acts may be granted in the name of the estate owner {i.e., the person in whom the legal estate is vested) by the person empowered to grant the lease or create the tenancy, but not so as to impose any personal liabiUty on the estate owner. This provision seems to operate as a kind of statutory power of attorney. Section 45 gives large powers to a tenant for life to compromise claims, release restric- tions, vary leases and grants, and apportion rents; and section 52 applies the Act to base fees ; and section 64 extends the purposes for which capital money may be apphed under the Settled Land Acts. A doubt which has afHicted some more subtle minds than the writrr's, as to whether on sale the land can be released from a mortgage on the terms of the money being charged on the capital purchase money by way of substituted security, is given a decent burial by section 59, sub- section 3, Digitized by Microsoft® Provisions to Facilitate Land Transfer 85 Increased powers are given by section 60 as to dedication of settled land for streets and open spaces. By section 63 personal estate settled by reference to capital money or other trusts corresponding with the limitations of the land are to be held as capital money would be, thus overriding the decision of Parker, J., in Be Walker, [1908] 2 Ch. 705 ; and it would seem that where this has actually, but erroneously, been done before 1925, the transaction is confirmed by section 67 {sed qucere). There is a new list of improvements author- ised to be made out of capital money, in section 65, which amends section 25 and repeals section 26 of the Act of 1882. This hst will make payments for structural repairs and additions much easier to hfe tenants. By section 66 money received by a tenant for life for damages are to be treated as capital, thus overriding Be Lacon's Settlement, [1911] 2 Ch. 17, where it was decided that they belonged to the hfe tenant as legal owner, although where the legal estate was in trustees any damages received by them was capital and not income {Be Pyke, [1912] 1 Ch. 770). Seeing that the whole legal estate is to be vested under the Act in the life tenant as trustee for aU, it would seem that this clause is ex abundanti cautela. By section 47 the conveyance provided for by section 20 of the Act of 1882 is extended to Digitized by Microsoft® 86 Explanation of Lord Birkenhead'e Act any disposition authorised by the new Act, and clauses i, ii, and iii of subsection 2 are not to extend to equitable powers or interests protected by a settlement. By section 68 the surrender by a life tenant in favour of his successor is to operate as a transfer of his statutory powers, overriding Re Wimborne d: Browne's Contract, [1904] 1 Ch. 537, on this point ; and by section 70, where a life tenant has by bankruptcy, assignment, or other- wise parted with his interest, the Court may order his statutory powers to be exercisable by the trustees of the settlement — a most excellent amendment. Section 69 makes divers amendments in section 50 of the Act of 1882. It apphes that section to assignments made by a life tenant in remainder, and includes persons deriving title under an original assignee — makes a trustee in bankruptcy an assignee for value and provides that the consent of an assignee for value (where the assignment is after 1924) shall no longer be requisite to the exercise of the statutory powers, but gives him the same rights over the proceeds representing the land as he had over the land itself. On the other hand, it gives a trustee in bankruptcy and any other assign, if the assign- ment so provides, the power of negativing any investment except in securities authorised by the Act. Even where the assignment is made before 1926 a purchaser is not to be bound to see that the consent of the assignee has been obtained. Digitized by Microsoft® Provisions to Facilitate Land Transfer 87 There are also provisions giving a trustee assignee power to consent, and nominating the person to consent where the interest assigned has been settled or the person whose consent is required is an infant ; and finally, if for any- other reason the person to consent cannot do so, the Court is authorised to do so. By section 48, subsection (4), Re Constable, [1919] 1 Ch. 178, is reversed, and any estate or power expressed to be hmited in restoration or confirmation of a prior settlement is to be operative as such. Lastly, the tiresome question of trustees of compound settlements is dealt with by section 49 ; and persons who are, for the time being, Settled Land Act trustees of a settlement, are to be trustees of every settlement consisting of that instrument and any subsequent instru- ment or instruments, and this is to be retro- spective except where the Court has, prior to 1925, appointed trustees of such a compound settlement. Sections 50 and 51 also contain provisions as to trustees of referential settlements, and give additional power of appointing trustees, which are too elaborate for this sketch. It will be seen, therefore, that with regard to Settled Land the Act has merely made the life tenant (who, since 1882, has been trustee of the statutory powers) the trustee of the legal estate which is the subject erf the settlement, aaid Digitized by Microsoft® 88 Explanation of Lord Birkenhead'' s Act extended the Settled Land Act powers — making it still easier to sell, exchange, partition, or lease, but, of course, not permitting a life tenant a free hand to mortgage. (3) Let us now turn to the provisions relating to the third category, viz., the case of land vested in trustees on an express trust for sale. Under the present law, the powers of trustees for sale are very limited ; but the fourth schedule contains provisions intended to increase their powers, so as practically to place such trustees in the same position as a tenant for life under a settlement. Thus, where the consent of more than two persons is required, the consent of any two is to suffice ; and where the consent of a person not sui juris is required, it is dispensed with. But the trustees are, so far as practicable, to give effect to the wishes of beneficiaries who are sui juris. A purchaser is not to be concerned with the trusts of the proceeds of sale if paid to two trustees or one corporate trustee,^ nor with the deed declaring the trusts, including its stamp. This provision as to payment to at least two trustees is compulsory, notwithstanding any- thing in the trust instrument to the contrary, and is one of the principal safeguards of the 1 It must not be assximed that this applies to every corporation. A 'trust corporation' is defined in sect. 188 (30) as meaning the Public Trustee, or a corporation either appointed ad hoc by the Oourt or entitled under tbe Fublio Trustee Act to act a« a Custodian Trustee. Digitized by Microsoft® Provisions to Facilitate Land Transfer 89 Act. But it does not extend to a sale by a Eole personal representative. Pending a sale, all trustees for sale (including personal representatives "where the land is vested in them upon trust for sale) are to have all the powers of a tenant for hfe and of the trustees of the settlement tmder the Settled Land Acts ; and all the powers of management conferred by subsections (2) and (3) of section 42 of the Conveyancing Act, 1881 ; and all capi- tal moneys arising under those powers are to be applied as if they were purchase-moneys arising under the trust for sale ; and pending sale the rents and profits are to be applied as income. There is also a power to partition instead of selling, where the net proceeds of the sale have become absolutely vested in persons sui juris or in the trustees of the settlement, and a power to the trustees to delegate their powers of management to the persons beneficially entitled to the income. The fourth schedule (section 1, subsection (1)) also declares that persons having power to appoint new trustees of a conveyance on trust for sale shall be bound to appoint the same persons (if any) who are for the time being trustees of the settlement of the purchase money. There is one case which is not dealt with specifically, viz., the frequent case where the trust for sale is not to be exercised until the happening of some event ; but I suppose that tbe draftsman considered ihait until that evait Digitized by Microsoft® 90 Explanation of Lord Birkenhead's Ad occurs the case would either fall under the provisions as to settled land, the powers of which are conferred on all trustees for sale, or under that provision which gives unKmited power to the Court to modify a trust. (4) We now come to the curtain provisions relating to the fourth category, viz., the case where the legal estate in land is neither vested in a tenant for life under a settlement nor in trustees in trust for sale, but in some person charged with, or subject to, equitable rights of third parties which he cannot, at present, over- ride, as he could do were he a tenant for life under a settlement. With regard to such a person he is (by section 3, subsection (3), paragraph (iii), and section 63) to be at liberty to adopt one of two alternative courses. He may either convey the land to two or more individual trustees approved by the persons entitled to the equities (or, failing their approval, approved by the Court), or to a single corporate trustee^ upon trust for sale, in which case such trustees will have all the powers referred to under category 3. Or he may (by sect. 53), if so minded, declare that the legal estate is vested in him on trust to give effect to all equitable interests and powers affecting the same, and to appoint two or more individuals, approved either by the beneficiaries or the Court or a corporate trustee^ to be Settled Land Act trustees, in which case he wiU have all the ' See note 1, page 88 supra. Digitized by Microsoft® Provisions to Facilitate Land Transfer 91 Settled Land Act powers conferred on a life tenant. The case of land vested in Charity Trustees is dealt with by section 20, by which it is enacted that Charity Trustees are to have the statutory powers of a tenant for life subject to such consents (if any) as are now required. From what has been stated the reader will no doubt have grasped the great and salient fact that wherever land is settled land, or land subject either to an express trust for sale, or to the statutory trust for sale which has been described, a bona-fide purchaser or lessee may, in the words of Shakespeare, ' Close up his eyes and draw the curtain close' — in other words, deal with the owner of the legal estate with- out troubling himseK with the equities of third parties, even if he had notice of them (sect. 6). There are, however, six exceptions to this contained in section 3, subsection (5), and sections 32 and 33. The excepted equities which cannot be over- ridden where a purchaser has notice of them are : (1) Existing restrictive covenants ; but cove- nants created after the commencement of the Act are only to affect a purchaser if they are registered as land charges. (2) Equitable easements ; subject to the same condition. (3) The benefit of a contract to convey the legal estate (including a right of pre-emption) ; subject to the same condition as to registration. Digitized by Microsoft® 92 Explanation of Lord Birkenhead' e Act (4) Any other equitable interest registered as a land charge. (5) Any right or interest of any person arising out of the possession by him of docu- ments relating to land, or the rights arising out of the omission to obtain, or any other absence of, possession by any person of such documents ; and (6) The interest of any person in possession or in actual occupation of land. But even some of these six equities may be overridden. Thus, by section 94, thirty years is substituted for forty as the root of title ; and, by section 95, it is declared that a purchaser is not to be deemed to be, or ever to have been, affected by notice of any matter or thing of which, if he had investigated the title prior to the statutory commencement of title (whether under the Act or under the Vendor and Pur- chaser Act, 1874), he might have had notice ; and this is extended to cases where an intended lessee or assign is by statute precluded from calling for the lessor's title, thus overrvding Patman v, Harland, 17 Ch. D. 353. By section 6, no instrument need be regis- tered in Yorkshire or Middlesex unless it transfers or creates a legal estate, or creates a charge thereon by way of legal mortgage, or imposes a restriction on the user of land ; and a purchaser of a legal estate is not to be affected by a registration of equities. Digitized by Microsoft® Provisions to Facilitate Land Transfer 03 In all cases where equitable interests can, under the foregoing provisions, be overridden by the owner of the legal estate, the equities are to be shifted from the land to the pur- chase money and the net rents and profits of the land according to their respective priorities. Schedule 1, Part II, of the Act contains elaborate provisions for the enforcement of equitable rights, which must be studied in the original language. Section'2. — Death Duties and Bankruptcies. Somewhat analogous to the curtain provi- sions is one of great practical importance with regard to death duties and bankruptcies. Heretofore the Inland Revenue and the Board of Trade have greatly compHcated titles by throwing on purchasers the onus of satisfying themselves that all death duties have been paid, and that no bankruptcies of owners have taken place for twelve years past. The Act (sects. 15 and 16) provides that the purchaser of a legal estate is not to be responsible for death duties unless the claim for duties is registered at the Land Registry as a ' land charge,' and that no purchaser shall be liable for any bankruptcy of a former owner unless such bankruptcy has been registered as a lis pendens, or the receiving order has been registered as an order aJEfecting land. This will prove a great boon, as a real bankruptcy search has always been an expensive business. Digitized by Microsoft® 94 Explanation of Lord Birkenhead^ a Act Section 3. — Mortgages. The principle of the Act being that the assign for value of the legal estate is to be protected against equities where there is either a settlement or a trust for sale, and that where there are equities they shall, so far as possible, be put behind the curtain of a settlement or a trust for sale, a difficulty arises with regard to mortgages. The sale of an equity of redemption is quite common ; and if (as always happens now in such a case) the purchaser were not to get the legal estate, but only an equity, it would follow that he would have to investigate the title to all the equities affecting the property, or take the consequences. That would be a serious blot on the scheme ; and, in order to obviate it, the Act provides (sect. 9) that ' for the purpose of securing that the legal estate shall vest or remain in a mortgagor of land, or in a purchaser from the mortgagee or other person who becomes entitled to the land free from the right of redemption,' all mortgages shall be created only by demise or subdemise, or alternatively by way of what the Act calls ' a charge by way of legal mortgage ' (which will be referred to a little later on), in accordance with the provisions contained in the second schedule. These pro- visions occupy seventeen pages and are some- what elaborate, and will, of course, in practice. Digitized by Microsoft® Provisions to Facilitate Land Transfer 95 have to be carefully studied, but substantially tbey are as follows : (1) By the second schedule, clauses 1 and 2, after the Act comes into operation all then existing first or only mortgages are to vest in the mortgagee for a term of 3,000 years, subject to a proviso for cesser on discharge. All second or subsequent then existing mortgages are to vest in the mortgagee for a term one day longer than the term vested in the mortgagee next above him, with a hke proviso for cesser. In all cases the legal fee simple vested in the mortgagee is, on the Act coming into operation, to shift automatically to the mortgagor, whether he be the absolute owner, tenant for life, personal representative, or trustee. Sub-mortgagees are to take a derivative term one day less than the mortgage term. All existing leasehold mortgages by way of assignment are to operate by way of sub- demise for a term less by ten days than that granted by the lease, with a proviso for cesser, with corresponding provisions as to second and subsequent mortgages. (2) With regard to future mortgages, a legal mortgage of a fee simple is (by clauses 3 and 4 of the second schedule) only to be capable of being created by a demise for a term of years absolute, subject to a proviso for cesser on redemption ; and any attempt to convey the fee Digitized by Microsoft® 96 Explanation of Lord Birkenhead's Act itself is to have the same effect as the Act gives to existing mortgages. (3) When, however, a mortgagee comes to realise his security by sale, the conveyance is, by clauses 5 and 6, to operate to vest the fee simple in the purchaser, and, of course, to take it out of the mortgagor ; and a foreclosure absolute is to have the effect of vesting the fee simple in the mortgagee. A title acquired by a mortgagee in possession under the Statute of Limitations is to have the same effect, subject to the mortgagee enlarging his term. In the case of equitable mortgages, the Court is to have the power of making vesting orders in favour of a purchaser (clause 7). By clause 8 the existing right of consohda- tion is preserved, as also is the existing law as to making further advances after notice of a mesne advance by a third party. But registration of the mesne advance as a land charge or in a local register is not, of itself, to operate as notice unless it was registered when the original mortgage was made. Where a power to sell or appoint a receiver is exercisable on bankruptcy, or the commission of an act of bankruptcy, such power is only to be exercised by leave of the Court (sect. 81). These provisions may seem technical and obscure, and will possibly provoke controversy. But they seem to be essential to the success of Digitized by Microsoft® Provisions to Facilitate Land Transfer 97 the scheme, which is to keep the legal ownership in fee in the beneficial owner — a principle analogous to that which was found to be essential in the case of registered land, viz., that the registered proprietor should be able to give a good title subject only to registered charges. Another considerable advantage will be that all mortgages (both first and subsequent) will be legal mortgages — each term of years being a legal term subject only to the shorter term which precedes it — thus giving to second and subsequent mortgagees greatly increased protection against undisclosed equities. There is also quite a new alternative form of mortgage introduced by schedule 2, section 3 (1), and section 4 (1), viz., a ' charge by way of legal mortgage ' which was referred to above. The Act provides that a mortgage may be made by a charge by deed expressed to be by way of legal mortgage ; and by sections 1 (6) and 2 (7) it is further enacted that any mortgagee of a term may, by declaration in writing, convert his mortgage into a ' charge by way of legal mortgage,' in which case the mortgagee's term of 3,000 years, or such term as the case may be, is extinguished. In either case the mort- gagee has the same protection powers and remedies as if he had, or had retained, a mort- gage term. The writer is not sure of either the reason for, or the effect of, this, and cannot think that it will be much used in practice. It is Digitized by Microsoft® 98 Explanation of Lord Birkenhead's Act supposed, however, that the intention was to create a new security of a similar character to a registered charge on registered land. Schedule 2, section 5, subsection 3, enables the mortgagee to vest the mortgagor's estate in himself. The net result of these mortgage provisions is : (1) That all mortgages, whether first, second or subsequent, may be, and in general ought to be, legal mortgages by the creation of legal terms of years, or charges by way of legal mortgage having