■hi ~->=='' ■"""" w^^iy. z-i^'' . * 1. '^yji'} ^jfc^?^. ' f- MiMBaBBM (jJnrnpU Slam i>rl|nnl ^jtbtary Digitized by Microsoft® 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® * "SmmZA '"6 law of I COMPENDIUM LAW OF PROPERTY IN LAND. Digitized by Microsoft® Digitized by Microsoft® A COMPENDIUM LAW OF PROPERTY IN LAND. WILLIAM DOUGLAS EDWARDS, LLB. OP LINCOLN'S INN, BABEISTEE-iT-LAW ; POKMEELT LONDON UNIVEBSITT LAW SCHOLAR AND HOLDEE OE THE INNS OF COUET STUDENTSHIP. SECOND EDITION LONDON: STEVENS AND HAYNES, iafa publtsf)£rs, BELL YARD, TEMPLE BAB. 1891 Digitized by Microsoft® Digitized by Microsoft® PEEFACE TO THE FIEST EDITION. The object proposed by the author of this work has been to produce a book that may supply the student with a concise and systematic exposition of the present law relating to the rights of private persons in land, and which the practitioner may find serviceable, for occasional reference, as a succinct statement of the leading rules, and a guide to the most important authorities, on the subject. The general arrangement of the work follows, in the main, the classification of legal rights usually adopted in treatises on juris- prudence. This method appeared to the author the best adapted to facilitate the study of the subject, and, generally, the most suitable for the orderly treatment of a body of rules of the number and variety of those constituting the branch of law here considered. The book is accordingly divided into four parts — the first of which treats of rights of ownership, or estates, in land ; the second, of the various rights in land that do not involve actual ownership, and which may, therefore, be distin- guished as rights inferior to ownership ; while the third part comprises the law relating to the transfer of the difierent rights discussed in the preceding parts ; and the concluding part deals with legal capacities, with reference to rights of property in land, of persons who are subject, by reason of their status, to special rules of law. In the treatment of the subject, the author has given due pro- minence to the division of the law of property into real and personal. He has not considered it advisable, however, to entitle Digitized by Microsoft® VI PREFACE TO THE FIRST EDITION. his book the ' Law of Eeal Property ' — the title commonly applied to the law relating to land. Since a considerable portion of the modern law of land consists of rules that, according to the ordinary acceptations of the terms ' real ' and ' personal,' fall under the head of personal property, the title ' Law of Property in Land,' has been adopted as more accurately indicating the scope of the subject. Modern legislation, moreover, by removing many of the original distinctions between real and personal property, has con- sidei'ably diminished the importance of this division of the law of property ; and there can be little doubt that, at no distant date, it will be practically extinguished by further changes in the same direction. The tendency of this legislation is to make the law relating to land and the law relating to objects not comprised in the term land the principal division of the modern law of pro- perty. In the selection of cases for citation, preference has been given to recent decisions ; earlier authorities being referred to, however, where necessary. Numerous references have been made to standard treatises on particular topics, in which all, or most, of the cases on the points considered are collected; and the writer desires to express his obligations to the authors and editors of those works. The leading treatises on the subject generally — Coke upon Littleton, the second volume of Blackstone's Com- mentaries, Cruise's Digest, the works of Preston on Abstracts and Conveyancing, Bvuton's Compendium, &c. — are also fre- quently referred to. The author has to thank Mr. A. B. Woodcock, of Lincoln's Inn, for assistance in the correction of proofs. n Stone Buildings, Lincoln's Inn, January 26, 1888. Digitized by Microsoft® PKEFACE TO THE SECOND EDITION. In the preparation of this edition the work has been revised throughout ; and the alterations rendered necessary by statutor)- changes and judicial decisions have been made. Some of the chapters have been wholly or in part rewritten ; and, to the extent of a few paragraphs, fresh matter has been added. Au attempt has been made to indicate, by means of introductory words, the several divisions of the subject-matter of each chapter. It is hoped that these alterations will be found to be improvements ; and that the book, in its present form, will be deemed worthy of the position that the work has already gained, through the very favourable reception given to the first edition. n Stone Buildings, Lincoln's Inn, October i, 1891. Digitized by Microsoft® Digitized by Microsoft® CONTENTS. PAGE TABLE OF CASES CITED xxiii TABLE OF STATUTES CITED . xxxix TABLE OP ABBEEVIATIONS iv INTRODUCTOKY CHAPTER. 1—18. Law of property, 1. Bights of property, lb. Division of rights of property, ib. Meanings of the term property, 3. Divisions of things as subjects of law of property, 4. Subjects of law of property in land, 6. Tenements, 15; hereditaments, 16. Arrangement of topics, 17. PAET I.— EIGHTS OF OWNERSHIP. CHAPTER I. TENURE. 19—38. Feudal principles, 19. Freehold tenure; knight service; free socage, 20; estates in land of freehold tenure ; seisin, 21. Subinfeudation: Stat. Qvia emptores, 22; modern freehold tenure, 23; varieties of, 24. Manors, 26. Copyhold tenure, 28. Copyhold estates, 32. Incidents of copyhold tenure, 33. Extinguishment of manorial rights, 34. Enfranchisement, 35. Customary freehold, or free copyhold, 38. CHAPTER II. ESTATES GENERALLY. 39—50. Definition of estate, 39. Classification, i6. Fee simple, 40. Conditional fee at common law, i6. Stat, de donis, 40. Estate tail, 41. Estate for life, 42. Digitized by Microsoft® CONTENTS. Estate for yearfi,'43. Estate at will, ib. Estate at sufferance, 44. Estates* of freehold and less tUan freehold, ib. Absolute and conditional estates, 45. Conditions subsequent, ib. Conditiona] limitations, 46. Different modes of holding estates, 49. Arrangement of topics, 50. CHAPTER III. ESTATES IN POSSESSION. 51-111. Definition of estate in possession, 51. Sect. I. — Estates in Fee Simple. Creation or acquisition of, 61. Eights of tenant — use and enjoyment, 52 ; alienation, 54. Determination of estate, 55. Sect. II. — Estates Tail. Creation, 55. Eights of tenant — use and enjoyment, ib. ; alienation, ib. ; common recoveries, 56 ; fines, 57 ; abolition of fines and recoveries, 58 ; present mode of barring entails, 59 : powers of tenant under Settled Land Acts, 62. Determination of estate, 63. Sect. III. — Estates foe Life. Creation, 63. Eights of tenant — use and enjoyment, 65 ; general rights, ib. ; waste, ib. ; improvements, 69 ; emblemenls, 71 ; fixtures, ib. Aliena- tion : at common law, 72 ; statutory extensions, 73 ; strict settlement, 74 ; Settled Estates Act, 1877, 76 ; Settled Land Acts, 1882 to 1890, 77. Deter- mination of estate, 88. Sect. IV. — Estates fob Years. Creation, 89. Eights of tenant — use and enjoyment, (1st) under ordinary leases, 90 ; waste, ib. ; compensation for improvements, ib. ; fixtures, 92 ; emblements, 93 ; different kinds of leases, 94 ; resei'vations and covenants, 95 ; liability of assignee, 96 ; covenants by lessor, 98 — (2ndly) under grants of long terms, ib. Alienation, 100 ; assignment, ib. ; underlease, ib. ; alienation under Settled Land Acts, 101 ; enlargement of long tei-m into fee simple, 102. Determination of estate, 103. Belief against forfeiture, 105. Satisfied terms, 107. Sect. V. — Estates at Will. Creation, 109. Bights of use and enjoyment, ib. Not alienable, ib. Deiei- minatioD, 110. Sect. VI. — Estates at Sufferahce. Commencement, 110. Liability of terant, ib. Not alienable, 111. Determi- nation, ib. Digitized by Microsoft® CONTENTS. xi CHAPTER IV. ESTATES IN EXPECTANCY. 112—153. Definition, 112. Classification, ib. Application of Settled Land Acts, 113. Sect. I. — Reversions. Definition, 113. Creation 114. Rights of reversioner — use and enjoyment, 115 ; alienation, ib. Rent, &o., passing with reversion, 116. Determina- tion, 119. Sect. II. — Remainders. Sub-sect. 1. — Remainders Oenerally. Definition and creation, 119. Distinguished from executory iaterests, 121. Sub-sect. 2. — Vested Semainders. Definition, 123. How created, ib. Rights of remainderman — nse and enjoy- ment, ih. ; remedies for waste, &c., ib. ; alienation, 125 ; in case of estate tail ia remainder, ib. Determination, 128. Merger, 129. Sub-sect. 3. — Contingent Semainders. Definitions and instances, 131. Liable at common law to failure, 134. Trustees to preserve, 136. Statutory alterations, i6. Creation of, general rales, 138. Rights of remainderman — use and enjoyment, 141 ; remedies for waste, ib. ; alienation, 142. Failure or determination, ib. Sect. III. — ExEcnTORr Interests. Definition, 143. Distinguished from remainders, ib. Origin of, 144. Stat, of Uses, 145. Recognition of, at law, 146. In copyholds and estates for years, 147. Remainders by way of use, 148. Creation of executory interests, 148 ; springing and shifting uses, 149 ; scintilla juris, ib. ; executory devises, 150; powers, 151. Rights of owner — use and enjoym ent, 152 alienation, ib. Failure or determination, 153. CHAPTER Y. ESTATES IN COMMUNITY. 154—169. Definition, 154. Classification, ib. Sect. I. — Joint Tenancy. Definition &c., 154. Creation, 156. Where construed as tenancy in common, ib. Eights of joint tenants — use and enjoyment, 157 ; waste, improve- ments, &c., 158; alienation, 159. Deteimination or dissolution, 160. Partition, ib. Sect. II. — Tenancy in Coparcenary. Definition, &c., 163. Creation, ib. Rights of coparceners — use and enjoy- ment, 164 ■; alienation, ib.; Determination or dissolution, ib. Digitized by Microsoft® Xll CONTENTS. Sect. III. — Tenancy in Common. Definition, &o., 165. Creaticfti, 166. Gross-remainders, ii. Eights of tenants ,in- common — use and enjoyment, 167 ; alienation, ib. Betermination, ib. Sect. IV. — ^Tenancy by Entireties. Definition, &c., 167. Subsequent intermarriage of grantees, 168. Effect of Married Women's Property Act, 1882, as to, il. CHAPTER VI. EQUITABLE ESTATES. 170—201. Sect. I. — Equitable Estates Geneeally. Definition, 170. Origin, tb. Statute of Uses, 172. In copyholds and chattels real, ib. By operation of law, 173. Analogy to legal estates : exceptions, ib. ; conversion, 174. .Jurisdiction of courts, 176. Division of topics, ib. Sect. II. — Equitable Estates Cheated by Declaeation of Trcst. Declaration of trust, 177. Secret trust, ib. ; express or implied, ib. ; executory or executed, 178 ; voluntary trusts, 179. Rights of cestui que trust — use and enjoyment, i6. ; alienation, 181 ; under Settled Land Acts, 181. Deter- mination or failure, 184. Estate of trustee, 185. Disclaimer or accept- ance by trustee, 187 ; his retirement or removal, ib. Appointment of new- trustees, &c., ib. Joint trustees, 191. Trustee's powers, 192 ; and rights, 194. Sect. III. — Equitable Estates geeated by Operation op Law. Sub-sect. 1. — Equitable Estates arising through Besulting Trusts. Definition, 195. Instances ; purchase in name of another, 196 ; equitable tenancy in common, ib. ; imperfect declaration, lapse, failure, &c., of trusts, ib. Failure of trust for conversion, 197. Sub-sect. 2. — Equitable Estates arising through Constructive Trusts. Definition, 198. Instances : under contract for sale of land, ib. ; purchase with notice, 200 ; what is notice ib. ; effect of prior equitable right, 201 ; equities affecting volunteers, ib. Digitized by Microsoft® CONTENTS. : PART II.— RIGHTS OF PROPERTY INFERIOR TO OWNERSHIP. Rights comprised in this class, 202. CHAPTER I. POWEBS. ^ 202—220. Definition, 202. Classification, 203 : (i.) common law powers, ih. — (li) statu- tory powers, instances, 204 — (iii.) powers under law relating to exe- cutory interests, or powers of appointment, 206 — (iv.) equitable powers, 208. Powers of appointment and of revocation, 209. Powers, general or special, ib. Creation of powers, 210. Transfer and devolution, 211. Execution, 212; discretion, ih.; formalities, ib,; partial execution, 214; power of revocation, ib. Objects of, 215; excessive execution, 216; non- exclusive power, ih.; fraud on power, 217. Determination, 218; in case of power appendant or appurtenant, 219; where collateral or in gross, ih. CHAPTER II. RIGHTS OF CREDITORS. 221—269. Sect. I. — Rights under MoETOAaES. Definition, 221; legal or equitable, i6. Mortgagor's estate or interest — at com- mon law, 222 ; equity of redemption, 223 ; incidence of debt on mortgagor's death, 225 ; Locke King's Act, ih. ; mortgagor in possession, 227 ; leases by, ih. Creation of mortgages — legal, of freeholds or leaseholds, ih. ; statutory, 231 ; legal of copyholds, ib. ; formal equitable mortgages, ih. ; security by trust for sale, 232 ; informal equitable mortgages, deposit of title-deeds, &c., ib. Rights of mortgagee — his estate, 233 ; right to security, ib. ; title deeds, 234 ; limits of rights, ib. ; as to timber, 235 ; leases, ib. ; insuring, 236 ; priority of mortgages, ih. ; tacking, 237 ; con- solidation, 238 ; enforcement of security, 239 ; possession and receipt of profits, 240 ; receiver, ih. ; sale under power, 241 ; sale by court, 243 ; in bankruptcy, 244 ; foreclosure, ih. ; remedies may be pursued concurrently, 245. Alienation — tranfer, 246 ; sub-mortgage, 247. Determination ; re- demption, ib. ; reconveyance, 249. Sect. II. — Rights undek Equitable Charges and Liens. Definition of equitable charge — of equitable lieu, 250 ; effect of, ib. ; instances of, ib. Lien for purchase-money, 251. Effect of Locke King's Act, ih. Lien for judgment debts, 252. Alienation, ib. Sect, III. — Eights in Respect of Judgment Debts. Definition of judgment debt, 252. Mode». of enforcing against land, 2jo ; Digitized by Microsoft® XIV C0NTE^"rs. execution under elegit, ib. ; statutory protection of purchasers, &c., 255 ; equitable charge or execution, 257 ; sale under order of Court, 269. Sect. IV. — Eights in Respect of Crown Debts. Writ of extent, 259. Statutory protection, 260. Official discharge, ib. Succes- sion duty, 261. Sect. V. — Eights in Respect of Debts op Deceased Persons. Estates and interests liable — fee simple, 263 ; at common law, 264 ; in equity, ib. ; charge of debts, ib. ; liability by statute, 265 ; estates in expectancy, community and equitable, 266. Liability of estates tail, ib. ; of estates for life, ib. ; of estates for years, 267. Eights of secured creditors, ib. Rela- tive rights of creditors generally, ib. Order of application of assets, 268. CHAPTER III. RENTS. 270—281. Definition, 270. Estates in land the only subjects of, lb. Division of, ib. Sect. I. — Rent-service. Definition, 270 ; quit-rents, &c., 271. Creation, ij. Payment and apportion- ment, 272. Recovery, 273. Alienation, 274. Determination, 275. Sect. II. — Eent-charge. Definition, 276. Interests in, ib. Creation, ib. Registration, 277. Pay- ment and apportionment, ib. Recovery, ib. Alienation, 279. Determina- tion, ib, CHAPTER IV. TITHE RENT-CHARGE, AND OTHER STATUTORY CHARGES. 282—288. Sect. I. — Tithe Rent-charge. Definition, 282. Tithes at common-law, t6. Commutation of tithes, 283. Lay interests in tithe rent-charge, 284, Creation and transfer, ib. Payment and recovery, ib. Determination, 285. Sect. II. — Other Statutory Charges. Charges under Improvement of Land Act, 1864, 287 ; under Copyhold Acts, ib. ; under Agricultural Holdings (England) Act, 1883, ib. Charge for redeemed land-tax, 288. Registration of land charges, ib. CHAPTER V. RIGHTS OF COMMON. 289—296. Definition, 289. Varieties, ib. Creation — common appendant, 290 ; ap- purtenant, ib, ; pur cause de vicinage, 291 ; of shack, ib. ; none by Digitized by Microsoft® CONTENTS. XV custom, ib. ; extent of, ib. ; in gross, 292. Use and enjoyment, ib. Alien- ation, ib. General words in conveyances, 293. Determination, 294. Inclosure Acts, 295. CHAPTER VI. EASEMENTS. 297—305. Definition, &o., 297. Instances, ib. Rights resembling easements distinguished — easements in gross, 298 ; rights under restrictive covenants, ib. ; inci- dents of ownership, 299 ; public rights, ib. Meanings of terms, (7). Creation of easements, 300. Use and enjoyment, 303. Alienation, ib. ; general words in conveyances, ib. Determination, 304. PART III.— TRANSFER OF RIGHTS OF PROPERTY IN LAND. CHAPTER I. MODES OF TRANSFER. 306—307. Definition of transfer, 306. Modes of ; by act of party or by operation of law, 307. Alienation, ib. ; extraordinary modes of, ib. Transfers by operation of law, ib. Arrangement of topics, ib. CHAPTER II. ALIENATION GENERALLY. 308—342. Requisites of valid alienation, 308. Sect, I. — Coksent of the Parties. Presumed unless contrary shown, 308. Disclaimer, 309. Sect. II. — Title of the Alienok. Definition of title, 309. Rights of alienee as to, ib. Proof of, 310. Title by mere possession, 311. Searches, &c., ib. Discharge of encumbrances by payment into court, 313. Period over which investigation of title extends, ib. Titles under Land Transfer Act, 1875, 315. Covenants for title, ib. ; where implied under Conveyancing and Law of Property Act, 1881, 317. Registration of instruments : Middlesex Registry, 319 ; Yorkshire Registries Act, 1884, 320. Delivery of documents of title, 321. Covenants and undertakings for production, &c., ib. Importance of delivery of title-deeds, 322. h Digitized by Microsoft® XVI CONTENTS. Sect. III. — Object or Pukpose of Alienation. Alienations invalid with reference to, 323. Void or voidable, ib. Perpetuities, definition, &c., of, ih. ; the rule against, 324 ; its applications, 325 ; exoep tions to, 327. Trusts for accumulation of income, ib. ; the Thellusson Act, 328 ; its effect, 329. Limitations upon void conditions : effect of, 330 ; what are void, ib. ■ in restraint of alienation, &c., 331 ; void dispositions for charitable purposes, 333. Stat. 9 Geo. II. c. 36, ib. Mortmain and Charitable Uses Act, 1888, 334 ; Mortmain and Charitable Uses Act, 1891, 385. Meaning of ' land ' under the Acts, 336. Void alienations of advow- Bons, 337. Alienations of pretended rights or titles, 338. Alienations in fraud of credHors : stat. 13 Eliz. o. 5, ib. ; effect of the statute, ib. Alienations invalid against subsequent purchasers : stat. 27 Eliz. c. 4, 340 ; effect of the statute, ib. Alienations in fraud of- marital rights, 341. Alienations causing forfeitures, 342. CHAPTER III. ALIENATION INTER VIVOS. 343—384. Sect. I. — Forms of Conveyances. Classification of conveyances inter vivos, 343. Sub-sect. 1 . — Conveyances of Legal Estates and Interests in Land of Freehold Jenure. Classification, 343. Conveyances at common law : feoffment, 344 : grant, 345 ; lease, 346 ; effect of agreement for, 347 ; assignment, 348 ; release, ib. ; lease and release at common law, 349 ; surrender, 350 ; exchange, 351 ; partition, ib.; bargain and sale, ib.; confirmation, ib.; defeasance, 352. Conveyances under Statute of Uses ; operation of such conveyances, ib. ; implied and resulting uses, ib. ; limitations by use, 353 ; interests within the statute, 355 ; application of, to easements, &c., 356. Forms of con- veyances under the statute : by transmutation of possession— uses declared on common law limitations, ib. ; without transmutation of possession — bargain and sale, 357 ; covenant to stand seised, 358 ; lease and release, 359. Modern statutory conveyances — statutory release, 360 ; statutory grant, ib. ; other statutory conveyances, 361 . Deeds of conveyance generally — nature and requisites of deeds, 362 ; power of attorney, execution under, 363 ; alterations, &o. , 364 ; stamps, ib. ; registration or enrolment, 365 ; indenture, ib. ; deed-poll, 366 ; estoppel by deed, ib. ; ordinary parts or clauses of deeds of conveyance, 867. Sub-sect. 2. — Conveyances of Legal Estates and Interests in Land of Copyhold Tenure, Special modes of conveyances of, 369. Ordinary conveyances of copyholds, surrender and admittance, 870. Entry on court roll, 372 ; copy of court roll, ib. Covenants for title on conveyance of copyholds, ib. Grants by lord, ib. Conveyances of customary freeholds, ib. Digitized by Microsoft® CONTENTS. XVU Sub-seot. 3. — Conveyaiices of Equitable Estates and Interests, Declarations of trust, 373. Forms of conveyances upon trust, ib. Trusts by operation of law, 374. Conveyances of equitable estates, 375. Sect. II. — Constkuction or Interpretation of Conveyances. General rules of construction, 375. Words of limitation — of legal estates in lands of freehold tenure, fee simple, 376 ; fee tail, 377 ; the rule in SJielley's case, 378 ; estate for life, 380 ; estates for years, ih. ; limitations in joint tenancy, &c., 381 ; of copyhold estates, 382 ; of equitable estates, ib. Con- struction of operative words and other terms, 383. CHAPTER IV. ALIENATION BY WILL. 385—409. Divisions of subject, 385. Definitioos of will and codicil, ib. ; testamentary alienation at common law, and statutory extensions, ib. Formalities, 387 ; alterations or interlineations, 388 ; signature, ib. ; witnesses, 389. Opera- tion of wills — as to real estate, 390 ; as to personal estate, 391 ; office of executor, ib. ; proof of will, 392 ; powers of executor over personalty, 393 ; how it passes to legatees, 394. Different kinds of testamentary gifts, ib. ; devolution where no residuary gift, 395 ; marshalling of assets, 396. Con- struction or interpretation of wills — general rules, 397 ; operative words, 398 ; exercise of general power, ib. ; gifts by implication, 399 ; words of description, 401 ; words of limitation, 402 ; devise without words of limita- tion, 403 ; estate tail, 404 ; rule in Wild's case, ib. Vesting, lapse, and ademption of testamentary gifts — when gift vests, 405 ; lapse, ib. ; ex- ceptions to general rule as to, ib.; ademption, 406. Revocation of wills, 408. CHAPTER V. EXTRAORDINARY MODES OF ALIENATION. 410—414. Meaning and classes of, 410. Private Acts of Parliament, ib. Transfers by operation of judgments and orders — vesting orders, &c., ib. ; elegit, 411 ; discharge of incumbrances under Conv. and L. of P. Act, 1881, ib. ; charges under Agricultural Holdings Act, 1883, ib. ; executiou of conveyance under Judicature Act, 1884, ib. Awards, &c., of the Board of Agriculture — transfer of functions of Land Commissioners to, 412 ; awards under Copy- hold Acts, ib. ; under Inolosure Acts, ib. ; certificates of redemption of tithe rent-charge, quit-rents, &c., ib.; orders under Improvement of Land Act, 1864, ib. Charges and transfers under Land Transfer Act, 1875, ib. Digitized by Microsoft® XVUl CONTENTS. OHAPTEE, VI. SUCCESSION ON INTESTACY. 415—426. Sect. I. — Succession om Intestacy to Real Estate. Descent ; leading rules and exceptions, 415. Charge of widow under Intes- tates' Estates Act, 1890, 416. Rights of widow or widower of deceased, ib. Heir-at-law, 417. Rules of descent — as to person from whom descent traced, 418 ; purchaser, ih. ; descent on failure of purchaser's heirs, 419 — as to ascer- tainment of heir ; descent to issue, 420 ; to paternal ancestors and their issue, 421 ; to maternal ancestors and their issue, 422. Descent of copy- hold, gavelkind, and borough English inheritances, ib. Sect. II. — Succession ok Intestacy to Personal Estate. Office of administrator, 423. Distribution of residue, ib. ; rules of succession — Statutes of Distribution, 423; estate of married woman, 424; share of widow, ib. ; rights of issue, ib. ; father, 425 ; mother, brothers, and sisters, ib. ; children of deceased brother or si.ster, ib. ; next of kin, ib. No pre- ference of males, elders, or whole blood, 426. CHAPTER VII. ACQUISITION THROUGH MARRIAGE. 427—441. Sect. I. — Rights of the Husband. Restrictions on common law rights, 427. Husband's rights at common law, and by analogous rules of equity, in real estate, 428 ; powers under Settled Estates Act, 1877, and Settled Land Acts, 429 ; mortgage of wife's realty, ib. ; rights in wife's chattels real, 430 ; in personalty other than chattels real, ib. Equitable restrictions on husband's rights : trust for separate use, 431 ; equity to a settlement, 432. Statutory modifications, prior to Married Women's Property Act, 1882, of husband's rights, 433 ; Matrimonial Causes Act, protection order under, ib. ; property of wife judicially separated, ib. ; Married Women's Property Act, 1870, 434. Exclusion of husband's rights by Mairied Women's Property Act, 1882, 434. Sect. II. — Rights of the Wife. Dower at common law, 436. Dower barred by jointure, 437 ; limitations to bat- dower, 438. Dower under present law ; Dower Act, 1833, 439. Recovery of dower, 440. Leases by tenant in dower, !h. Freebench in copyholds ib. Digitized by Microsoft® CONTENTS. XIX CHAPTER VIII. OPERATION OF THE STATUTES OF LIMITATION, AND PRESCRIPTION. 442—455. Operation of Statutes of limitation, and prescription, distinguished, 442. Sect. I. — Statutes ov Limitation. Early law and modern statutes, 442. Interests within the statutes, 443 ; their operation, ib. Periods of limitation — as to estates in land, &c., 444 ; extension in cases of disability, 445 ; action by mortgagee, ih. ; estates tail, 446 ; base fees, ib. ; accrual of right of action, ib. ; equitable claims and express trusts, 448 ; Trustee Act, 1888, ib. ; equities of redemption, 449 ; claims of Crown, ib. — as to advowsons, 450 — as to money secured by mort- gage, &c., ib.—as to rents, &c., 451. Sect. II. — Prescription. Prescription at common law, 452. The Prescription Act, 1832 — as to rights of common, 453 — as to ways or other easements, &c., 454 — as to access, &c., of light, ib. Interruption, and enjoyment, within the Act, 455. CHAPTER IX. OPERATION OF THE LAW OF BANKRUPTCY. 456—463. Bankruptcy statutes, 456. Course of proceedings in bankruptcy, ib. Bankrupt's estate ; property divisible among creditors, 458. Alienations void under bankruptcy law, 459. Powers of trustee iu bankruptcy, 460. Disclaimer of onerous property, 461. Rights of creditors under bankruptcy, 462. Dis charge of bankrupt, ib. CHAPTER X. FORFEITURE. 464—466. Definition of, 464. Causes of, ib. Former causes of, 465. CHAPTER XI. ESCHEAT. 467—469. Definition of, 467. Rights of Crown, ib. ; of mesne lord, ib. Escheat of copy- holds, ib. ; of equitable and incorporeal interests, ib. Former causes of escheat, 468. Ultimate right tu personalty, 469. Digitized by Microsoft® XX CONTENTS. PART IV.— LEGAL CAPACITY WITH RBFEEENCE TO RIGHTS OF PROPERTY IN LAND. CHAPTER I. PERSONS SUBJECT TO DISABILITIES. 470—471. General rule as to capacitj- 470. Exceptions— nnder former law, ib. ; under present law, 471. CHAPTEE II. MARRIED WOMEN. 472—484. Division of subject, 472. Estates not separate property: cannot alienate real estate by will, ih. ; mode of disposition of, inter vivos, ib. ; contract for sale of land, 474 ; Settled Estates Act, 1877, ib. ; underAgricultural Holdings Act, ib. ; acts under Settled Land Acts, &c., 475 ; alienation of chattels real and other personalty, ib. ; will of personalty with husband's consent, 476 ; exercise of powers, ib. ; appointment of attorney, ib. ; copyholds, ad- mittance to, &c., ib. ; purchase of land, ib. ; statutes of limitation, and pre- scription, 477. Equitable separate estate — alienation of, ib. ; under Settled Land Acts, ib. ; restraint on anticipation, ib. ; statutory provisions as to, 478 ; liability of separate estate far debts, 479. Separate estate under modern statutes : Married Women's Property Act, 1870, 480 ; Married Women's Property Act, 1882, ib. ; statutes of limitation, 482. Capacity of married woman as trustee, executrix, &c. : former law, 483 ; Married Women's Property Act, 1882, ib. ; protector of settlement, 484. CHAPTER III. INFANTS. 485—491. Ab'enation by, its effect in general, 485 ; exceptions, ih. Appointments under powers, 486. Purchase by infant, ib. Contract of, as to land, ib. Position of, as lessee, &c., 487. Statutory provisions as to infant's lands — Conv. and L. of P. Act, 1881, 487 ; Settled Estates Act, 1877, 489 ; Settled Land Acts, ib. ; Partition and Copyhold Acts, 490. No other alienation of infant's land, ib. No conversion of infant's property, ib. Infant trustee, executor, or protector of settlement, 491. Effect of infancy as to bankruptcy, statutes of limitation, and prescription, ih. Digitized by Microsoft® CONTENTS. xxi OHAPTEE, IV. PERSONS OF UNSOUND MIND. 492—494. PreBumption of sanity, 492. Alienations, contracts, &c., of insane persons, ib. Committee's powers under Lunacy Act, 1890, ib.; under other statutes, 493. Estate of, not subject to conversion, ib. Bankruptcy of lunatic, 494. Statutes of limitation, and prescription, ib. Lunatic trustee, mortgagee, executor, or protector of settlement, ib. CHAPTER V. FELONS. 495—496. Disabilities of — prior to the Act of 1870, 495 ; under that Act, ib. Felon may make will, ib. Felon trustee, executor, or protector of settlement, ib. Administrator of felon's property, 496 ; curator of, ib. CHAPTER VI. CORPORATIONS. 497—500. Definitions ; aggregate and sole, 497. Creation of, ib. Contracts of, how made, 498. Acquisition of land by ; mortmain, ib. Mortmain and Charitable Uses Act, 1888, 499. Limitations in conveyances to, 500. Alienation?, by, ib. INDEX . .... 501 Digitized by Microsoft® Digitized by Microsoft® TABLE OF OASES OITED. Abbott v. Middletoii, 398 Abergavenny v. Brace, 446 Aokroyd v. Smith, 298 Ackroyd v. Smithson, 198 Aoraman v. Corbett, 339 Adam's Trusts, Re, 471 Adams v. Savage, 148 Agar a. Fairfax, 161, 162 Agg-GarJuer, Re, 314 Ainalie, Re, 10, 125 Airey u. Bower, 407 Aloook, Re, 248 Aldous V. Comwell, 364 Aldred's Case, 298 Alexander v. Mills, 219 Aleyn v. Belchier, 218 Alison, Re, 232, 449 Alloockw. Moorhouse, 116, 117 Allen V. Allen, 42, 74 Allen V. Bewsey, 173 Allen V. Jackson, 331 Allen V. Taylor, 302 Allison V. Frisby, Re Frisby, 450 Amea v. Cadogan, 398 Ancaster v. Mayer, 225, 396 Anderson v. Pignet, 107, 108, 439 Anderton and Milner, Re, 104 Andrew v. Aitken, 98 Andrew v. Andrew, 400 Andrew v. Cooper, Re BowJen, 449 Anglo-Italian Bank v. Davies, 258 Anstis, Re, 179 Appleton V. Rowley, 432 Archer's Case, 135 Arlett V. Ellis, 292 Armstrong, Re, Ex p. Boyd, 481 Armstrong, Re, Ex p. Gilchrist, 481 Arnold v. Dixon, 491 Arthur v. Lamb, 158 Ashcroft, Re, Ex p. Todd, 460 Ashburner y. Maguire, 407 Ash worth v. Mann, 336 Ashworth v. Outram, 432, 434 Aspinall v. Petvin, 400 Astley V. Mioklethwail, 173 Aston V. Aston, 69 Atkins V. Shephard, Re Shephard, 259, 263 Atkinson, Re, 160, 182 Atkinson v. Baker, 42 Att.-Gen. V. Doughty, 298 Att.-Gen. v. Duke of Marlborough, 69 Att.-Gen. v. Horner, 15, 452 Att.-Gen. v. Mitchell, 262 Att.-Gen. v. Morgan, 8j Att.-Gen. u. Sittingbounie, &o., Ry. Co., 250 Att.-Gen. v. Tomline, 30 Att.-Gen. v. Upton, 262 Att.