the same effect (in which case, of course, they could not be overridden under the curtain provisions, which only apply to equities), but that no mortgage is to vest the fee simple in the mortgagee. (2) That equitable mortgages are protected if made by deposit of deeds, but are otherwise liable to be overridden by a sale, lease, or other disposition by a tenant for Hfe or trustees for sale, unless they are registered as land charges. The right of consolidation is preserved, and the right of a prior mortgagee to make further advances in priority to subsequent mortgages is to depend on whether he had notice of the subsequent mortgages when the further advance was made ; but registration as a land charge, or in a local registry, is not to operate as such notice if the registration were not so effected when the original mortgage was made. Digitized by Microsoft® Provisions to Facilitate Land Transfer 99 By section 82 a deed purporting to transfer a mortgage is to pass, without more, the debt, the property, and the rights of the mortgagee ; and by section 84 a receipt under seal endorsed on a mortgage is to operate as a surrender, and to imply the statutory covenant against incum- brances. Lastly, section 85 excuses a purchaser from mortgagees, and a transferee of a mortgage from all Hability in connection with any trust affecting the mortgage debt, even if he has express notice of it. This is a useful extension of the curtain provisions, which does away with the present rather illogical, but well estabhshed, practice of pretending that we do not know that a mortgage is a trust security, when we know very well that it is. Section 4. — Tenancy in Common. As above stated, tenancy in common, where it exists, is a far worse impediment to ' free trade in land ' than settlements are. The writer did not fully realise this until he became one of the conveyancing counsel of the Court, on whom the duty falls of examining the various titles of tenants in common where property is the subject of an action for partition or sale. It is by no means uncommon to find the equitable title spht up into fifty or sixty un- divided shares, most of them mortgaged, and some of them settled, and the elusive legal estate so Digitized by Microsoft® 100 Explanation of Lord Birkenhead's Act hidden as to be almost beyond the wit of man to discover. Where this is the case, nothing less than an action will suffice to cut the Gordian knot, and when (as frequently happens) the property is small — a few houses or a small farm — the costs of the necessary enquiries leave little to be divided between the unfortunate co-owners. The Act deals with this problem in section 10 and schedule 3 as follows : (1) With regard to existing tenancies in common, where the legal estate in the entirety is in trustees or personal representatives, they are to hold it on a statutory trust for sale, with power to postpone, and after payment of aU. expenses they are to hold the balance of the proceeds ' upon such trusts and subject to such powers and provisions as may be requisite for giving effect to the rights of the persons (includ- ing incumbrancers of undivided shares) inter- ested in the shares. These trusts are referred to as ' the statutory trusts.' If the entirety is settled, the legal estate is to vest in the trustees of the settlement upon the statutory trusts, and if there be no such trustees, and also in every other case in which the land is not expressly vested in trustees, it is to vest in the Public Trustee until trustees are appointed upon the statutory trusts. But the Public Trustee is not to be entitled to any fees unless and until he is called upon to act. Digitized by Microsoft® Provisions to Facilitate La If the entirety of the land is not vested in trustees, and is not settled land, but is vested absolutely and beneficially in not more than four persons of full age, it is to vest in them as joint tenants upon the statutory trusts, but if there are more than four it is to vest in the Public Trustee upon the statutory trusts ; but he is not to act until requested to do so. There are also clauses providing (a) for the case where the legal estate in the entirety is not held as above, but some shares are held in one way and some in another (in which case the services of the Public Trustee are again invoked) ; and (6) for the rare cases where the entirety is vested in undivided shares in the same mort- gagees and the rights of redemption are the same as might have been subsisting if the entirety had been mortgaged by an owner before division into undivided shares ; but these clauses are too elaborate to be effectually summarised. (2) With regard to future tenancies in common, the Act provides as follows : Where under a settlement the land is held in trust for persons entitled in possession in undivided shares, the trustees of the settlement may require (and if necessary the Court may order) the land to be vested in them as joint tenants upon the statutory trusts, and until it is so vested it is to be held by the persons in whom it is vested as trustees upon the statutory trusts. Digitized by Microsoft® 102 Explanation of Lord Birkenhead's Act A devise or bequest of land to two or more persons as tenants in coramon is to operate in equity as a devise or bequest to tbe trustees of the settlement (if there are any), or (if not) to the personal representative of the testator upon the statutory trusts. Moreover, in future, a tenancy in common in land is to be incapable of being created except under a settlement or in the proceeds of the sale of the land. Any attempt to create a tenancy in common is to have the effect of vesting the land in the persons to whom it is given, or if they exceed four in number, in the four first named, as joint tenants on the statutory trusts. The Act further provides (schedule 3, clause 3) for the case of the severance by joint tenants beneficially entitled. Such a severance will operate to vest the entirety in the tenants jointly in trust for sale, and the severed shares will take effect behind that trust. Lastly, the Partition Acts are repealed except as to actions pending when the Act comes into force. Section 5.— Infants^ Property. The scheme of the Act being to vest the fee simple in someone who can convey it in all cases, it follows that the case of infants and Digitized by Microsoft® Provisions to Facilitate Land Transfer 103 lunatics requires special treatment. This is given by Schedule 6 of the Act, the effect of which is : (1) That no legal estate is to be conveyed to an infant either by a personal representative, a trustee, a mortgagee, or even a beneficial owner, and that any attempt to do so is to operate merely as an agreement. (2) Where an infant is beneficially entitled to a legal estate, whether under a settlement or absolutely, or would be on attaining twenty-one, the estate, if he claims through a personal representative or trustee for sale, is to remain vested in such representative or trustee ; if he claims through a settlement it is to be vested, ifso facto, in the trustee of that settlement, and if none, or if he is beneficially entitled apart from a settlement, in the PubHc Trustee untU trustees ad hoc are appointed by the Court, in which case the estate shifts automatically to the trustees so appointed. (3) The Pubhc Trustee, or the trustees of the settlement, or the trustees appointed by the Court are to have all the statutory powers of a tenant for life. (4) A married infant is empowered to give a good receipt for income. (5) With regard to fiduciary infants, where a legal estate is, at the commencement of the Act, vested in any infant jointly with another or Digitized by Microsoft® 104 Explanation of Lord Birkenhead^ s Act others as trustee, personal representative or mortgagee, then it is to vest in his co-trustee or trustees, representatives or representative, mortgagees or mortgagee alone. (6) After the commencement of the Act the appointment of an infant to be a trustee is to be void, and the appointment of an infant to be an executor is not to constitute him a personal representative, except that after he attains twenty- one he may prove the will. (7) Where on the death of a hfe tenant under a settlement the legal estate which is the subject of the settlement ought, under the Act, to be vested by the personal representative of the deceased life tenant in an infant hfe tenant, it is to remain in the personal representative untU the new life tenant comes of age, and such personal representative is to have all the powers conferred on life tenants by the Settled Land Acts. By section 61 it is provided that unless the settlement or an order of the Court directs the contrary, the trustees of a settlement for the purposes of the Settled Land Acts shall also be the trustees for the management of infants' property under section 42 of the Conveyancing Act. The general idea, in fact, is to keep legal estates out of the hands of infants during infancy. Digitized by Microsoft® Provisions to Facilitate Land Transfer 105 Section 6. — Lunatics and Defectives. With regard to lunatics and defectives, schedule 6 provides : Where a legal estate is vested in one, either solely or jointly, his com- mittee or receiver is under an order in Lunacy or under any statutory power to concur in making all requisite dispositions for conveying or creating a legal estate, in the name of the lunatic or defective. The object is to make the practice consistent. At present under some statutes the committee conveys in his own name and under others in the name of the lunatic. If the land is vested in the lunatic either solely or jointly as a trustee, a new trustee is to be appointed, or he is to be discharged either by the Court or under the statutory power contained in sections 10 and 11 of the Trustee Act, 1893. These provisions do not seem to make very much difference in the existing law. Section 7. — General Effect on Conveyancing. From what has been stated as to the ' curtain provisions ' the reader will have inferred, and indeed the Act expressly directs (sect. 5), that abstracts of title are not to include any in- strument relating only to interests and powers which will be overreached by a conveyance by the then owner of the legal estate, and Digitized by Microsoft® 106 Explanation of Lord Birkenhead's Act solicitors are expressly protected from aU lia- bility accordingly. But, of course, all equities which wiU not be so overreached must be abstracted ; and by section 8, in such cases where they are registered as land charges, the purchaser may require the vendor to procure at his own expense the can- cellation of the registration and the joinder in the conveyance of the party entitled to the equity, notwithstanding any stipulation to the contrary. Section 7 provides that the stipulation in a contract that a purchaser shall, at his own expense, trace and get in outstanding legal estates, is to be void. This is most important, because the Act is founded on the immunity conferred by the legal estate, and if this pro- vision were omitted, all the old evils of tracing the title of equitable beneficiaries would be revived. It should be noted that all outstanding legal estates are got in by the Act itself (section 2 and schedule 1). For the same reason the same section avoids : {a) A stipulation that a purchaser, where there are trustees of a settlement, shall accept a title made with the concurrence of a person entitled to an equitable interest capable of being over- reached under the Settled Land Acts ; (6) a stipulation that, where there are no such trustees, a purchaser shaU accept a title made with the concurrence of more than two persons Digitized by Microsoft® Provisions to Facilitate Land Transfer 107 entitled to equitable interests which would be capable of being overreached under the Settled Land Acts if trustees were appointed ; and (c) a stipulation that a purchaser, where the land is subject to a trust for sale, shall accept a title otherwise than under that trust. But these provisions do not apply to a personal represen- tative or a mortgagee when selling. Section 107 authorises the Lord Chancellor to prescribe and publish forms of contracts and conditions of sale which may apply to corre- spondence contracts, but whether this wiU be much adopted is open to doubt, although of course one national form of conditions of sale would of course be preferable to the numerous provincial forms now current. Section 100 contains a somewhat obscure provision partially safeguarding a purchaser who acts on the faith of an appointment which is, in fact, void as a fraud on a power, but confined to the case where the appointee is the only person to take in default of appointment. Section 104 invalidates a custom which has grown up in the West of England of inserting in contracts a condition preventing a purchaser, lessee, or under-lessee from employing his own soKcitor. Section 105 provides that where insured property is sold the purchaser is to have the benefit of the pohcy. Digitized by Microsoft® 108 Explanation of Lord Birkenhead^s Act The Act (sects. 164-183) also contains large amendments of the Land Transfer Acts relating exclusively to the Registration of Title, so as to bring registered land into line with the general provisions of the Act ; and it also provides, inter alia, that no extension of compulsory regis- tration of title outside the County of London is to be made for ten years after the Act comes into operation, unless a County Council asks for it. These provisions, however, are so special and separate from the rest of the Act, and relate so exclusively to the practice to be ob- served in the Land Registry, that it is not proposed to treat of them in this work. In conclusion, it is submitted that the Act is one which confers great benefits, and indeed is epoch-making for the following reasons : (1) It simphfies by assimilating the law of real and personal estate so far as is possible. (2) It makes all land saleable and manage- able by providing that the legal estate shall either be vested : (a) in an absolute owner subject or not to mortgages, (6) in some person or persons having the powers of a tenant for life under the Settled Land Acts, or (c) in trustees for sale, and keeps all equities except the excepted ones off the title. Digitized by Microsoft® Provisions to Facilitate Land Transfer 109 (3) It does away with the evils of tenancy in common at law, while safeguarding the material interests of co-owners in equity. (4) It places the law of intestacy on a more just basis. (5) It gives enlarged powers to tenants for life — powers which are nearly always now inserted in weU-drawn settlements, and are, therefore, in no sense revolutionary, (6) It sweeps away a mass of technical pit- falls which never act beneficially, and frequently cause the greatest hardship and disappointment. (7) The conveyancer, in investigating titles, will only need to trace the legal estate. Digitized by Microsoft® APPENDIX EXAMPLES OF DOCUMENTS EXAMPLE Absteact Abstract of Title if the Existing System were continued. 10th June, 1925. Settlement made between John Smith of first part, Jane Jones (spinster) of second part, and William Hodge and Thomas Jones of third part. Reciting seisin of John Smith. Reciting intended marriage between John Smith and Jane Jones and agreement for settlement. Witnesseth that in consideration of intended marriage John Smith as settlor conveyed to WiUiam Hodge and Thomas Jones All that Manor house and lands situate in parish of Slocum in the county of Dorset known as the Smith HaU estate, containing 7,000 acres. To hold same unto WiUiam Hodge and Thomas Jones and their heirs (thereinafter referred to as the Trustees). To use of John Smith and his heirs until the solem- . nisation of said intended marriage and from and after same. To use of John Smith during his life without im- peachment of waste with remainder To use that Jane Jones if she survives John Smith shall take a jointure rent charge of 500^. per annum, and subject thereto Digitized by Microsoft® UNDER THE NEW ACT 1. OF Title. Abstract of the same Title under the New System. 10th June, 1925. Deed Poll by John Smith declaring that the Smith Hall estate in the parish of Slocum in the county of Dorset is vested in himself in fee simple upon the trusts of a deed of even date,i and appointing William Hodge and Thomas Jones to be Trustees for the purposes of the Settled Land Acts, and reserving power to John Smith to appoint new Trustees during his life. 1 The trust deed of even date would follow the lines of the settle- ment on the opposite page, except that the legal ' uses ' would become equitable trusts, which would not affect a purchaser from John Smith, the life tenant and custodian of the legal fee simple (Sect. 3 of Act). The trust deed would, therefore, not be abstracted. Digitized by Microsoft® 112 Appendix Abstract of Title if the Existing System were continued. To use of Trustees for 600 years from death of said John Smith, and subject thereto To use of first and other sons successively of said John Smith in tail male with divers remainders over. Trusts of term of 600 years to raise 15,000Z. for portions for younger children of said John Smith as he shall appoint, and in default to younger children who attain twenty-one equally. Hotchpot clause. Trustees to be Trustees for the purposes of the Settled Land Acts, 1882 to 1890. Power to appoint new Trustees reserved to John Smith. Executed by all parties and attested. 12th June, 1925. Marriage solemnised between John Smith and Jane Jones at Birmingham. ^^ 10th August, 1926. A first son of the said marriage born named Felix Smith .^ 20th August, 1947. Disentailing assurance ^ made be- tween FeHx Smith of first part, John Smith of second part, and Guy Langley of third part. Reciting settlement, marriage, and birth of Felix Smith. Witnessed that John Smith as to his fife estate conveyed and Felix Smith as to his estate in tail male in remainder with the consent of John Smith as protector of the settlement conveyed and released unto Guy Langley All abstracted premises. To hold to said Guy Langley and his heirs (subject to the said jointure rent charge and to the said term of 600 years). To such uses as said John Smith and Felix Smith should from time to time by any deed or deeds with or without power of revocation and new 1 Neither of these facts nor the disentailing deed -will affect a purchaser under the new Act, as they only relate to the equitable title, and will therefore be excluded from the abstract. Digitized by Microsoft® Appendix 113 Abstract of the same Title under the New System. Digitized by Microsoft® 114 Appendix Abstract of Title if the Existing System were continued. appointment appoint, and in default of and subject to any such appointment, To the use of said John Smith for life with remainder. To use of Pehx Smith in fee simple. 21 st August, 1947 . Indenture of mortgage made between said Felix Smith of one part and William Chapel of other part. Reciting as above abstracted. And reciting agreement for loan. Witnessed that in consideration of 2,000L paid by WiUiam Chapel to Felix Smith (receipt acknowledged) Fehx Smith covenanted to pay 2,000Z. to William Chapel at expiration of six calendar months with interest at 6 per cent, per annum. Also witnessed that for consideration aforesaid Pehx Smith as beneficial owner thereby conveyed unto William Chapel All abstracted premises. To hold same (subject to the limitations of abstracted settlement of 10th June, 1925, which were prior to the estate and interest thereunder of said Felix Smith) in fee simple.^ Covenant for payment of principal and interest. Proviso for redemption. Usual mortgage provisions. Duly executed and attested. 