-Gen. v. Wax Cliandlers' Co., 464 Attree v. Hawe, 337 Attwater v. Attwater, 54, 332 Audsley v. Horn, 404 Austerberry v. Corporation of Oldham, 52, 53 Auworth V. Johnsjn, 90 Aveline v. Whisson, 362 Avis V. Newman, Re Cartwright, 66 Axford V. Eeid, 479 Ayerst v. Jenkins, 331 Aylesford (Earl), Re, 78, 293 Aynsley v. Glover, 452 Badgbk v. Ford, 30 Baggett V. Meux, 478 Bagot V. Bagot, 124 Bdiley, Re, 265 Bailey v. Appleyard, 455 Bailey v. Badham, 285 Bailey «. Ekins, 243 Digitized by Microsoft® XXIV TABLE OF CASES CITED. Bailey v. Hobson, 158 Baillie v. Trehame, 160 Baker v. Sebright, 124 Baker v. White, 172, 173,' 185, 391 Ball V. CuUimore, 110 Baiikes v. Small, 60, 128 Banner v. Berridge, 448 Barber's Settled Estates, Be, 42, 74 Barker, Me, 494 Barker's Estate, Se, 405 Barker's Trust, Me, 471 Barkshire v. Grubb, 304 Barlow v. Teal, 108 Barnes v. Dowling, 66 Barnes v. Wood, 474 Barrow v. Isaacs and Sons, 101, 106 Bartlett v. Bees, 245 Bass V. Gregory, 298 Bassett v. Bassett, 135 Bassett v. Noswortliy, 184 Batchelor, Me, 472 Bate, Me, Bate v. Bate, 397 Bateman v. Hotchkin, 68, 125, 329 Batten, Me, Mxp. Milne, 365 Baylis v. Tyssen Amhurst, 291 Baynton v. Collins, 435 Baynton v. Morgan, 275 Bayspoole v. Collins, 340 Beale v. Symonds, 468 Beardman a. Wilson, 100, 348 Bearpai'k v. Hutchinson, 280 Beckett v. Corporation of Leeds, 384 Beckett v. Tasker, 482 Beddington v. Atlee, 302 Bedford v. Teal, Me Thompson, 337 Beevor v. Luck, 239 Belaney v. Belaney, 107 Bell V. Holtby, 126 Bellamy, Me, 430 Bennett v. Reeve, 290 Bennett's Trusts, Me, 463 Benson v. Chester, 292 Berens v. Fellowes, 163, 377, 419 Berridge v. Ward, 384 Berrington v, Scott, 128 Berry v. Berry, 185 Besley v. Besley, 315 Bessey v. Windham, 338 Bettisworth's Case, 383 Betton's Trust Estates, Me, 225 Bickerton v. AValker, 246 Biokley v, Biekley, 419 Biggs V. Andrews, 198 Birchall, Me, Birohall v. Ashton, 187 Birch-Wolfe v. Birch, 123, 124 Bird V. Higginson, 290 Bird V. Wenn, 239 Birkbeck Freehold Land Society, Exp. , 364 BJrley v. Birley, 218 Birmingham Canal Co. v. Cartwright, 325 Birmingham, Dudley, and District Banking Co. c. Eoss, 301 Birtwhistle v. Vardill, 417 Bishop, Exp., Me Tonnies, 460 Bishop V. Howard, 90 Blachford, Me, 450 Black V. Jobling, 409 Blackborough v, Davis, 426 Blackburn v. Stables, 135 Blackburn and District Benefit Building Society, Me, Ex p. Graham, 279 Blackman v. Fysh, 151 Blake v. Banbury, 180 Blake's Trust, Me, 400 Blackley, In b., 409 Blewitt, 2n 6., 389 Bliss V. Collins, 274 Blockley, Me, 425 Boddington v. Abernethy, 147, 208 Boddington v. Eobmson, 368 Bolton V. Bolton, 302 Bolton !;. London School Board, 311 Booth V. Smith, 281 Bothamley v. Sherson, 394 Bott V. Smith, 339 Boughton V. James, 329 Bourke v. Davies, 299 Bourne v. Bourne, 243 Bowden, Me, Andrew v. Cooper, 449 Boweu V. Lewis, 403, 404 Bowes, Me, Earl of Strathmore v. Vane, 97 Bowles's (Lewis) Case, 64, 123, 124 Bowles V. Hyatt, Me Hyatt, 265 Bown, Me, 478 Boyes, Me, 177 Boyes v. Cook, 407 Brace v. Duchess of Marlborough, 237 Bracebridge v. Cook, 430 Bradbury i>. Wright, 271, 277 Bradford Banking Go. v. Briggs, 238 Bradley v. Peixoto, 74, 331, 332 Digitized by Microsoft® TABLE OF CASES CITED. Bradshaw v. Eyre, 293 Brandon v. Robinson, 74, 332 Brett V. Clowser, 304 Bridger v. Deane, -BeDeane, 218 Briggs V. Penny, 178, 197 Briggsand Spicer, Be, 341, 460 Bright V. Campbell, 234 Bright V. Walker, 453 Bristow V. Warde, 141 British Mutual Investment Co. v. Smart, 266 Brook V. Badley, 336 Brown v. Alabaster, 301 Brown v. Cole, 24« Brown 2). Higgs, 212 Brown's Will, He, 81 Brown and Sibley's Contract, Me, 326 Bryant v. Poote, 453 Bryant v. Lefever, 298 Buckhurst's (Lord) Case, 13 Buckley's Estate, lie, 488 Buckley v. Eoyal National Lifeboat In- stitution, Me David, 337 Buckmaster v. Buckmaster, 486 Bull V. Pritchard, 134 Bullock V. Dommitt, 95 Bulmer v. Hunter, 339 Burchell v. Clarke, 366 Burgess v. Wheate, 468 Burnaby's Settled Estates, Me, 180 Burridge v. Bradyl, 440 Bursill V. Tanner, 482 Burt V. Arnold, Me Jeffery, 489 Burt V. Gray, 107 Burton v. Gray, 232 Butler V. Butler, 402 Butler's Trusts, Me, Hughes v. Ander- son, 430 Byram v. Tull, Mc Dixon, 168 Gadell v. Palmer, 324, 326, 327 Cahen, Ex p., 494 Cahill V. Cahill, 474 Caine, Me, 474 Caldecott v. Brown, 70 Caldwell v. Fellowes, 160 Camden (Marquis) v. Murray, 490 Campbell v. Holyland, 245 Campbell v. Leach, 216 Candy v. Campbell, 400 Capron v. Capron 272 Cardigan (Earl of) v. Armitage, 302 Cardioss's Settlement, Me, 480 Carne v. Long, 327 Carpenter, Me, 199 Carr v. Atkinson, 215 Carr v. Lambert, 295 Carritt v. Real and Personal Advance- Company, 201 Cartwright Be, Avis e. Newman, 06 Casborne v. Scarfe, 224, 225 Castle V. Wilkinson, 474 Cattley v. Arnold, 31 Cave V. Cave, 9 Cavendish v. Cavendish, 337 Cecil V. Langdon, 188 Chadwick v. Doleman, 215 Challoner v. Murhall, 63 Chamber Colliery Co. r. Hop wood, 455 Chambers v. Kingham, 181 Chandler v. Howell, 337 Chapman v. Gatcombe, 284 Charlton v. Att.-Gen., 262 Chaytor's Settled Estates, Me, 82 Cheese v. Lovejoy, 409 Cheeseman v. Hardham, 291 Chester v. Chester, 336 Child 0. Baylie, 323 Chilton V. Corporation of London, 2'.ll, 497 Christian, In b., 389 Christie v. Ovington, 483 Christmas, Me, 337 Chubb (>. Stretch, 479 Chudleigh's Case, 148 Gburcher v. Martin, 334 Churchill (Lord), In re, Manisty j . Churchill, 268 Clare v. Lamb, 316 Clark (James), In re, 388 Clark V. Cogge, 302 Clarke v. Franklin, 197, 198 Clarke v. Palmer, 236, 322 Clarke r. Willott, 341 Clarke's Trusts, Me, 478 Clarkson v. Henderson, 234 Clements v. Lambert, 293 Clere's Case, 376 Clifford V. Koe, 404 Clitheroe Estate, Be, 182 Cloves V. Awdry, 398 Clun's Case, 272 Goates to Parsons, Be, 1 88 Digitized by Microsoft® x.wi TABLE OF CASES CITED. Coatswortla v. Johnson, 106, 348 Cock, ^e, Exp. Shikon, 461 Gockbum v. Edwards, 243 Cookcroft, Ee, 2Si Codling V, Johnson, 303 Cogan V. Stephens, 198 Cohen v. Mitchell, 458 Cole V. Green, 68 Cole V. Sewell, 324, 327 Collier V. McBean, 48, 383 Collier v. Walters, 48 Colling, Ee, 199 Collinge's Settled Estates, Ee, 160 CoUingwood v. Stanhope, 215 Collins V. Castle, 53, 98 Colman v. Duke of St. Albans, 227 Colombine v. Penhall, 339 Colston V. Roberts, In re Fleck, 226 Golyer v. Finch, 265 Commissioners of Sewers v. Glasse, 291 Constable v. Constable, 272 Conway v. Eenton, 490 Cooch V. Goodojan, 362 Cook V. Dawson, 265 Cook V. Gregson, 268 t!ooke V. Cooke, 326 Cooke V. Crawford, 191 Cookp V. Smith, 197 Cooke's Contract, Ee, 211 Cooper, In 6., 476 Cooper, Ee, 458 Cooper, Ee, Ex p. Hall, 459 Cooper V. Cooper, 218 Cooper V. Kynook, 185, 383 Cooper V. Macdonald, 432, 472, 478 Cooper V. Martin, 213 Corbet's (Sir Miles) Case, 61, 291 Corbett v. Corbett, 332 Corbett v. Plowden, 228 Corbyn v. French, 333, 336, 387 Corder v. Morgan, 242 Cornish v. New, 65 Corser v. Cartwright, 265 Corven's Case, 14 Cottee V. Eichardson, 100 Cotton, Ee, 488 Cotton's Trustees and London School Board, Ee, 327 Cottrell V. Cottrell, 87 Cottrell V. Watkins, 311 Courtier, Ee, 66, 180, 194 Cousins, In re, 201 Coutts V. Gorham, 301 Coward and Adam's Purchase, Ee, 433 Cowin, Ee, 180 Cowley (Earl) v. Wellesley, 67, 68, 69 Cox V. Bennett, 408 Cox V. Higford, 465 Crawford v. Forshaw, 211 Crawford v. Newton, 95 Crawshaw v. Crawshaw, 405 Crawshay, In re, Crawshay v. Craw- shay, 218 Creswell v. Davidson, 107 Croom, Ee, England v. Provincial Assets Co., 463 Gropton v. Davies, 400 Cross V. Hudson, 220 Crossley v. Elworthy, 339 Groughton's Trusts, Ee, 478 Cummins v. Cummins, 268 Cunningham and Frayling, Ee, 191, 483 Cuno, Ee, Mansfield v. Mansfield, 476, 480 Cunynghame's Settlement, Ee, 479 Cupit V. Jackson, 279 Currey, Ee, 478 Curteis v. Wormald, 198 Curtis V. Daniel, 8 Cutting V. Derby, 272 Daigleish's Settlement, Ee, 189 Daking v. Whimper, 341 Dalton V. Angus, 298, 454, 455 Damerell v. Protheroe, 24 Danby v. Coutts, 367 D'Angibeau, Ee, 486 D'Arcy (Lord) v. Askwith, 68 Dashwood v. Ayles, 16 Dashwood r, Magniao, 67 Davenport v. The Queen, 103 David, Ee, Buckley v. Royal National Lifeboat Institution, 337 Davies v. Davies, 66 Davies v. Earl of Dysart, 13 Davies v. Sear, 302 Dawes, Exp., 367 Dawkins o. Lord Penrhyn, 61, 444 Dawson i:. Bank of Whitehaven, 430, 437 Dawson o. Oliver-Maesey, 330 Dawson v. Small, 400 Digitized by Microsoft® TABLE OF CASES CITEL). Day V. Day, 447 Day V. Woolwich Equitable Building Society, 369 Deane, Be, Bridger v. Deane, 218 De Burgh Lawson, Be, 482 De Lancey, Be, 263 De Lancey v. The Queen, 263 De la WaiT (Earl) v. Miles, 455 De Meetre v. West, 840 Dendy v. Nicholl, 104 Dennett v. Pass, 280 Detmold, Be, Detmold v. Detmold, 333 Devonshire (Duke of) v. Pattinson, 384 Dewhurst's Trusts, Be, 189 D'Eynoourt v. Gregory, 9, 72 Dicker v. Angerstein, 242 Dickinson v. Dickinson, Be Ord, 387 Dickson, Be, 489 Digby V. Irvine, 255 Diggles, Be, Gregory v. Edmnndson, 178 Dillon V. Dillon, 74 Dimes v. Grand Junction Canal Co., 369 Dixon, Be, Byram v. TuU, 168 Doble V. Manley, 245 Docwra, Be, 483, 484 Dodds V. Thompson, 277 Doe d. Angell v. Angell, 451 Doe d. Bedford (Duke of) v. Kightley, 103 Doe d. Bennell v. Turner, 110 Doe d. Chadborn v. Green, 381 Doe d. Clay v. Jones, 108 Doe d. Dunraven v. Williams, 295 Doe d. Gallini v. Gallini, 403 Doe d. Gatehouse v. Eees, 104 Doe d. Goody v. Carter, 109 Doe d. Grubb v. Burlington, 68 Doe d. Harris v. Masters, 104 Doe d. Hiscocks v. Hiscocks, 397 Doe d. Hull V. Wood, 109 Doe d. Lewis v, Eees, 295 Doe d. Martin v. Watts, 89 Doe d. Nash v. Birch, 104 Doe d. Eawlings v. Walker, 120, 130 Doe d. Eeay v, Huntington, 38 Doe d. Eigge v. Bell, 90, 111, 347 Doe d. Tatham v. Cattamore, 364 Doe d. Tofield v. Tofleld, 371 Doe d. Williams v. Evans, 338 Doe d. York v. Walker, 387 Doe V, Pearson, 54 Doe V. Woodbridge, 104 Doe V. Wrighte, 334 Dolphin V. Aylward, 340, 341 Dommett v. Bedford, 74 Dorin v. Dorin, 331 Douglas, Be, 419 Douglas V, Culverwell, 223 Doyley v. Att.-Gen., 212 Drake v. Kershaw, Be Kershaw, 226, 252 Drinkwater v. Eatcliffe, 162 Drummond and Davies' Contract, Re, 480 Duberly v. Day, 430 Dudley (Lord) v. Lord Warde, 72 Dudley's (Countess of) Contract, 490 Dugdale, Be, Dagdale v. Dugdale, 3.!2 Dumpor's Case, 105 Dunn V. Flood, 193, 325 Dunn V. Green, 63 Durrant and Stoner, Be, 475 Dye «. Dye, 373 Dyer v. Dyer, 196 Eager v. Furnivall, 428 Eardley v. Granville, 9, 30 Earlom v. Saunders, 175 Ebbs V. Boulnois, 463 Bbsworth and Tidy's Contract, Be, -ill) Eocles y. Cheyne, 406 Ecclesiastical Commissioners v. is. E. Ey. Co., 448 Eddels' Trusts, Be, 173 Edwards v. Fashion, 157 Edwards v. Tuck, 175 Egerton v. Earl Brownlow, 331 Elibank v. Montolieu, 433 Elliott V. Inoe, 492 Elliott V. Johnson, 117 Elliott V. Merryman, 193, 265, 393 Ellis V. Smith, 362 Ellis's Trusts, Be, 478 Ellison V. Ellison, 179, 340 Elwes V. Mawe, 9 Ely (Dean of) v. Bliss, 451 Emmanuel College v. Evans, 223 England v. Provincial Assets Co.,- h'e Croom, 463 Eno V. Tatham, 226 Errington v. Met. Dist. Ey. Co., 8 Esdaiie, Be, 284 Digitized by Microsoft® XXVlll TABLE OF CASES CITED. Eyans, JUxp., 258 Ewer V. Hayden, 9 Faieclough v. Marshall, 227 EarneU's Settled Estates, Me, 376 Earrand v. Yorkshire Banking Co., 237, 322 Farrant v. Thompson, 123 Faversham (Fishermen of). Me, 498 Eeamside v. Flint, 450 Festing u. Allen, 134, 151 Fettiplace v. Georges, 431 Field, In b., 389 Finley, Me, Ex parte Clothworkers' Co., 461 Fisher v. Dixon, 9 Fisher v. Wigg, 377 Flack V. Downing College, 208 Fleck, In re, Colston v. Roberts, 226 Fleming v. Buchanan, 397 Metcher v. Ashburner, 12, 175 490 Flight V. Bentley, 116 Flight V. Thomas, 455 Ford V. De Pontes, 408 Ford V. Peering, 13 Forrest v. Whiteway, 156 Forshaw v. Higginson, 187 Forster w. Patterson, 449 Foster V. Cook, 397 Foster v. Crabb, 13 Foster v. Foster, 490 Foster «. Mackinnon, 308 Foster and Lister, In re, 340 I'oulkes V. Williams, Be Esther Wil- liams, 398 Fowke V. Drayoott, 433, 474 Fowler, Me, 194 Fox V. Bishop of Chester, 465 Fox's Case, 356 Frank v. Muzeen, Me Wormald, 478 Franks v. Bollans, 431, 473 Eraser «. Mason, 34 Freeland v. Pearson, 212 Frene v. Clement, 406 Erend v. Buckley, 315 Frisby, Me, Allison v. Frisby, 450 Frost, Re, Frost v Frost, 324, 325 Fry V. Capper, 216, 479 Fryer v. Morland, 261 FurnesB v. Bond, 348 Gale v. Gale, 179 Gardiner v. Courthope, 409 Gardner v. Sheldon, 899 Garland v. Mead, 391 Garnett, Me, Robinson v. Gandy, 308 Garth v. Cotton, 124, 142 Gartside w. Silkstone, &c., Co., 362 Gateward's Case, 291 General Credit, &c., Co., o. Glegg, 245 General Finance, &c., Co., o. Liber- ator, &o., Building Society, 360 George, Me, 489 Giacometti v. Prodgers, 432 Gibbins v. Eyden, 428 Gilbert v. Smith, 162 Gilchrist, Exp., Me Armstrong, 481 Girlandv. Sharp, 172 Glass V. Richardson, 204, 370 Gleaves v. Paine, 433 Glenorchy v. Bosville, 179, 382 Glover V. Coleman, 435 Goldsmid, Me, Ex p. Taylor, 459 Goodall V. Skerratt, 446 Goodchild V. Dougal, 474 Goodman v. Mayor of Saltash, 452 Goodright v. Cornish, 139 Goodtitle d. Hood v. Stokes, 382 Goodtitle d. Sweet v. Herring, 403 Goodtitle v. AVhite, 153 Goodwin, Me, 331 Gore V. Gore, 148 Gorges «. Stanfield, 68 Gossett, Me, 218 Grand Junction Canal Co. w. Petty, 500 Grant v. Ellis, 451 Gravenor v. Watkins, 404 Graves, Exp., 496 Graves ». Weld, 8 Graydon v. Hicks, 330 Great Eastern Ry. Co. v. Goldsmid, 15 Greaves v. Greenwood, 421 Greaves v. Tofield, 277 Green v. Paterson, 181, 375 Greenwood v. Honisey, 304 Gregory v. Edmundson, In re Diggles, 178 Grey's Settlement, Me, 478 Grey v. Pearson, 398 Griev V. Grier, 179 Grifi'enhoofe v. Daubuz, 285 Griffith's Will, Me, 87 Griffiths V. Gale, 406 Digitized by Microsoft® TABLE OF CASES CITED. XXIX Griffiths V. Ricketts, 198 Griffiths V. Vere, 328, 329 Guest V. Cowbridge Ey. Co., 257 Gully V. Davis, 402 Gwyn V. Neath Canal Navigation Co., 366 Hale v. Pew, 141 Halifax Joint Stock Banking Co. v. Gledhill, 338 Hall, Exp., Be Cooper, 459 Hall V. Bromley, 371, 375 Hall V. Byron, 292 Hall V. Heward; 246 Hall «. May, 191 Hall-Dare v. Hall-Dare, 60 Hallet V. Furze, 248 Hallett V. Hastings, Be Lady Hast- ings, 479 Hamilton, Be, 490 Hampshire v. Wickens, 95 Hampton v. Holman, 141 Hanaford v. Hanaford, 401 Hancock v. Hancock, 482 Hanson v. Keating, 433 Harbin v. Masterman, 328, 329 Hardaker v. Moorhouse, 219 Harding's Estate, In re, 184 Harding v. Glyn, 212 Harding v. Harding, 251 Hargveaves, Be, Midgley v. Tatley, 325 Harley v. King, 97 Harlock v. Ashberry, 445 Harris v. Barnes, 148 Harris v. De Pinna, 298 Harris v. Tubb, 340 Harris's Settled Estates, Be, 474 Harrison, Be, 10, 125 Harrison v. Forth, 185 Harrison W.Harrison (13 P. D. 180), 480 Harrison v. Harrison (40 Ch. D. 418), Be Little, 478 Hart, In re, 63 Harter v. Colmau, 239 Hartshorn v. Watson, 348 Harvey, In re. Peek v. Savory, 325 Hastie v. Hastie, 179 Hastings (Lady), Be, Hallett v. Hast- ings, 479 Hatten v. Eussell, 84 Hatton V. Haywood, 258 Hawkins v. Kemp, 213 Haynes, In re, Kemp u. Haynes, 88 Haywood v. Brunswick, &c., Building Society, 53 Heath v. Crealock, 184 Heath v. Lewis, 331 Heath v. Pugh, 445 Hedgeley, Be, 264, 479 Henning v. Burnett, 305 Hensler, Be, 406 Hensman v. Fryer, 397 Henty v. Wrey, 218 Herbert v. "Webster, 479 Herlakenden's Case, 10 Hetherington's Trusts, Be, 190 Hibbert v. Cooke, 70 Hickley v. Strangways, Be Strang- ways, 78 Hicks V. Downing, 348 Higinbothara v. Holme, 333 Hill V. Barclay, 465 Hill V. Tupper, 298 Hill V. Wormsley, 226 Hill's Trusts, Be, 336 Hobbs, Be, Hobbs v. Wade, 443 Hockley v. Mawbey, 215 Hodges V. Hodges, 478 Hodson and Howe's Contract, Be, 244 Hollins V. Verney, 455 HoUoway v. Eadclifife, 175 Holmes v. Coghill, 397 Holmes V. Goring, 305 Holmes v. Penney, 333 Holyland v. Lewin, 406 Home's Settled Estate; In re, 183 Honywood v. Foster, 181 Honywood v. Honywood, 67, 68, 124 Hood V. Hood, 251 Hcole V. Smith, 242 Hooper v. Clark, 98 Hope V. Booth, 250 Hopkins, Be, 471 Hornsby v. Lee, 430 Horton V. Hall, 279 Horton V. Horton, 400 Hotchkys, Be, 66 Houghton Estate, Be, 85 Household, Be, 490 Howard v. Earl of Shrewsbury, 184 Howard v. Harris, 224 Howarth v. Howarth, 412 Howe V. Lichfield, 263 Digitized by Microsoft® XXX TABLE OF CASES CITED. Hudson, Be, 401 Hudson V. Cook, 252 Hudson V. Eevett, 364 Hughes V. Anderson, 7?c Butler's Trusts, 430 Hughes (Benjamin), In h., 389 Hughes V. Coles, 450 Huguenin v. Basely, 309 Hulme V. Tenant, 431, 432 Humberaton v. Humberston, 141 Humphreys v. Humphreys, 399 Hunt V. Bishop, IIS Hunt V. Hunt, 331 Hunt V. Eemnant, 118 Huntingdon v. Huntingdon, 430 Hurst V. Hurst, 74 Hyde v. Warden, 101, 120, 130 Hyatt, In re, Bowles ?'. Hyatt, 265 Hyett V. Mekin, 175 Idle v. Cook, 377 Ingleby and Norwich Union Insurance Co., Me, 191 Irish Church Commissioners v. Grant, 451 Ivie V. Ivie, 13 Jackson, Be, 157, 229, 490 Jackson v. Jackson, 157 Jackson's Will, Be, 212 Jacobs V. Seward, 158 Jagger v. Jagger, 328 Jakeraan's Trusts, Be, 458, 472 .James, Be, 494 .James v. Dean, 44 .James v. James, 244 James v. Kerr, 234 James v. Shrimpton, 409 .Jay V. Robinson, 482 Jeffery, Be, Burt v. Arnold, 489 Jefireys v. Small, 157 Jeffrey's Trusts, Be, 212 .Jenkins v. Jones, 243 Jenner v. Jenner, 367 Jenner v. Morris, 13 Jenner v. Turner, 331 .Jennings v. Jordan, 239 Jesson V. Wiight, 403 Jessop V. "Watson, 426 Jewel's Case, 270 Job V. Potton, 158 .Johnson «. Arnold, 175 .Johnson v. Johnson (3 Hare, 157), 406 Johnson v. Johnscm (35 Ch. D. 345), 434, 480 Johnson and Tustin, Be, 310 Johnstone w. Earl Spencer, 32 Joliffe V. Baker, 315 Jones, Exp., 482, 491 Jones, Be, 182 .Jones V. Chappell, 66, 68 Jones V. Davies, 429 Jones V. Harber, 459 Jones V. Ogle, 272 Jones V. Robin, 291 Jones V. "Watts, 314 Jordan v. Adams, 403 Judkin's Trusts, Be, 489 .Jiipp, Jn re, .Jupp v. Bnckwell, 169 IvAV V. Oxley, 304 Keech v. Hall, 227, 228 Kelland v. Fulford, 12, 176, 490 Kelsey v. Kelsey, 279 Kennard v. Kennard, 213 Kennedy v. Lyell, 338 Kenworthy v. Bate, 216 Keppell V. Bailey, 298 Kershaw, Jn re, Drake v. Kershaw, 226, 252 Kettlewell v. "Watson, 236 Kevan v. Crawford, 339 Keylway v. Keylway, 425 Kibble, Hxp., 491 Kinderley v. Jervis, 266 King V. Smith, 227 Kinnaird v. Trollope, 246 Kinsman v. Eonse, 224, 449 Kirwan's Trusts, Be, 218 Knight, Be, 408 Knight V. Knight, 178 Knowles, Be, 77 Lacy v. Hill, 439, 440 Ladyman v. Grave, 45;') Laird v. Briggs, 454 Lake v. Craddock, 157 Lake v. Gibson, 251 Lambert, Be, Stanton ?'. Lambert, 43'i Lambert v. Rogers, 13 Lampet's Case, 142, 147 Lancefield r. Iggulden, 397 Langford v. Barnard, 223 Langley v. Hammond, 304 Digitized by Microsoft® TABLE OF CASES CITED. XXXI Langton v. Horton, 223 Langton v. Langton, 240 Lansdowne v. Lansdowne, 66 Lantsbery v. Collier, 327 Large's Case, 332 Lascelles v. Onslow, 292 Laslimar, Be, Moody v. Penfold, 468 Latham v. Attwood, 71 Lavery v. Puroell, 10 Lawrence v. Hitch, 452 Lawton v. Lawton, 72 Lawton v. Ward, 303 Leach v. Jay, 51, 398, 402 Leach v. Thomas, 90 Leader v. Holmwood, 92 Leak v. Driffield, 481 Leake v. Kobinson, 326 Leathes v. Leathes, 13 Lechmere v. Lloyd, 151 Lee, Me, 494 Lee V. Gaskell, 10 Leech v. Sohweder, 299, Lees V. Fisher, 245 Leftly V. MiUs, 272 Legh V. Earl of Warrington, 265 Leigh V. Diokesorj, 159 Leigh, Jie, Leigh v, Leigh, 486 Lekeux v. Nash, 97 Lemage v. Goodban, 408 Lemaitre v. Davis, 298 Lempri^re v. Lange, 487 Le Neve v. Le Neve, 200, 320 Lester v. Foxcroft, 374 Letts V. Hutohins, 248 Lewis V. Madocks, 179 Lewis V. Eees, 841 Liddy V. Kennedy, 103 Lidiard and Jackson's and Broadley's Contract, Be, 444 Liford's Case, 302 Liggins V. Inge, 305 Lincoln (Bishop of) p. Wolferstan, 337 Lisburne (Earl of) v. Davies, 295 Lloyd's Banking Co, v. Jones, 236, 322 Lockhart v. Hardy, 246 Locking v. Parker, 232 London and County Banking Co. v. Eatcliffe, 238 London and Provincial Bank v. Bogle, 479 London and S. AV. Ry. Co. v. Gomni, 53, 325 London Chartered Bank of Australia V. Lempri^re, 482 London (City of) v. Greyme, 68 London (Corporation of) v. Biggs, 302 London Loan and Discount Co. v, Drake, 92 London (Mayor of) v. Pewterers' Co., 455 Lowndes, Be, 460 Lowndes v. Norton, 124 Lowther v. Heaver, 348 Lucas, Be, Parish v. Hudson, 273 Luke V. So. Kensington Hotel Co., 191 Lushington v. Boldero, 124, 125 Lyell V. Kennedy, 443 Lynch, Exp., 491 Lyon V. Reed, 351 Lys V. Lys, 162 Lysaght v, Edwards, 199 Lyster v. Dolland, 157 Maberi.ey, Be, 85 Machu, Be, 47, 331, 332 Mackay v. Douglas, 339 Mackenzie's Trust, Be, 85 Mackenzie v. Childers, 325 Mackreth v. Symmons, 251, 252 Macleay, Be, 54, 332 Maddon v. White, 485 Magdalen Hospital (Governors of) v. Knotts, 366 Maggi, Be, 267 Mainland v. Upjohn, 234 Malcomson v. O'Dea, 289 Mander v. Harris, Be March, 168, 169 Mandeville's Case, 378 Manisty v. Churchill, Be Lord Church- ill, 268 Manners v. Mew, 236, 332 Manning's Case, 147 Mannmg v. Spooner, 269 Mannox v. Greener, 404 Mansfield v. Mansfield, Be Cuno, 476, 480 March, Be, Mander v. Harris, 168, 169 Margary v. Robinson, 389 Marlborough's (Duke of) Estates, Be, 85 Digitized by Microsoft® xxxu TABLE OF CASES CITED. Marsh v. Lee, 237, 238 Marsh and Earl Granville, Be, 311 Marshal v. Gingell, 185 Marshall v. Green, 10 Marshall v. HoUoway, 329 Marshall v. Shrewsbury, 248 Martin v. Knowllys, 158 Martin v. Smith, 90 Martinson v. Clowes, 243 Matthews v. Keeble, 329 Matthewson's Case, 364 Maxwell v. Montacute, 223 MoManus v. Cooke, 374 Meek v. Chamberlain, 225 Menzies v. Lightfoot, 238 Mercer v. Peterson, 459 Mertins v. Joliffe, 185 Metcalfe v. Metcalfe, 332 Mioklethwait v. Newlay Bridge Co., 384 Midgley u. Tatley, Re Hargreaves, 325 Mildmay's (Sir A.) Case, 56 Miles V. Jarvis, 151 Miles V. Miles, 408 Milford Haven E. & E. Co. v. Mowatt, 313 Mill's Trusts, Be, 186 Mills V. Capel, 60, 446 Mills, Be, Mills v. Mills, 398 Mines, case of, 8 Minifie v. Banger, 16 MinshuU v. Oakes, 97 Moase v. White, 402 Moltou V. Camroux, 492 Monypenny v. Bering, 140, 141, 324 Moody V. Penfold, Be Lashmar, 468 Moody V. Steggles, 298 Moody and Yates' Contract, Be, 310, 311 Moor V. Barham, 426 Moor V. Denn, 16 Moore, In Be, Trafford v. Maconachie, 331 Moore v. Greg, 232 Moore v. Moore, 226 Moore v. Eawson, 295 Moore v. Simpkip, 378, 419 Moore v. Webster, 432 Moores v. Cheat, 232 Mordaunt v, Benwell, 490 Morgan, Exp., 366 Morgan, Be, 54 Morgan v. Morgan, 60, 377, 446 Morgan v. Swansea Urban Sanitai-y Authority, 483 Morley v. Eennoldson, 330, 331 Morrish, Be, 103 Morton and Hallett, Be, 191 Moule V. Garrett, 96 Mowlem, Be, 136 Muggleton v. Barnett, 25 Mulliner v. Midland Ey. Co., 500 Mumford v. Stohwasser, 184, 237 Mundy's Settled Estates, Be, 85 Municipal, &c.. Building Society v. Smith, 118, 229 Murray v. Elibank, 433 Murray v. Hall, 158 Musgrave v. Brooke, 48, 122 Mutual Life Assurance Society v. Lang ley, 245 Myers v. Catterson, 301 Naikh v. Marjoribanka, 70 National Guaranteed Manure Co. v. Donald, 305 National Provincial Bank of England V. Jackson, 237, 362 Natt, Be, Walker v. Gammage, 424 Naylor and Spendla, Be, 370 Neill V. Duke of Devonshire, 289 Neve V. Pennell, 238 Nevil's Case, 40 Newbold v. Smith, 450 Newcastle v. Vane, 125 Newson w. Pender, 303 Newton's Trusts, Be, 475 NichoU V. Jones, 474 Nickells v. Atherstone, 351 Nicol V. Nicol, 434 Noel V. AVard, 13 Noke's Case, 317 Norfolk's (Duke of) Case, 323 Norris, Be, 188 Northampton, Marquess of, v. Pollock, 224 Northern Counties Insurance Co. o. Whipp, 236, 322 Northumberland (Duke of) v. Hough- ton, 289 Nottingham Patent Brick and Tile Co. V. Butler, 53 OocLESTON V. FuUalove, 331 Gland's Case, 71 Digitized by Microsoft® TABLE OF CASES CITED. XXXlll Olderehaw v. Holt, 273 Oldham V Hughes, 431 Oldham v. Stringer, 244 Olivant v. "Wright, 377 Olnej V. Bates, 406 Onley v, Gardiner, 455 Onslow, Ee, Plowden v. Gayford, 435 Ord, Ee, Dickenson v. Dickenson, 387 Ormonde v. Kynnersley, 124 Osborne to Rowlett, 191 Owen, Ee, 89 Page v. Leapingwell, 336 Paget, Be, 77, 78, 88 Paget V. Marshall, 308 Paine's Trusts, Ee, 190 Palliser v. Gurney, 481 Palmer v. Fletcher, 301 Palmer v. Hendry, 246 Palmer v. Holford, 327 Palmer v. Johnson, 315 Palmer v. Locke, 220 Parish v. Hudson, Ee Lucas, 273 Parker v. Mitchell, 453 Parker, In Ee, Wignall v. Park, 337 Parker and Parker, Ee, Ex p. Tur- quand, 461 Parker v. Taswell, 347 Parkinson u. Hanbury, 242 Parmenter v. AVebber, 100 Parry and Daggs, Ee, 331 Parsons, Be, Stockley v. Parsons, 435 Paterson v. Scott, 397 Patrick v. Simpson, 448 Peachy v. Somerset, 105, 106, 464, 465 Peacock v. Eastland, 309, 355 Pearce v. Morris, 225 Pearks v. Moseley, 326 Pedder r. Hunt, 444 Peek V. Savory, In re Harvey, 325 Pemberton v. Barnes, 162 Penny v. Allen, 446 Penryn (Mayor of) v. Best, 15, 452 Perrin v. Blake, 403 Perry v. Eames, 454 Perry-Herrick v. Attwood, 236 Perryman's Case, 38 Petchell, In b., 408 Peters v. Lewes and East Grinstead Ey. Co., 327 Petre v. Petre, 448 Petty V. Styward, 157 Phene's Trusts, 212 Phillips V. Bridge, 104 Phillips V. Caldcleugh, 314 Phillips V. Cay ley, 399 Phillips V. Phillips, 437 Phillips V. Smith, 68 Pidgley v. Rawling, 68 Pigot's Case, 364 Pike V. Fitzgibbon, 479 Pilcher v. Rawlins, 184 Pilling's Trusts, Be, 186 Pinhorn v. Souster, 110 Pinningtonw. Galland, 302 Pitcher v. Tovey, 97 Pitt V. Jackson, 216 Pitt V. Jones, 162 Piatt V. Mendel, 245 Plowden v. Gayford, Ee Onslow, 435 Plowden v. Hyde, 225 Plumstead Board of Works v. British Land Co., 384 Policy V. Seymour, 175 Pope, Be, 258, 259 Pople, In re, 89 Portal and Lamb, Ee, 9, 387 Porter v. Lopes, 158, 162 Porter's Settlement, In re. Porter v. De Quetteville, 215 Portington's (Mary) Case, 330 Portland (Duke of) v. Hill, 30, 38 Powell V. Howells, 401 Poulett (Eari) v. Hood, 316 Powys V. Blagrave, 66 Pratt V. Harvey, 337 Price, Ee, Stafford v. Stafford, 480 Price V. Jenkins, 340 Price V. Price, 312 Price V. Worwood, 104 Prole V. Soady, 475 Proudfoot V. Hart, 95 Proudley v. Fielder, 432 Prytheroh, In re, Prytherch v. Wil- liams, 240 Pumfrey, Ee, 251 Pyatt, ire re, 13 Pybus V. Mitford, 380 Pyer v. Carter, 301, 302 QniLTEE V. Mapleson, 106 R. V. Chorley, 304 R. V. Corbett, 204 Digitized by Microsoft® XXXIV TABLE OF CASES CITED. R. V. Garland, 391 K. V. Inhabitants of Aylesford, 25 R. V. Jolliffe, 453 JR. V. Lord of Manor of Hendon, 372 E. V. Lord of Manorof Oundle, 147, 208 R. u. Registrar of Deeds for Middlesex, 320 E. V. Wilson, 204 Radnor's (Earl of) Will Trusts, Be, 81 Ralph V. Carrick, 399 Raw, i?e, 175 Rawley v. Holland, 148 Rawlins' Trusts, In re, 400 Reid r. Reid (31 Ch. D.), 402, 435 Reid V. Reid (33 Ch. D.), 220, 433 Reilly v. Booth, 9 Eenals v. Cowlishaw, 53 Rhodes v. Rhodes, 398 Rice V. Rice, 322 Richards v. Richards, 135 Richards w. Swansea Improvement and Tramways Co., 383 Richai-dson, Be, 247 Richardson v. Feary, 162 Richardson v. Harrison, 383 Richardson v. Langridge, 44, 89, 109 Richardson v. Younge, 449 Eiddell v. Errington, 474 Rider v. Wood, 25 Ridge, Be, 80 Ridley, Be, 479 Eighy V. Bennett, 301 Rigden v. Vallier, 157 Eight (/. Flower v. Darby, 103 Eight d. Jefferys v. Bucknell, 366 Eipley V. Watern-orth, 42, 197 Elvers (Lord) v. Adams, 291, 496 Rivett-Carnac's (Sir J.) Will, Be, 81, 293 Roach V. Trood, 218 Roberts v. Cooper, 432, 433 Robertson v. Hartopp, 292 Robertson v. Norris, 428 RobiuBOD, Exp., 474 Robinson v. Duleep Singh, 289 Robinson v. Gandy, Be Garnett, 308 Robinson v. Litton, 53 Robinson v. M'Donnel, 338 Robinson v. Rett, 187 Robinson v. Robinson, 403 Robinson v. Wheelwright, 478 Roe d, Bendale v. Summeiset, 399 Roe d. Cosh v. Loveless, 372 Roe d. Durant ?;. Doe, 103 Roe V. Hitchens, Be Smith-Henderson, 488 Roe V. Siddons, 304 Rogers, Ex p., 13 Rolt V. Hopkinson, 238 Rolt V. Lord Somerville, 69 Roper, Be, Roper v. Doncaster, 482 Roper V. Roper, 440 Rosher, In re, Rosher v. Rosher, Zoi, 332 Rosher v. Williams, 340 Ross's Trusts, Be,, 424 Rouse's Case, 44 Rowe V. Gray, 162 Rowland v. Cuthbertson, 439 Russel V. Enssel, 232 Russell (G. B.), hi. h., 408 Russell, Exp., 339 Russell V. Chell, 408 RusseU V. Tithe Commissioners, 284 Russell V. Watts, 301 Ryall V. Eowles, 430 Eyder, Be, 494 Eyder v. AVood, 25 Sacheveeill v. Porter, 291 Saokville v. Smyth, 226 Sackville-West v. Holmesdale, 179 St. Thomas's Hospital v. Charing Cross Ey. Co., 383 Saltash (Mayor of) v. Goodman, 289 Saltern v. Saltern, 73 Salusbury v. Denton, 212 Sampson and Wall, Be, 486 Sandford v. Ballard, 158 Sandillt). Franklin, 103 Sands v. Thompson, 447, 448 Sanger v. Sanger, 479 Saunders v. Lord Annesley, 451 Saunders v. Vautier, 329 Savage, In b., 409 Saxton V. Saxton, 408 Scatterwood v. Edge, 148 Scholes V. Hargreaves, 292 School Board for London, Ex p., 63 Scott, Be, Scolt V. Hanbury, 486 Scott V. Nixon, 444 Scott V. Rape, 304 Scott V. Tylor, 330, 331 Scottish Widows' Fund v. Crait, 279 Digitized by Microsoft® TABLE OF CASES CITED. XXXV Seagi-am v. Knight, 124 Sear v. House Property and Investment Society, 101 Searle v. Cooke, 279 Seaward «. WiUoook, 141 Seely v. Jago, 175 Sefton (Lord) «. Lord Salisbury, 465 Selliok V. Trevor, 314 Selwyn v. Garfit, 242 Senhouse v. Christian, 303 Serff w. Acton Local Board, 302 Seton V. Slade, 224 Shakspear, Me, 481 Shalloross v. Finden, 265 Sharpnell v. Blake, 248 Shaw V. Ford, 331 Shaw V. Foster, 232 Shelley's Case, 173, 378 Shepard v. Jones, 235 Shephard, In re, Atkins v. Shephard, 259, 263 Shopland v. Rycier, 111 Shrewsbury's {Countess of) Case, 109 Shurmer v. Sedgwick, 340 Shuttleworth v. Le Fleming, 292 Silk V. Prime, 264, 268 Simmons v. Norton, 68, 69 Simpson v. Dendy, 384 Simpson «. Hartopp, 273 Simpson v. Simpson, 115 Skingley, Be, 66 Skrymsher v. Northcote, 405 Smart, Be, 422 Smart v. Tranter, 476 Smith, Be, 226 Smith, Be, JUxji. Hepbm-n, 461 Smith, Be, Bilke v. Eoper, 476 Smith, Be, Hendersou-Koe w.Hitchens, 488 Smith (Mary), Be, 158, 494 Smith V. Adkins, 213 Smith V. Claxton, 198 Smith V. Cowell, 259 Smith V. Eggington, 117 Smith V. Lucas, 478 Smith V. Matthews, 433 Smith V. Morgan, 267 Smith V. Odling, 245 Smith's Trusts, Be, 399 Smyth V. Carter, 68 Somerset (Duke of) v. Fogwell, 290, 346 Soper V. Arnold, 315 Southampton's (Lord) Estate, Be, 248 South Kensington Co-operative Stores, Be, 273 Speakman, Be, 406 Spencer, Be, 478 Spencer's Case, 97 Spicer v. Martin, 53 Spyer v. Hyatt, 439 Squier v. Mayer, 9 • Stafford's (Lord) Case, 130 Stafford v. Stafford, Be Price, 480 Standen v. Chrismas, 117 Standering v. Hall, 431 Stansfield, Be, 406 Stanstield v. Habergham, 53 Stanton v. Lambert, Be Lambert, 436 Stead V. Hardaker, 397 Stead V. Mellor, 178 Stedman v. Smith, 158 Steed V. Preece, 491 Stevenson v. Lambard, 275 Stevenson v. Mayor of Liverpool, 185, 394 Slockley v. Parsons, Be Parsons, 435 Stogden v. Lee, 477, 481 Stonor's Trusts, Be, 482 Stott V. Milne, 194 Strarjgways, Be, Hickley v. Strang- ways, 78, 182 Strathmore (Countess of) v. Bowes, 97, 341 Strathmore (Earl of) t). Vane, Be Bowes, 97 Streatfield v. Streatfield, 438 Stukeley v. Butler, 10 Sturgis V. Champneys, 433 Sugden v. Lord St. Leonards, 409 Surman v. Wharton, 436, 481 Surtees v. Pakin, 397 Sury V. Pigot, 301 Sutton V. Sutton, 450 Swain V. Ayres, 106, 348 Swan V. Swan, 159 Swansborough v. Coventry, 302 Swansea Bank, v. Thomas, 273 Swansea (Mayor of) c. Thomas, 117, 274 Sweeting v. Prideaux, 400 Symons v. Leaker, 454 Talbot v. Jevers, 328, 329 Taltarum's Case, 56 Digitized by Microsoft® XXXVl TABLE OF CASES CITED. Tanner v. Heard, 243 Tanqueray-Willanme and Landau, &, 265 Tapling v. Jones, 303, 304 Tarn V. Turner, 228 Taunton v. Morris, 433 Taylor, JSxp., Be Goldsmith, 459 Taylor v. Meads, 431 Taylor v. Mostyn, 235, 245 Taylor v. Poncia, 183 Taylor v. Russell, 236 Taylor v. Schura, 97 Taylor v. Taylor, 180, 425 Teague's Settlement, Be, 479 Teasdale v. Brathwaite, 340 Teeven v. Smith, 249 Tennent v. "Welch, 473 Thatcher's Trusts, Be, 488 Thomas, Be, 439 Thomas v. Britnell, 265 Thomas w. Owen, 304 Thomas v. Porter, 465 Thomas v. Sylvester, 279 Thomas v. Thomas, 304 Thomas v. Williams, 83, 113 Thompson, Be, Bedford v. Teal, 337 Thompson v. Gurzon, 435 Thompson and Holt, In re, 242 Thompson v. Leach, 308 Thomson v. Eastwood, 449 Thomson v. Waterlow, 304 Thoroughgocd's Case, 308, 363 Thorpe v. Brumfitt, 298 Thurston, ^e, 219 Tidd V. Lister, 180 Tilhury v. Silva, 291 Tippett's and Newbould's Contract, Be, 478 Titley v. Wolstenholme, 191 Titterton v. Cooper, 402 Todd, Exp., & Ashcroft, 460 Toftw. Stephenson, 450 ToUemache v. ToUemache, 67 Tollett V. Tollett, 212, 213 Tomkins v. Jones, 16 Tomlin v. Luce, 243 Tooker v. Annesley, 67 Topham v. Duke of Portland, 218 Towerson v. Jackson, 228 Townend v. Toker, 340 Townsend v. Ash, 7 Townson v. Tickell, 308, 309 Traiibrdj). Maconachie, 5c Moore, 331 Treloar v. Bigge, 101 Trower v. Knightley, 219 r Trustees' and Agency Company v. Short, 444 Tulk V. Moxhay, 53, 98 Tullett V. Armstrong, 431, 477 Turner, In b., 409 Turner v. Wiight, 53 Turner's Settled Estates, Be, 218 Turquand v. The Board of Trade, 458 Tweedale v. Tweedale, 238 Twyman v. Prickard, 117 Twyne's Case, 338, 339, 340 Tynte, Uxp., 450 Tyrrel's Case, 172 Tyrringham's Case, 290, 293, 294 Tyson v. Fairclough, 158 Undeehiij. 