31st January, 1948. Indenture of resettlement^ made between said John Smith and Felix Smith of first part, ^ This, being a legal mortgage of the fee simple in remainder expectant on the life estate of John Smith and the jointure of his widow and portions of his younger children, could under the existing law be overreached by the exercise of the Settled Laud Act powers by John Smith, but not, as will be seen from note 3 infra, by Felix Smith, nor, it is conceived, by the exercise of the joint general powers in the dis- entailing assurance. ^ This settlement will, under the new system, only take effect in equity. John Smith still remains the custodian of the legal estate, and can by the exercise of his Settled Land Act powers overreach all equitable interests arising under the compound settlement consisting of the settlement of 10th June, 1925, the disentaOing assurance, and the above resettlement. By section 49 of the Act the trustees of the deed of 10th June, 1925, are the trustees of the compound settlement. Digitized by Microsoft® Appendix 115 Abstract of the same Title under the New System. 21st August, 1947. Indenture of mortgage made between said Felix Smith of one part and William Chapel of other part. Reciting that Felix Smith under and by virtue of a settlement of 10th June, 1925, and a disentailing assurance of 20th August, 1947, was entitled in equity to the fee simple of abstracted heredita- ments, subject to the life estate of his father, the jointure of his mother, and the portions of his younger brothers and sisters under the said settle- ment. Reciting agreement for loan. Witnessed that in consideration of 2,000Z. paid [etc.] (receipt [etc.]) said Felix Smith covenanted to pay 2,000L to WilHam Chapel at expiration of six calendar months with interest at 6 per cent, per annum. Also witnessed that for consideration aforesaid said FeUx Smith, as beneficial owner, thereby charged his said equitable interest in remainder or reversion under said settlement and disentailing assurance by way of legal mortgage with the repayment of said sum of 2,000L and interest.^ ^ Under the new system this mortgage would necessarily be equit- able only, as, the legal ownership being in John Smith, Felix Smith could not create a legal term of 3,000 years out of his reversion. Of course this mortgage could be overreached by the exercise of his Settled Laud Act powers by John Smith (like a corresponding legal mortgage could be under the existing system (see note 1 on opposite page) ) ; but not (it is conceived) by Felix when he succeeds to the possession as tenant for life under the compound settlement mentioned further on. That is the reason why the mortgage is abstracted. Digitized by Microsoft® 116 Appendix Abstract of Title if the Existing System were continued. Georgiana Clark, spinster, of second part, and Arthur Smith and Reginald Clark (thereinafter called the Trustees) of third part. Reciting as above abstracted. Reciting intended marriage between Fehx Smith and Georgiana Clark, and agreement for settlement. Witnesseth that in consideration of said intended marriage and in exercise of their said joint general power of appoint- ment and of every other power them enabling said John Smith and Felix Smith thereby appointed that All said abstracted premises should, subject to the hfe estate of said John Smith and the said jointure rent charge of Jane Smith and said term of 600 years, and to the abstracted mortgage in favour of WiUiam Chapel, so remain and be : To use of FeUx Smith during his Hfe without im- peachment of waste ; remainder To use of Trustees for term of 3,000 years from his death upon trust to raise 10,000L for the portions of the children of said intended marriage, in such shares as said Felix Smith and Georgiana Clark should by deed jointly appoint, and in default of and subject to any such apportionment as the sur- vivor should by deed or will appoint, and subject thereto To use of the first and other sons of said FeUx Smith in fee simple with divers remainders over. 2nd February, 1948. Marriage solemnised. 5th March, 1950. Will of said John Smith appointing portions of 15,000Z. among his children other than Fehx Smith in equal shares. 20th June, 1950. Death of said John Smith, leaving widow said Jane Smith and several younger children surviving. 15th October, 1950. Will proved by both executors. Digitized by Microsoft® Appendix 117 Abstract of the same Title under the New System. 5th March, 1950. Will of said John Smith appointing WilUam Hodge and Thomas Jones to be special personal representatives in relation to the said settled premises. 20th June, 1950. Death of said John Smith. 15th October, 1950. Will proved by said William Hodge and Thomas Jones in relation to said settled premises. Digitized by Microsoft® 118 Appendix Abstract of Title if the Existing System were continued. 15th November, 1950. Order of Mr. Justice Williams in Chambers, appointing said Arthur Smith and Reginald Clark to be Trustees for the purposes of the Settled Land Acts of the Compound Settlement consisting of the settle- ments of 10th June, 1925, and 31st January, 1948, and disentailing assurance of 20th August, 1947.^ 13th January, 1951. Conveyance on sale made between said WilHam Chapel of first part, said FeUx Smith of second part, said Arthur Smith and Reginald Clark of third part, and said Ernest Atkinson of fourth part. Reciting as above abstracted. And reciting agreement for sale by FeUx Smith to Ernest Atkinson in fee simple free from incum- brances at the price of 30,000L And reciting that William Chapel had agreed to join for the purpose of releasing the premises from his said mortgage. And reciting that the purchase money of 30,000Z. being ample for the purpose of providing for the jointure and portions under the settlement of 10th June, 1925, after payment of the said 1 Under the present system this would be necessary in order to enable FeUx Smith to exercise the Settled Land Act powers so as to overreach the jointure and portions created by the settlement of 10th June, 1923. For he is not tenant for life under that settlement, but under the resettlement of 31st January, 1948. But under the new Act no such order would be necessary, as by section 49 the trustees of the earlier settlement are ipso facto to be trustees of the compound settlement. Digitized by Microsoft® Appendix 119 Abstract of the same Title under the New System. 16th November, 1950. Assent by said William Hodge and Thomas Jones as personal representatives to the vesting of abstracted premises in Felix Smith in fee simple upon trusts of the compound settlement, consisting of the trust deed of 10th June, 1925, the disentailing assurance, and the resettlement of 31st January, 1948, subject to an equitable mortgage in favour of Wilham Chapel, which ranked in priority to the resettlement of 1948,^ and appointing themselves to be Trustees for the purposes of the Settled Land Acts and donees of the power of appointing new Trustees provided by Trustee Act. [N.B. — This would make William Hodge and Thomas Jones trustees of the compound settlement under section 49 of the Act of 1922.] 13th January, 1951. Conveyance on sale made between said Pehx Smith of iirst part, said WiUiam Chapel of second part, said Arthur Smith and Reginald Clark of third part, and Ernest Atkinson of fourth part. Reciting assent of 16th November, 1950. And reciting agreement for sale by FeUx Smith to Ernest Atkinson in fee simple free from incum- brances at the price of 30,000L And reciting that 2,000Z. only was due to Wilham Chapel on his mortgage, and that Trustees admit that after pajmient thereof out of purchase money the balance of 28,000L was ample to answer the trusts of the Trust deed of 10th June, 1925, and that consequently it was intended to pay off the said sum of 2,O00L out of purchase money upon William Chapel joining in manner thereinafter appearing. 1 It is apprehended that [as [this mortgage was made under the joint general power, and before the resettlement of 31st January, 1948, Felix Smith, as tenant for life under the compound settlement, could not overreach it, and that consequently it ought to be mentioned in this assent. Digitized by Microsoft® 120 Appendix Abstract of Title if the Existing System were continued. mortgage debt of 2,000i., it was intended to pay that debt out of the said purchase money. Witnessed that pursuant to agreement and in consideration of 2,000?. paid by Atkinson to Chapel by direction of Trustees and said FeUx Smith (receipt [etc.]), and of 28,000Z. paid to Trustees by direction of said Fehx Smith (receipt acknowledged), said Felix Smith as beneficial owner, and in exercise of powers vested in him by Settled Land Acts as tenant for life in possession of premises under said Compound Settlement, and of every other power thereby conveyed, and said Wilham Chapel as mortgagee for the purpose of releasing the said premises from his said mortgage, thereby conveyed and released to said Ernest Atkinson All said abstracted premises. To hold same unto and to use of said Ernest Atkinson in fee simple free from said mortgage. Usual proviso for limiting imphed covenants for title. EXAM Epitome of Epitome of Abstract of Title if the Existing System were continued. 4th July, 1925. Indenture of Settlement whereby John Wilson settles Whiteacre to use of himself for Ufe with remainder to use that his wife EUzabeth may receive a jointure rent charge of 200Z. during her Ufe if she survives him. Subject thereto to use of R. and S. for a term of ^500 years to raise 5,000Z. portions for younger children of John WUson, with remainder. To use of Henry Wilson, eldest son of said John Wilson, for hfe, with remainder. To use of H. and K. for a term of 1,000 years to raise 5,000Z. portions for younger children of Henry Wilson, with remainder. To use of the first and other sons of Henry Wilson successively in tail, with divers remainders over. Digitized by Microsoft® Appendix 121 Abstract of the same Title under the New System. Witnessed that pursuant to agreement and in consideration of 2,000Z. paid by Atkinson to Chapel by direction of Trustees and Felix Smith (receipt [etc.]), and of 28,000^. paid to Trustees by direction of FeUx Smith (receipt acknowledged), said Fehx Smith as beneficial owner, and in exercise of powers vested in him by Settled Land Acts as tenant for Hfe in possession of premises under said Compound Settlement, and of every other power thereby conveyed, and said WiUiam Chapel as mortgagee for the purpose of releasing the said premises from his said mortgage, thereby conveyed and released to said Ernest Atkinson All said abstracted premises. To hold same unto and to use of Ernest Atkinson in fee simple free from said mortgage. Usual proviso for limiting imphed covenants for title. PLE 2. ANOTHER AbSTKAOT, Epitome of same Title under the New System . 