1). Eowden, 404 Union Bank of London v. Kent, 237 Uvedall v. Uvedall, 123 Vandeeplank v. King, 141 Vane v. Lord Barnard, 69 Vane v. Vane, 448 Van Hagan, Be, 219 Varden's Trusts, Be, 478 Vaughan v. Vanderstegen, 479 Vine«. Raleigh, 328 Viner v. Francis, 406 Viner v. Vaughan, 59 Vint V. Padget, 238 Von Brockdorff?;. Malcolm, 898 Voss, Be, 434, 480 Wade v. Wilson, 244 Wainford v. Heyl, 483 Wait,i?e, 398 Waite V. Morland, 434 Walker, Be, 106 Walker v.Deime, 468 Walker v. Gamraage, Be Natt, 424 Walker v. Richardson, 351 Walker v. Walker, 330 Walsh V. Bishop of Lincoln, 337 Walsh V. Lonsdale, 347 Walsh V. Trimmer, 284 Walters v. Webb, 444 Warden, In b., 389 Ware v. Polhil'l, 490 Warner's Settled Estates, Be, 262 Digitized by Microsoft® TABLE OF CASES CITED. XXX VI 1 Warren v. Eudall, 66 Warrick v. Queen's College, Oxford, 295 Warrington v. Warrington, 168 Watkins v. Nash, 363 Watson V. Birch, 450 Watts V. Kelson, 301 Watts V. Symes, 238 Weatherall v. Thornhurgh, 328 Wehb 0. Bird, 298 Webb V. Russell, 130 Webster v. Overseers of Ashton-under- Lyne, 355 Webster v. Webster, 405 Wedgwood v. Denton, 408 Weeding v. Weeding, 407 Weldon v. Seal, 483 Wellesley v. Wellesley, 124 Wells' Trusts, Be, Hardisty v. Wells, 387 Wells V. Kilpin, 258 West V. Dobb, 97, 98 West London Commercial Bank v- Eeliance Permanent Building So- ciety, 243 West of England, &c.. Bank v. Murch, 188 Westhead v. Riley, 259 Wheatley, Be, 478 Wheeldon v. Burrows, 301, 302 Wheelwright v. Walker, 83, 113 Whistler, Be, 393 Whitaker, Be, 482 Whitby V. Mitchell, 140 White V. City of London Brewery Co., 235 White and Hindle's Contract, Be, 383 Whitehead, Exp., 432 Whiteley w. Taylor, 371 Whitfield V. Bewit, 123 Whiting to Loomes, 364 Whitlock's Case, 271 Whittaker, Be, 432 Whittle V. Henning, 475 Wigan V. Roland, 390 Wigglesworth v. Dallison, 94 Wignall V. Park, In re Parker, 337 Wild's Case (Rep. pt. 6), 404 Wild's Case (Rep. pt. 8), 293 Wildbore v. Gregory, 398 Wilford's Estate, Be, 160 Wilkinson v. Calvert, 103 Wilkinson v. Joberns, 162 Willook V. Noble, 476 Williams (Esther), Re, Foulkes o. Williams, 398 Williams v. Arkle, 396 Williams v. Duke of Bolton, 124 Williams v. Earle, 97, 98 Williams v. Games, 162 Williams v. Owen, 223 Williams v. Pott, 447 Williams v. Walker, 474 Williams v. Williams, 268 Williamson v. Farwell, 215 Willingdale v. Maitland, 291 Willion V. Berkley, 40 Wilson V. Duguid, 212 Wilson V. Finoh-Hatton, 275 Wilson V. Wallani, 462 Wilson V. Wilson, 831 Wingrove, In b., 389 Wingrove v. Wingrove, 309 Wiscot's Case, 130 Wolestoncroft v. Long, 268 WoUey V. Jenkius, 219 Wood V. Leadbitter, 298, 300 Woodhouse v. Walker, 66 Wormald, Be, Frank v. Muzeen, 478 AVren v. Bradley, 331 Wright V. Chard, 478 Wright V. Eobotham, 13 Wright V. Rose, 243 Wright V. Wallasey Local Board, 'dH'-'i Wright V. Wilkin, 178 Wykham v. Wykham, 185 Wylde's Estate, Be, 168 Xenos v. Wickham, 208, 362 YELLowLr V. Gower, 66 York V. Stone, 160 York Union Banking Co. v. Astley, 244 Young V. Spencer, 68 ZoucH V. Parsons, 485 Digitized by Microsoft® Digitized by Microsoft® TABLE OF STATUTES CITED. 1539 1540 A.D. 1265 20 Hen. III. c. 4 1267 52 Hen. HI. c. 10 p oo 1278 6 Ed. I. c. 5 . — u. 11 . 1279 7 Ed. 1. c. 13 . 1285 13 Ed. I. t;. 1 . — 0. 18 . — c. 32 . — u. 46 . 1290 18 Ed. I. c. 1 . 1323 17 Ed. II. t. 6 . 1360 34 Ed. III. c. 15 1391 15 Rich. II. c. 5 1403 1 Ed. IV. 0. 2 . 1461 5 Hen. IV. ^. 14 1483 1 Eich. III. 0. 1 r 7 1488 4 Hen. Vn. c. 24 1495 11 Hen. VII. 0. 20 1529 21 Hen. VIII. u. 4 1 ^ 1531 23 Hen. VIII. c. 6 c 10 1535 27 Hen. VIII. c. 10 u. 16 c. 28 31 Hen. VIII. u. 1 c. 13 32 Hen. VIII. c. 1 u. 2 — c. 9 0. 28 (Merton) (Inclosures) 295 . (Courts leet) 27 . (ilarlbridge) (Waste) 65 (Gloucester) (Waste) 65 (Gloucester) (Real actions, &o.) 11 (Ue religiosis) . 498 (De donis) 16,40 (Elegit) _ . 254 (Mortmain) 498 . (Inclosures) 295 (Quia emplores) 2 I, 24, 26, 51, 270 . (Tenure) . 22 (Tenure) 22 (Uses) 171, 498 (Courts leet) 27 (Fines) . 57 . (Uses) 145 (Fines) . . 57 (Fines) 57 (Entail ex. prov. viri) 62 (Wills ; powers) 203 (BecoTeries) 11 . (Recognisances) 253 . (Mortmain) 498 (St. of Uses) . 16, 145, 146, 171, 355, 356, 438 (Enrolment of bargains and sales) 358 (Dissolution of monasteries) 283 . (Partition) 161, 165 (Dissolution of monasteries) 283 (Wills) .... 146, 204, 386 (Limitation of real actions) 442 (Alienation of pretended titles) . 338 . (Leases by tenant in tail) . 61 Digitized by Microsoft® xl TABLE OF STATUTES CITED. A.O. 1540 32Hen. VIII.c. 32 . . (Partition) 161 „ O-i (Conditions, &o., in leases) 117 C. O-i . ±1 i c 36 . (Fines ; entail ex prov. viri) (Crown debts) . 57 62 1541 33 Hen. VIII. c. 39 . 259 1542 34 & 35 Hen. VIII. u. 4 (Bankruptcy) . 456 r '^ . (Wills) .... 146, 204, 386 472 « OA (Entails granted by Crown) 62 1549 3 & 4 Ed. VI. c. 3 . . (Inolosures) 295 1571 13 Eliz. c. 4 . . (Crown debts) . 259 — >;. 5 . (Fraud on creditors) . 338, 460 — 0. 7 . . (Bankruptcy) . 456 1580 23 Eliz. c. 3 . (Fines) .... 57 1584 27 Eliz. c. 4 . . (Fraudulent conveyances) . 340 1588 31 Eliz. c. 6 . . (Simony) .... 465 1596 39 Eliz. c. 18 . (Fraudulent conveyances) . 340 1623 21 Jac. I. 0. 16 . (Limitations) 442 1660 12 Car. II. u. 24 . . (Abolition of military tenure) .... 21, 29, 386 1663 15 Car. II. t. 17 . (Bedford Level) 365 1665 17 Oar. II. c. 3 (Benefioe ; mortmain) 499 1670 22 & 23 Car. II. c. 10 . (Intestacy, distribution) 424, 425, 426 1677 29 Car. 11. c. 3 (St. of Fraud s), s. 1 (Conveyances in writing) . 109, 344, 347 351, 362 B. 2 . . (Exception) 344,347 0.3 . . (Assignments in writing) . 348, 350, 351 362, 372 B. 4 (Agreements in writing) . 232, 362, 374 B.5 . . (Wills) 387 ss. 7, 8, 9 . (Declarations and assign- ments of trusts) . 362, 373, 374, 375 s. 10 . (Trast estates liable for debts) .... 255, 266 s. 12 . (Estates pur autre vie) 73 s. 15 . . (Judgments and execu- tions) .... 255 s. 25 . (Distribution, wife's estate) 424 3 685 1 Jac. 11. c. 17 . (Distributiou, intestacy) 424, 425 1689 1 W. & M. c. 30 . (Royal Mines) . 8 1690 2 W. & M. u. 5 . (Distress for rent) 274 1691 3 W. & M. c. 14 . (Fraudulent devises) 264 1692 4 & 5 W & M. u. 16 (Second mortgage) 224 r ^0 . (Judgments) 256 1693 5 W. & M. c. 6 . (Royal Mines) . 8 1694 5 & 6 W. & M. c. 21 . (Probate Duty) . 393 6 & 7 Will. III. ^. 14 . (Creditors) 264 1695 7 & 8 Will. III. 0. 37 , . (Mortmain licences) 499 1698 10 & 11 Will. III. c. 16 . (Posthumous children) 135 1702 1 Anne, c. 7 . . (Crown lands inalienable) . 500 1703 2 & 3 Anne, u. 11 . (Queen Anne's Bounty) 499 1705 4 Anne, c. 16 . . (Attornment ; action of ac- count) . 116, 158, 164, 167 Digitized by Microsoft® TABLE OF STATUTES CITED. xli A.]). 1705 4 & 5 Anne, c. 4 . (Bankruptcy) . 456 1707 6 Anne, c. 18 . (Estate pur autre vie) 89, 110 — c. 31 . , . (Accidental fire) 68 1708 7 Anne, u. 20 . . (Middlesex Registry) 319 1713 12 Anne, c. 12 . . (Simony) 465 1730 4 Geo. II. 0. 28, s. 1 . . . (Tenant holding over) 111 s. 5. (Distress) 274, 277 s. 6. (Surrender of lease) 130 1735 9 Geo. II. c. 36 (a) (charitable uses) 333 1737 11 Geo. II. 0.17 . (Bankrupts) . 471 . (Distress) 274 6.11 (Attornment) . 116 s. 15 (Apportionment of rent) . 273 s. 18 (Tenant holding over) 111 1740 14 Geo. II. c. 20 (Estate pur autre vie) 73 1761 25 Geo. n. u. 6 . (Witnesses to wills) . 389 1768 9 Geo. III. c. 16 . (Limitation, Crown lands) 450 1774 14 Geo. III. 0. 78 . . (Accidental fire) 68 1796 36 Geo. III. 0. 52 (Legacy duty) . 263, 394 1800 39 & 40 Geo. III. c. 88 (Forfeiture, escheat) 467, 500 , 00 (6) (Accumulation) 328, 329 c. yo 1801 41 Geo. III. c. 109 . (Inolosure) 304 1803 43 Geo. III. u. 99 . (Crown debts) . 259 1807 47 Geo. III. 0. 74 (Deceased traders' debts) . 265 1814 54 Geo. III. u. 145 (Forfeiture, escheat) 469 1815 55 Geo. III. c. 192 (Surrender to use of will) . 34, 386 1819 59 Geo. III. c. 94 . (Forfeiture, escheat) 467 1825 6 Geo. IV. c. 16 (Bankruptcy) . 456 1829 10 Geo. IV. c. 7 . (Eoman Catholics) . 471 'TO (Crown lands) . 500 ^j. OKJ 1830 1 Will. IV. 0. 40 (Executors, residue) 396 c 16 (Illusory appointments) . 217 r A7 (Sale to pay debts) . 74, 264 r fi'=; . (Infants) . 476, 490 1831 1 & 2 Will. IV. c. 32, ss. 6, 8 (Game) . . . . 15 1832 2 & 3 Will. IV. c. 1 . (Crown lands) . 500 (Prescription) . 292, 452, 453, 454, 455 ss . 1-8 (Periods of prescription, disabilities, &c. ) . 452 1833 3 & 4 Will. IV. 0. 27 (Limitations) . 56 ss . 1-33 . (Limitation of actions) . 444, 445, 446, 447, 127, 161, 443, 448, 449, 450, 551 s. 34 (Extinguishment of right) 444 s. 36 (Abolition of real actions) 65 s. 39 (Warranties) . 316 s. 41 (Recovery of dower). 440 s. 42 (Arrears of rent) 451, 452 r 1*^ • (Limitation, rent) . 452 {a) Commonly called the Mortmain Act. (6) Commonly called the Thellusson Act. Digitized by Microsoft® xlii TABLE OF STATUTES CITED. 1833 3 & 4 Will. IV. c. 74 (Fines and recoveries, abo- lition of) . 25, 59, 125, 181, 410, 472 ». 1 (Definitions) . 59, 472 S.2 (Fines and recoveries abo- lished) .... 59 s. 14 (Warranties) . 56, 316 s. 15 . (Leases) .... 59, 60, 181 s. 16 . (Ex prov. viri) 62 a. 18 . (Reversion in Crown) 62 S.19 . (Base fee) 128 s. 21 . (Mortgage by tenant in tail) . 59, 225 ss. 22, 23 (Protector) . 126 s. 24 . (Man-ied woman protector) 126, 484 ss. 25-28, 31, 32 . (Protector) 126, 471 s. 33 . (Protectors under disabi- lities) 126,491,494,496 Bs. 34-37 . (Protector's consent) 126, 127, 128 B. 38 . (Voidable estate confirmed) 59,61 s. 39 . (Enlargement of base fee) 128 B. 40 . (Deed required) 59, 60, 375, 47 B. 41 . (Enrolment) 59, 60, 127 ss. 42, 44-46 (Protector's consent) 126, 484 s. 47 . (Invalid dispositions) 60 B. 60-54 (Copyhold entails) . 60,127,181,375 ss. 56-70 (Bankrupt's entails) 460 s. 71 (Entailed money, &c. 175 s. 74 . (Priority by enrolment) . 59 ss. 77-91 (Alienation by married woman) 375, 473, 474 c. 104. (Real estate assets) . 265 u. 105 (Dower) .... 436 s. 2 . (Dower of equitable estates) 440 ss. 4-10 (Dower barred or defeated) 439 s. 11 . (Agreement not to bar dower) 440 s. 12 . (Legacy in satisfaction of dower) 440 c. 106 (Inheritance) . 354, 418 s. 1 (Purchaser) 418, 422 ss. 2-4 (From whom descent traced) 378, 418, 419 ss. 6-8, 9 . (Rules as to heir) 421, 422 s. 10 (Attainder) 469 1834 4&5Will. IV. c. 22 (Bent apportionment) 273 u. 30 (Common fields) 296 1835 5&6Will. IV . c. 20 (Crown debts) . 259 1836 6&7Will. IV. u. 71 (Commutation of tithes) . 283, 284, 285, 286 u. 115 . (Inclosure) 295, 296 Digitized by Microsoft® TABLE OF STATUTES CITED. xliii A.B. 1837 7 Will. IV. & 1 Vict. C.28 (Mortgages, limitation) 445 1 Vict. c. 26 (a) (Wills) . 385 s. 2 . (Repeals). 386 s. 3 . (General power of dispo- sition) .... 73, 142, 152, 280, 386, 387 ss. 4, 5 (Devises of copyholds) 391 s. 6 (Estates pur autre vie) 73 s. 7 . (Infants) . 485 s. 8 (Married women) . 472 8. 9 (Execution and attestation 388 0. 10 (Appointment by will) 214 ss. 11, 12 (Wills of soldiers, &c.) . 387 ss. 14-17 . • (Witnesses) . 389, 390 ss. 18-20 (Revocation) . 408, 409 s. 21 . (Alterations) . 388 ». 22 . (Revival of will) . 388 s. 23 . (Subsequent disposition) . 407 s. 24 . ( Will to speak from death) 387,407 s. 25 . (Residuary devise) . 395 BS. 26, 27 (General devise) 399, 402 s. 28 . (Devise without words o limitation) . 404 s. 29 . (Death without issue) 401 ss. 30, 31 (Devises to trustees) 185, 404 ». 32 . (Estate tail, lapse) . 406 s. 33 . (Gift to issue, lapse) 406 — c. 69 . (Tithe commutation) 283 1838 1 & 2 Viot. c. 64 . (Tithes, merger) 283, 286 r no (Judgment debts) . 253, 254, 255, 256, 257 1839 2 & 3 Vict. c. 11, 6S. 4, 5 (Judgments) . 256 a. 7 (Lis pendens) ■ 312 SS. 8, 10 (Crown debts) 260 r fin (Mortgage to pay debts) 74 f!^ (Tithe commutation) 283, 284, 286 u. O^ • 1840 3 & 4 Vict. c. 15 . (Tithe commutation) 283, 284 c "1 (Inclosure) 296 qo (Judgments) . 256 1841 4 & 5 Vict. c. 21 (Statutory release) . 359, 360 30, 32, U, 35, ^fi (Copyhold, enfranchise- 1 ment, &c.) . 36,37,63,162, 370, :i71, 391, ' *■ 422, 429, 441 ' 1842 5 Vict. c. 5 (Equity, Exchequer) 176 5 & 6 Vict. u. 35 (Property tax) 95 r fi-l (Tithes) . 283 r T0° (Corporation leases) 500 1843 6 & 7 Viot. 1^. 23 (Copyholds) . 34 1844 7 & 8 Vict. c. 55 (Copyholds) . 34 (a) Commonly called the Wills Act. Digitized by Microsoft® xliv TABLE OF STATUTES CITED. 1844 7 & 8 Vict. c. 66 . (Aliens) . . . . 465 r 7fl (Transfer of property) 360 1845 8 Vict. u. 20, s. 77 . . (Railways) 8 8 & 9 Vict. c. 18 (Lands Clauses Consolida- tion Act) 74, 176 « K^ . (Drainage) 70 413 1 lOfl M 1 (Repeal). 360, 492 s. 2 . (Grants of corporeal here- ditaments) . 360 ». 3 . . (Feoffments, &c., by deed) 161, 344, 347, 348, 350, 351 0.4 . (Tortious feoffment; im- plied covenants, &c.) . 317, 345 a. 5 . (Indenture, person not party to ; need not be indented) . 366 s. 6 (Alienation of contingen- 1 cies ; married women) 118, 142, 152, 370, 473 ». 7 . . (Disclaimer by married woman) 473 ». 8 . (Contingent remainders) . 136 s. 9 . (Reversion on lease) 130, 276 c 11^ (Satisfied terms) . . (Inclosure) (Parties interested) . 107, 108 c 118 162 296 412 o. 16 . J,\JU^ iJtJXJj ^£.^i^ 296 BS. 50, 52 (Encroachments) 295 s. 105 . (Awards) 413 s. 147 . . (Orders of exchange, &c.) 413 1846 9 & 10 Vict. c. 70 . . (Inclosure) 296 u 73 . (Tithe, redemption) . . (Drainage, &c.) . (Trustees, &c.) 283 286 413 c 101 *J\JVy H\^\Jj ^^.rj 70, 413 1847 10 & 11 Vict. i;. 96 . 187 c 101 (Tithes) .... (Inclosure ; encroachments) (Proclamations of fines) . 283 u 111 295 296 1848 11 & 12 Vict. c. 70 . *Jvf J ^ V \f 57 u 99 (Inclosure) (Leases under powers) 162, 296, 413 1849 12 & 13 Vict. c. 26 . 75 c '83 (Inclosure) (Grown suits) . . (Bankruptcy) . . (Leases under powers) 296 c 89 260 u 106 456 1850 13 & 14 Vict. c. 17 . 75 u 60 . (Trustees, &c.) . (Ljmatics and infants, vest- 410 ss. 3-8 ing order, &o.) 189, 411, 491 88. 9-19 . (Vesting orders, &c.) 186, 189, 411, 468 8. 20 . . (Appointing person to con- vey) .... 189, 491 8. 28 . . (Vesting order) 189, 468 8. 29 . . (Decree for sale ; trustee) 74 ss. 32-34 . (New trustees) 189 8. 46 , . (Forfeiture) , 186, 468, 469 Digitized by Microsoft® TABLE OF STATUTES CITED. xlv A.D. 1851 14 & 15 Vict. 0. 25 • (Emblements ; fixtures ap portionment of rent) 71, 93, 94, 2?:! r '\'* (Inclosure ; tithes) . 283, 296 1852 15 & 16 Vict. c. 3 . (Estates of intestates) 469 CtA . (Wills) . 389 -. e-i (Copyholds) 34, 36, 37, 63, C, 01 422, 429, 441 EC , (Trustees) 189, 410, 411, 495 L-. oo . (Common Law procedure c. to Act) (Rent ; mortgage) 104, 105, 248 r 70 . (Inclosure ; encroachment 295, 296 r "fl . (Chancery procedure; mor ■ J- gage) . 244 1853 16 & 17 Vict. c. 51 (Succession duty) . 261, 262, 263 r 107 (Crown b,onds) 260 1854 17 & 18 Vict. 0. 97 (Commons, apportionment) 274, 296 „ 1 1 O ('«) ■ . (Mortgage debts) . 16, 226, 251 1855 18 & 19 Vict. 0. 15 (Judgments ; registratior of rent-charge) I 253, 255; 256, 258, 277 r i'* (Infants' settlements) 486 C 'to „ irn (Alienations to charities) 499 " C. lit 1856 19 & 20 Vict. c. 94 (Intestacy ; distribution) 424 07 (Execution ; fieri facias) 257 -■— ■— Kj. VI „ 10A . (Settled estates ; leases, sales, &c.) . 61,76 1857 20&21 Vict. c. 31 r ^7 (Inclosure) (Married woman's rever- sionary interests). 296 475 « nn (Probate, evidence) 390, 392 r On (Separation ; protection l^. OO order; property) . 433, 434 1858 21 & 22 Vict. u. 94 . (Copyholds) . 28, 34, 36 " Of; (Administration) 392, 423 „ 1 AO . (Protection order) . 433 C. lUO 1859 22 & 23 Vict. c. 35 (&), ss. 1, 2 (Lease, licence) 105 s. 3 . (Severance of reversion) 117 ss. 4, 5, 6 (Forfeiture, relief) . 105 s. 10 (Release from rent-charge) 280 s. 12 (Execution of power) 214 ss. 14-18 (Charge of debts, sale) 205 s. 19 (Descent) 420 B. 21 . (Assignment of personalty) 361 s. 22 . (Crown debts) 260 s. 23 (Trustees' receipts) . 193 ». 24 (Concealment of incum- brances) 315 s. 26 . (Execution by attorney) . 364 (a) Commonly called Locke King's Act. (6) Commonly called Lord St. Leonards' Act. Digitized by Microsoft® xlvi TABLE OF STATUTES- CITED. 1859 22 & 23 Vict. c. 35, ss. 27, 28 s. 30 . s. 31 , 2 7 \ c. 43 1860 23 & 24 Vict. c. 38, ss. 1, s. 6 c. 53 C.98 c. 115 c. 126 c. 145 (a) 1861 24 & 25 Vict. c. 62 . c. 114 . c. 134 . 1862 25 & 26 Vict. c. 53 c. 67 . u. 89 . c. 108 . 1864 27 & 28 Vict. c. 44 c. 112 . c. 114 1865 28 & 29 Vict. c. 15 . c. 99 . c. 104 . 1866 29 & 30 Vict. c. 122 . 1867 30 & 31 Vict. c. 47 c. 69 . c. 131 . c. 142 . 1868 31 & 32 Vict. c. 40 1869 32 & 33 Vict. c. 46 (6) ',, c. 71 . \l870 33 Vict. c. 14 33 & 34 Vict. u. 23 . i c. 34 . (Exoneration of executors) from rents, &c.) (Trustees, application to Court). (Indemnity of trustees) . Partition, inclosure) (Judgments) . (Lease, forfeiture, waiver). (Uses, scintilla juris) (Limitation, Duke of Corn- wall) .... (Tithe commutation) (Crown bonds) (Lease, relief from for- feiture) (Trustees, mortgagees, &c.) (Limitation, Crown suits) (Wills) .... (Bankruptcy) . (Land register) (Land titles) . (Joint-stock companies) (Trustees, sale, minerali (Protection order) . (Judgments, order for sale) (Improvement of land) (Crown debts) (County courts) (Crown debts) (Metropolitan commons) (Lites pendentes) . (Mortgage debts) . (Contracts of companies) (Courts baron ; county courts) (Partition) (Commons) (Priority of specialty debts abolished) . (Bankruptcy) . (Naturalisation) (Forfeiture, &o., for felony, &e., abolition) (Charities) 96, 274, 279 195 194 162, 296 256 105 150 450 283, 286 260 105 187, 193, 241, 242, 488 450 387 456 315 315 497, 500 194 433 253, 256, 257, 258, 259 65, 66, 70, 92, 287, 413 260 176 260 296 312 226, 251 498 176 161, 162, 167 283, 296 208 456 465, 470 466, 469, 495, 496 499 (a) Commonly called Lord Cranworth's Act. (J) Commonly called Hinde Palmer's Act. Digitized by Microsoft® TABLE OF STATUTES CITED. xlvii A..U. 1870 33 & 84 Vict. c. 35 _ no (Apportionment Act) (Rent apportionment) . (Married Women's Pro- 272, 284 perty Act) . 380, 434, 479 1871 34 & 35 Vict. u. 84 . (Limited owners' resi- dences) 70 1872 85 & 36 Vict. c. 92, s. 13 . (Distress for rent) . 274 1873 36 & 37 Vict. u. 42 . (Tithes of market gardens) (Supreme Court of Judica- 283, 284 ture Act) s. 16 . (Transfer of jurisdiction) 161 s. 24 . (Fusion of law and equity) 176 s. 25 . (Rules of equity to prevail) 69, 176 s. 25 . (Merger). 131 o. 25 . (Mortgagor, actions 'oy) . 227 s. 25 . (Waste) .... 69 s. 25 . (Limitation, express trusts) 448 s. 34 (Chancery Division). 161, 176 250 244, 1874 37 & 38 Vict. c. 87 (Powers, law of) 217 c. 57 a), s. 1 (Actions, &c.) . 443, 444 s. 2 . (Accrual of right, &c.) 444 ss. 3, 5 (Disabilities) . 445 s. 6 (Tenant in tail) 446 e. 7 . (Mortgagee in possession) 221, 224, 449 s. 8 . (Charges, legacies) . 443 s. 10 . (Express trust) 450 (?Ct (Infants' Belief Act) (Con- tracts of infants) 486 n f70 /7,\ „ 1 (Title) . . 313 ' " i. JO \(^jj B. 1 . S.2 (Lessor's title, recitals, title-deeds) 311, 313, 321 s. 6 (Married woman bare trus- tee) . 483 s. 7 (Tacking) 185, 237 s. 8 (Registration of wills) . . 320 187.5 38 & 39 Vict. u. 77 . (Deceased insolvents) 267 c S7 (Land Transfer Act) 186, 365 SS. 22, 29, 34, 40 ■ (Eegistration of charges, transfers, &o.) 414 s. 43 . (Bare trustee) . 186 8. 127 (Registered land) 319, 320 s. 129 (Tacking, repeal) . 185, 237 1876 39 & 40 Vict. c. 17 . (Partition) 162, 167, 493 490, 1876 39 & 40 Vict. i;. 56 . (Commons) 295, 296 1877 40 & 41 Vict. c. 18 . (Settled Estates Act,1877) 76, 202 s. 2 . (Settlement, meaning of) 76 0. 4 (Leases) .... 76 (a) Real Property Limitation Act, 1874. (6) Vendor and Purchaser Act, 1874. Digitized by Microsoft® xlviii TABLE OF STATUTES CITED. 1877 40 & 41 Vict. , 18,s. 16 . ss. 23, 24 s. 34 s. 36 ». 46 ». 49 s. 50 s. 57 (Sales) . (Parties) . c. 31 c. 33 c. 34 42 1878 41 & 42 Vict, 1880 43 Vict. c. 14 . 43 & 44 Vict. 0.47 1881 44 Vict. c. 12 . ss. 33-35 ss. 36, 41 44 & 45 Vict, u. 41 (a), s. 2 s. 3 s. 4 s. 5 s. 6 s. 7 s. 8 s. 9 ss. 10-12 ». 13 8. 14 s. 15 s. 16 s. 17 s. 18 ss. 19-24 25 ss. 26 29 - -i37, 76 . 76 . 12, 77, 113 (Investment of purchase- money) (Restrictions on powers) . (Leases) .... 12, 77 76 61, 76, 429, 440 489, 493 474 76 70 137 (Infants, lunatics) . (Married women) . (Date of settlement) (Land improvement, water supply) (Contingent Remainders Act) .... (Mortgage debts, charges). 226, 251 (Tithe commutation) . 283, 286 (Legacy duty) . . 394 (Ground Gtame Act, 1880) 292 (Customs and Inland Re- venue Act, 1881) . (Legacy duty) . (Succession duty) (Meanings of terms) 393 394 261 4, 174, 221, 318, 372, 487 310, 311, 322 199 243, 313, 411 294, 368 318, 319, 372 363 322 (Conditions of sale) . (Contract of sale) . (Discharge of incum- brances) (General words) (Covenants for title) (Erecution of purchase- deed) . (Acknowledgment, title deeds) . (Covenants, &c., in leases) 118, 229, 274 (Title to leaseholds). . 314 (Relief against forfeiture) 105, 107 (Transfer of mortgage) . 249 (Inspection of deeds by mortgagor) . , . .234 (Consolidation of mort- gages) . , . .239 (Mortgage.leasing powers) 229, 235 (Mortgagee's powers) . 235, 236, 241, 242 (Action respecting mort- gage) .... 243, 248 (Statutory mortgage, &c.) 231, 247, 249 (o) Conveyancing and Law of Property Act, 1881. Digitized by Microsoft® TABLE OF STATUTES CITED. xlix A.D. 1881 44 & 45 Vict 41 « 30 | (Devolution of trust audi 6, 186, 191, 199, ' ■ ■ ■ ( mortgage estates) . J 233, 468 ss. 31-34 . (Trustees, new, retirement of, vesting estate of) . 188, 189, 190, 361 ss. 35-38 (Trustees' powers, sale, re- ceipts, compounding, sur- vivorship) . . . 191, 193, 211 ss. 39, 40 (Married women, restraint on anticipation, power of attorney) . . . 476, 478 ss. 41-43 . (Infants' estates — leases and sales, management. maintenance) 193, 488, 489 s. 44 . . (Rent charges) 277, 278 0. 45 . (Redemption of rents) 276, 413 ss. 46-48 . (Powers of attornej-) 363, 364 s. 49 (Grant) .... 383 s. 50 (Conveyance by person to himself, &c.) 354, 355, 361 s. 51 . (Words of limitation) 377, 378 s. 52 . (Release of power) . 220 ». 53 . (Supplemental deed) 367 ss. 54, 55 . (Receipts in deeds, or in- dorsed) 369 s. 56 (Receipt in deed) 369 B. 57 . (Forms) .... 367 s. 59 (Heirs bound by covenant) 264 .s. 61 . (Mortgage, joint account). 229 s. 62 . . (Easements, grants of, by use) 356 s. 63 (Estate clause in deeds) . 368 s. 65 . . (Enlargement of long term) 102 361, 479 B. 71 . , (Repeals). 187, 193, 241, 242, 488 (Tithe commutation) 283, 284 (a), s. 2 , , (Definitions) . 35, 67, 70, 77, 84, 160, 181, 293, 332, 489 8. 3 . (Sale, enfranchisement, ex- change, partitipn) 81 s. 4 , (Sale) .... 81 s. 5 (Transfer of incumbrances) 82 ss. 6-14 . (Leases) . 65, 78, 79, 80, 83 s. 15 . . (Restriction as to mansion- house, &c.) . 79 ss. 16, 17 (Powers on sale, &o.) 82 s. 18 . (Mortgage for equality) . 82 s. 19 . . (Undivided shares) . . 160 s. 20 . . (Conveyance) . 78, 82, 182, 370 (a) Settled Land Act, 1882. Digitized by Microsoft® 1 TABLE OF STATUTES CITED. A.D. 1882 45 & 46 Vict. c. 38, ss. 21-24 (Investment or application of capital money) . 1-', 55, 63, 85, 86, 87, 102 ss. 25-30 . (Improvements) . . 65, 86, 87 s. 31 (Conveyances, &c.) . 60, 83 ss. 32, 33 . (Money in court) . 85 B. 34 . . (Lease, reversion) . . 55, 63, 87, 102 s. 35 . (Timber) . . . .65, 07 s. 3G . (Protection of settled land) 78 s. 37 . . (Heirlooms) . . 81, 85 ss. 38-44 . (Trustees of settlement) 193, 194, 195 s. 45 . (Notice to trustees) . . 83 s. 46 . . (Courts) . . 79, 195 s. 47 (Costs) . . 86 s. 48 . (Land Commissioners) 412 ss. 50-52 . (Powers not assignable ; prohibitions ineffectual, provision against for- feiture) . . 88 SB. 53, 54 . (Tenant for life trustee ; protection of purchasers) 84 =. 55 . . (Exercise of powers) 182 s. 56 . (Saving for other powers) 88, 1H3 s. 58 (What persons may exer-) ■ I cise powers of the Act . J 54, 67, 78, 102, 429 ss. 59, 60 . (Infants) . 489 s. 61 . . (Married women) 429, 475, 477, 479 s. 62 . . (Lunatics) 493 s. 63 . . (Trust for sale) 132 « on f^\ r, 1 (Definitions) . 4 S. 2 . . (Official search) 311 s. 3 . . (Constructive notice) 201 s. 5 . . (Separate sets of trustees) 190 3. 6 . . (Disclaimer of power) 211, 220 s. 7 . , (Married woman's acknow- ledgment of deed) 472, 473 ss. 8, 9 . (Powers of attorney) 364 s. 10 . . (Executory interests) 153, 401 s. 11 . . (Long terms) . 102 s. 12 . . (Transfer of mortgage) 249 . (Married Women's Pro- perty Act) . 168, 341, 434, 480 s. 1 . (Capacity) 435, 480, 48 1 s. 2 . . (Separate Property, mar- riage since Act) . 435, 481 s. 4 . . (General power, liability for debts) . 481 {{{) Conveyancing Act, 1882, Digitized by Microsoft® TABLE OF STATUTES CITED. li A.D. 1882 45 & 46 Vict. c. 75, s. 13 s. 18 ». 19 s. 23 (Separate property, mar- riage before Act) . . 435 (Ante-nuptial debts) . 482 (Executrix, trustee) . . 484 (Settlements, restraint on anticipation, &c.) . . 435, 482 (Personal representative of married woman) . 481 s. 24 . (Executrix, trustee) . 484 1883 46 & 47 Vict. u. 52 . (Bankruptcy Act) 267, 456 s. 4 . (Acts of Bankruptcy ; as- signment for creditors) . 459 ss.5,9, 15 22, ^ 54, 56, 84, 87 J (Proceedings under Act) f456, 457,458, ■ ■ 460, 461, 462 s. 28 . (Discharge of bankrupt) 463 s. 37 . (Debts provable) 462 ss. 40-42 (Bights of creditors) , 462 .ss. 43, 44 (Property divisible) . 186, 458, 459 s. 47 . (Voluntary settlement) 460 ». 48 . (Fraudulent preference) 459 ss. 50, 56, 57 (Powers of trastee) . 460, 461 s. 55 (Disclaimer of onerous pro- perty) . 461, 462 es. 84-87 . (Trustee) . 458 ss. 92-102 . (Courts) . 253 s. 121 (Summary proceedings) 458 s. 146 (Elegit) . . . . 254 s. 148 (Lunatics) 494 s. 168 (Secured creditor) 462 ., cyt f ^\ ^^ 1 >'• (Compensation for improve- C. Dl \Ci)i ss. 1-0 ments) . . . 71 91, 103, 228, 288 s. 26 . (Married women) 475 ss. 23, 29,55 (Charge for compensation, &c.) .... 71, 86, 411 s. 33 (Notice to quit) 103 s. 34 . (Fixtures, &c.) 72, 93 s. 44 . (Distress) 452 s. 61 . (Tenancy under Act) 71, 72, 91 1884 47 & 48 Vict. u. 18 . . (Settled Land Act,) . 77 s. 4 (Fine on lease) 85 s. 5 . (Notice) .... 84 =. 6 . (Consent of tenant for life) 88, 160 s. 7 (Trustees' powers) . 88, 184 6.8 (Curtesy). 78 n "i-l (Yorkshire Eegistries Act) 321 s. 14 . (Registration, wills) . 321 8. 16 . (Tacking) 237 .. ;?1 /7,\ _ 1 1 (Execution of conveyance) 412 C. Dl ^OJ, S. 14: (a) Agricultural Holdings (England) Act, 1883. (6) Supreme Court of Judicature Act, 1884. Digitized by Microsoft® A.D. 1884 47 & 48 Vict, u, 48 Vict. c. 4 .71 1885 48 & 49 Vict. u. ,26 1886 49 & 50 Vict. c. 54 1887 50 & 51 Vict. c. 2G 30 53 57 no 70, 77, 86 467 365 29,34 37 371 36 37, 467 TABLE OF STATUTES CITED. . (Intestates' Estates Act,) (Escheat of equitable estates, &c.) . 468, 469, 500 (Yorkshire Registries) 321 (Yorkshire Registries) . 237, 321 . (Extraordinary tithe re- demption) . . 284, 285, 286 (Allotments and Cottage Gardens (Compensation for Crops) Act) . 92, 228 (Settled Land Act Amend- ment Act) (Redemption of charges) . (Escheat (Procedure) Act) . (Deeds of Arrangement ; Registration) (Copyhold Act) s. 1 , (Notice by steward) . s. 2 (Admittance by attorney) . B. 3 . . (Assessment of compensa- tion) .... ss. 4, 5 . (Escheat) s. 6 (Restraint on creation of new copyholds) . 30 s. 7 . (Extinguishment of mano- rial rights) . . 28, 35, 412 s. 13 . . (Payment of compensation) 36 s. 14 . (Compensation secured by rent-charge) . . .36 ss. 16-18 (Recovery and redemption of rent-charge) . 36, 287 s. 22 (Award) . . .36, 412 o. 23 . . (Charges of compensation- moneys, &c.) . 37, 287 s. 24 . (Charges of lord's ex- penses). . . . 37,287 s. 39 . . (Disabilities, trustees, &o. ) 36,194,476, 490 s. 43 . (Assessment of compen- sation) . . . .36 g ^g f (Devolution on death of) 186, 191, 199, \ trustee or mortgagee) J 233, 468 s. 47 . . (General enfranchisement) 37 s. 48 . (Custody of court rolls) . 37 o. 01 . (Repeal) . . . .28 1888 51 Vict. c. 8 . . . (Succession duty) . . 261, 263 51 & 52 Vict. c. 21 . . (Distress) . . . 274 0. 42 . (Mortmain and Charitable Uses Act) . . . 334, 335, 337, 499 c. 43 . . . (County Courts) . . 176, 189, 240, 244, 250, 255 Digitized by Microsoft® TABLE or STATUTES CITED. liii A.S. 1888 51 & 52 Vict. c. 51 (LaTid charges, registra- tion, &o.) . 256,257,288,312 c. 59 . (Trustee Act) (Receipts of money) 193 s. 2 193 s. 3 . (Conditions of sale) 193 a. 6 . (Married woman) . 489 ss. 7, 10 11 (Leases, insurance) . 194 s. 8 . (Limitation of actions) 449 s. 9 . (Mortgage of leaseholds) 193 1889 52 Vict. c. 7 (Succession duty) . 261, 26.3, :!;i3 52 & 53 Vict. c. 30 . (Board of Agriculture) 162, 412 c. 32 . (Trust Investment Act) . (Settled Land Act) . (Interpretation of statutes, land) .... 85, 192 n ^fi 77 c. oo . • u. 63 . 7 1890 53 Vict. 0. 5 (Lunacy Act) . 189,492,493,494 53 & 54 Vict. c. 24 (Deeds of arrangement) . 365 u. 29 . (Intestates Act) (Partnership Act) . (Tenants' Compensation Act) .... 416 c. 39 11, 157, 174 0. 57 91, 92, 228 c. 69 . (Settled Land Act) . (Exchange, partition) 77 s. 5 . 81 ». 7 . (Leases) .... 79,83 s. 8 (Mining leases) 80 s. 9 . (Building grant) 82,87 6. 10. (Mansion-house, &c. ) 79,81 s. 11 . (Mortgages) . 82 =. 12. (Trustees' powers) . 85 s. 13 . (Improvements) 86 SB. 14, 15 . (Capital money) 85, 87 ss. 16,17,19 (Trustees of settlement) . 84, 184, 191 c. 70 . (Housing of the Working Classes Act) 86, 287 c. 71 . (Bankruptcy Act) . 456, 457, 458, 469, 461, 462, 473 1891 54 Vict. c. 8 (Tithe Act) . 283, 285, 286, 452 54 & 55 Vict . c. 39 . c. 64 (Stamp Act) . (Tiand Registry, Middle- sex) . . . . 365, 372 320 0. 73 . (Mortmain and Charitable Uses Act) . . 334, 335, 336, 337, 499 Digitized by Microsoft® Digitized by Microsoft® TABLE OF ABBREVIATIONS. A. C A.&E. Amb. 01' Ambl. . Amos & Ferard, Fixt. . Anderson . App. Cas. . Atk. -. . . . Austin, Jurisp. . B. & A. or B. & Aid. . B. & C. B. & S. or B. & Sm. . Bac. Abr. . Bacon, Law Tracts Bainbridge Ball & B. . Barn. Barn. & Ad. or B. & Ad. Beav. Bing. Bing. N. C. Bl. Comm. . Bligh Bob. & Pul. Bourdin, Land Tax Bracton Law Reports, Appeal Cases (House of Lords and Privy Council), series commencing 1891. Adolpbus and Ellis's Reports, King's Bench, 1834- 1840. Ambler's Reports, Chancery, 1737-1784. Amos and Ferard on the Law of Fixtures, 3rd ed., 1883- Anderson's Reports, Common Pleas, 1534^1605. Law Reports, Appeal Cases (House of Lords and Privy Council), 1875-1890. Atkyns's Reports, Chancery, 1736-1755. Austins's Lectures on Jurisprudence, 4th ed. Barnewall and Alderson's Reports, King's Bench, 1817-1822. Bai-newall and Cresswell's Reports, King's Bench, 1822-1830. Best and Smith's Reports, King's Bench, 1861-1869. Bacon's Abridgment of the Law, 1736 et seq. ; 7tb ed. 1832. The Law Tracts of Lord Bacon. Bainbridge's Law of Mines and Minerals, 4th ed., by Archibald Brown, 1878. Ball and Beatty's Reports, Chancery (Ireland), 1807- 1814. Barnardiston's Reports, Chancery, 1740-1742. Barnewall and Adolphus's Reports, King's Bench, 1830- 1834. Beavan's Reports, Rolls Court, 1838-1866. Bingham's Reports, Common Pleas, 1822-1834. Bingham's New Cases, Common Pleas, 1834-1840. Sir W. Blackstone's Commentaries on the Laws of England, 1st ed. 1765. Bligh's Reports in the House of Lords, 1819-1821. Bosanquet and Puller's Reports, Common Pleas, Ex- chequer Chamber, and House of Lords, 1796-1807. Bourdin's Exposition of the Land Tax, 3rd ed. 1885. Bracton de Legibus Anglise (temp. Hen. HI.). Digitized by Microsoft® Ivi TABLE OF ABBREVIATIONS. Bright, Hnsb. & Wife . Bro. C. C. . Bro. P. C. . Brown, Fixt. Broom, Legal Maxims . Burr Burton Bjth. Conv. Bright on the Law of Hnsband and Wife, 1849. Brown's Eeports, Chancery, 1778-1794. Brown's Reports in Parliament, 1751-1800. The Law of Fixtures, by A. Brown, 4th ed. 1881. I;egal Maxims, by H. Broom, 6th ed. 1884. Burrow's Reports, King's Bench, 1756-1772. Burton's Elementary Compendium of the Law of Real Property, 1828. Bythewood and Jarman's Precedents in Conveyancing, 3rd ed. 18.39-1844. C. & P. or Car. & P. C. B C. B. N. S. C.J C. L. P. Act, 1852 C.M.&R.orCr.M.&E. C. P. D. . Chance, Pow. Cas. temp. Talb. Ch. Ca. Ch. D. Ch. E. or Ch. Rep. . CI. &F.or CI. & Fin. . Co. Cop. Coke, Inst. . Co. Lit. Col. . Com. Big. . Cooke on Inclosures Coote, Mortg. Copinger & Munro Cox . Cro. Car. . Cro. Eliz. . Cro. Jac. Cruise Cur. . Carrington and Payne's Nisi Prius Reports, Queen's Bench, Common Pleas, and Exchequer, 1823- 1841. Common Bench Reports, Common Pleas, 1845-1856. . Common Bench Reports, New Series, 1856-1865. Chief Justice. Common Law Procedure Act, 1852. Crompton, Meeson, and Rosooe's Eeports, Exchequer and Exchequer Chamber, 1834-1836. Law Reports, Common Pleas Division, 1875-1890. Chance's Treatise on Powers, 1831. See Talb. Cases in Chancery, 1660-1688. Law Eeports, Chancery Division, 1875-1890. Eeports in Chancery, 1615-1712. Clark and Finnelly's Eeports, House of Lords, 1831- 1846. Coke's (Sir E.) Complete Copyholder, 1641. Coke's (Sir E.) Institutes of the Laws of England, 1628-1644. Coke's (Sir E.) Commentaries upon Littleton's Tenures (being the first part of Coke's Institutes of the Laws of England), 1st ed. 1628 ; 19th ed., 1832, by Hargrave and Butler. CoUyer's Eeports, Chancery, 1844-1845. Coinyn's Digest of the Laws of England. The Inclosm-e Acts, by G. W. Cooke, 4th ed. 1864. Coote's Treatise on the Law of Mortgage, 5th ed. 1884. Copinger and Munro on Rents, 1886. Cox's Eeports, Chancery, 1783-1796. Croke's Reports, King's Bench and Common Pleas, temp. Charles I. Croke's Reports, temp. Elizabeth. Croke's Reports, temp. James I. Cruise's Digest of the Laws of England respecting Real Property, 4th ed. 1835. Curteis' Eeports, Ecclesiastical, 1834-1844. Darby & Bosanquet Dart, V. & P. . Darby and Bosanquet's Statutes of Limitation, 1867 Dart's Vendors and Purchasers, 6th «d. 1888. Digitized by Microsoft® TABLE OF ABBREVIATIONS. Ivii Dav. CoDT. or Davidson, Davidson's Precedents in Conveyancing, vol. i. 5th ed. Conv. 1885; vol. ii. 4th ed. pt. i. 1877, pt.ii. 1881 ; voh iii. 3rd ed. 1873 ; voh v. pt. i. 3rd ed. 1876. De G. P. & J. or D. F. De G-ex, Fisher, and Jones' Reports, Chancery Appeals, & J- 1859-1862. De G. & J. or D. & J. De Gex and Jones' Eeports, Chancery Appeals, 1857- 1860. De G. J. & Sm. . . De Gex, Jones, and Smith's Reports, Chancery Appeals, 1862-1866. De G. M. & G. or D. De Gex, Maonaghten, and Gordon's Reports, Chancery M. & G. Appeals, 1851-1857. De G. & S. . . De Gex and Smale's Reports, Vice-Chancellors' Courts, 1S4G-1S52. Dick Dickins' Reports, Chancery, 1559-1784. Dig The Digest or Pandects of Justinian. Dighy, Hist. E. P., or Dighy's History of the Law of Real Property, 3rd ed. Digby, Hist. Law of 1884. E. P. Dougl. . . . Douglas's Reports, King's Bench, 1813-1831. Drew. . . . Drewry's Eeports, V.C. Kindersley, 1852-1859. Drew. & Sm. . Drewry and Smale's Reports, V.C. Kindersley, 1859- 1866. Dru. & War. or Dr. & Drury and Warren's Eeports in Chancery (Ireland), War. 1841-1843. Dyer .... Dyer's Eeports in the King's Bench, 1513-1582, ed. 1794. E. & B. . . . Ellis and Blackburn's Queen's Bench Reports, 185-'- 1858. East .... East's Reports in the King's Bench, 1801-1812. Eden .... Eden's Reports in Chancery, 1757-1767. Ellis & Ellis or E. & E. Ellis and Ellis' Eeports in the Queen's Bench, 1858- 1861. Elphinstone, Conv. . Elphinstone's Practical Introduction to Conveyancing, 3rd ed. 1884. Elphinstone, Interpre- Elphinstone's Rules for the Interpretation of Deeds, tation of Deeds 1885. Elphinstone & Clark, Law of Judgments, &c., 1887. Searches Elton, Commons . Elton's (C. J.) Treatise on Commons and Waste Lands, 1867. Elton, Cop. . . Elton's (C. J.) Law of Copyholds and Customary Tenures, 1874. Eq. .... Equity. Eq. Oa. Abr. . . Equity Cases Abridged, 1732-1756. Exch. . . . Exchequer Eeports, 1847-1856. Ex. D. . . . Law Reports, Exchequer Division, 1875-1890. Farwell, Pow. . . Farwell on Powers, 1874. Fearne, C. E. . . Fearne on Contingent Eemainders and Executory Devises, 1st ed. 1772 ; 10th ed., with Butler's Notes, 1844. Digitized by Microsoft® Iviii TABLE OF ABBKEVIATIONS. Finch Fisher, Jlortg. Fi'eem. Freem. Ch. B. Gale . Gi£f. . Gilbert on Gilb. Uses Rents by Sug. Glanville Goddard • Gray, Pei'p. H. & C. . H. & M. . H. & N. . . H. &R.m-Har.&Ruth. H. L. C. or H. L. Cas. Hall on Profits a prendre Hare . Hargrave, Law Tracts . Hargreave, Thellusson Act Hayes, Conv. Hayes & Jarman, Wills Hawkins, AVills . Hob Holland, Jurisp. . Inst Inst. Just. . Ir. Eq. Rep. Ir. L. R. . J. & W. . Jarman, Wills Johns. Johns. & Hem. or J. &H. Jo. & L. . . Juv. .... Jur, K. S. . . . Finch's Reports in Chancery, 1673-1681. Fisher on the Law of Mortgage, 4th ed. 1883. Freeman's Reports, King's Bench, 1670-1704. Freeman's Reports, Chancery, 1660-1706. Gale's Treatise on the Law of Easements, 5th ed. 1876. Giftard's Reports, V.C. Stuart, 1857-1865. Gilbert (Lord Ch. Baron) on Rents, 1758. Gilbert (Lord Ch. Baron) on the Law of Uses and Trusts, 1734; 3rd ed., by E. B. Sugden, 1811. Glanville de Legibus (temp. Hen. IL). Goddard's Treatise on tbe Law of Easements, 5th ed. 1876. The Rule against Perpetuities, by J. C. Gray, Boston, 1886. Hurlstone and Coltman's Exchequer Reports, 1862- 1865. Hemming and Miller's Reports, V.C. Wood, 1862- 1865. Hurlstone and Norman's Reports, Exchequer, 1856- 1861. Harrison and Rutherford's Reports, Common Pleas, 1866-1868. House of Lords' Cases, 1846-1866. Hall's Treatise on Profits a prendre and Rights o Common, 1871. Hare's Reports in the Vice-Chancellors' Courts, 1841- 1853. Collection of Law Tracts, by F. Hargrave, 1787. Treatise on the Thellusson Act, by J. P. Hargreave, 1842. Hayes on Conveyancing. Concise Forms of Wills, with Notes, 9tli ed. 1883. Hawkins on the Construction of Wills, 1863. Hobart's Reports, King's Bench, 1603-1625. Holland's Elements of Jurispradence, 3rd ed. 1886. Coke's (Sir E.) Institutes of the Laws of England. The Institutes of Justinian. Irish Equity Reports! ,„.,„ ,„.„ T . , T _-. r looo— loOU. Irish Law Reports ) Jacob and Walker's Reports in Chancery, 1819-1821. Jarman's Treatise on Wills, 4th ed. 1881. Johnson's Reports, V.C. Wood, 1859. Johnson and Hemming's Reports, V.C. Wood, 1859- 1862. Jones and Latouche's Reports, Chancery (Ireland), 1844-1846. Jurist Reports, 1837-1854. Jurist Reports, New Series, 1855-1866. Digitized by Microsoft® TABLE OF ABBEEVIATIOXS. K. & J. . . Kay and Johnson's Eeports, V.C. Wood, 1854-1858. Kay . . Kay's Eeports, V.C. Wood, 1853-1854. Kerr on Fraud . . A 'Treatise on the Law of Fraud, 2nd ed. 1883. Key & Elphinstone's Precedents in Conveyancing, 2nd ed. 1883. Precedents L. C. Eq. or Lea. Cas. White and Tudor's Leading Cases in Equity, 6tli ed. Eq. 1886. Ld. Ray. . . Lord Eaymond's Eeports, King's Bench, 1694-1734. Leake, Big. . Digest of the Law of Proper Leake, 1874. ty in Land, by S. M. Leake on Contracts . Digest of the Law of Contr 2nd ed. 1878. lots, by S. M. Leake, Leon. . Leonard's Eeports, King's Bench, 1540-1615. Lev. . . Ijevinz's Eeports, Kir.g's Bencli , 1660-1697. Lewin . Lewin's Law of Trusts and F. A. Lewin, 1885. Trustees, 8th ed., by Lewis, Perp. . Treatise on the Law of Perpetuitv, by W. D. Lewi?, 1843. Lindley on Companies The Law of Companies, by Lord Justice Lindley, 1881). Lindley, or Lindley, Treatise on the Law of Partnership, by Lord Justice Partnership Lindley, 5th ed. 1888. Litt. . . Littleton's Tenures, 1481 (?) L. J. . . Law Journal Reports, new series, commenced 183-'. L. J. Ch. . )j '» J' u Chancery volumes. L. J. C. L. . ,, ,, ,, ,, Common Law vols. L. J. C. L. (Q. B.) or „ Common Law, Queen's (Q. B. D.) Bench, or Queen's Bench Division. L. J. C. L. (C. P.) or „ Common Law, Com- (C. P. D.) mon Pleas, or Com- mon Pleas Division. L.J. C. L. (Ex.)oj-(E s. ,, „ ,, ,, Common Law, Exche- D.) quer, or Exchequer Division. L.J. P. C. . ji )) )j J) Privy Council volume. L.J.P.&M. M JI )J » Probate and Mati'i- raonial volume. L.J. P. D. &A. If H H II Probate, Divorce, and Admiralty volume. L. K. Ch. App. or Ch. . The Law Reports (1865-1875), Chancery Appeals. L. E. C. P. . ,, ,, „ Common Pleas. L. E. Eq. . II II 'I Equity. L. E. Exch. II 11 II Exchequer. L. E. H. L. ,, ,, House of Lords. L. E. P. C. . Privy Council: L. E. P. & D. )J 11 u Probate and Divorce. L. E. Q. B. . Queen's Bench. L. T Law Times Eeports, new series commenced 1859. M. &W. Meeson and Welsby's Eeports, Excheq'ier, 1847. 1836- Digitized by Microsoft® Ix TABLE OF ABBREVIATIONS. Mac. &G. . Mac. & Gor. M. & G. Madd. Man. & Gran. Marsden, Perp. . May . . . . Mer Miller, Eq. Mortg. Mood. & Malk. . Mood & Bob. My. & Cr. . My. & K. or M. & K. . Ord Owen . . . . P. D. . . . P. AVms. . Ph. or Phil. Piatt . . . . Piatt on Covenants Plowd. Pollock, Contracts Poph. . Prec. Ch. . Prest. Abstr. Prest. Conv. Prest Estates, or Pres- ton, Estates Price . . . . Q. B. D. . . Earn, Assets Bep. . Eep. R. P. Comm. Eob Bob. Gav. . Kobson, Bankruptcy . EoUe, Abr. . Euss S. C. . . . s. & s. Salk Sand., Uses . [Macnaghten and Gordon's Reports in Chancery, 1849- J 1851. Maddock's Reports in the Vice-Chaiicellor's Court, 1815-1822. Manning and Granger's Reports, Common Pleas, 1840-1845. Treatise on Pei-petuities, by E. G. Marsden, 1885. May on the Law of Voluntary and Fraudulent Aliena- tions, 2nd ed. 1887. Merivale's Reports in Chancery, 1815-1817. Miller's Law of Equitable Mortgages, 1844. Moody and Malkin's NisiPrius Reports, 1826-1830. Moody and Robinson's Nisi Prius Eeports, 1830-1844. Mylne and Craig's Reports in Chancery, 1836-1840. Mylue and Keen's Reports in Chancery; 1833-1835. Rules and Orders of the Supreme Court of .Judicature, 1883. Owen's Reports, King's Bench, 1556-1615. Law Reports, Probate Division, 1875-1890. Peere AVilliams' Reports in Chancery, 1695-1734. Phillips' Reports in Chancery, 1841-1849. Piatt's Treatise on the Law of Leases, 1847. Piatt's Treatise on the Law of Covenants, 1829. Plowden's Reports, King's Bench, 1550-1580. A Treatise on the Law of Contract, by Sir F. Pollock, 4tlied. 1885. Popham's Reports, 1592-1627. Finch's Precedents in Chancery, 1689-1723. Preston's Essay on Abstracts of Title, 1823-1824. Preston's Treatise on Conveyancing, 1819-1820. Preston's Elementary Treatise on Estates, 1821-1827. Price's Reports, Exchequer, 1814-1824. Law Reports, Queen's Bench Division, 1875-1890. Eam's Treatise on the Law of Assets, 2nd ed. 1837. Coke's (Sir E.) Reports, 1572-1616. Reports of the Real Property Commission, 1829-1832. Robertson's Eeports, Ecclesiastical, 1844-1851. Robinson on the Custom of Gavelkind, 3rd ed. 1821. Robson on the Law of Bankruptcy, 6th ed. 1887. Rolle's (Sir H.) Abridgnaent, 1668. Russell's Reports in Chancery, 1826-1829. Same case. Simon and Stuart's Reports, Vice-Chancellor's Court, 1822-1826. Salkeld's Reports, King's Bench, &o., 1689-1712. Sanders' Essay on Uses and Trusts, 5th ed. 1844. Digitized by Microsoft® TABLE OF ABBREVIATIONS. Ixi Sob. & Lef. . Scriv. Cop. . Sel. Ca. Ch. . Seton on Decrees Shep. Touch. Sim. . Sm. & G. . Sm.L. C. or S. L. C. Smith, L. & T. . Smith, Merc. Law Soh-B. J. Spence, Eq. Jur., or Spence Steph. Comm. Story, Equity Jurisp. Stra. . Sug. Gilb. Uses . Sug. Pow. . Sugden, E. P. Stats. Sug. V. & P. Swanst. T. R. . Talb. or Gas. temp. ^ Talb. Taunt. Tothill Tud. R. P. Gas. . Tudor, R. P. Gas . Tudor, L. G. R. P. Tyssen Sohoales and Lefroy's Reports in Gliancery (Ireland), 1802-1806. Scriven on Copyholds, 6th ed., by A. Brown, 1882. Select Cases in Chancery, 1724-1734. Forms of Decrees, &c., with Notes, 4th ed. 1877-1879. Sheppard's Touchstone of Common Assurances (temp. Jac. I.), 7th ed., by Preston, 1821. Simon's Reports in the Vice-Chancellor's Court, 1826- 1852. Smale and GifEard's Reports in the Vice-Chancellors' Courts, 1852-1857. Smith's Selection of Leading Cases, 9th ed. 1887. Smith's (J. W.) Law of Landlord and Tenant, 3rd ed. 1882. Smith's (J. W.) Compendium of Mercantile Law, 9th ed. 1877. Solicitors' Journal. Spence's Equitable Jurisdiction of the Court of Chan- cery, 1846, 1849. Stephen's Commentaries on the Laws of England, 11th ed. 1890. Story's Commentaries on Equity Jurisprudence. Strange's Reports, King's Bench, 1716-1747. See Gilb. Uses by Sug. Sugden (Lord St. Leonards), Treatise on Powers, 8th ed. 1861. Sugden (Lord St. Leonards) on the Real Property Statutes, 1862. Sugden (Lord St. Leonards) on VendorsandPurchasers. 14th ed. 1862. Swanston's Reports, 1818-1819. Term Reports (Durnford and East), King's Bench 1735-1800. Talbot's Reports, Chancery, 1734-1738. Taunton's Reports, Common Pleas, 1808-1819. TothiU's Reports, 1559-1646. Tudor's Leading Cases on Real Property, 3rd ed. 1879 The Law of Charitable Bequests, by A. D. Tyssen, 1888. V. &B. Vaughan Vent. . Vern. . Ves. . Ves. Sen. Vin. Abr. W. Bl. W. N. . Vesey and Beames' Reports in Chancery, 1812-1814. Vaughan's Reports, Common Pleas, 1665-1674. Ventris' Reports, King's Bench, 1668-1691. Vernon's Reports in Chancery, 1681-1720. Vesey's (Junior) Reports in Chancery, 1789-1816. Vesey's (Senior) Reports in Chancery, 1747-1756. Viner's Abridgment of Law and Equity, 1791-1794. Sir "William Blackstone's Reports, 1746-1780 AVeekly Notes. Digitized by Microsoft® Ixii TABLE OF ABBEEVIATIONS. W. 1! Watk. CoDv. Watk. Cop. . Watkins on Descents Willes . Williams on Commons Williams, Seisin Wilm. . Wils. . Wms. Exors. Wms. P. P. Wms. E. P. Wms. Pauud. or Wms. Saunders Wolstenholme & Tur- ner, Oonv. Woodfrill . . r Weekly Reporter, commenced 185'2. Watkins's Pi-inciples of Conveyancing, 9tli ed. 1845. Watkins's Treatise on Copyholds, 1799 ; 4th ed. 1825. Watkins's Essay on the Law of Descents, Mtli ed. 1637. Willes's Reports, Common Pleas, 1737-1758. Williams (J.) on Eights of Common, 1880. Williams' (J.) The Seisin of the Freehold, 1878. Wilmott's Notes and Opinions, 1802. Wilson's Reports, King's Bench, 1742-1774. Williams' (Sir E. V.) Law of Executors and Adminis- trators, 8th ed. 1879. Williams' (J.) Law of Personal Property, 12th ed. 1884. Williams' (.J.) Law of Real Property, 15th ed. 1885. AVilliams' (Sir E. V.) Notes to Saunders' Reports. Wolstenholme and Turner's Conveyancing and Settled Land Acts, 5th ed. 1889. Woodfall's Law of Landlord and Tenant, 14th ed. 1889. Y. & 0. Ex. . Younge and Colly er's Reports in the Court of Exchequer in Equity, 1834-1840. Y'ear-hook . . The Year-books, or Reports in the reigns of Edward II. and succeeding kings to Henry VIII. Yool on Waste Yool on Waste and Nuisance, 1863. Digitized by Microsoft® THE LAW OF PROPERTY IN LAND. INTRODUCTORY CHAPTER. Law of Property. — The Law of Property, in a wide Definition, sense of the term, includes the whole of the law that regulates the rights and duties of persons with respect to things. In a narrower sense, the term is applied to one department of the law relating to things, namely, that which comprises the rules of private law (a) that prescribe the rights of persons in or over things. As meaning this department of the law relating to things, the law of pro- perty — so far as it deals with rights in land and things governed by the rules applicable to land — is the subject of the present work. Rights of Property. — Rights prescribed by the law Two classes of. of property, or, as they are termed, ' rights of property,' are divisible into two principal classes, which may be styled ' rights of ownership ' and ' rights inferior to ownership ' respectively. (5) (1) Bights of Ownership. — A right of ownership entitles (i) Ownership. (a) ' Private,' as opposed to ' public,' law deals with the rights and duties of the subject-memhers of the State as between themselves. Public law treats of the relations of the State, or persons to whom the State has granted special or extraordinary powers or privileges, with the subject-members of the State. Much of the law of things belongs to the head of public law — e.g., laws re- specting highways, navigable rivers, harbours, public lands, land held for religious or charitable purposes ; laws relating to the peculiar rights and duties of railway companies and other public bodies as owners of land, &c. See hereon Austin, Jurisp., 69, 770 ; Holland, Jurisp., 110 ; Stephen, Coram., bk. iv. (h) In general jurisprudence this distinction is frequently expressed by the teims jura in re propria anAjura in re aliena. A Digitized by Microsoft® THE LAW OF I'llOPERTY IN LAND. Limits of owner's powers. Ownership absolute or limited ; m possession or in expect- ancy ; the owner (that is, the person who has the right) to deal with the subject of the right as he may think fit, provided he does not so deal with it as to infringe upon the rights of any other person. In other words, his powers in this respect are not confined to any particular mode or modes of dealing with the thing owned, but are of indefinite extent. They comprise the possession, use, and enjoyment of the thing, either immediately or at a future time, and usually, also the power of disposing of it ; several distinct rights thus forming collectively the single right of owner- ship. An owner's powers of dealing with the thing owned are not, however, in any case absolutely unrestricted. Another person may have a right of property in the thing condur- rently with the owner ; and, where this is the case, the owner cannot so exercise his rights as to destroy or impair the right of the other person. And an owner may not act in prejudice of rights common to all persons, by dealing with the subject of ownership in such a manner as to create a nuisance. The limits of the owner's powers of dealing with the thing owned, whatever be the extent of his rights therein, are expressed in general terms by the maxim, sic 'iitcre tiu) ut alienum non lcedas.{c) Ownership is either ' absolute ' or ' limited.' Where the right resides exclusively in the owner who has the present enjoyment of the subject, or, in other words, where that person's ownership is not liable to be succeeded in some event by another's right of ownership in the same thing, the ownership is absolute. Where a right of ownership must be succeeded in some event by another such right (as where land is given to A. for his life, and after his death to B.), the former is a right of limited ownership. (rf) As already mentioned, ownership, whether absolute or limited, entitles the owner to the possession of the sub- ject of the right. This, however, is not necessarily the imme- diate possession ; it may be a right to the possession on the happening of a future event — as where a thing is given to B. after the death of A., who is owner for the term of his (c) See Austirj, Juiisp., 50, 822, 828 ; HoUanrl, Jurisp., 175. {d) Sec Austin, Jurisp., 823 et seq. Digitized by Microsoft® INTEODUCTORY CHAPTER. [ life. In such case, there is a present right of ownership with a future right of possession. Where the owner has a present right of possession, his ownership is commonly- termed ownership ' in possession ; ' where the right of possession is future, it is usually styled ownership ' in ex- pectancy', (e) Ownership, whether absolute or limited, and whether in in sereralty or possession or in expectancy, may be either vested in one '° <'°™™"°' y > person only as owner for the time being, or in two or more persons as co-owners. In the former case, the ownership is usually said to be 'in severalty ' ;(/) in the latter, it may be called ownership ' in community.' In English law, as will hereafter be seen, the right of legal or ownership is sometimes divided into two distinct parts, ^luitable. called respectively ' legal ' and ' equitable ' ownership ; the former being a technical ownership merely, the latter the actual or beneficial ownership. (2) Bights inferior to Ownarsliip. — A right of property (2) Eights inferior to ownership confers only a limited and definite o'^^'ership power over the subject of the right. In other words, the person having the right can only deal with the thing in some particular mode or modes. A right of this kind, therefore, consists only of some portion of the several rights that are comprised in ownership ; and the owner's powers of dealing with the thing remain unimpaired, except to the extent to which they are affected by the competing right. (^) To this cla.ss belong rights of disposing of things otherwise than as owner ; creditors' rights over things belonging to their debtors ; rights of sharing in the profits of, or of receiving rents or other dues in respect of, the lands of others ; and rights of using, merely, in particular modes, the things of others. (A) Property. — It may here be observed that the word 'Property,' ' property ' is used, as a legal term, in several different (e) See 2 Bl. Comm. 163. (/) 2 Bl. Comm. 179. [g] See Austin, Jarisp., lect. lii. (A) As to tliese various rights, see post, pt. ii. Digitized by Microsoft® THE LAW OF PROPERTY IN LAND. senses. In one of these it is synonymous with ownership ; (i) in another, it means a thing regarded as the subject of a right of property. (/{;) It is occasionally used to denote a right of property of any kind ; while it sometimes means an aggregate or mass of rights of property vested in a single person.(?) For the sake of clearness, the word is, in general, used in this work only in the phrases law of property and rights of property. Divisions of things. Real and personal. Things as Subjects of the Law of Property.— In the English law of property the rules applicable to things of certain kinds differ in important respects from those relating to things of other kinds. Hence, things con- sidered as the subjects of the law of property may be classi- fied according to the rules by which they are respectively governed. They are thus divided into ' things real ' and ' things personal.' They also admit of another division into the two classes of (1) land and such other things as are regulated by the law relating to land ; and (2) things not regulated by the law applicable to land. Ileal and Personal. — This is, in some respects, the leading distinction between things in English law ; though the modi- fications of the common law by the rules of equity and, still further, by statute law, have deprived it of much of its original importance. The law relating to things real, or law of real property, is based on the feudal law as established in England after the Norman conquest.(m) The feudal law was applicable only to land and other immovable things, (to) and to a few other objects that had some relation to land ; and these, accordingly, constitute the class of things real. The law relating to things personal, or law of personal property, has nothing in common with the feudal law ; its rules having been derived from other sources, chiefly the (i) See 2 Bl. Comm. 16 ; 1 Stephen, Comm., bk. \\. passim. (7c) See Wms. E. P. and AVme. P. P., passim. (I) See the definitions of property in the Conveyancing and Law of Pro- perty Act, 1881 (44 & 45 Vict. c. 41), s. 2; and the Conveyancing Act, 1882 (45 & 46 Vict. c. 39), s. 1 ; and in the Bankruptcy Act, 1883 (46 & 47 Vict. 0. 52), 8. 168. For other meanings of the word, see Austin, Jurisp., 817-820. (m) See 2 Bl. Comm. 48, 49. (re) See Butler's note to Co. Litt. 191 a, ii. 2. Digitized by Microsoft® INTRODUCTORY CHAPTER. 6 Roman Civil Law and the customs of merchants, (o) Mov- able things, with a few exceptions, belong to the class of things personal. As will hereafter be seen, however, things that in general belong to one of these classes will, in particu- lar circumstances, fall under the other class. The terms ' real property ' and ' personal property,' ' real Meanings of estate ' and ' personal estate,' ' realty ' and ' personalty,' are ^'"^^' commonly used to denote things real and things personal respectively. (p) The words 'real' and 'personal' were not generally used as technical terms in the law of property till long after the distinctions which they denote were fully established. They seem to have been borrowed from the Origin of names of the legal remedies for wronsfful dispossession of ' ,, ° . 'personal. things ; the remedy for the recovery of land being called a ' real ' action, and the remedy for the loss of goods a ' personal ' action. (g') In the modern law of property some of the chief original Distinctions distinctions between things real and things personal no jgafand tlii^^-s longer exist ; and this division of things is consequently (as personal, already mentioned) of less importance than in the early law. Stated generally, the principal points of difference now remaining are the following : — (i.) Things real are the subjects of certain degrees of ownership, or ' estates,' which are not applicable to things personal ; but (in theory at least) they are not, while things personal are, subjects of absolute ownership. (ii.) Various modes of transfer of rights in things personal are not applicable to the transfer of rights in things real. (iii.) Realty given by will passes, on the testator's death, immediately to the person to whom it is so given ; while personalty given by will passes, in the first instance, to the testator's legal personal representative (that is, the executor appointed by the will, or an administrator appointed by the Probate Division of the High Court), and, through him, to the person to whom it is given. (r) (iv.) On the death, intestate, of a person who has an (o) See Smith, Merc. Law, Introd. (p) As to the use of the word property, see supra, p. 3 ; and as to the meaning of 'estate,' see^ost, pp. 21, 39. (g) See Co. Litt. 118 b ; 2 Bl. Comm. 16, 384 ; Wm?. E. P. Introd. (r) See post, ^p. 391, 392. Digitized by Microsoft® THE LAW OF PROPERTY IN LAND. inheritable interest in things real, the interest passes directly to the heir-at-law ; (s) while things personal pass on the death, intestate, of the owner, to his legal personal representative, like personalty given by will.(i!) (v.) On the death of a person, his personalty is liable to be applied in discharge of his debts in priority to his realty, except so far as an intention to the contrary is expressed in his will, or is to be implied from its provisions, (m) (vi.) The tax known as probate dnty(«) is payable in respect of the personal estate of a deceased person, .but not in respect of his real estate. land, &c., Land and Things subject to Law of Land ; and Things not suVeSlaw ^° subject— This classification of things is almost identical with of laud. their division into immovable and movable ; but though all immovable things belong to the first class, that class in- cludes also some movables. The distinctions that obtain in the modern law of property arise mainly (except as regards succession on death) from the physical differences between immovables and movables ; hence, the present classification is of greater practical importance than the ancient division of things into real and personal. The law relating to land and such other things as are regulated by the law apphcable to land, or, as it may be termed, the law of property in land, may therefore be regarded as a distinct branch of the law of property. In its treatment as such in the present work, the distinctions which arise from the division of things into real and personal will also be discussed. Enumeration Subjects of Law of Property in Iiand. — The prin- "^^ cipal subjects of this branch of the law of property are immovable things generally, or land in the legal sense of the term. Money applicable in the purchase of land is also, under some circumstances, subject to the law relating to land ; as is also, in certain cases, money arising from the sale of land. And deeds and documents of title to land, and heirlooms, are, to some extent, governed by the same (s) For an exception to this rule as regards trust and mortgage estates, see 44 & 45 Vict. 0. 