4th July, 1925. Vesting Deed by John Wilson declaring that Whiteacre is vested in himself in fee simple upon the trusts of a deed of even date. Appointment of R. and S. to be Trustees for the purposes of the Settled Land Acts. Provisions extending Settled Land Acts powers and reserving power for J. Wilson to appoint new Trustees. Digitized by Microsoft® 122 Appendix Epitome of Abstract of Title if the Existing System were continued. Appointment of R. and S. to be Settled Land Act Trustees. Extension of Settled Land Act powers. Power for tenant for life of full age to appoint new Trustees. 3rd August, 1925. Assignment by John Wilson of his Ufe interest with policies to the Y. Company by way of mortgage which is paid off on his death out of the policy money. 4th September, 1925. Appointment of new Trustee of 500 years' term. Reciting that S . is incapable of acting. Appointment by John Wilson of P. to be Trustee of the term of 500 years and for the purposes of the settlement in the place of S. and jointly with R. Declara- tion vesting the term of 500 years in R. and P. 7th January, 1926. WUl of John Wilson appointing Isaac James and Joseph James executors. 3rd September, 1926. Death of John Wilson, leaving younger children and his widow. 1st October, 1927. Assignment by R. and P. to B. of term of 500 years by way of mortgage for securing 5,000L and interest. Digitized by Microsoft® Appendix 123 Epitome of same Title under the New System. 4th September, 1925. Appointment of new Trustee, whereby John Wilson appoints P. to be Trustee' of the Vesting Deed in the place of S., and jointly with R. for the purposes of the Settled Land Acts. Memorandum of the appointment endorsed on the Vesting Deed. 7th January, 1926. Will of John Wilson appointing R. and P. to be his special personal representatives in regard to the abstracted premises. 3rd September, 1926. Death of John Wilson. 4th April, 1927. Will of John Wilson proved by R. and P. in regard to the settled land. 1st October, 1927. Charge by way of legal mortgage by R. and P. to B. to secure the 5,000Z. portions and interest. 1 2nd December, 1927. Assent by R. and P., as personal representatives, to the vesting of the abstracted premises in Henry Wilson in fee upon the trusts of the Trust Deed. Appointment of R. and P. to be Trustees for the purposes of the Settled Land Acts. Power for Henry Wilson during his life to appoint new Trustees. The same 1 The money being raised this mortgage must be brought on to the title. Digitized by Microsoft® 124 Appendix Epitome of Abstract of Title if the Existing System were continued. 4t]i November, 1928. Transfer of the mortgage for 5,000Z. " by B. to C. 10th July, 1929. Death of Henry Wilson, leaving Thomas Wilson, his eldest son, and two younger children. 3rd November, 1929. Disentail by Thomas Wilson. 4th November, 1929. Release by C. on payment off of his mortgage debt of 5,000Z. and surrender of the term of 500 years. 10th November, 1929. Death of Ehzabeth Wilson. 20th November, 1929. Release by two younger children of Henry Wilson of their portions. 20th November, 1929. Mortgage by Thomas Wilson to L. and M. in fee simple to secure pajrment of 8,000L and interest. 31st March, 1930. Conveyance by Thomas Wilson and L. and M. to R. Home in fee. Digitized by Microsoft® Appendix 125 Epitome of same Title under the New System. provisions for extending powers conferred by tiie Settled Land Acts as are contained in the Vesting Deed. [Note. — These may be inserted either expressly, if short, or by reference to the former vesting deed, if long.] 4th November, 1928. Transfer of mortgage for 5,000Z. to B. and C. 10th July, 1929. Death of Henry Wilson. 1st October, 1929. Letters of Administration to the settled land of Henry Wilson granted to James Cook and Harry Cook. 4th November, 1929. Receipt for 5,000Z. endorsed on mortgage of 1st October, 1927. 20th November, 1929. Mortgage by "James Cook and Harry Cook to L. and M. by creation of a term of 8000 years to secure 8,000?. and interest. 21st November, 1929. Assent by James Cook and Harry Cook as Settled Land Act Trustees to the vesting of the property in Thomas Wilson in fee simple without appointing Settled Land Act Trustees, but subject to the above mortgage to L. and M. 31st March, 1930. Conveyance by T. Wilson and L. and M. to R. Home in fee simple. Digitized by Microsoft® 126 Appendix EXAMPLE 3. Vesting Deed foe giving effect to a Settlement SUBSISTING at THE COMMENCEMENT OF THIS AOT. This Vesting Deed made [etc.] between X. of [etc.] and Y. of [etc.] (hereinafter called the Trustees) of the one part and T.L. of [etc.] of the other part. [Recite the Settlement under which T.L. is a tenant for Life of full age in possession of the freeholds and lease- holds respectively described in the First and Second Schedules and has power to appoint new trustees, and that the trustees are trustees for the purposes of the Settled Land Acts, also the request by T.L. that the trustees should execute the requisite vesting deed.] Now for giving effect to the requirements of the Law of Property Act, 1922, this deed witnesseth as follows : — 1 . The Trustees as Trustees hereby declare that — All and singular the hereditaments and premises respectively mentioned in the First and Second Schedules hereto and all other (if any) the premises capable of being vested by this declaration which are now by any means subject to the limitations of the recited settlement shall forthwith vest in the said T.L. for all the estates terms or interests capable of being vested by this declaration and so as to bind all equitable interests and powers which by the said Act or otherwise are protected by the recited settlement. 2. The said T.L. shall stand possessed of the premises hereby vested upon the trusts and subject to the powers and provisions which under the recited settlement and by virtue of the said Act or otherwise the same ought to be held from time to time. 3. The Trustees are the Trustees hereof for all the purposes of the Settled Land Acts, 1882 to 1922. 4. [Add any powers additional to the Settled Land Act powers which are conferred by the settlement and relate to the land.] Digitized by Microsoft® Appendix 127 5. [Add the usual covenant by T.L. with the Trustees to pay the rents, observe the lessee's covenants and keep the Trustees indemnified.] 6. The said T.L. during his hfe shall have power to appoint a new Trustee or new Trustees hereof. In witness [etc.]. [Note. — Add the schedules. In the first part of the First Schedule give particulars of the manors, advowsons and other incorporeal hereditaments. In the second part give particulars of the freehold land referring, if practicable, to annexed plans, so that the vesting deed may ultimately become a convenient root of title. Unless this is done the deeds referred to will for purposes of the parcels remain part of the title. In the Second Schedule give particulars of the date, parties to the leases, short particulars of the property demised, terms and rents. If there are any legal mortgages having priority to the settlement these should be mentioned in another schedule and referred to in the recitals.] EXAMPLE 4. Vesting Deed on the Settlement of Land. This Vesting Deed made [etc.] between John H. of [etc.] of the first part, Jane W. of [etc.] of the second part, and X. of [etc.], Y. of [etc.], and Z. of [etc.] (hereinafter called the Trustees) of the third part. WITNESSETH AND IT IS HEREBY DECLABED aS foUowS : — 1. In consideration of the intended marriage between John H. and Jane W., the said John H. as Settlor hereby declares that All that (setting out the parcels by reference to a schedule or otherwise) are vested in John H. in fee simple (or in the case of leaseholds refer to the terms). Upon the trusts declared concerning the same by a Trust Deed bearing even date with but intended to be executed immediately after these presents, and made Digitized by Microsoft® 128 Appendix between the same parties and in the same order as these presents or upon such other trusts as the same ought to be held from time to time. 2. The Trustees are the Trustees hereof for all the purposes of the Settled Land Acts, 1882 to 1922. t 3. Notwithstanding any restriction contained in those Acts, the following powers additional to or larger than those conferred by those Acts are conferred by the settle- ment on the said John H. or his personal representatives in reference to the premises hereby settled, and on the trustees, that is to say, [Here insert any additional powers that may be required in relation to the land]. 4. The said John H. during his life shall have power to appoint new Trustees hereof. In witness [etc.]