41, s. 30 ; and post, pp. 186, 233. (i) See post, pp. 415,423. (m) See post, p. 396. (a) As to wliich, see post, p. 393. Digitized by Microsoft® INTKODUCTORY CHAPTER. law. Moreover, certain subjects of rights of property that are not rights over definite things — being merely rights to do acts, or enjoy privileges, which have not specific or particular things for their objects — are included among the subjects of the law relating to land. They comprise advowsons and franchises, besides other objects which (as subjects of the law of property) are of minor importance. («/) The subjects specified will be here considered separately with reference to their legal significations. Land. — Land, in the ordinary legal sense, includes, in ad- LanJ, legal dition to its surface, all buildings or structures erected upon ™^™'"S of- the ground ; and (except as presently mentioned) all trees and plants growing in it, and all things permanently affixed to it or to buildings upon it ; also the space above and the earth below the area of the surface, including all mines and minerals, (s) The rule of law on this poiat is ex- pressed in the maxims quiclquid plantatur solo, solo ccdit, and cujus est solum, ejus est -usque ad ccelum et ad inferos. (a) Hence, a transfer of land by that description may pass all buildings, trees and plants, fixtures, and minerals upon or in the land, unless the contrary is expressed. (&) Hence, also, the erection of a building which projects over another's ground, or the tunnelling under another's ground, is a trespass. The foregoing rule is subject, however, to the Exceptions following exceptions as regards (i.) mines and minerals, ^™I' '^ •' ' (ii.) timber, (iii.) certain vegetable products called emble- ments, and (iv.) fixtures in the technical sense of the term. (i.) Mines of gold and silver in the land of a subject Mines and belong to the Crown by prerogative, and are hence called "'"^"^ ^■ royal mines. At common law, whenever the ore obtained from a mine contained gold or silver worth extracting, the mine was a royal mine ; and all gold or silver in any (y) Offices {i.e., employments) of certain kinds, and titles of honour, are to some extent regulated by the law applicable to land. As to these, see 3 Cruise, tits. 25, 26. And the shares in the New River Company and a few other ancient companies are subject to the same law as land : Wms. P. P. 266 ; see Toionsend v. Ash, 3 Atk. 336. (z) Burton, § 2 ; 2 Bl. Oomm. 17, 18. See 52 & 53 Vict. o. 63, s. 3, as to the interpretation of the word 'land ' in statutes since 1850. (o) Broom, Legal Maxims, 371, 376 ; Dart, V. & P., 129, note (,«)■ (6) Go. Litt. 4, 5, 6 ; 2 Bl. Comm. 18, 19. Digitized by Microsoft® THE LAW OF PEOPEETY' IN LAND. Timber ; Emblements ; mine belonged to the Crown, (c) But with respect to mines worked for copper, tin, iron, or lead, the rights of the Crown have been limited by statute to an option of taking the ores with gold or silver in them at certain prices.(rf) Minerals in land of copyhold tenure do not belong to the copyhold owner, but are vested in the lord of the manor, (e) And even in land of freehold tenure the lord of the manor may have a similar right to the minerals ; as where the tenure, having been copyhold, has been con- verted into freehold by statutory enfranchisement ;(/) or under a local custom, as in Cornwall. (^) Kailway com- panies purchasing land under statutory powers do not acquire the minerals, unless by express grant, (A) (ii.) Timber in land of copyhold tenure belongs, like minerals, to the lord of the manor, as against the copy- hold owner. (1) (iii.) Emblements are those vegetable products or crops of land which are produced annually by agricultural labour, and ordinarily repay the labour of production within the year in which that labour is bestowed. (i) They are some- times called fnwtus industriahs, as distinguished from crops that are not produced in like manner, ovfructus naturahs.ij) In some cases (hereafter mentioned), on the termination of a limited ownership of land, emblements on the land are deemed personalty belonging to the late owner or his personal representative, who is entitled to remove them.(m) (c) IBl. Comm. 294; Case of Mines (1568), Plowd. 310; Attorney-General V. Morgan [1891], 1 Ch. 432, 39 W. R. 324, where the law on this subject is fully stated. {d) 1 W. & M. 0. 30 ; 5 W. & M. u. 6. (e) See^osf, p. 30. (/) ^bepost, p. 37. (g) Curtis v. Daniel, 10 East 273, Bainbridge 27, and Chap. vi. (h) 8 Vict. c. 20, s. 77 ; Errington v. Met. Dist. By. Co., 19 Ch. D. 559, 51 L. J. Ch. 305, 46 L. T. 443. (») Sieepost, p. 30. (k) Graves v. Weld, 5 Barn. & Ad. 105. Held, in this case, that clover is not an emblement. [l) 'The doctrine of emblements extends not only to corn sown, but to roots planted, or other annual artificial profit ; but it is otherwise of fiuit trees, grass, and the like, which are not planted annually at the expense and labour of the tenant, but are either a permanent or natural product of the earth ' ■ 2 BI. Comm. 123. (m) See ^josi, pp. 71, 93, 109. Digitized by Microsoft® INTRODUCTOEY CHAPTEE. And on the death, intestate, of the owner of an inheritable interest in land, the emblements on the land will not go with it to his heir-at-law, but will belong, as personalty, to his personal representative.(?i) (iv.) Fixtures are such things annexed to buildings or Fixtures. land as are of an accessory character merely, as stoves, grates, shelves, locks, things fixed for purposes of trade, machinery, &c. ; but not things that constitute part of the principal subject, as the walls or floors of a house.(o) The early common law recognised no exceptions to the rule that fixtures form part of the land ; but, in later times, the rule was relaxed in favour of owners for terms of years, and other limited owners, who have now, as will hereafter be seen, cer- tain rights of removing fixtures which they have themselves annexed. (^) But the original rule still applies on the death, intestate, of the owner of an inheritable interest ; in such case all fixtures will pass with the land to his heir-at-law. ( ' _ equity. ing cases, to the law of personal property, (i.) The interest of a creditor in land of his debtor, by virtue of a mortgage of, or charge upon, the land in the creditor's favour, passes on his death as his personal estate. (c) (ii.) The interest of a person in land which is subject to a trust or direction for its sale, and for payment of the proceeds of the sale to that person, is governed, in most respects, by the rules applicable to personal estate. ((f) Under the Partnership Act, 1890, and, previously to that Partnership Act, by rules of equity, land belonging to partners in p^g^gonalty' trade and included in the effects of the partnership, and which, by the common law, would be realty, is personal estate as between the partners and their representatives, unless the partners have otherwise agreed. (e) (a) The original remedy was called the writ o( ejediofirmrc. The statutes referred to are the Statute of Gloucester (6 Edw. 1, o. 11) and the statute 21 Hen. 8 i>. 15. (b) See Bracton, L. ii. u. 9, f. 27 ; L. iv. u. 36, f. 220, cited in Digby, Hist. L. R. P., 143-147 ; Litt. s. 740. (c) See post, p. 233. ((Z) See^^osf, p.l74. (e) 53 & 54 Vict. c. 39, a. 22 ; and see post, p. 174. An estate ^mr autre me in land is, hy statute, made personalty in certain events ; as to this, seejiost, p. 73. Digitized by Microsoft® 12 THE LAW OF PKOPEETY IN LAND. Where re- Money. — Money which is to be applied by trustees in the garded as land . ic-i-i c -i ■ ,_ , • • purchase oi land, pursuant to the terms oi their trust, is m equity regarded, for most purposes, as already converted into land ; or, in other words, is subject to the law appli- cable to land.(/) And the purchase-money of land sold under powers given for that purpose by certain statutes,(^) or purchased in pursuance of statutory powers, (A-) and of lands belonging to infants and lunatics,(^) is in some circumstances governed by the rules which applied to the land before its sale. Meaning of. Title-deeds. — Deeds and documents of title to land — usually called title-deeds or ' muniments of title ' — are writings relating to rights of property in land, and which constitute the proper evidence of such rights. General rule as As a general rule, every person who has an interest in *"• land has a corresponding interest in the muniments that constitute the evidence of his title. Thus, to the owner of land belong the title-deeds that relate to the ownership ; (k) while one who has an interest in the land inferior to owner- ship is entitled to those muniments only that relate to his interest. (/) Eights of Where the muniments of title relate to land, or an possession and interest in land, to which one person is entitled as owner in in expectancy possession, while another is entitled thereto in expectancy,(7H ) the owner in possession is entitled to hold the muniments during the continuance of his right of possession ; and the person entitled in expectancy has a similar right to them when his interest becomes an interest in possession. In the (/) As to this, see post, p. 175. ((/) 40 & 41 Vict. c. 18 (Settled Estates Act, 1877)— see ss. 34 and 36, and post, p. 76 ; 45 & 46 Vict. c. 38 (Settled Land Act, 1882)— see s. 22, sub-s. 5, and post, p. 87. (7i) E.g., Purchases under the Lands Clauses Consolidation Act, 1845 (8 Vict. c. 18), s. 69. See notes to Fletcher v. Ashhurner, 1 Lead. Gas. Eq. 968 ; KeUandy. Fulford, 6 Ch. D. 491, 47 L. J. Ch. 94. (i) See post, pp. 490, 493. (/c) But the owner of a chattel interest in land has a right to such muniments only as relate to that interest, and not to those that relate to the superior title. As to the rights of an equitable owner in the muniments of title, see post, p. 180. (Z) This, however, does not apply to a mortgagee of land. As to his rights in the muniments of title, see post, p. 234. (m) See supra, p. 2. Digitized by Microsoft® as to. INTRODUCTOEY CHAPTER. Ig meantime, he has usually a right to inspect the muniments, and for that purpose he may require the holder to produce them ; and he may be entitled to have them lodged in court for security, where it is probable that the holder will destroy or damage them if they are left in his hands, or if he parts with the possession of thexa.{7i) But where there is no such expectant interest, the owner Where no of the land is of course entitled absolutely to the muni- ^ntg^ggt"*" ments, and may dispose of them as he pleases. Where several persons have an interest in land in com- Rights of munity, anv one of them is entitled as against the others to owners m com- . -, -, -, ^ ^ , munity, as to. hold the title-deeds ; and the others have such rights therein as are enjoyed by one who has an expectant in- terest, (o) On the transfer of any interest in land, the rights of the Pass on transferror in the muniments of title pass to the trans- l™"^'^""' *<:.,of ferree;(p) unless the muniments relate also to land retained by the transferror, in which case the transferror may hold them, and the transferree has rights of inspection and other- wise, as in the case of an owner in expectancy, (g') And on the death, intestate, of the owner of an inheritable interest, the muniments pass with the land to his heir-at-law. Heirlooms. — An heirloom, in the original sense of the Original mean term, is a movable thing which, by special custom, is owned '"^ ° ' by virtue of the ownership of certain land, and, on the death of the owner of the land, passes therewith to the next succeeding owner ; at least, if the owner (having the absolute ownership) has not disposed of it in his lifetime. (r) [n] Sug. V. & P. 444 ; Davis v. Earl of Dysart, 20 Beav. 405 ; Jenner v. Morris, L. E. 1 Ch. App. 603, 14 W. R. 1003; Leaihes v. Leatlies, 5 Ch. D. 221, 46 L. J. Ch. 562, 36 L. T. 646, 25 W. E. 492; Bx parte Bogers, In re Pyatt, 26 Ch. D. 31, 53 L. J. Ch. 936, 51 L. T. 177, 32 W. E. 737. As to the rights of a person entitled to a contingent interest in expectancy, see Ford V. Peering, 1 Yes. Jun. 72 ; Ivie v. Ivie, 1 Atk. 429 ; Noel v. Ward, 1 Madd. 322. (o) Lambert v. Rogers, 2 Mer. 489 ; Foster v. Crahh, 12 C. B. 136 ; Wriqht T. Boiotham, 33 Ch. D. 106, 55 L. J. Ch. 791, 55 L. T. 241, 34 W. E. 668. ' {p) Lord Sitclchurst's case, Rep. pt. i. 1 a ; Sug. V. & P. 433. (j) Sug. v. & P. 439 ; Foster v. Crahh, Wright v. Bohotham, supra. As between vendor and purchaser this rule was formerly subject to a qualiiioation, as to which and the present rule see post, p. 321. (r) Wms. Exors. 726; Co. Litt. 18 b, 185 b; 2 Bl. Comm. 427, 429. Digitized by Microsoft® 14 THE LAW OF PEOPERTY IN LAND. Heirlooms, in this sense, are not met with at the present day. The rules applicable to them extend, however, to monuments or tombstones in churches, and to armour, pennons, &c., set up in churches ;(s) also to deed-boxes in which the title-deeds of land are usually kept.(!;) la modem law. The term heirlooms is now used, in jDractice, to denote family plate, pictures, household furniture, &c., where such articles are vested in trustees in order that they may accompany the ownership and possession, for the time being, of a house. These, however, do not pass with land by special custom, but are enjoyed together with it by virtue of the trust created for that purjjose. Meaning of. Advowsons. — An advowson is the patronage of an ecclesias- tical benefice ; that is, the right of presenting, upon a vacancy thereof, a person to be instituted thereto as rector or vicar, in accordance with the law relating to the Estab- lished Church of England. (li) This right of presentation seems to have originally belonged to the person who built or endowed a church ; and, as the founder of a church was usually the lord of a manor, advowsons became in general appendant to manors ; that is, the advowson belonged to the lord of the manor for the time being, (a;) and, on any transfer of the manor, passed with it, unless expressly ex- cepted. But on the transfer of a manor with an express exception of the advowson appendant to it, or on the transfer of an advowson apart from the manor, the advowson be- comes an advowson in gross, i.e., a separate subject, vested in a person in his individual capacity, and not as incident to the ownership of a manor or land.(?/) Subject to land Advowsons are, in general, subject to the law relating to land,(«) and may therefore be things real, or, as the subjects of chattel interests, things personal.(fl) Where the right of (s) Corven's case, Eep, pt. xii. 105 ; 1 Wms. E.xors. 729. {t) 1 Wms. Exors. 730. (u) Burton, §§ 1222, 1229 ; 2 Bl. Comm. 217. {x) As to manors, see post, p. 26. (j/) Co. Litt. 120 a, 307 a ; 2 Bl. Comm. 22. (2) They are subject, however, to special restrictions on the right of aliena- tion, as to which see p. 337. (a) 3 Cruise, tit. 21, c. i. ss. 24, 25. Digitized by Microsoft® INTEODUCTOEY CHAPTEE. 15 presentation on the next vacancy, or some subsequent speci- fied vacancy or vacancies, is granted as distract from the advowson (which may be done), the right so created is regarded as a chattel real.(&) Franchises. — A franchise (as meaning a subject of the Franchises, law of property) is a royal privilege, or branch of the Crown's prerogative, subsisting in the hands of a subject(c) by virtue of a grant from the Crown, or, in some cases, by prescrip- tion, (c^) Many of these privileges are, at the present day, of little real value. The most important, perhaps, are the exclusive right of holding a fair or market, or of keeping a ferry, and taking reasonable tolls from the customers ; (e) and the right of free fishery, an exclusive right, which might be acquired under the early common law, of fishing in public waters. (/) Among others may be mentioned the franchises of ' forest,' ' chase,' ' park,' and ' free warren,' which are various rights or privileges relative to the keeping and hunting of wild animals of certain kinds that, at common law, might not otherwise be taken by a subject of the Crown. (^) Other franchises are usually annexed to manors, as rights to have , waifs, estrays, treasure-trove, royal fish, forfeitures, &c.(A) Tenements and Hereditaments. — In connection with Tenements and the subjects of the law of property in land, the meanings •'^''''t'itaments. of the technical terms ' tenement ' and ' hereditament,' which are commonly applied to these subjects, may be noticed. (b) Co. Litt. 249 a; 1 Wms. Exors. 677 ; Burton, § 1247. (c) 2 Bl. Comm. 37 ; Com. Dig. Franchise. {d) As to prescription, see^osi, p. 452. (e) 2 Bl. Comm, 38 ; Com. Dig. Market, Ferrv ; Mai/or of Penryn v. Best, 3 Ex. D. 292, 48 L. J. C. L. 103, 38 L. T. 805, 27 W. B. 12i5 ; Great Eastern By. Go. V. Ooldsmid, 25 Ch. I). 511, 9 App. Cas. 927, 54 L. J, Gh. 162, 52 L. T. 270, 33 W. R. 81 ; Attorney- General v. Horner, 14 Q. B, D. 245, 11 App, Cas. 66, 54 L. J. 0. L. 227, 33 W. E. 93. (/) 2 Bl, Comm, 39, By Magna Charta and the second and third confirma- tions thereof grants of free fisheries were proliibited, and those granted in the reigns of Richard I. and John were laid open ; so that a franchise of free fishery ought now to be at least as old as the reign of Henry II. ; ibid. {g) See 2 Bl. Comm. 38, 39 ; Co. Litt. 233 a. The Game Act (1 & 2 W. 4, c. 32), under which (s, 6) every person holding a certificate may kill and take game, subject to proceedings for trespass, contains (s. 8) a saving of the rights of the owner of any forest, chase, or warren. (h) 2 Bi. Comm. 37. Digitized by Microsoft® 16 THE LAW OF PEOPEETY IN LAND. Meanings of. Tenement. — Tenement, in a popular sense, means a house or other building ; and it is frequently so used as a legal te^m.(^) In its technical sense, however, it has a much wider meaning, and applies both to things and to rights therein. As meaning a thing, a tenement is any object to which the feudal law of tenure was applicable, or, in other words, any object belonging to the class of things real. Land, and the intangible objects to which, as above men- tioned, the law relating to land applies, are therefore tenements, in all cases where they are subjects of the law of real property. (/«) As denoting a right, tenement in- cludes any interest, whether ownership or a right inferior to ownership, recognised by the law of real property.(r) Meanings of. Hereditament. — The word hereditament also applies both to things and to rights. As applied to things, it comprises all the objects that have been mentioned (m) as subjects of the law relating to land, considered either as things real or as the subjects of chattel interests. Thus, land as the subject of an interest given by the law of real property is a hereditament as well as a tenement ; while land as the subject of a tenancy for a term of years is a hereditament, though (being governed by the law of personal property) it is not a tenement, (w) As denoting a right, a hereditament includes any interest recognised by the law relating to land in any of the above objects, whether the interest be given by the law of real property or by the law of personal property ; except where the word is evidently intended to denote an interest of the former kind only.(o) Corporeal and Hereditaments are commonly said to be either 'corporeal ' incorporeal. qj. ( incorporeal.' According to the explanation usually given (i) 2 Bl. Comm. 16 ; Burton, § 3, n. See Dashwood v. Ayles, 16 Q. B. D. 295, 55 L. J. G. L. 8, 53 L, T. 588, 34 W. K. 53 ; Minifie v. Banger, 16 Q. B. I>. 302, 55 L. J. C. L. 10, 53 L. T. 590. {](,) Stat. IB Edw. 1, u. 1 ; Co. Litt. 6 a ; Burton, § 3 ; see ante, p. 6. (?) Co. Litt. 6 a, 19 t), 20 a ; 2 Bl. Comm. 17 ; Burton, §§ 3, 4 ; 1 Brest., Estates, 10. (m) Ante, p. 6. (m) Co. Litt. 6 a ; 2 Bl. Comm. 17 ; Burton, § 5 ; 1 Brest., Estates, 11-13 ; Shep. Touch. 91 ; 3 Davidson, Conv., 560 ; Moor v. Denn, 2 Bos. & Pul. 247, 251 ; Tomldns v. Jones, 22 Q. B. D. 599, 58 L. J. C. L. 222, 60 L. T. 939, 37 W. E. 328. (o) As in the Statute of Uses, see^os*, p. 355 ; and in the stat. 17 & 18 Vict. c. 113 (Locke King's Act), seepost, pp. 225, 226. Digitized by Microsoft® INTRODUCTORY CHAPTER. ]7 of these terms, corporeal hereditaments are such permanent tangible objects as are included in the word land, while incorporeal hereditaments consist of such rights of property in things real as do not involve the possession of land.(^) This, however, it will be observed, is not a division of hereditaments, either as meaning things or as meaning rights ; for corporeal hereditaments as meaning things are thereby opposed to incorporeal hereditaments as denoting rights. The true distinction denoted by the terms corporeal and incorporeal, as applied to hereditaments, may be expressed by defining a corporeal hereditament as any right of property which entitles the person in whom it is vested to the possession of land ; and an incorporeal hereditament as any right of property in land or any other subject of the law relating to land, which is not a right to the possession of land. The distinction, as thus expressed, was, in the early law, of some importance ; since rights to the possession of land were transferable only by delivery of such possession, while rights not involving possession of land were transferable by deed of grant. Corporeal heredita- ments were therefore said to 'lie in livery,' while incorporeal hereditaments were said to ' lie in grant.' (^) This dis- tinction, however, is not now of practical importance ; for in modern law corporeal as well as incorporeal hereditaments are transferable without actual delivery of possession. (r) Arrangement of Topics. — The subject of the present work having been considered with reference to its nature and scope, the topics included in it will be treated of under the four heads of (1) Rights of Ownership ; (2) Rights Inferior to Ownership ; (3) Transfer of Rights of Property in Land ; and (4) Legal Capacity with reference to Rights of Property in Land. The division of rights of property into ownership and rights inferior to ownership has already been explained ; and the various rights comprised in each division have been noticed. The transfer of rights of property is made the subject of a distinct part of the work, (p) Co. Litl. 6 a; 2 Bl. Comm. 17, 20; Wms. E. P. Introd. (q) Co. Litt. 9 a. (r) See post, pp. 346, 460. B Digitized by Microsoft® 18 THE LAW OF PROPERTY IN LAND. in order to avoid repetition of the same matter in the pre- ceding parts ; for the different rights treated of in those parts are, to a considerable extent, regulated, as regards their transfer, by the same rules of law. The disabilities to which persons of certain classes are subject, with regard to the enjoyment and exercise of rights of property in land, are considered under the fourth head ; the law being treated of under the previous heads, apart from any modifications due to personal disability. Digitized by Microsoft® PART I. EIGHTS OF OWNERSHIP. («) CHAPTER I. TENURE. Feudal Principles. — The feudal law of property, or ' feudal The feudal system,' as established in England under the Norman ^y^'^™- kings, was based on the principle that the land of every subject of the Crown was held by him of (that is, under or by virtue of a grant made by) a superior owner, who, in his rela- tion to the landholder, was called the lord, and to whom the landholder was bound to render services by way of return for his enjoyment of the land. The king was the supreme lord, by whose grant all the land in the kingdom was deemed to have been acquired, and of whom, therefore, all land was held, either immediately, where no person was interposed as lord between the Crown and the landholder, or mediately, where the land was held of an intermediate lord, who himself held, either mediately or immediately, of the Crown. The interest of the landholder never amounted to absolute ownership ; for in every case, the lord retained a higher degree of ownership in the land, by virtue of which he was entitled to the services of the landholder, and resumed the possession of the land on the termination of the land- holder's interest. The king alone, as being the ultimate and supreme lord, had the absolute ownership of the land. The landholder under this system was styled the Tenant. ' tenant.' The duties which he owed to his lord — or, in a wider sense, the relation existing between him and his lord — constituted the ' tenure ' of the land. The king, Tenure. (a) As to ownership generally, see ante, p. 1. Digitized by Microsoft® 20 THE LAW OF PEOPERTY IN LAND. Lord para- mount. Tenant in capite. Mesne lord. Tenant para- Tail, or terre tenant. Feudal rules in modern law. Varieties of tenure : ancient, modern. as being the supreme lord, was styled ' lord paramount.' A tenant holding immediately of the king was called 'tenant in capite.' One who granted his land to be held of himself became a ' mesne,' or middle, lord ; being a lord with respect to the tenant to whom he had granted the land, but a tenant with respect to the king or other lord under whom he himself held ; while the tenant in posses- sion holding of a mesne lord was styled ' tenant paravail ' or ' terre tenant. '(&) The foregoing feudal rules are still recognised as funda- mental maxims of the law of real property, though in modern law they retain but little of their early importance. Most of the feudal terms above mentioned have fallen into disuse ; but the words tenant and tenure are still used in their original senses. Tenures of land were anciently divided, according to the nature of the tenant's services, into the two classes of ' free tenure ' and ' base tenure.' Free, or (as it was afterwards called) ' freehold ' tenure, was the holding of land by free services ; that is, such as a freeman might fitly perform. Base tenure, or ' tenure in villeinage,' was the holding of land by base, or non-free, services ; being such as were fit only for persons of servile condition. (c) It eventually became the tenure known as ' copyhold.' The division of tenures into freehold and copyhold obtains in the modern law of real property. The subject of tenure may therefore be considered, first, with reference to freehold tenure, and, secondly, with reference to copyhold tenure. Knight-service, Freehold Tenure. — Knight -service. — Free Socage. — Freehold tenure was originally of two principal kinds, (rf) namely, ' knight-service ' — also called ' mihtary tenure,' or ' tenure in chivalry ' — and ' free socage ; ' a distinction based mainly on differences in the services due from the tenants. In the tenure by knight-service, the tenant held his land by military service, or by payment of a pecuniary composition (b) Co. Liu. 1 a, 1 b ; 2 Bl. Comm. 53, 59, 60. (c) 2 Bl. Comm. 61, citing Bracton, 1. 4, o. 28, f. 207. (d) This refers to land held by laymen. As to the tenure of Church land, see infra, p. 26. Digitized by Microsoft® TENURE, 21 (called ' escuage ') in lieu thereof. He was also liable for other payments, and held subject to burdens of other kinds, the most oppressive of which were the lord's rights of guardianship and disposition in marriage of his infant tenants, and of making profit thereby.(e) In consequence of inconveniences to which, in course of time, these duties and liabilities were found to give rise, this variety of freehold tenure was abolished by a statute of Charles II,(/) abolished by whereby all tenures of lands in the hands of laymen — except |*^*' ^ copyhold tenure, and the honorary services of grand serjeanty (a variety of tenure hereafter mentioned) — were converted into free socage. Free socage (or ' free and common socage ') was a tenure Free socage. of land by some certain service other than military service — as the payment of a pecimiary rent, or an agricultural service; or by fealty without any other service. (^) The tenants, like those who held by knight-service, were liable for certain pecuniary payments and other burdens. The lord, however, had not the rights of guardianship and mar- riage of the infant tenant ; and in this respect, and in freedom from escuage and some other incidents, this tenure was less burdensome than knight-service. (A) Moreover, several pecuniary payments, previously due from the tenant in free socage, were abolished by the statute of Charles II. This tenure, as simplified by the last-mentioned statute, is the ordinary freehold tenure of the modern law ; and since the abolition of the tenure of knight-service, it has usually been called ' freehold tenure ' simply. Estates in Land of Freehold Tenure. — Seisin. — The inter- Kstates. est, or (as it is usually called) estate of a tenant of land of freehold tenure, may be any one of several distinct degrees or quantities of interest. If it is an inhei-itable in- terest it is termed a ' fee ' ; (i) and if it is an inheritable (c) See 2 BI. Comm. 63-73. (/) 12 Car. 2, c. 24. (g) Litt. 8S. 117, 118, 119 ; 2 Bl. Comm. 79. As to the origin of term socage, see 2 Bl. Comm. 80. (A) 2 Bl. Comm. 86-89. (i) Litt. B. 1. The word ' fee ' (or ' feud ' or ' fief) seems originally to have signified merely land held of a superior lord, as opposed to ' allodium,' a word used by the feudal lawyers to denote land that was not held of any superior. See Co. Litt. 1 a. Digitized by Microsoft® 22 THE LAW OF PKOPERTY IN LAND. Seisin. interest of the greatest extent known to the law, it is called an ' estate in fee simple.' This estate is, in fact, equivalent to absolute ownership ; though, owing to the feudal prin- ciple above mentioned, it is, in theory, a limited interest only. Next in degree to the estate in fee simple is the ' estate tail ' (which is also an inheritable interest) ; and next to this, the ' estate for life.' To these estates alone the feudal rules of tenure were applicable. All other estates in land are chattel interests. (/) The possession of land, according to feudal principles, by the tenant of an estate in fee simple, in tail, or for life, holding by freehold tenure, is technically termed ' seisin.'(^) emptores. SubiDfeuda- SuUnfeudation. — Statute Quia Emptores. — Originally the *'°°' tenant of an estate in fee simple might grant an estate in fee simple to be held of him as mesne lord. This was called ' subinfeudation.' Being prejudicial to the in- terests of the superior lords — who lost thereby certain advantages to which only the immediate lord of the tenant in possession was entitled — subinfeudation was abolished by a statute of Edward I. (a.d. 1290), corn- abolished by monly called the statute Quia emptores. This statute, while l^r^.m-p^'^^"' it declared that from thenceforth it should be lawful for every free man to sell at his own pleasure his lands and tenements, or any part of them (thereby removing some previous restrictions on freedom of alienation), enacted, in effect, that the alienee should hold the same lands or tenements of the chief lord of the fee, by such services and customs as his alienor held before ; and that in the case of an alienation of part only of such lands or tenements, the alienee should hold that part of the chief lord, and should be charged with a proportionate part of the services. It also enacted that its provisions should apply only to alienations of land held in fee simple. (?) (j) See ante, p. 10. Tlie rules applicable to estates are considered hereafter ; in this chapter estates are noticed only in connection with the subject of tenure. (k) Co. Litt. 153 a ; see further as to seisin, ^osf, pp. 44, 45. {I) 18 Edw. 1, c. 1 ; called Quia emptores because the statute begins with these words. This statute apparently did not apply to the king's tenants in capite, but the rule was extended to them by stats. 