. EXAMPLE 5. Trxtst Deed on the Settlement of Land. This Trust Deed made [etc.] between John H. of [etc.] (hereinafter called the Settlor) of the first part, Jane W. of [etc.] of the second part, and X. of [etc.], Y. of [etc.], and Z. of [etc.] (hereinafter called the Trustees) of the third part. Whereas these presents are supplemental to a deed (hereiuafter caUed the Vesting Deed) bearing even date with but executed before these presents, and made between the same parties and in the same order as these presents, being a deed vesting certain hereditaments situated at in the county of in the Settlor Upon the trusts declared concerning the same by a trust deed of even date therein referred to (meaning these presents), and whereby the Trustees were appointed Trustees thereof for the purposes of the Settled Land Acts, 1882 to 1922, and certain powers were conferred in addition to the powers conferred by those Acts. Digitized by Microsoft® Appendix 129 Now in consideration of the intended marriage between the Settlor and Jane W., this Deed witnesseth as follows : — 1. The Settlor hereby agrees that he will hold the hereditaments comprised in the Vesting Deed In trust for himself until the solemnisation of the said marriage and thereafter Upon the trusts following, that is to say : — • 2. Upon trust for the Settlor during his life without impeachment of waste with remainder Upon trust if Jane W. survives him that she shaU receive out of the premises during the residue of her Hfe a yearly jointure rentcharge of [etc.] and subject thereto Upon trust for the Trustees for a term of 800 years from the date of the death of the Settlor without impeachment of waste Upon the trusts hereinafter declared concerning the same. And subject to the said term and the trusts thereof Upon trust for the first and other sons of the said intended marriage successively according to seniority in tail male with re- mainder [etc.] with an ultimate remainder in trust for the Settlor in fee simple. [Here add the requisite trusts of the portion's term, and any other proper provisions including the appointment of the Trustees, as Settled Land Act Trustees, extension of Settled Land Act powers either expressly or by reference to the Vesting Deed and a power for the tenant for life for the time being of full age to appoint new Trustees.] In witness [etc.] [Note. — The Vesting Deed and Trust Deed can be executed as escrows till the marriage.] EXAMPLE 6. Supplemental Vesting Deed on Sale when the Land is puechased with capital money. This Supplemental Vesting Deed made [etc.] be- tween Henry V. of [etc.] (hereinafter called the Vendor) of the first part, X. of [etc.], Y. of [etc.], and Z. of [etc.] Digitized by Microsoft® 130 Appendix (hereinafter called the Trustees) of the second part, and John H. [etc.] (hereinafter called the Purchaser) of the third part. Whereas the Vendor is entitled for an estate in fee simple in possession free from incumbrances to the heredita- ments hereinafter conveyed and has agreed to sell the same to the Purchaser at the price of pounds. And whereas these presents are supplemental to a vesting deed (hereinafter called the principal deed) dated [etc.], and made [etc.] [Form No. 2], being a deipd vesting certain hereditaments in the Purchaser Upon the trusts of a trust deed of even date therewith, and by the principal deed the Trustees were appointed to be Trustees thereof for the purposes of the Settled Land Acts, 1882 to 1922. Now THIS Deed witnesseth as follows : — 1 . In consideration of the sum of pounds now paid to the Vendor by the Trustees by the direction of the purchaser (the receipt of which sum the Vendor hereby acknowledges) the Vendor as beneficial owner hereby conveys unto the Purchaser All those [etc.] To HOLD unto the Purchaser [in fee simple] upon and subject to the same trusts and powers as are declared by the principal deed by reference as aforesaid with respect to the hereditaments therein comprised. 2. [Insert nomination of the trustees to be trustees for the purposes of the Settled Land Acts.] 3. [And (by reference to the provisions contained in the principal deed) any subsisting extended powers.] 4. [Power for the purchaser during his life to appoint new trustees.] In witness [etc.] [Note. — On a purchase of a term of years absolute out of capital money, the term must be conveyed to the tenant for Ufe, if any, of fuU age, instead of to the trustees of the settlement. If there is a minority the land will be conveyed to the personal representatives or to the Settled Land Act trustees.] Digitized by Microsoft® Appendix 131 EXAMPLE 7. Conveyance by Personal Repeesentatives of a Fee Simple beserving thereout a Term of Years Absolute. This Conveyance made [etc.] between James Cook of [etc.] and Harry Cook of [etc.] of the first part, L. of [etc.] and M. of [etc.] of the second part, and Thomas Wilson of [etc.] of the third part. Whereas on the first day of October 1925 Letters of Administration to the real and personal estate of Henry Wilson, late of [etc.], who died [etc.], were granted by the principal probate registry to James Cook and Harry Cook. And whereas Henry Wilson was at his death solely entitled to the hereditaments hereinafter conveyed for an estate in fee simple. Now this Deed witnesseth thait James Cook and Harry Cook, as Personal Representatives of the said Henry Wilson deceased, hereby convey unto the said Thomas Wilson All that [etc.] t Reserving out of the premises nevertheless unto L. and M. a term of 800 years, without impeachment of waste, to commence from the date hereof but subject to cesser on redemption by Thomas Wilson under a Mortgage dated [etc.] and made between [etc.] on payment of the sum of 5,000?., and interest thereon at the rate of 51. per centum per annum To hold the premises subject to the said term imto Thomas Wilson [in fee simple]. In witness [etc.] [Note. — The reservation will be valid at law, though the deed may not be executed by Thomas Wilson.] Digitized by Microsoft® Digitized by Microsoft® INDEX ABSTRACTS OF TITLE, general effect of Act upon, 105 et seq. only to cover 30 years under open contract, 92. no instruments to be included in, which will be overreached by conveyance, 105. solicitors expressly protected, 106. ACKNOWLEDGMENTS by married women abolished, 67. ALIMENTARY TRUST, statutory form of wastrel trust which can be incorporated in settlements, 67. B BANKRUPTCY, search for, by vendors, abolished by new Act, and registration as lis pendens substituted, 93. of mortgagor, power of sale, etc., only to be exercised by leave of Court, 96. C COMPLEXITY OP LAND LAWS, reasons for, 32 ei seq. three collateral systems— freehold, copyhold and leasehold, 32. strict settlement, ib. equitable doctrine of notice, 33. tenancy in common, ib. restrictive covenants, ib. rent-charges, 34. summary of provisions of new Act simplifying the law, 37 et seq. CONCURRENT OWNERSHIP. See Tenancy in Common [1 ] Digitized by Microsoft® Index CONTRACTS FOR SALE, clauses forbidden in, 106 et seq. attempt to throw expense on purchaser of getting in out- standing legal estate, ib. attempt to make purchaser accept title from beneficiaries where they are capable of being overreached, ib., et seq. attempt to make purchaser employ vendor's sohcitor, 107. CONVEYANCES, general effect of Act upon, 105 et seq., 108. COPYHOLDS, divers customs of, 12, 13 descent of, 12. freehold of, 13. copyholder cannot lease for more than a year, 13. liable for waste, ib. only transferable by surrender and admission on payment of a fine, ib. liable to reliefs and heriots, ib. nominally copyholder is still tenant at will, ib, but by custom has fixity of tenure, 14. abolished by new Act, 37, 41 et seq. provisions for compensating lords and stewards, 43. CORPORATIONS. new rules as to deeds by or to, 70. COVENANTS by man with himself and others to be valid, 69. running with the land, 71. CURTAIN PROVISIONS, 38 et seq., 78 et seq. really extensions of principle of Settled Land Acts, 39. CUSTOMARY TENURES over 103 in number, 12. abolished by new Act, 37, 42. D DEATH, where two people die in same accident, new presumption as to which died first, 68. DEATH DUTIES, not to affect purchasers unless registered as land charge, 93. DEVOLUTION. See Intestacy. [2 ] Digitized by Microsoft® Index E EASEMENTS, etc., to enure for benefit of estate, 55. ENTAILED INTERESTS, 64 et seq. estate tail retained under this name and made applicable to personal as well as real estate, 64. special protection abolished, 65. enrolment abolished, ib, may be disposed of by will, ib. EQUITIES incapable of being overreached under Settled Land Acts or a trust for sale, 90 et seq. new Act enables them to be overreached with certain exceptions, ih. exceptions, 91 et seq. how equities can be overreached, 90. trust for sale may be created with consent of owners of equities or of the Court, ib. or owner may declare that he holds land on trust to give effect to equities, and may appoint Settled Land Act trustees, in which case he will get all the Settled Land Act powers, ib. in all cases where equities can be overreached they are to be shifted from the land to the purchase money, 93. ESTATES TAIL. See Entailed Interests. EXECUTORY DEVISES AND BEQUESTS, 26. arise under Statute of Wills of Henry VIII, ib. F FEUDAL TENURES abolished in reign of Charles II, 27. FINES, barring of widow's dower by, 20. on death of, or alienation by, copyholder, 13. H HEIR, although abolished as such, may take as persona designata, 52. [3 ] Digitized by Microsoft® Index HEIR OP THE BODY retained in equity but abolished at law, 38. HEIRSHIP abolished and new code of inheritance for all kinds of property substituted, 37. HISTORY OF REAL PROPERTY LAW, 7-35. distinction between freeholds and copyholds, 11. and leaseholds, 14. freehold estates originally restricted to fee simples and life estates, 8, 17. Statute de. donis, 18. Quia Emptores, 19. of Uses, 23. of Wills, 26. abolishing military tenures, 27. strict settlement of freeholds, 28. Settled Land Acts, 29. basis of new Act, 31. copyholds, origin of, 12. incidents of, ib., et seq. formerly an estate at mil, 14 but for centuries copyholder has had fixity of tenure, ib. general summary of complexities and technicalities of existing law, 31-34. I INCOME, intermediate, of contingent gifts, new rule as to, 67. married infant to be capable of giving good receipt for, 103. INFANTS, provisions of Act as to property of, 102 et seq. legal estate not to be conveyed to, 103. where infant becomes entitled to a legal estate it is to remain in representative or trustee until majority with all Settled Land Act powers, ih. married infant to be capable of giving good receipt for income, 103. provisions as to fiduciary infants, ib., et seq. Settled Land Act trustees to be ipso facto trustees for management of infants' property under Sect. 42 of Con- veyancing Act, 1881, 104. enlarged provisions for maintenance of, 67. trustees empowered to make advances out of capital for benefit of, ib. [4 ] Digitized by Microsoft® Index INSURANCE, money payable under, to trustees, how dealt with, 72. on property sold, purchaser to have benefit of, 107. INTEBES8E TERMINI abolished, 69. INTESTACY, existing law as to, 45 et seq. new code applicable to both real and personal estate, 