17 Edw. 2, o. 6, and 34 Edw. 3, c. 15. Digitized by Microsoft® TENUEE, 23 In consequence of this statute, every tenant in fee simple Its effect. holds of the same lordship of which the land was held when the statute was passed ; that is, either of the successor of the mesne lord of whom it was then held, or (where no mesne lordship can be shown to exist) of the Crown. At the present day there is, in general, no intermediate lord between the tenant and the Crown, except where the land is held of a lord of a manor.(m) If, however, the tenant of an estate in fee simple, or Tenure of other of any inferior estate, grants an estate of less extent than *^*^'^^- his own, the grantee holds directly of the grantor ; inas- much as the statute Qioia emptores does not apply to such an alienation. The grantor remains entitled to his former estate in the land, as owner thereof in expectancy, subject to the estate which he has granted, on the termination of which the possession of the land reverts to him for his former estate.(M) The tenure thus created between the grantor and the grantee is sometimes called ' imperfect,' as distinguished from the ' perfect ' tenure, which subsists between the tenant in fee simple and his lord.(o) Incidents of Modern Freehold Tenure. — At the present day, Tenure of the incidents of tenure of an estate in fee simple, held bv *?'**? ™ ^^ 1 T J- 1 1 T simple ; the ordinary freehold tenure, in general comprise merely the duty of taking an oath of fealty to the lord (which, in fact, fealty, is never required) ; a nominal liability to forfeiture of the forfeiture, land to the lord, on the tenant's failure to perform the services of the tenure ;(j7) and ' escheat,' or the return of escheat, the land to the lord where the tenant dies intestate, and no person is entitled to the estate as heir-at-law. (§') In addi- tion to these, a trifling annual rent, called a ' quit-rent ' as quit-rent, being rendered in lieu of other services, is in some instances payable by the tenant to the lord. Such rent, if payable to a mesne lord, must of course have been originally reserved prior to the statute Quia emptores. And where a quit-rent is payable, a ' relief,' i.e., the amount of one year's rent, is relief, payable on the death of the owner, by his successor. A {m) 2 Bl. Comm. 92. {n) See^josi, p. 113. (o) Co. Cop. s. 31 ; Burton, §§ 1001, 1004. (p) Burton, § 1019 ; see post, pt. 3, ch. 10. {q) As to escheat see post, pt. 3, ch. 11. Digitized by Microsoft® 24 THE LAW OF PROPERTY IN LAND. suit of court. Of other eBtates. nominal service of ' suit of court,' or attendance at the court baron of tte manor, is also an incident of the tenure, where the land is held of a lord of a manor.(g) The incidents of freehold tenure of any estate less than the fee simple, are the nominal service of fealty, together with any rent, or other services, that may have been re- served by the grantor. If no rent or service has been ex- pressly reserved, a tenant for life or years holds by fealty merely ; but it seems that a tenant in tail holds of the grantor by the same services as those by which the latter holds of his lord.(r) Varieties. Grand ser- jeanty. Petit ser- jeanty. Tenure in burgage. Varieties of Freehold Tenure. — Besides the ordinary free- hold, or free socage, tenure, certain ancient varieties of freehold tenure are recognised. These are distinguished as ' grand serjeanty,' ' petit serjeanty,' ' tenure in burgage,' ' ancient demesne,' and ' gavelkind,' respectively. Grand Serjeanty was originally a variety of the tenure by knight-service. It applies only to land held immediately of the Crown ; the land being held by special honorary services, originally rendered to the Crown in lieu of military service, as to carry the king's banner or sword, or to be his marshal or other like officer. These services were pre- served by the statute of Charles II. before mentioned, which converted the tenure, in other respects, into free socage, (s) Petit Serjeanty is an ancient variety of free socage tenure. Like grand serjeanty, it applies only to land held directly of the Crown ; the land being held by the service of render- ing annually to the king some small implement of war, as a bow, a sword, or the like.(i) Tenure in Burgage exists in a few ancient boroughs. It is a kind of free socage tenure ; the land being held at an annual rent payable to the lord. But peculiar local customs, (2) 2 Bl. Comm. 42, 86, 87 ; Burton, §. 1027. By special custom, a 'lieriot' may be due, on the death of a freehold tenant of manorial land, to the lord of the manor, as an incident of tenure ; but this is an incident of rare occurrence : see Damerell v. JProtheroe, 10 Q. B. 20 ; and as to beriots gene- ally, infra, p. 34. (?■) Co. Litt. 23 a, 143 a ; Burton, § 1002. (s) Litt. s. 153 ; 2 Bl. Comm. 73, 81. (t) Litt. SB. 159, 160 ; 2 Bl. Comm. 82. Digitized by Microsoft® TENUEE. 25 modifying the genei-al rules of ownership, distinguish this tenure from ordinary freehold tenure. The most remarkable of these customs is that called ' borough English ' ; whereby the land descends to the youngest son in preference to all the other children of the deceased owner. In some cases, a similar custom applies to the succession of brothers and other male collateral relations. (it) Ancient Demesne is a free socage tenure existing in Ancient certain manors that appear by Domesday Book to have been •'^™^s°^- held by the Crown in the time' of Edward the Confessor or William the Conqueror. The lands were originally held by services resembling those of base tenure, for which pecuniary services were afterwards substituted ; in considera- tion whereof the tenants enjoyed several immunities and privileges — as, that certain proceedings respecting their lands should take place only in the court of the manor •,{v) that they should not pay toll or taxes,(w) nor be put on juries ; and the like, (a;) Gavelkind is a tenure in free socage of lands that are Gavelkind, subject to certain local customs, which modify, to some extent, the ordinary rules of ownership. Hence, it is more correctly styled ' socage tenure subject to the custom of gavelkind.' (i/) In the county of Kent, where gavelkind chiefly prevails, every inheritable interest in land is presumed to be held according to this tenure, unless it be shown that the land never was subject to it, or that it has been dis- gavelled, i.e., freed therefrom by statute. The chief pecu- liarities of gavelkind are — (1) the devolution of inheritable interests, on the owner's death intestate, upon males as co- heirs, contrary to the general law under which an elder male is preferred to a younger; (2) the power of a tenant to alienate, under certain conditions, at as early an age as fifteen years, while by the general law this cannot be (u) Litt. ss. 162 et scq. ; 2 Bl. Comm. 82, 83 ; liider v. Wood, 1 K. & J. 644 ; MucjcjUton v. Barnett, 2 H. & N. 653. (w) I.e., fines and recoveiies. The effect of the stat. 3 & 4 Wm. 4. u. 74 (abolishing fines and recoveries), has been to extinguish this privilege. (w) Local taxes, such as county rates, are not included in this exemption : see a. T. Inhabitants of Aylesford, 2 E. & E. 538. (x) See 1 Cruise, pp. 36-38 ; 2 Bl. Comm. 99, 100, {y) Third Eep. E. P. Comm. pp. 7, 8. Digitized by Microsoft® 26 THE LAW OF .PROPERTY IN LAND. effectually done below the age of twenty-one years; (3) the interests of husband and wife in each other's lands, which are different in extent from their corresponding interests in land of ordinary freehold tenure. Moreover, lands subject to this custom might be disposed of by will before testa- mentary disposition of land was allowed generally, and were not subject to the former law as to escheat upon con- viction of felony. The custom of gavelkind is supposed to be a remnant of the old Saxon law, preserved in Kent after the Conquest. It is doubtful whether all its incidents are to be met with elsewhere than in this county, though in some other localities estates in land descend according to the custom.(a) Frankalmoign. FrankalTTioign. — Besides the tenures which have been described, there is a distinct species of freehold tenure, of a spiritual nature, called ' frankalmoign,' or ' free alms,' whereby the parochial clergy, and many ecclesiastical and charitable corporations, hold their lands. None of the feudal services which have been mentioned are incident to this tenure, the only services being of a spiritual kind ; and for neglect of these the lord has no legal remedy. And there is no escheat of land held by this tenure ; for the owners, being corporations, have a perpetual existence, (a) Nature of; Manors. — In connection with freehold tenure, the nature of a ' manor ' (5) may be considered. Prior to the statute Qtda emptores, where a person who was entitled to an estate in fee simple (whether as tenant in capite or under a mesne lord) in land of considerable extent, held part of Demesnes ; the land as his ' demesne ' (that is, land of which he had the seisin or feudal possession), and was owner of a castle or mansion-house erected thereon, while the remainder of the land was possessed by other persons who held of him as {z) 2 Bl. Gomm. 84, 85 ; Eob. Gay. passim. (a) Litt. SB. l.Sl-142 ; 2 Bl. Comra. 101 ; see post, pt. 4, ch. 6. The stat. Quia emjriores in effect prohibited henceforth grants of land (other than Crown grants) to be held in frankalmoign : Litt. s. 140. (h) Manors were formerly also called baronies, as they still are lordships : 2 Bl. Comra. 90. Where a district was divided into several manors all held under the same lord paramomit, his seignory was termed an "honour" : 2 Bl, Comm. 91. Digitized by Microsoft® TENURE. 27 tenants in fee simple, the whole might be, by custom, a manor, of which the owner of the castle or mansion and demesne was the lord. Of the demesne the lord himself occupied some part, and other parts were occupied and cultivated by villeins ; the rest (called the lord's waste) being left uncultivated, and used for roads and pasture, &c., by the lord and the tenants. The tenure of the freehold estates gave rise to the lord's ' seignory ' or ' lordship ' — that is, Seiguory his right to the services of the tenants, and the benefit of escheats and forfeitures of their estates; together with a certain jurisdiction over them, which included the right of holding a domestic court, called the ' court baron,' for Court baron ; regulating the interests of the freeholders, and settling dis- putes in some cases, esjDecially in matters relating to the free- hold. This court was composed of the lord or his steward, as president, and of the freehold tenants, who were the judges. In some manors a court of criminal jurisdiction, called a ' court leet,' was also held, for the redress of mis- court leet. demeanours and nuisances, (t) The statute Qiiia emptores, by abolishing subinfeudation. Not created prevented further creations of manors ; for it is essential to a ^'^"^ ^"*°' .. emptores. manor that there be freehold tenants m fee simple who hold of the lord. The statute, however, did not affect such manors as then existed. All manors, therefore, which exist at the present day, must have existed as early as the year 1290, the date of the statute. (^) The characteristics of a manor are much the same at the present day as in early times, except that the court baron and the court leet have lost all their original judicial powers. (g) The demesne lands, or the seignory, which together con- Extinguish- stitute the manor,(/) may be separately alienated. But ^™*j,° (c) See 1 Cruise, pp. 29-33, and authorities there cited ; 2 Bl. Comm. 90, 91 ; 4 Bl. Comm. 273. The township of the Anglo-Saxon system was the origin of the manor ; and the court baron had its origin in the gemot or assembly of the township : see Stubbs, Const. Hist., toI. i. p. 399 ; Free- man's Norman Conquest, vol. >. pp. 460, 461 ; Tbe Euglish Village Com- munity, by F. Seebohm, Brd ed. chs. ii. and iii. ; Early Law and Custom, by Sir H. Maine, oh. ix. (d) 2 Bl. Comm. 92 ; 1 Cruise, p. 33. (e) See as to courts baron, 30 & 31 Vict. c. 142, s. 28 ; 51 & 52 Vict. o. 43, s. 6 ; and as to courts leet, 52 Hen. 3, o. 10 ; 1 Edw. 4, u. 2. (/) Besides the constituents above mentioned, various riShts may be incident Digitized by Microsoft® 28 THE LAW OF PKOPEKTY IN LAND. Reputed manor. ExtiBguish- Tiient of maDorial rights. when this is done, the seignory becomes a ' seignory in gross,' and the manor is extinguished ; unless, indeed, the separation be temporary, as by a lease of the seignory for a term, in which case the existence of the manor is only sus- pended during the term. But a manor is not extinguished by an alienation of part only of the demesne ; nor by the alienation of part only of the seignory, provided there still remain at least two tenants in fee simple holding of the lord ; but this number of tenants is absolutely necessary to constitute the court baron, without which the manor would also cease to exist. (^) For the same reason, the manor may be destroyed by the estates of all the tenants being purchased by, or escheating to, the lord ; or by his releasing to all of them his right to their services. (A) But though in these cases the manor is, in strictness, extingiiished, the owner of the demesne retains what is called a ' reputed manor,' or ' manor by reputation ' ; since he continues to enjoy such other manorial rights as were previously incident to the manor.('i) By the Copyhold Act, 1887, any lord or tenant of a manor, or the owner of any land liable to any heriot or to any quit-rent, free rent, or other manorial incident, may require and compel the extinguishment of such rights or incidents, and the release and enfranchisement of the land subject thereto. The proceedings for such purpose are the same as are provided by the Copyhold Acts for the enfran- chisement of copyhold land, or as near thereto as the nature of the case will admit.(y) Tenure^in Tilleinage. Copyhold Tenure. — Its Nature. — The ancient base tenure, or tenure in villeinage (so called because, at first, villeins or bondsmen were the only tenants), was the original to a manor— as rights with respect to copyhold tenants {infra, p. 30), an ad- vowson (supra, p. 14), franchises [supra, p. 15). ((/) Burton, § 1024. (h) 1 Cruise, p. 34. (i) 1 Cruise, p. 34 ; Burton, §§ 1042, 1043, 1262. {j) 50 & 51 Vict. c. 73, s. 7. This Act repeals (s. 51) s. 7 of the stat. 21 & 22 Vict. c. 94, as to extinguiihment of hei'iots. As to heriots, see supra, p. 24, note (q), and infra, p. 34; and as to tlie proceedings for enfranchisement, see infra, p. 36. Digitized by Microsoft® TENURE. 29 tenure by whicli portions of the demesne lands of manors were held of the lord of the manor in considei-ation of agricultural labour.(Z;) Originally, the tenants held strictly at the will of the lord, who might dispossess them at his pleasure. (/) In course of time, however, by force of customs obtaining in manors, holders by villein tenure acquired interests analogous to those enjoyed by freehold tenants. These interests, which at first existed merely by the lord's indulgence, and his acquiescence in the custom of the manor, were eventually recognised and enforced by courts of justice Legal reoognl- in favour of the tenant as against the lord : and thus the *''"' "^ custom- 1 . 1 , . ary estates. tenant acquired a legal right to his customary estate in the land ; a right that was successfully asserted in the reign of Edward IV., if not earlier, (m) The development of custom- ary estates into legal ownership was accompanied by the disappearance of the class of villeins ;(m) and finally, in lieu of the terms originally used, the tenure was called ' copy- hold,' and the tenant ' copyholder,' or ' tenant by copy of court roll.'(o) The term 'copyhold' arose from the fact Origin of the that the muniments of the tenant's title are copies of the '^™ copyhold. ' roll,' or book, of the court of the manor, in which trans- actions respecting these customary estates are recorded. Copyhold tenure, therefore, is a tenure of lands that were No new oopy- originally held in villeinage. No other land can be subiect 1'°'?, ^''"^P' '^^ o "Z ^ ° ^ *J lord s grant, to this tenure ; except, indeed, that, prior to the passing of the and this Copyhold Act, 1887,(j9) in some manors, by sj)ecial custom ^y^j^^p'^j^^jj^j the lord might make grants of portions of the waste lands Act, 1887. of the manor to be held by copyhold tenure, provided such grants were not prejudicial to the tenants of the manor, and were made with the consent of the ' homage,' i.e., the tenants present at the copyholders' court, where such (Ic) Ante, pp. 20, 27. {!) Litt. s. 172 ; 2 Bl. Comm. 147 ; Digby, Hist. L. E. P., 128, oiling Bracton, ]. 4, c. 28, f. 208. According to the last-mentioned authority, however, tbi- tenant might be secured against eviction by the lord by means of an express covenant for that purpose entered into by the lord with the tenant. (m) Litt. o. 77 ; Co. Litt. 61 a; Year Book 7th Edw. 4, p. 19. (n) The last recorded claim to the services of a villein is in the 15th year of James I. (o) Copyhold tenure was not affected by the stat. 12 (5ar. 2, c. 24 (see s. 7). Ip) 50 & 51 Vict. c. 73 ; passed 16th September 1877. Digitized by Microsoft® 30 THE LAW OF PROPEETY IN LAND. Seisin of the lord. Copyholder holds of lord of manor, and has quasi- seisin. Kights of lord in timber, minerals ; Escheat, for- feiture, &c. consent was required by the custom of the manor.(q) But the last-mentioned Act has enacted that it shall not be law- ful for the lord of any manor to make such grants without the previous consent of the Land Commissioners for Eng- land — whose powers and duties under the Act are now transferred to the Board of Agriculture — who, in giving or withholding their consent, are to have regard to the same considerations as are to be taken in account by them in giving or withholding their consent to any inclosure of common lands ; and that, whenever any such grant has been lawfully made, the land therein comprised shall cease to be of copyhold tenure, and shall be vested in the grantee thereof to hold for the interest granted as in free and common socage. (?') Since land of copyhold tenure is demesne land of the manor, the lord of the manor has, in a technical sense, the seisin, or feudal possession, of the land, although the actual possession is in the copyhold tenant. The lord is, therefore, the tenant of the land in relation to the Crown or other chief lord of the fee. The copyhold tenant holds of the lord of the manor as his chief lord ; and his possession is merely a quasi-seisin.(s) The lord of the manor, moreover, has certain rights in copyhold land of the manor. Thus, he is the owner of all minerals in the land, and of all timber (even though planted by the tenant) growing therein ;(i) though he cannot come upon the land to work the minerals or cut the timber, unless with the consent of the tenant, or by special custom of the manor, (zt) Again, on the termination of a copyhold estate in fee {q) Burton, §§ 1348-1350; Bad(,er v. Ford, 3 B. & Aid. 153 ; see i & 5 Vict. c. 35, .5. 91. {r) S. 6. As to the Land Commissioners for England, and the transfer of their functions to the Board of Agriculture, see post, p. 412 ; and as to their consent to the inclosure of common lands, see post, p. 296. (s) See 2 Bl. Comm. 148 ; 1 Cruise, t. 10, y>. 1, b. 5 ; Williams, Seisin, 35, 42, 126. (t) 1 "Watk. Cop. 332, 333 ; Scriv. Cop. ch. 8, ss. 1, 2 ; DuJce of Portland v. Hill, L. E. 2 Eq. 765, 35 L. J. Ch. 439, 15 "\V. E. 38 ; Eardky v. Orm- vllle, B Ch. D. 826, 45 L. J. Ch. 669, 34 L. T. 609, 24 W. E. 528. ' (») Scriv. Cop. 247, 253 ; Attorney- General t. Tomline, 5 Ch. D. 750, 46 L. J. Ch. 654, 36 L. T. 684, 25 W. E. 803. See per Jessel, M.E., 3 Ch. D. 832, 833. Digitized by Microsoft® TENURE. 31 simple, by death of the tenant and failure of heirs, the land escheats to the lord ; (v) and if the lord acquires, by escheat, forfeiture, purchase, or otherwise, the estate of a copy- holder, such estate is immediately merged in the lord's estate, and extinguished ; whereby the copyhold tenure is suspended to the extent of the extinguished estate, and completely ended if that estate were the fee simple.(«') But when a copyhold estate thus falls in the hands of the Re-grant of lord, he may make a fresh grant of a copyhold estate, of l^J^^fl ''^ any extent, in the land ; and such a re-grant may be made whatever be the lord's interest in the demesne lands. Thus, a lord who is only tenant for life or years of the demesnes may make a re-grant of the land for a copyhold estate in fee simple, which will be effectual as against all succeeding owners of the manor. (a;) On the other hand, the lord may in such case alienate the land as land of freehold tenure, to the extent of his own estate in the demesnes ; but by such an alienation (even though merely for a term of years), his power of granting the land as copyhold is extinguished, if he be tenant in fee simple of the manor, and otherwise is suspended during the continuance of his estate in the demesnes. (y) A copyhold tenant is technically said to hold his land ' by Copyhold copy of court roll, at the will of the lord, according to the *™^°*'s custom of the manor. (2) The court roll is the book, or roll, which forms the record of the ' customary court ' of the Customary manor. This court was originally a branch of the court ''°^^- baron of the manor, but afterwards became a distinct court. The lord, or (more commonly) the steward, of the manor is the president, and the copyholders present, who are called the ' homage,' are his assistants ; this ' suit of court ' being due from the copyholder as an incident of his {v) 2 Bl. Comm. 97 ; Burton, § 1341 ; 1 Cruise, t. 10, eh. 1, b. 62. See post, pt. 3, ch. 11. (w) Burton, § 1341 ; 1 Cruise, t. 10, c. 6, ss. 20, 23 ; see Cattky v. Arnolch 4 K. & J. 595. (x) Burton, §§ 1341, 1347 ; 1 Watk. Cop. 25; Scriv. Cop. 21. This is due to the fact of all copyhold interests having been originally mere tenancies at will : see 1 Cruise, t. 10, c. 2, ss. 3, 4. (y) Burton, § 1344; Scriv. Cop. 277. (z) Litt. s. 73. Digitized by Microsoft® 32 THE LAW OF PROPERTY IN LAND. tenure. (a) Under a modern statute, the court (in which, previously, the presence of at least two tenants was required) may be held without any copyhold tenant being present, except where the consent of the homage is requisite to a grant of the wastes.(6) Court rolls. AH changes of tenancy of copyhold land are entered by the steward of the manor in the court rolls, which thus contain the evidence of the customs of the manor, and of the dealings with the copyhold lands. Every copyholder is entitled to inspect (c) the court rolls ; and, as an authorized copy of the entries therein, relating to his land, is evidence of his title to the land, he is said to hold by copy of court roll. Words 'at the The words ' at the will of the lord,' in the above phrase, will of the Qf course do not define the nature of the copyholder's lord' are • t immaterial. interest at the present day. They merely serve to indicate that the tenure is copyhold, (c?) Customs of the The custom of the manor, as has been seen, is the law manor. which gives the copyhold tenant his rights in the land, and prescribes his duties to the lord. Copyhold customs of manors are of two kinds, namely, ' general ' customs — that is, such as are recognised and enforced by courts as part of the common law, and which apply where no special custom exists — and ' special ' or ' particular ' customs, which exist in certain manors only, and (provided they are reasonable and certain) prevail over general customs. The existence of a special custom, if questioned, must be proved by proper evidence. (e) Estates. CopyhoM Estates. — By general custom, copyhold estates may be held in fee simple, for life, for years, or at will ; though copyhold chattel interests are not often met with.(/) But estates tail in land of this tenure exist only in those manors where they are allowed by special custom, called a (a) Co. Lift. 58 a ; Burton, § 1262 ; see 1 Cruise, t. 10, c. 1, ss. 19, 27. (6) 4 & 5 Vict. c. 35, SB. 86, 91 ; see ante, p. 29. (c) 1 Cruise, t. 10, c. 1, b. 28. {d) See post, p. 38. (e) 1 Cruise, t. 10, c. 1, ss. 50-53; Burton, §§ 1325, 1329; Johnstone v. Earl Spencer, 30 Ch. D. 581, 53 L. T. 502, 34 W. R. 10. (/) Burton, § 1314 ; because the copyholder can make leases in the ordinary way with the lord's licence. Bee post, p. 369. Digitized by Microsoft® TENURE. 33 ' custom to entail. '(^) And special customs of manors, regu- lating the estates that may be held by copyhold tenants, are of common occurrence. Thus, in some manors only estates for life are allowed.(/i) Incidents of Copyhold Tenure. — The ordinary incidents of Incidents of ; copyhold tenure are as follows : — An oath of fealty is due t^""""^:^ to the lord, if required ; and the tenant is bound to attend the customary court of the manor, when summoned. But these incidents are practically obsolete. In many manors, rents of small amount, and reliefs, are payable. (■!) And fealty, suit of escheat to the lord, and liability to forfeiture of the estate °°f;^f' ^g^^'^^j to him for breaches of customary duties (such as waste, forfeiture. refusal to pay rents or fines, or to do suit of court, or to take the oath of fealty, or alienation contrary to the custom), are also incidents of this tenure. (Z;) Another incident of copyhold tenure is the lord's right Seizure to take possession of the land where, on the death of a 2'""'^2"^- copyhold tenant, the person next entitled to the land, as heir or devisee, neglects to claim his rights. Before seizing the land, the lord must make proclamations at three or four consecutive courts of the manor (according to the custom) for the party entitled to the land to make his claim. By general custom, lands so seized are held qiiousqw — -that is, until the tenant claims the land ; but by special custom, the land may be seized as absolutely forfeited. (/) Another incident of this tenure is the liability to ' fines.' F'»es. By general custom, on a transfer of the tenancy, whether by alienation or death, a fine is payable to the lord by the new tenant. In some manors its amount is fixed by custom ; in others it was anciently arbitrary — that is, whatever sum the lord might choose to claim. But in later times, it was established by the courts of law that a fine, though originally {g) Co. Litt, 60 b ; Burton, § 1284. As to the copyliold estate in fee simple conditional, in manors where a custom to entail does not exist, see post, p. 41. iji) Third Eep. R. P. Comm. 14. (j) Burton, § 1263 ; 1 Cruise, t. 10, c. 3, s. 2 ; c. 5, e. 20 ; ante, p. 23. (/c) Burton, §§ 1335-1341 ; 2 Bl. Comm. 284; 1 Cruise, t. 10, u. 5, s. 5 ; see •post, pp. 465, 467. (?) 1 Walk. Cop. 234 ; Scriv. Cop. 114 et seq^. C Digitized by Microsoft® 34 THE LAW OF PEOPEETY IN LAND. Heriot. Customary alienation. arbitrary, might not exceed two years' improved value of the land.(m) A further incident (by special custom) is the lord's right, on the death of a copyhold tenant, to a ' heriot '; that is, to the deceased tenant's best beast, or other best personal chattel. The kind of chattel that may be taken depends on the custom of the manor ; and in some manors a customary * composition in money is payable in lieu of a heriot.(w) The obligation of the tenant to adopt the customary mode of alienation on a transfer of his estate is also an incident of copyhold tenure. The form of this alienation is a sur- render of the land to the lord in favour of the intended transferree, and the admittance of the latter by the lord as his tenant ; or, where the land is given by will, the admittance of the devisee without previous surrender of the land.(o) Except in a few cases (hereafter mentioned), (2?) this is the only mode of transfer applicable to copyhold estates and interests ; and an attempted alienation in any form used for the transfer of freeholds is not only ineffectual, but is a ground of forfeiture to the lord.(g') The Copyhold Acts. Extinguishment of Manorial Rights in Copyholds. — Various inconveniences incident to copyhold tenure have led to the enactment by modern statutes, known as the Copyhold Acts,(r) of provisions for facilitating the extinguishment of manorial rights, and the enfranchisement of copyholds. The enactments respecting the extinguishment of manorial rights, which may be first noticed, are contained chiefly in the Copyhold Act, 1841, and in the Copyhold Act, 1887. Under the first of these Acts, rents, fines, heriots, and other rights of the lord affecting copyhold land of the (m) Soriv. Cop. oh. 4, s. 1 ; 1 Cruise, t. 10, 0. 4, ss. 1, 5, 30-34 ; Burton, § 1300 ; Fraser v. 3fason, 11 Q. B. D. 574, 52 L. J. C. L. G43, 49 L. T. 761, 32 W. R. 421. {n) Soriv. Cop. 210 et eeq.; 2 BI. Coram. 97. (0) See Stat. 55 Geo. 3, c. 192, imipost, pp, 370, 386. (p) Post, p. 369. (2) Litt. ». 74; 1 Watk. Cop. 888. (r) 4 & 5 Vict. 0. 35 (1841) ; 6 & 7 Vict. c. 23 (1843) ; 7 & 8 Vict, c, 55 (1844); 15 & 16 Vict. c. 51 (1852) ; 21 & 22 Vict. c. 94 (1858), and other Acts extending, amending, and continuing the foregoing ; and 50 & 51 Vict, c. 73 (the Copyhold Act, 1887). Digitized by Microsoft® TENUEE. 35 manor may be extinguished by agreement between the lord and the tenant (whatever be their respective estates), under certain conditions, with the sanction of the Board of Agri- culture. (s) In lieu of the manorial rights so extinguished, a rent-charge, and a fine not exceeding 5s. on death or alienation, or a fine on death or alienation alone, may be made payable. (^) The commutation may, by express agreement, include the lord's rights to minerals, escheats, &c.(u) A commutation under this Act has the further effect of putting an end to any special customs as to descent of the land, or as to the mutual rights of husbands and wives therein; but in other respects the tenure remains copyhold.(a;) The provisions of the Copyhold Act, 1887, under which any lord or tenant may require and compel the extinguishment of heriots, quit-rents, free rents, or other manorial incidents, have been already mentioned. («/) Enfranchisement of Copyholds. — Enfranchisement of copy- Enfranohise- hold land is the conversion of the tenure by which it is held '"^°* ' into freehold tenure, whereby the land ceases to be demesne land of the manor, and is held, like other land of freehold tenure, of the Crown or other chief lord of the fee. It may at common be effected at common law, when the lord and the tenant ' agree thereto, by means of a conveyance by the lord to the tenant of a freehold estate in fee simple in the land, or by the lord releasing the seignorial rights in the land to the tenant, (s) For such enfranchisement it is, of course, essential that the lord have an estate in fee simple in the demesne lands, or the power of disposing of the fee simple ; but the enfranchisement will be effectual, although the copy- hold estate of the tenant be merely an estate in tail or for life.(a) (s) See post, p. 412. (i) 4 & 5 Vict. c. 35, ss. 52, 54. (tt) S. 52. (x) S. 79. {y) 50 & 51 Vict. c. 73, i*. 7, stated ante, p. 28. This enactment is subject, however, to s. 48 of the Copyhold Act, 1852, whereby a statutory enfranchise- ment does not aifect the lord's or tenant's rights to minerals, fairs, markets, rights of chase, &o., unless with the express consent of the lord or tenant, in writing. (s) Burton, § 1351 ; 1 Cruise, t. 10, c. 6, ss. 13, 14. (a) Burton, §§ 1352, 1353 ; 1 Cruise, t. 10, _c. 6, ss. 18, 19 ; tide post, p. 63. As to enfranchisements under the powers given by the Settled Land Act, 1882 (45 & 46 Vict. t.-. 38), to tenants for life and other limited owners, see post, pp. 81, 82. Digitized by Microsoft® S6 THE LAW OF PKOPERTY IN LAND. under the By the Copy hold Acts, however, important alterations Copyhold Acts. ^^^^ i3gg^ jjjg^^g -j^ ^.jjg jg^^ Qj^ ^.jjjg subject, fadHtating the enfranchisement of copyholds. Under these Acts, an en- franchisement may be eifected notwithstanding that either party has only a limited estate, or is under some personal disability, or is a trustee for any person ; (&) its validity is independent of the title of the lord to the demesne land ; it may be either agreed upon between the parties, or compelled by either party ; (c) and it may be completed by an award of enfranchisement made by the Board of Agriculture. (i^) Compensation As regards the compensation to be made to the lord of for enfranchise- -j^jjg manor for the loss of his manorial rights on an enf ran- ment under the . ° Acts. chisement under the Acts, the Copyhold Act, 1887, provides that the lord and tenant may agree, in writing, on the amount of the compensation, or may have the amount ascer- tained by valuation under the superintendence of the Board of Agriculture,(e) or may, by agreement, leave the amount to be determined by the Board. (/) The tenant may pay the compensation in a gross sum of money ■,(g) but subject to this right, and unless the parties otherwise agree, if the enfranchisement is at the instance of the lord, or if the enfranchised land can be suflBciently identified and the compensation exceeds one year's improved annual value of the land, the compensation is to be an annual rent-charge, secured upon the enfranchised land, equal to interest at the rate of £4 per cent, per annum upon the amount of the compensation-money, and payable half-yearly. (A) And such rent-charge may be redeemed by the tenant by payment of twenty-five times its yearly amount, (t) The owner of the enfranchised land may (although he have only a limited estate therein) charge the land with the compensation- money paid for the enfranchisement and expenses, with interest not exceeding £5 per cent, per annum, or by way (i) 4 & 5 Vict. c. 35, s. 57 ; 15 & 16 Vict. ^. 51, s. 7 : 50 & 51 Vict. c. 73, s. 39. (c) 4& 5 Vict. c. 35, s. 56 ; 15 & 16 Vict. c. 51, s. 1 ; 21 & 22 Vict. c. 94, o. 6. (d) 21 & 22 Vict. c. 94, b. 10 ; 50 & 51 Vict. u. 73, s. 22 ; see230st, p. 412. (e) See post, p. 412. (/) Rs. 3, 43. (,<•/) S. 13. (7j) S. 14 ; see2MSt, p. 287. j) S. 17 ; see post . 287. Digitized by Microsoft® TENURE. 37 of terminable annuity calculated on the same basis. (/i;) And tbe lord's expenses may be charged on lands settled to the same uses as the manor, or on rent-charges arising out of other enfranchisements within the manor.(/) The Copyhold Act, 1887, also provides that on the admit- Notice of right tance of any person as tenant of copyhold land the steward *" enfranchise, of the manor shall give him notice of his right to enfranchise the land.(m) The same Act also provides for a general enfranchisement General enfran- of all the copyhold lands within any manor in which the " '^^™®°*- fines are certain, and in which it is the practice for copy- holders in fee to grant derivative interests to persons who are admitted as copyholders in respect of such interests : provided that, as the result of a local inquiry held by the Board of Agriculture («.) on the request of the lord or of one-fourth in number of the copyhold tenants, the Board find that not less than two-thirds in number of the copy- holders desire such enfranchisement ; the compensation in each case (which is to consist of a gross sum of money, unless the lord and the tenant in fee of the land otherwise agree) being apportioned among the several persons for whose benefit the enfranchisement enures, in proportion to their respective interests in the enfranchised land.(o) Enfranchisement under the Copyhold Acts does not affect Rights not any rights of common of the tenant, or (unless with the enfranohise- consent, in writing, of the lord or tenant) any right of the ment. lord or tenant in any mines or minerals, or any right of fair or market, or in respect of game, fish, &c.(jj) In these respects the effect of a statutory enfranchisement differs from that of enfranchisement at common law, which ex- tinguishes all the rights and incidents of copyhold tenure. And by the Copyhold Act, 1887, on any enfranchisement after the passing of that Act, the lord continues entitled, in case of escheat for want of heirs, to the same right and interest in the land as if it had not been enfranchised. (§') (k) S. 23. {I) S. 24. (m) S. 1. (m) Seejoost, p. 412. (o) S. 47. As to the custody of the court rolls after such general enfranchise- ment, see s. 48. fp) 4 & 5 Vict. 0. 35, s. 81; 15 & 16 Vict. c. 51, ss. 45, 48. iq) 50 & 51 Vict. u. 73, ss. 4, 5 ; post, p. 467. Digitized by Microsoft® 38 THE LAW OF PKOPEETY IN LAND. Is in general copyhold. In some oases freehold. Customary Freehold. — A variety of tenure called 'customary freehold' or 'free copyhold' is recognised, but is not common. Land of this tenure is held of the lord of a manor. The lord is, in general, entitled to the timber upon, and the minerals within, the land ; (r) and the usual mode of alienation is the same as that of ordinary copyholds. The lands, however, are not stated in the court rolls to be held at the will of the lord. According to the prevailing opinion, the seisin of land held by this tenure is in the lord, as freeholder ; and practically the tenure is not distinguish- able from ordinary copyhold.(s) It seems, however, that there is also a customary freehold tenure of land, the seisin of which is in the tenant; the land in this case being transferred by the ordinary modes of conveyance applicable to freeholds, with the addition of surrender and admittance. (^) Lands held by these cus- tomary tenures are subject, in general, to the provisions of the Copyhold Acts. (r) See Duke of Portland v. Bill, L. E, 2 Eq. 765, 35 L. J. Ch. 439, 15 W. E. 88, (s) Scriv. Cop. 14-17 ; 1 Cruise, t. 10, c. -1, o. 6 ; see Doe d. Beay v. Huntington, 4 East 271. (t) See 1 Cruise, t- 10, c. 1, Bs. 9 et seq. ; Williams, Seisin, 129, 132 ; Ferryman's case, Eep. pt. 5, 83 b. Digitized by Microsoft® CHAPTER II. ESTATES GENERALLY. Definition. — The use of the word ' estate,' as denoting Estate defined. the ownership of land, has already been referred to ; and it has been seen that estates are divided into several kinds, according to their respective quantities, (a) The ' quantity ' of an estate means, primarily, the extent of its duration, or possible duration, in point of time. (J) An estate may therefore be defined as a right of ownership in land, or in an object governed by the law relating to land, being one of the several degrees into which such rights are divisible, according to the extent of their duration. (c) Classification. — Estates may be classified in different Division, ways. Thus, they may be distinguished (i.) with reference to their quantities, the division above adverted to ; or (ii.) as estates of freehold or less than freehold ; or (iii.) as absolute or conditional estates; or (iv.) with reference to the modes in which they may be held.(d) In the present chapter estates will be considered under each of these heads. (i.) Estates with Reference to their Quantities. — Under this head estates are divisible into estates in fee simple ; estates in fee tail, or estates tail ; estates for life ; estates for years ; estates at will ; and estates at sufierance. (a) Ante, p. 21. (6) 2 Bl. Comm. 103 ; 1 Prest. Est. 6, 21, 22. (c) See Co. Litt. 345 a ; 2 BI. Comm. 103 ; Burton, § 12 ; 1 Prest. Est. 20. Kights inferior to ownership are in some instances similarly divisible, and (with reference to their duration) are commonly called estates. {d) Of the above divisions the third and fourth are by some writers treated as a single division of estates, according to their 'qualities,' i.e., according to the incidents of ownership other than duration ; this division being opposed to the first of the above divisions of estates — viz., according to their quantities : 1 Prest. Est. 6, 7, 21, 22 ; 6 Cruise, t. 39, s. 37. Digitized by Microsoft® 40 THE LAW OF PEOPEKTY IN LAND. Definition. Estate in Pee Simple. — The greatest in quantity of the several estates — an interest that (as previously stated) is practically equivalent to absolute ownership — is the ' estate in fee simple.' This may be defined as an estate which is capable of devolving, on the decease of the owner, upon his, or a preceding owner's, heirs general, that is, on any kindred, however remote. (e) The word ' simple ' imports that the fee, or inheritance, is not limited to heirs of a particular class. The owner is called ' tenant in fee simple.' Conditional fee At common law, if an estate were granted to a person ateommonlaw. ^^^ ^-j^^ j^^^^.^ ^j j^-g body, i.e., his lineal descendants only, the grantee, if he had issue, or his issue after his death, might dispose of the land for an estate in fee simple. But in default of such disposition, the land reverted to the donor on the death of the grantee, if he had no issue, and other- wise passed to his issue, and reverted to the donor or his successors on failure of such issue. An estate granted in these terms was called a ' fee simple conditional,' or ' con- ditional fee,' since it was deemed to be an estate in fee simple held subject to an implied conditional limitation (/) whereby the fee would revert to the donor in the events above mentioned. (^) Statute i)e But by a statute of Edward I.,(h) usually called the iio"**?*""^*" statute De donis conditionalilus, it was enacted, with respect to estates given to persons and the heirs of their bodies, that from thenceforth the will of the donor, according to the form in the deed of gift manifestly expressed, should be observed ; So that they to whom a tenement was so given under condition should not have power to alienate it, whereby it should fail to remain, after the death of the donee, to his issue, or to revert to the donor or his heirs if issue failed. Upon the construction of this statute it was held that a gift that had previously conferred a conditional fee no longer had that effect, but created, instead, a new kind of estate, to which the name of ' fee tail ' or ' estate (c) Burton, § 14; 2 BI. Comm. 104. As to the application of this defini- tion to a ' base fee,' see post, p. 127. (/) As to which, see post, p. 46. {g) NeviVs case, Rep. pt. 7, 33 a ; Willion v. Berldey, Plowd. 223, 235, 247 ; Litt. s. 13; Co. Litt. 18a, 19 a; 2 Bl. Comm. 110. (7») 13 Edw. 1, c. 1 (Statute of Westminster 2). Digitized by Microsoft® ESTATES GENERALLY. 41 tail ' was given ; and that the ultimate estate in fee simple, expectant on the determination of the estate so granted, remained in the donor, (i) The statute Be donis does not apply to interests of copy- Statute JDe hold tenure ; hence, a gift of a copyhold estate to a person ^ppiTcable to and the heirs of his body creates a fee simple conditional oopyhoHa. of the same nature (as regards its descent, and the power of disposition, and reversion to the donor) as the like estate in la,nds of freehold tenure prior to that statute ; unless, indeed, a special custom of the manor (or 'custom to entail ') authorize the creation of estates tail. (A) Estate Tail. — An estate tail may be defined as an estate Definition, deriving its existence from the statute De donis conditionali- ius — or (in lands of copyhold tenure) from a special custom of the manor — and capable of devolving, on the death of the owner, upon heirs of the body, or lineal descendants, only, of the grantee of the estate.(Z) The owner is called ' tenant Tenant in tail. in tail,' or, sometimes (where he is the original grantee), ' donee in tail.' The descent being so restricted, the estate Quantity of is deemed to be inferior in quantity to the estate in fee simple. Estates tail are either ' general ' or ' special.' Tail ' General ' or general is where, in the creation of the estate, the donee in ^^^°'^ tail is alone mentioned as the person from whose body the heirs must be derived — as where land is given simply to A. and the heirs of his body. Tail special is where both the original parents are specified — as to A. and the heirs of his body by B., or to B. and the heirs of her body by A.(m) Moreover, an estate tail, whether general or special, may Classes of be made descendible to all the issue in their order, whether male or female, as in the preceding examples ; or it may be confined to male issue, as to A. and the heirs male of his body — being then an estate in ' tail male,' the descent of (0 2 Bl. Comm. 112. (it) 2 Bl. Comm. 113; Burton, § 1284; Co. Litt. 60 b. (l) 1 Cruise, t. 2, ^. 1, s. 12. The word 'tail' (Lat. talliatmn, Fr. taille) means cut down or restricted : 2 Bl. Coram. 112, note (m). (m) Burton, § 647. At common law an estate in tail special was created by a gift of land on the marriage of the donor's daughter or cousin, to hold in frankmarriage (in libera maritagio). As to this form of donation (which has long been obsolete), see 2 Bl. Comm. 115. Digitized by Microsoft® i.2 THE LAW OF PEOPEKTY IN LAND. whicli must be traced entirely through males ; or it may be restricted to female issue, as to A. and the heirs female of his body — in which case it is an estate in ' taU female,' and descends through females exclusively.(n) An estate in tail female is very rarely met with. Estate pur avtre vie. Cestiii que vie. Special occu- pant. Definition. Estate for Life. — An estate for life is an estate which is limited in duration to the life of the tenant, or to the life or lives of some other person or persons ; as where land is given to A. for the term of his life ; or to A. during the life of B. ; or to A. during the lives of B., C, and D.(o) Where the land is held during the life of another, the estate is commonly called an ' estate pur autre vie,' and the per- son whose life is the period of its duration is called the cestui que vie.(p) If an estate pur autre vie is granted to a man and his heirs, or to him and the heirs of his body, the heir on whom the land devolves on the death of the grantee in the lifetime of the cestui que vie is deemed to take it, not as heir, but as ' special occupant/ that is, one specially pointed out by the terms of the grant to occupy the land.(2') Where the limitation is to the grantee and the heirs of his body, the estate pur autre vie is called a ' quasi-entail,' being analogous, as regards its devolution, to an estate tail.(r) It seems that an estate pur autre vie may be limited to executors or administrators of the grantee, as special oc- cupants.(s) Tenant for life. The Owner of an estate for life is usually called ' tenant for life,' or (less frequently) ' lessee for life ' ; or, where he holds during the life of another, ' tenant pur autre vie.' Quasi-entail. (») Burton, § 649. (o) An estate granted to A. for one hundred years (or any otlier fixed term), if he shall so long live, is technically not an estate for life, but a chattel in- terest merely, although it ceases on the death of A. As to this, see post, p. 47. (p) Litt. B. 56. {q) Williams, Seisin, 167 ; Atlein$on v. Balcer, 4 T. R. 229 ; Me Barber's Settled Estates, 18 Ch. D. 624, 628, 50 L. J. Ch. 769, 29 W. E. 909 ; but see Burton, § 731. (r) Allen v. Allen, 2 Bru. & War. 307 ; Williams, Seisin, 166 ; Be Barber's Settled Estates, ubi supra. (s) See Bipley r. Waterworth, 7 Ves. 425, and other cases cited 1 Cruise, t. 3, c. 1, B8. 49-54. Digitized by Microsoft® ESTATES GENERALLY. 43 An estate for life is, of course, less in quantity than an Quantity of estate in fee simple or in tail ; and an estate pur autre vie is deemed in law to be less than an estate for the tenant's own life.(^) Estate for Years. — An estate for years is an estate limited, Definition, as to its duration, to some fixed and certain period of time ; as a specified number of years, or a single year, or any less period denoted by one of the ordinary divisions of time.(M) It may, however, be an estate held from year to year, or (as it is otherwise called) a ' yearly tenancy.' This con- Yearly sists, in the first instance, of a certain term of one year ; t^^^^y- but unless due notice to terminate the estate at the expira- tion of the year (x) be given by either the grantor or the grantee, it becomes an estate for another year, reckoning from the completion of the first year ; and thus a new year is continually added to the term as often as the previous notice which would secure its expiration is omitted to be given.(y) An estate for years is sometimes called a ' term '; though ' Term ' ; this word, in its primary sense, means the period of duration . leggge.' ' of an estate for years. («) The grantor and grantee of the estate are called, respectively, ' lessor ' or ' landlord,' and ' lessee ' or ' tenant.' An --estate for years is, in a legal sense, inferior in Quantity of pQ+.Q^"p quantity to an estate in fee simple, or in tail, or for life ; even though the term be of such length as to be prac- tically a perpetuity, as where land is granted for a term of looo years. This inferiority is due to the fact that, in the early feudal law, a tenant for years had not a right of property in the land, (a) Estate at Will. — An estate at will is an estate which Definition, exists for so long a time as both the tenant and the person (0 2 Bl. Comm. 121 ; Burton, § 747. (u) 2 Bl. Comm. 140 ; Burton, § 863. As to the divisions of time in English law, see 2 Bl. Comm. 141. (x) As to the notice required, aeepost, p. 103. (!/) Burton, § 865. (a) Co. Litt. 45 b ; 2 Bl. Comm. 143. (a) Co. Litt. 54 b ; Burton, § 897. See ante, p. 10. Digitized by Microsoft® 44 THE LAW OF PEOPEETY IN LAND. ' Tenant at will.' Quantity of estate. Definition. of whom he immediately holds desire its continuance, and no longer.(5) The estate is commonly called ' tenancy at will,' and the owner ' tenant at will.' This estate is less in quantity than a term of years. Estate at Sufferance. — An estate at sufferance is the in- terest of a person who, having held by a lawful title, con- tinues in possession after his title has determined, without the consent, either express or implied, of the person next entitled to the possession ; as where a tenant for years remains in possession after his term has expired. (c) Estates of in- heritance. Estates of freehold. than freehold. (ii.) Estates of Freeliold and Less than Freehold. — Estates in fee simple and in fee tail are styled ' estates of in- heritance,' since they are capable of passing to the heir on the decease of the owner for the time being. Estates of inheritance and estates for life are called ' estates of free- hold ' ; the term ' freehold,' in this connection, having reference to the seisin or feudal possession, and being applied to these estates inasmuch as they entitle the tenant to the seisin. (fZ) In technical phraseology the tenant is ' seised in his demesne ' ; which means that he is seised of the land itself, and not merely of the seignory or services. ' Seised in his demesne as of fee,' or ' as of fee tail,' denotes seisin of ai;! estate of inheritance ; while ' seised in his demesne as of freehold ' signifies seisin of an estate for life.(c) These technical phrases, however, are seldom, if ever, used at the present day. Since the seisin of land of copyhold tenure is in the lord of the manor, copyhold estates in fee simple, in tail, and for life cannot properly be termed estates of freehold. They are, however, quasi-freehold estates. (/) Estates for years, at will, and at sufferance are distin- guished as estates ' less than freehold,' since, being chattels (6) Co. Litt. 55 a ; 2 BI. Comm. 145 ; Burton, § 19 ; 1 Cruise, t. 10, c. 1, c. 2, s. 1 ; Bichardson v. Langridge, 4 Taunt. 128 ; S.C, and notes thereto Tudor R. P. Cas. 4; James v. Dean, 11 Ves. 383, 391. (c) 2 Bl. Comm. 150 ; 1 Cruise, t. 10, c. 2 S.C, and notes thereto, Tudor E. P. Cas. 1. {d) Litt. s. 324 ; 1 Cruise, t. 1, p. 19 Williams, Seisin, 2, 4, 5 ; ante, p. 21. (e) See 2 Bl. Comm. (/) Co. Cop ; House's case, Owen 27 Burton, § 60 ; 2 Bl. Comm. 104 s. IG. Digitized by Microsoft® ESTATES GENERALLY, 45 real,(^) they do not entitle the tenant to the seisin, but con- fer only a right of possession, which is technically inferior to the seisin (7i) — though in modern law there is practically no difference between the seisin of land for an estate of freehold, and the possession of land for an estate for years, as regards the nature of the possession.('i) (iii.) Ahsolute and Conditional Estates.— Kn estate may Absolute. be called ' absolute' when the ordinary period of its duration is not subject to abridgment in some event specified or implied in a deed or other instrument by which the estate is given. In the foregoing description of estates, with reference to their quantities, they are defined as absolute estates. An estate may be given in such terms, however, Conditional, that, in some event, stated or implied, the interest of the tenant may be put an end to, or may determine ipso facto, before the completion of the regular period of duration of such an estate, and it may then be termed a conditional estate. (A) Conditional estates comprise estates subject to conditions Kinds of subsequent ; estates subject to conditional limitations having estates""^ efiect by the common law ; and estates subject to condi- tional limitations having efiect as executory interests. Conditions Subsequent. — A condition subsequent — also Definition. called a ' condition of re-entry,' or, simply, a ' condition ' — is a clause annexed to the grant of an estate, and providing that, on the occurrence of a specified event (the occurrence of which is uncertain) before the expiration of the estate in the ordinary course, the grantor may re-enter on the land, or (sometimes) that, in such event, the estate granted shall be void. Its effect is that, on the occurrence of the event, the grantor, or any person entitled under him to the benefit of the condition, may defeat (that is, put an end to) the estate, and resume the former estate of the grantor in the [g) See ante, p. 10. (h) Ante, p. 22 ; 2 BI. Comm. 144 ; Litt. o. 324. (i) An estate for years is sometimes spoken of as an interest which is not ownership, inasmuch as the tenant has not the seisin. Such was, origirally, the nature of a tenancy for years ; hut by its recognition as an estate in the land, it became a right of ownership : see ante, p. 10. (Tc) See 1 Prest. Est. 24. Digitized by Microsoft® 46 THE LAW OP PROPERTY IN LAND. Towliat may be annexed lancl.(^) For this purpose an entry upon, or claim to, the land is necessary ; for, till this takes place, the estate continues to exist, notwithstanding the occurrence of the event upon which it was made determinable. (m) A condition subsequent may be annexed to the grant of an estate in fee simple, or any less estate. Thus, the fee simple may be granted subject to a condition that if the grantor or his heirs pay the grantee or his heirs a sum of money, the grantor or his heirs may, within the period allowed by law for the vesting of future interests,(«) re- enter on the land ;(o) or an estate in fee simple may be granted to A., with a proviso for re-entry, within the period last mentioned,(M) by the grantor and his heirs in case the grantee discontinue to use the name of A.(p) And, accord- ing to feudal principles, an estate in fee simple is held subject to an implied condition of re-entry by the lord, on breach by the tenant of any of the feudal duties incident to the tenure of the land. (2) As will hereafter be seen, estates for years are commonly granted subject to a condi- tion of re-entry by the lessor or his heirs on default by the tenant in payment of rent, or in the observance of the stipu- lations contained in the lease, (r) Definition. Conditional Limitations having Effect by the Common Law. — A conditional limitation of this class may be de- scribed as a qualification annexed to the grant of an estate, whereby, according to the rules of the early common law, the estate must expire upon the occurrence of some event which may or may not happen, and which, if it happen, must precede the occurrence of the event upon which the (l) Litt. s. 325 ; 2 Bl. Comm. 154. (»re) Litt. s. 347 ; 2 Bl. Comm. 155. Except that where the estate is a lease for years, and the condition provides that it shall be void on the occurrence of the event, the estate may determine vfithout entry: see^ost, p. 103. (n) See post (rule against perpetuities), p. 324. (0) 1 Sand., Uses, 210. Such, as will be hereafter seen, was the ordinary form and effect of a mortgage of land at common law : post, p. 222. (p) 1 Sand., Uses, 210. As to the effect in modern law of a devise in fee simple subject to a condition subsequent, see post, p. 464. {q) 2BI. Comm. 153. The law as to re-entry for breach of feudal duties by freeholders has, however, become obsolete. (r) Post, p. 103. Digitized by Microsoft® ESTATES GENEEALLY. 47 estate would expire if it had been given unconditionally. (s) Thus, where land is granted to a man so long as he is par- son of Dale, or while he continues unmarried, or until out of the rents and profits he shall have made £500 — these are instances of conditional limitations of estates for life ; and if the contingency happens in the grantee's lifetime (when he ceases to be parson, marries a wife, or has re- ceived the £500), the estate terminates. But if the con- tingency does not happen before his death, the estate continues throughout his life. So, if an estate be granted to A. for a certain term of years, if he shall so long live — this is a conditional limitation of a term of years determin- able by the death of A. before the end of the term, but otherwise continuing till its completion. (^) A conditional limitation of this class is to be distinguished Differs from from a condition subsequent. On the termination of an g^^sequent ■— estate by the operation of a conditional limitation, the next in operation, subsequent estate, which depends on such termination (and which may be either an estate granted in such event to a third person,(zs) or the grantor's former estate reverting to him or his successors), becomes immediately vested without any act being done by the person so entitled in expectancy ; whereas, as has been seen, on breach of a condition subse- quent, entry or claim is necessary to determine the estate, (x) Again, in the creation of a conditional limitation of this in words of class, such words as ' until,' ' during,' ' so long as,' &c., are ^^ation. properly used ; while words of condition are ' if,' ' upon condition that,' ' provided that,' &c.(?/) But though strict words of condition be used in the creation of the estate, yet if, on breach of the condition, the estate be expressly given to a third person (as if an estate be granted to A. on condition that within two years he return from Rome, and on failure thereof, then to B. and his heirs), this is construed as a limitation, and not as a condition. (2) is) See 2 Bl. Comm. 155 ; 1 Sand., Uses, 155-157 ; In re Machu, 21 Ch. D. 838, 30 W. E. 887. (t) 2 Bl. Comm. 143, 155. (m) I.e., an estate in remainder, as to whioh, see^jost, p. 119. {x) 2 Bl. Comm. 155 ; Co. Litt. 214 b. (y) 1 Sand., Uses, 156 ; 2 Bl. Comm. 155. (z) 2 Bl. Comm. 155 ; but see In re Machu, supra. Digitized by Microsoft® 48 THE LAW OF PEOPEETY IN" LAND. Conditional limitation not applicable to fee simple. Any estate, otter than an estate in fee simple, may be granted subject to a conditional limitation of this class. And prior to the statute Qicia emptores, the fee simple also might be so granted. For example, land might be given to A. B. and his heirs so long as C. D. or his issue should live, or so long as 0. D. and his heirs should be tenants of the manor of Dale, or so long as a certain tree should stand ; and upon the death of G. D. and failure of his issue, or their ceasing to be tenants of the manor, or upon the falling of the tree, the estate reverted to the donor or his heirs, as being the persons having (by virtue of the absolute estate in fee simple originally vested in the donor) the right of reverter upon the determination of the estate granted.(a) So also, as has been seen, the conditional fee, or fee simple conditional, of the common law was an instance of an estate in fee simple granted subject to an implied conditional limitation. (5) The right to the land upon the determination of the estate so given could not, however, be granted by the donor of the estate, to a third person, since it was not an actual interest in the land.(c) And the effect of the statute Quia emiitores was to prevent the grantor of an estate in fee simple from reserving to himself, either expressly or by implication, any such right in the land granted. For such reservation would make the grantee the tenant of the grantor ; and the statute prevented for the future the grant of an estate in fee simple to be held of the grantor. (c^) Since, therefore, no interest in expectancy or right of reverter can remain in the grantor, or any person claiming under the grantor, of an estate in fee simple granted since the statute Quia emptores, any such qualification as above, annexed to a grant of the fee simple, must be void.(e) (a) 1 Sand., Uses, 208. ih) See ante, p. 40. (c) Co. Litt. 18 a ; 1 Sliep. Touob. 