49 et seq. life interest given to widow or widower to be redeemable, 52. INVESTIGATION OF TITLE, necessity for, 4 et seq. period for, reduced to 30 years, 92 LEASEHOLDS, since 1278 a recognised estate in rem, 15. previously lessee was a mere licensee, 14. no limit to length of term, 15. no rent necessary, ib. devolution on death quite different to that of freeholds, 16. cannot be settled except by means of a trust, 16. enlargement of, into fee simple, 15. forfeiture of new rules as to relief against, 69. protection of personal representative who assigns to specific legatee, 72. LEGAL OWNERSHIP, to be confined to fee simples or terms of years absolute, 53 et seq. aU existing partial legal estates to be converted into equitable interests, 54. and to become liable to rule against perpetuities, ih. Statute of Uses repealed, ib. outstanding legal estates to vest automatically in person entitled to call for conveyance, ib. exceptions to this, 55. LIMITATION, words of, abolished, 68. LIMITATIONS, statutes of, not affected by new Act, 57. LONG TERMS, enlargement of. 71. [5 ] T Digitized by Microsoft® Index LUNATIC, power to Chancery Division to direct settlement of estate of, 75. M MAINTENANCE. See Infants. MANORS, creation of, 10. political unit of ownership, ib. general scheme of a manor, ib., et seq. freeholds of, 11. demesne lands, ib. copyhold lands, ib. and 12. wastes, ib. none created since Quia Emptores, 19. MARRIED WOMAN, acknowledgments by, abolished, 67. MORTGAGES, under Act to be by long terms or ' charge by way of legal mort- gage,' 39, 94. consequently all mortgages may be legal mortgages, 97, 98. nature of ' charge by way of legal mortgage,' 97. provisions as to mortgages existing when Act comes into oper- ation, 95. sub-mortgages, ib. provisions as to mortgages made after Act comes into operation, 95. on realisation of mortgage by sale or foreclosure the legal estate of mortgagor is to pass, 96. equitable mortgages, power of Court to make vesting orders, ib. how they may be protected, 98. consolidation preserved, 96. power of sale or appointment of receiver only to be exercised by leave of Court when mortgagor becomes bankrupt, 96. further advances, 96. net result of mortgage provisions, 98. transfer of debt is to operate as complete transfer of the mort- gage, 99. receipt indorsed on, to operate as a reconveyance, 99. purchasers from mortgagees, and transferees of, to be free from liability in connection with any trust afEecting the mortgage debt, 99. [6 ] Digitized by Microsoft® Index N NOTICE, persons dealing with mortgagees not to be affected by notice of trusts affecting mortgage debt, 99. OBJECTS OF ACT, to simplify law and facilitate land transfer, 2 et seq. summary of, 37 et seq. PARTITION ACTS repealed, 102. PERPETUITIES, rule as to, modified, where gift to class at a later age than 21, 66. legal estates converted by new Act into equitable interests to be subject to, 54. application of, to certain powers of distress and entry negatived, 68. PERSONAL REPRESENTATIVES, assent by, effect of, 53. merely allowing devisee to take possession not to operate as an assent, ib. to have all the powers conferred by Act on trustees for sale, ib. protection of, as regards leaseholds specifically bequeathed, 72. special, to be appointed in regard to settled land of which deceased was life tenant, 61. POSSIBILITIES, DOUBLE, rule as to, abolished, 65. POWERS, affecting legal estate, effect of new Act upon, 56. of distress and entry by way of indemnity, freed from rule against perpetuities, 66. [7 ] Digitized by Microsoft® Index POWERS or ATTORNEY, new rules as to, 70. PRESCRIPTION not affected by new Act, 57. PRIMOGENITURE abolished, 37. PURCHASERS, from trustees, further protection of, 72. length of title to be required by, under open contract, 92. not to be taken to have constructive notice of earlier equities, ih. from mortgagees not to be affected by notice that they are trustees of the debt, 99. of insured property to have the benefit of the poUoy, 107. E RECOVERIES AND PINES, 20, 21. REGISTRATION in Middlesex and Yorkshire, 92. REMOTENESS. See Pbepetxhtibs. RENT-CHARGES, new Act enables, to be created out of incorporeal heredita- ments, 71. RESERVATIONS in conveyances, to be effective although not executed by grantees, 69. RESTRICTIVE COVENANTS, statutory method of obtaining cancellation of, 66. s SEARCHES for death duties, 93. bankruptcy, ib. in county registries, 92. [ 8] Digitized by Microsoft® Index SERJEANTY, grand and petty, preserved, 43. SETTLED LAND ACTS, effect of, 29. did not simplify law or titles but facilitated land transfer, 30. principles of, are foundation of new Act, 31. extensions of, by new Act, %\ et seq. persons to exercise powers, 81. sale of mansion house, 83. in consideration of rent-charge, 83. to company in consideration of debentures, H. grant of water rights, ib. longer leases, ib. imposition of restrictions and reservation of easements, ib. power to purchase subject to restrictions and liabilities, ib. accept leases, ib. give options to purchase a lease, ib. dedicate land for streets, 85. compromise, ib. and 84. carry out any transactions which Court considers beneficial, ib. where no person having powers of tenant for Hfe, they are to be exercised by trustees, ib. transactions between tenant for life and trustees, ib. in whose name leases are to be made, 84. appHcation of capital money, 84. shifting of paramount incumbrance from land to capital money, ib. settlement of money by reference to capital money arising under Acts, 85. new list of improvements, ib. damages recovered by tenant for life to be capital money, ib. surrender of life tenancy to successor, new effect of, 86. bankruptcy of, or assignment by, life tenant, ib. amendments of Section 50 of 1882 Act, ib. consent of assignee for value no longer to be necessary to exercise of statutory powers, ib. but is to have right to negative investments not authorised by Act, ib. where consent necessary it may be given by a trustee assignee, 87. where person to consent not sui juris. Court may give it, ib. restoration of hfe tenant's estate on resettlement, effect of, ib. compound settlements, trustees of prior settlement to be trustees of compound settlement of which it forms part, ib. C9 ] Digitized by Microsoft® Index SETTLEMENTS, of land under new Act, 67. no longer to be by legal uses, ih. legal fee to be always vested in life tenant as trustee, 59. nature of vesting deed for vesting fee in life tenant, ib. necessary contents of, ib. devolution of legal fee on death of life tenant, ib. special personal representatives of life tenant in respect of settled land, 61. by way of trust for sale. See Trusts foe Salb. SHELLEY'S CASE, rule in, abolished, 68. STRICT SETTLEMENT, invention of, 28. nature of, ib. prevented alienation of settled estates by providing that as each tenant in tail came of age his estate was cut down to a Hfe estate, 29. land freed from fetters of, by Settled Land Acts, 29. SUBINFEUDATION, 9. abolition of, 19. TAIL. See Entailed Interests. TENANCY IN COMMON, inconveniences of, 99. aboHshed at law by new Act, 40, 99. but retained in equity subject to a trust for sale, 40. provisions of new Act as to existing, 100. future, 101. attempts to create, 102. result of severance of j oint tenancy after Act comes into force, ib. repeal of partition Acts, ib. TITLE TO LAND, necessity for investigation of, 4 et seq. would not be difficult but for settlements and concurrent ownership, 6. TRADES UNIONS, powers of holding land enlarged, 77. [10] Digitized by Microsoft® Index TRUSTEES, in future restricted to four in number, 71. additional, where less than four, may be appointed even although no vacancy, ib. protection to, on distribution of estate, ib. statutory power to employ and pay agents, 72. with powerto apply capital, authorised to raiseit by mortgage, i6. purchasers and mortgagees from, further protection to, ib. money payable to, under policy of insurance against fire, etc.,'j6. under new Act there must be at least two, 88. investments by, enlargement of powers as to, 73, 74. increased power as to depositing money or securities with bankers, 74. may have accounts audited every three years, 75. may sell property with reservation of mines, and vice versa, ib. power to Court to modify trusts and powers where desirable, 76. TRUSTS FOR SALE, 88 et seq. extension of trustees' powers, ib. necessity of consent modified, ib. increased protection of purchasers, ib. but payment to at least two trustees to be compulsory, ib. purchaser not to be concerned with trust deed, ib. pending sale, trustees to have all the Settled Land Act powers of a life tenant, 89. and powers of Section 42 of Conveyancing Act, 1881, ib. rents and profits to be treated as income, ib. statutory power to partition instead of selling, ib. delegate management, ib. same persons to be trustees of conveyance on trust for sale, and deed of even date declaring trusts of proceeds, ib. u ■ USES,' at first only bound the conscience, 22. later the Chancellor enforced them in equity, 22. Courts of law entirely disregarded them before the Statute of Uses, 21. Statute of, 23. effect of, quite different from its authors' intentions, 25. the foundation of all the complication of EngUsh land titles, ib. temporarily abolished the power of devising freehold land, 26. this amended by the Statute of Wills of 1541, ib. failed to abolish equitable uses (now trusts), 27. repealed by new Act, 54. [ 11 ] Digitized by Microsoft® Index VESTING DEOLAEATIONS, amendment of Trustee Act as to, 72. VESTING ORDERS, amendment of Trustee Act as to. 73. w WILLS, of land originally not lawful, 9, 20. first crept in by the invention of ' uses,' 20, 21. uses only acknowledged in equity and not by Courts of law, 21. for some time were not enforceable even in equity, 22. first enforced by the Chancellors in reign of Richard II, 22. Statute of Wills of Henry VIII, 26. where made in contemplation of a marriage not to be revoted by the solemnisation of it, 68. WORDS OP LIMITATION, necessity for, abolished by Act, 68. 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