120; and see^osJ, p. 114. (d) See ante, pp. 22, 23 ; Litt. s. 140 ; Co. Litt. 98 b. (e) 1 Sand., Uses, 208-209, citing 2 Anderson, 138 ; Third Eep. R. P. Com. p. 36; Leake, Digest R. P., 36, 217; Gray, Perp.,19; Collier \. McBean, Li. R. 1 Ch. App. 81 ; and see, per Jessel, M.R., in Collier v. Walters, L. R. 17 Eq. 252, 261, 43 L. J. Cb. 216, 29 L. T. 868, 22 W. R. 209. See also JJus- grave Y. Brooke, 26 Ch. D. 792, 54 L. J. Ch. 102, 38 W. R. 211. The validity of a conditional limitation annexed to a gift in fee, giving rise to a qualified fee simple, with possibility of reverter (or, as it is sometimes called, a ' determinable fee '), has, however, been assumed by great authorities ; see dicta, Eep. pt. 10, Digitized by Microsoft® ESTATES GENERALLY. 49 Manorial custom, liowever, furnishes an exception to this rule in the case of the fee simple conditional in copyhold land, held of a manor in which there is no custom to en- tail.(/)_ Conditional Limitations having Effect as Executory In- Definition. terests.(^) — A conditional limitation of this class may be shortly described as the grant of an estate in such terms that it will arise in a stated event, and defeat or abridge a previously vested estate, in accordance with the rules applicable to executory interests. The nature of executory interests, and the rules applicable to them, will be con- sidered hereafter. (A) It may be here mentioned, however, Distinguislied that they were not recognised by the early common law, V:°™ °°,",'. . but are governed by rules of later introduction, and differ tations of in some important respects from conditional limitations of """"^ ^'^• the common law. Thus, although, as has been seen, an estate in fee simple cannot be determinable through the operation of a conditional limitation of the common law, a. vested estate in fee simple may be defeated by a limita- tion which takes effect as an executory interest. (i) Again, in limiting an executory interest, words either of condition or of limitation may be used.(Z;) Whether a limitation in defeasance of a prior estate is to be construed as a con- ditional limitation of the common law, or as an executory interest, depends on rules that will be considered here- after.(^) (iv.) Estates with Hefercnce to the Modes in which they Different may le held. — Estates may be held in any of the several ""'^estates" modes in which, as previously explained, rights of owner- ship may be enjoyed. (m) Hence, estates may be either in possession or (with the exception of estates at will or by 97 b ; Kep. pt. 11, 49 a ; IP. Wms. 70, 74, 75 ; Co. Litt. 1 b ; 2 Lord Eaym. 1148; 1 Prest. Est. 431 etseq. ; Plowd. 557; 1 Cruise, t. 1, ss. 82-86; 2 _B1. Comm. 155, &c.; but it is believed that in no reported case has such a limita- tion of the fee simple (as distinguished from a limitation by way of executory interest) been expressly held to be valid, not being a grant by the Crown. (/) See ante, pp. 40, 41. (g) See Fearne, 0. E., 15. (h) See ■post, p. 143, et seq. (i) 1 Sand., Uses, 156. For examples, see ^ost, pp. 149 150. (k) 1 Sand., Uses, 158. See examples, j)OS<, p. 149. {I) Post, pp. 121, 122, 148. {m) Ante, I) Digitized by Microsoft® ^^ THE LAW OF PEOPERTY IX LAND. sufferance) in expectancy ; and, whether in possession or expectancy, may be held in severalty or community; and, in any of these cases, may entitle the tenant to both the legal and the equitable interest, or to the equitable interest only. Arrangement of Topics. — In the following chapters of this part, estates are considered, according to the different modes in which they may be held, under the four heads of Estates in Possession, Estates in Expectancy, Estates in Community, and Equitable Estates. In treating of estates under the first three heads, they are assumed to be held without separation of the legal and equitable interests ; and estates in possession, and in expectancy, are assumed to be held in severalty. Distinctions between absolute and con- ditional estates are noticed under the heads of Estates in Possession and Estates in Expectancy. Under each head the subject is arranged as follows : — First, the definition of the mode of holding ; secondly, the creation of estates so held — i.e., the circumstances under which such estates come into existence ; thirdly, the rights of the tenant, which are divided into rights of use and enjoyment, and rights of alienation ; fourthly, the determination of such estates — i.e., the events in which they cease to exist, in accordance with the terms in which they are limited. As regards the creation of estates, however, the facts or events that give rise to them are merely stated generally, as the full descrip- tion of such facts or events is contained in a later part of the work.(w) (k) Part III. See ante, p. 17. Digitized by Microsoft® CHAPTER III. ESTATES IN POSSESSION. Definition. — An estate is said to be 'in possession ' when Estate in the tenant is entitled to tlie immediate use and enioyment possession r. , , ■, , . , defined. 01 the land or other subject of the estate. (a.) An estate is deemed in law to be an estate in possession, although the tenant have not the actual seisin or possession of the sub- ject, if it be wrongfully withheld from him by another ; since he may enforce his right to the possession by legal process. (&) The distinctions that exist between the different estates as regards their creation and determination, and the tenant's rights of use and enjoyment, apply chiefly to estates in possession. In the present chapter, therefore, each estate is considered separately. Sect. I. — Estates ix Fee Simple. (c) Creation or Acquisition. — An estate in fee simple in Modes of. land of freehold tenure may be created by the grant of the Crown, as lord paramount, where there is no existing estate in fee simple in the land ; as where it has escheated to the Crown. (f?) As regards land of copyhold tenure, if a customary estate in fee simple has determined from any (a) As to ownership in possession, generally, see ante, p. 2. (b) 1 Steph. Comm. 313; 2 Bl. Comm. 195 ; cf. Leach v. Jay, 9 Ch. D. 42, 47 L. J. Ch. 876, 39 L. T. 242, 27 AV. R. 99. (c) For the definition of an estate in fee simple, see a'n.te, p. 40. (d) As to various statutory restrictions on the alienation of Crown lands, sec post, pt. 4, oh. 6. As to the creation of estates in fee simple by private persons by means of subinfeudation prior to the statute Quia emvtores, and the effect of that statute with respect to such gi-ants, see ante, pp. 22, 23. Digitized by Microsoft® 52 THE LAW OF PEOPEETY IN LAND. cause, the lord of the manor may, as has been seen,(t!) re- grant the land for a new copyhold estate in fee simple ; and he may also, subject to certain conditions and restrictions (imposed chiefly by the Copyhold Act, 1887), grant estates in fee simple in parts of the wastes of the manor.(/) Grants of these kinds, which are of rare occurrence, are the only modes whereby estates in fee simple can be created, in the sense of being made to arise as new estates. The ordinary (and only other) mode of acquisition of an estate in fee simple is its transfer, as an existing estate, from a person in whom it is vested, to the person by whom it is acquired. Rights of, in Use and Enjoyment. — The tenant of an estate in fee general. simple in land of freehold tenure has, in general, the right of an absolute owner, with respect to the use and enjoyment of the land. Hence, he is entitled to all the profits or produce of the land, and to everything that may be separated (whether intentionally or by accident) from it ; and he may use and deal with the land, and with every- thing comprised in that term — as buildings, trees, or minerals — as he may think fit ; subject only to the restrictions which the law imposes on absolute ownership in this veapect.(g) Restrictive The tenant may, however, be bound by covenants entered covenants. Jjj^jq j^y iiimgeif^ or by a preceding owner, restricting the exercise of any of the foregoing rights. If such a covenant be of a negative or prohibitory character — e.g., a covenant not to build on the land — it will in equity, though not at common \aw,(Ji) bind not only the covenantor, but also every subsequent owner of the land, except a pur- chaser who has acquired it without notice that the land is subject to such restriction — to the extent, at least, that a breach of the covenant will be restrained by injunc- («) Ante, p. 31. (/) See aate, p. 29. ((/) As to which, see ante, p. 2. (7j) The burden of a covenant iloes not, it seems, run with the land at common law, except as between landlord and tenant : see post, p. 97 ; Austerhemi v. Cor- poration of Oldham, 29 Ch. D. 750, 33 W. E. 807 ; Third Kep. E. JP. Com-. 63, 54. Digitized by Microsoft® ESTATES IX POSSESSION. 53 tion.('i) But the foregoing rule does not apply to an affirmative covenant, such as a covenant to build or repair buildings. (^•) Where an estate in fee simple is held subject to a con- Where liable ditional limitation by way of executory interest (/) the ^"^'f '"'^''' tenant is not entitled to commit waste of the kind called equitable waste ; but he cannot, it seems, be prevented from committing ordinary waste. (7)1) The rights of a tenant in fee simple in land of copyhold Copyliold tenure, as to use and enjoyment, are limited by the lord's fSiy for rights in the timber and minerals. And if a copyhold waste, tenant (whether his estate be the fee simple or a smaller estate) open mines, or cut timber, or do any other act on the land which the law deems waste ; or permit waste of the land by neglecting to repair, &c., such act or omission on his part, unless warranted by special custom of the manor, or duly authorized by the lord, is a cause of forfeiture of the land to the lord, as being an infringement upon his rights, (m) In other respects, however, the rights of a copyhold tenant in fee simple, as to use and enjoy- ment, are the same as where the tenure is freehold. As has been seen, copyhold land that has been enfranchised under the Copyhold Acts, so far retains the character of copyhold, that the lord has the same rights in the minerals as before the enfranchisement, unless the contrary has been agreed. (0) (i) Tulk V. Iloxliay, 2 Ph. 774, and see other cases cited in 2 Dart, V. & P., 863 ei se?. ; Benals v. Cowhshaw,9 Ch. D. 125, 11 Ch. D. 866. 48 L. J. Ch. 830; Nottingham Patent Brick and Tile Co. v. Sutler, 15 Q. B. D. 261, 16 Q. B. D. 778,'55 L. J. C. L. 280, 54 L. T. 444, 34 W. E. 405 ; Collins v. Castle, 36 Ch. D. 243, 57 L. J. Ch. 76, 57 L. T. 764, 36 W. E. 300 ; Spicer v. Uartin, 14 App. Cas. 12, 58 L. J. Ch. 309, 60 L. T. 546. Qc) Haywood v. JBrunswich, &c., Building Society, 8 Q. B. D. 403, 51 L. J. C. L. 73, 45 L. T. 699, 30 W. K. 299; London and South- Western Mailway Co. v. Gomm, 20 Ch. D. 562, 51 L. J. Ch. 530, 46 L. T. 449, 30 W. E. 620; Austerherry v. Corporation of Oldham, 29 Ch. D. 750, 33 W. E. 807. [l) See ante, p. 49. (m) Turner t. Wright, Johns. 740, 2 De G. F. & J. 234. In Bohinson V. Litton, 3 Atk. 209, and Stansfield v. Hdbergham, 10 Ves. 272, the tenant ill fee, with an executory devise over, was s-aid to be liable for ordinary waste in cutting timher ; but this view was not adopted in Turner v. Wright. Asjto what constitutes equitable waste, see post. p. 69. (m) Co. Cop. s. 57 ;1 Watk. Cop. 331. As to the lord's right to minerals and timber in copyholds, see ante, p. 30 ; and as to what is waste, see post, p. 65. (0) Ante, p. 37. Digitized by Microsoft® 54 THE LAW OF PKOPEETY IN LAND. Eights of in Alienation. — A tenant in fee simple may, in general, general. dispose of the fee simple, or of any smaller estate or other right of pi'operty in the land, either by alienation inter vivos {i.e., such as takes effect in the alienor's lifetime) or Of conditional by will. In the case, however, of a conditional fee in land fee in copy- q£ copyhold tenure, the birth of issue is, as has been seen, a condition precedent to the exercise of the right of aliena- tion. (p) Conditions, To a limited extent, however, the exercise of the above- ^"^'j?""*^*™"^* mentioned rights of alienation may be restrained by means of a condition subsequent, or a conditional limitation by way of executory interest, annexed to a grant of the estate, and providing for its forfeiture or defeasance in the event of any alienation, or attempted alienation, contrary to the terms of the condition or limitation. Thus, alienation to a particular person, or the sale of the estate out of the tenant's family, may be restrained in either of these ways. (2) But if the restriction is absolute in its terms, or if it tend to prevent the tenant from disposing of the land, it is deemed to be repugnant to the nature of an estate in fee simple ; and in such case, as will hereafter be seen, the condition or limitation is void, and the estate is held free of any restraint on alienation, (r) Alienation The powers of alienation and other powers given by the ]Und^Acts.^ Settled Land Acts, 1882 to 1890, to a tenant for life (as will hereafter be seen) are by the Settled Land Act, 1882, extended to a tenant in fee simple, with an executory limitation, gift, or disposition over, on failure of his issue, or in any other event, and also to the owner of a base fee.(s) Capital money arising from a sale or other disposi- tion under the Acts by such a tenant in fee simple, and investments of such- capital money, are, however, considered as land, and are held and devolve in the same manner as (p) See ante, p. 41. (}) Litt. s. 361; Co. Litt. 223 a; Doe v. Pearson, 6 East 173; Jn re MacUay, L. R. 20 Eq. 186, 44 L. J. Ch. 441, 32 L. T. 682, 23 W. E. 718. But see Attwater v. Attuoater, 18 Beav. 330. (r) Seeposi, p. 331; and as to conditions and conditional limitations, and their operation, see ante, pp. 45 et seq. (s^ 45 & 46 Vict. c. 38, s. 58 (ii.), (iii-)- See po.^f, p. 77 ; He Morgan, 24 Ch. D. 114. As to the meaning of the term base fee, see post, p. 127. Digitized by Microsoft® ESTATES IN POSSESSION. 55 the land would have been held and have devolved if it had not been disposed of.(i) Determination. — An estate in fee simple in land of Modes of. freehold tenure expires only in the event of its passing to, and becoming vested in, the Crown, by escheat, for- feiture, (t^) or otherwise. In such case, the fee simple merges in the absolute ownership of the Crown.('y) This, however, can occur only where the land is held directly of the Crown. Where it is held of a mesne lord (as the lord of a manor), and he acquires it by one of the above modes, the fee simple is not thereby extinguished, but merely reverts to the lord. An estate in fee simple in land of copyhold tenure, however, expires on its passing by escheatj forfeiture, or otherwise to the lord of the manor ; since it thereby becomes merged in his freehold estate. Sect. II. — Estates Tail.(26>) Creation. — An estate tail is created by a grant of the Mode of. estate, either inter vicos or by will. Use and Enjoyment. — The rights of a tenant in tail. Eights of. as to use and enjoyment, are similar, in all respects, to those of a tenant in fee simple. Alienation. — The present law as to the right of alienation Old law as to. enjoyed by a tenant in tail, cannot be explained without some reference to the history of the subject. The origin of this right, and the methods of alienation formerly in use, will, therefore, be iirst noticed ; and the present law on the subject will be afterwards considered. Origin and Former Methods of Alienation. — The restriction on alienation imposed by the statute Do donis conditioncdihua has already been referred to. (a;) Its effect was to deprive Effect of tie the tenant of the power of disposing of the land for ^^g^g^ any estate to endure beyond the term of his life. For (() Ss. 22 (5), 34; and see posf, p. 87. (a) As to these, s&epost, pt. 3, chs. 10, 11. (u) See ante, p. 19. (w) For the definition of an estate tail, see ante, p. 41. (x) Ante, p. 40. Digitized by Microsoft® 56 THE LAW OF PEOPEETY IN LAND. laltarniii !- case. Common recoveries. though a conveyance of an estate of inheritance by a tenant in tail was not absolutely void undei' the statute, it was ineffectual as against the claims of his issue, or of any person having an interest in the land subsequent to the estate tail.(y) The inalienable estates of inheritance, or ' strict entails,' to which the statute thus gave rise, were found, in course of time, to be productive of many incon- veniences. For landowners, however, they had some advantages. Thus, the land was not answerable for the debts of the tenant's predecessor ; and the estate was not liable to forfeiture for treason or felony beyond the tenant's life. Though attempts were frequently made to procure a repeal of the statute De donis, it remained in full operation for nearly two hundred years. («) But at length a mode was contrived whereby a tenant in tail might alienate the inheritance notwithstanding the statute — which was thus virtually repealed. In Taltarum's case, decided by the Court of Common Pleas in the year 1472, (n) it was, in effect, held that a tenant in tail might, by means of a fictitious suit, bar his issue and all subsequent estates in expectancy, and thus acquire, or dispose of, an estate in fee simple. (&) This proceeding — which was called a 'recovery ' or (usually, and to distinguish it from a real adjudication in an action) a ' common recovery ' — was, in form, an action for recovery of the land. It was brought by a person who was feigned to have a title superior to that of the tenant in tail. In the course of the proceedings, another person, who was feigned to be the orginal donor of the estate tail, and to have warranted (c) the title to the estate, was called upon {y) 1 Cruise, t. 2, c. 2, s. 4. The alienation, in general, caused, a ' dis- continuance ' of the estate. The heir, and the lord entitled in expectancy, had then a special remedy, called a fwmedon, given them by the statute ; and this remedy was afterwards extended to persons entitled in remainder after the estate tail (see Burton, § 643). (k) 2 Bl. Comm. 116; Sir Anthony Mildmay's case, Rep. pt. 6, 40 a. (a) Year-book 12th Edw. 4, 19 ; Tudor L. C. E. P. 695. (t) Tn Taltarum's case the decision was against the validity of the recovery in question in that case ; but the view of the Court was in favour of recoveries as a general mode of barring estates tail. (c) The proceedings were based upon the old law of warranty of title (as to which, see Burton, §§ 675-681). Warranties of title, having become obsolete, were, in effect, abolibhed by stats. 3 & 4 Will. 4, o. 27, s. 39, and 3 & 4 "Will. 4, c. 74, o. 14. Digitized by Microsoft® ESTATES IN POSSESSION. 57 by tbe tenant in tail to defend the title according to his pretended warranty.(^) He, however, failed to appear for that purpose ; and thereupon judgment was given for the demandant (the person bringing the action) to recover the fee simple ; which judgment was effectual, not only against the tenant in tail, but also against all issue on whom the estate tail might have devolved, and all estates and interests subsequent to the estate tail. Usually, however, the land was, in the first instance, conveyed by the tenant in tail to a third person (called the ' tenant to the pradpe ').(<;) The action was then brought against this person, and he called upon the tenant in tail to defend the title ; and the tenant in tail, in his turn, called upon the pretended original donor, as above explained. This was called a ' recovery with double voucher.' It barred every estate or interest which the tenant might have in the land ; whereas, if the recovery were had immediately against the tenant in tail, it barred only the estate of which he was then actually seised. (/) By statutes of Henry VII. and Henry VIII., a tenant in Fines, tail was enabled to alienate — at least, as against himself and the issue on whom the estate tail might have devolved — by another proceeding, called a £ne.(^) A ' fine ' was the termination, by agreement, of a fictitious suit, whereby the party suing (Ji) was acknowledged to be, and became, the owner of the land.(i) Enrolment of the fine on the records of the Court, and its proclamation several times in open court, were required for the completion of the transaction. (y) The operation of a fine in barring an estate {d) This was called ' vouching to warranty.' The person so vouched to warranty (who was usually the crier of the Court) was called ' the common vouchee.' (e) The writ by which the action was commenced was called prax^ps quod reddat. (/) See hereon, and generally as to common recoveries, 2 Bl. Comm. 357 et seq. ; Barton, §§ 683-697 ; 5 Cruise, t. 36. (g) 4 Hen. 7, c. 24, explained by 32 Hen. 8, c. 36; 5 Cruise, t. 35, c. 9, ss. 3-11. (/j) The party against whom the action was brought, and wlm was said to ' levy ' tbe hne, was called the ' coguizor,' from his acknowledging the right of the other party, who was called the ' cognizee.' (i) Fines had been used for the transfer of land before they were made avail- able for the barring of estates tail : see 5 Cruise, t. 35, o. 1. (j) 5 Hen. 4, e. 14 ; 1 Kich. 3, c. 7 ; 4 Hen. 7, o. 24 ; 23 Eliz. c. 3. By the etat. 11 & 12 Vict. v;. 70, fines are to be deemed to have been levied with pio- clamations. Digitized by Microsoft® 58 THE MW OF PEOPEETY IX LAKD. Deed to lead or declare uses of recovery or fine. Modes of bar- ring entails of copyholds. tail was, however, different to some extent from that of a common recovery ; for though the statutory bar by fine bound the tenant and his issue, and all issue on whom the estate tail might have devolved, it did not bar estates subsequent to the estate tail. After the death of the tenant in tail, and failure of issue, the land might be recovered by the person in whom the next estate in succession was vested. (/{;) Since an estate in fee simple created by fine was liable to be thus defeated, it was called a ' base fee.'(^) Since the person to whom the land was adjudged by a common recovery or fine was not usually intended to hold for his own benefit, a deed to ' lead ' or to ' declare ' the uses of the fine or recovery was an ordinary incident of the trans- action. (7?i) The efiect of this deed was to pass the owner- ship of the land — according to the law, hereafter explained, respecting declarations of use(w) — from the party to whom the land was adjudged, to any person in whose favour the use declared by the deed.(o) The proceedings above described were not used for barring estates tail in lands of copyhold tenure. Where, by special custom, an estate tail might be held in copyhold land, (2?) the custom frequently prescribed also the mode of barring the entail ; but in the absence of any special custom for this purpose, the entail was barred by surrender, the ordinary mode of alienation of copy hold s.(2') Abolition of fines and re- coveries. Present Law as to Alienation. — In alienation by fines and recoveries, much inconvenience was frequently experienced, and considerable expense was always incurred, owing to the numerous and elaborate formalities incident to the proceedings ; most of which, being merely fictitious, were (/.) 1 Cruise, t. 2, c. 2, s. 14 ; 5 Cruise, t. 35, c. 9, s. 52 ; Burton, §§ 700-706. {I) Tbe term base fee was also applied to an estate in fee simple granted by tbe tenant without fine or recovery, and which was therefore liable to be defeated, under the statute De donis, by his issue, as well as by persons having ulterior estates in the land. As to base fees under the present law, see^;osf, p. 127. (m) If the deed was made prior to the fine or recovery, it was said to ' lead ' the uses ; if made subsequently thereto, it was called a deed to ' declare ' the uses. (b) See post, pp. 146, 353. (0) 2 Bl. Comm. 363. (p) See ante, pp. 32, 41. Burton, § 1285. Digitized by Microsoft® ESTATES IN POSSESSION. 59 of no practical value. The law on this subject remained unaltered, however, till the year 1833, when it was amended by a statute of that year.(r) This statute, which is styled ' An Act for the Abolition of Pines and Recoveries, and for the Substitution of more Simple Modes of Assurance,' abolished fines and recoveries as from the 31st December 1833 ;(s) and, as from that date, enabled a tenant in tail to Mode ot bar- dispose of the land(j() entailed for an estate in fee simple [and of free-" absolute, or for any less estate, as against all persons who ^°^^ tenure, might have claimed it by virtue of the estate tail (that is, as against himself and all issue on whom the estate tail might have devolved), and also as against all persons whose estates might have taken effect after the determination, or in defeasance, of the estate tail ;(«) provided that, where the land should be of freehold tenure, the disposition should be made by a mode of conveyance (other than a will, and not being merely a contract to convey) that would have been applicable if the estate had been the fee simple ; and that such conveyance should be made by deed ; and that the deed — unless it should be a lease for twenty-one years or less — should be enrolled in the Court of Chancery (now in the Central OfSce of the Supreme Court of Judicature) (v) within six calendar months after its execution, (ly) The deed, if duly enrolled, takes effect from the time of its execution ; except that it will be void as against a subsequent deed, enrolled before it, whereby the land has been conveyed to a purchaser. (re) The deed by which an estate tail is barred under the Disentailing statute, may be either a conveyance to a purchaser or other ^° ' transferree, or a deed by which the tenant grants the land to a person to hold to the use of himself (the tenant) and his heirs, as tenants in fee simple. The effect of a deed of the latter kind is to vest an estate in fee simple in the {r) Stat. 3 & 4 Will. 4, c. 74. (s) S. 2. (<) In this Act the word 'lanJs' extends to manors, advowsons, rectories, tithes, rents, &c. (s. 1). (m) S. 15 ; and see e. 21. (v) Eules of Supreme .Court, 1883, Ord. Ixi. ,. 9. (w) Ss. 40, 41. (x) S. 74. Quaire, whether the purchaser has priority where he has express notice of the earlier deed: cf. s. 38 of .the Act; and see Sugden, R. P. Stats., 238, 239; 1 Hajes, Conv., 165. Digitized by Microsoft® ^^ THE LAW OF PROPEETY IN LAKK. grantor. (2/) It is called, distinctively, a 'disentailing deed, and ia resorted to where the tenant desires to acquire and retain the fee simple. Mode of bar- With respect to estates tail in lands of copyhold tenure, copyholds.'' " *^® statute provides that the estate, if it is an estate at law,(c) is in every case to be disposed of by surrender ; (a) and that the surrender need not be enrolled otherwise than on the court rolls of the manor to which the land belongs. (6) Estates tail It will be observed that the statute expressly excepts a ■will or con- '"'i^l ^''^^ ^ Contract from the modes by which an estate tail tract. may be disposed of.(c) A testamentary disposition by a tenant in tail is Yoid.(d) And though, if he contract to sell the land, the contract may be enforced against him during his life, yet, if he die before he has conveyed the land by deed, the contract will be void as against all issue on whom the estate tail might devolve, and persons claim- ing ulterior estates. (e) This rule, however, does not apply when the sale is made under the powers given to tenants in tail (as presently mentioned) by the Settled Land Acts, 1882 to 1890.r/) Convejauce by If a conveyance by which a tenant in tail is expressed to iToTenroUer- ^''^^sfer an estate in the land is not duly enrolled according effect of. to the requirements of the statute, and is not a conveyance under the powers given by the Settled Land Acts, 1882 to 1890, the estate acquired by the transferree will not be valid as against persons other than the tenant himself, claiming either as issue of the donee in tail, or as being entitled to subsequent estates in the land.((/) It will be valid, however. j (1/) As to the operation of a declaration of use, see post, pp. 146, 353. («) I.e., as distinguished from a merely equitable estate tail, as to which, see 2Mst, p. 181. (a) S. 50 ; as to surrenders of copyholds, see2^ost, p. 370 (i) S. 54. (c) S. 40. (d) Co. Litt. Ill a. (e) See s. 47 ; Sug. E. P. Stats. 197 ; Hall-Dare v. Hall-Dare, 29 Ch. D. 133, revd. on appeal, 31 Ch. D. 251, 55 L. J. Ch. 154, 54 L. T. 120, 34 W. fi. 82 ; Bankes v. Small, 34 Ch. D. 415, 36 Ch. D. 716, 56 L. J. Ch. 254, 832, 56 L. T. 21, 35 W. E. 288, 765. (/) Seei^osi, p. 62. {<)) Morgan v. Morgan, L. E. 10 Eq. 99 ; Mills v. Capel, L. E. 20 Eq. 692, 44 L. J. Ch. 674, 33 L. T. 158. Digitized by Microsoft® ESTATES IN POSSESSION. 61 as against the tenant himself, during his life. And it may afterwards become valid to all intents ; for the Act abolish- ing fines and recoveries provides that a voidable estate created by a tenant in tail in favour of a purchaser for value shall be confirmed by a subsequent valid disposition by the tenant under the Act, whatever be the object of that disposition, or the extent of the estate created thereby; unless the disposition be in favour of a purchaser for value, who acquires without express notice of the voidable estate. (A) And leases made by tenants in tail in possession, for terms not exceeding twenty-one years, at a rack-rent, (*) or not less than iive sixth parts of a rack-rent, are exempted by the statute from the requirement of enrolment of the deed.(y) The right of alienation in the mode prescribed by the Right of alien- Pines and Recoveries Abolition Act is incident to an estate a't'0".i°?«par- ably incident tail (Jc) — as was formerly the right to bar the estate by to estate tail, recovery or fine — notwithstanding any expression of a con- trary intention on the part of the donor of the estate, or any condition or conditional limitation annexed to the grant of the estate with the intention of restricting such alienation. Since the Act enables the tenant in tail to dispose of the land as against persons whose estates might have taken effect in defeasance of the estate tail, he may, by barring the entail, convey or acquire an estate free from any condition or conditional limitation which may have been annexed to the grant of the estate tail. In this respect his power of alienation is of greater extent than that of a tenant in fee simple ; for the latter cannot by any means free his estate from a condition, or a conditional limitation by way of ■executory interest, to which it may be subject. (Z) The right of a tenant in tail with regard to alienation Birth of issue not essential. (7») 3 & 4 Will. 4, c. 74, 6. 38 ; Sug. E, P. Stats. 238. (i) As to meaning of ' rack-rent,' see infra, p. 94. Ij) 3 & 4 Will. 4, c. 74, ss. 15, 41. And see 40 & 41 Vict. u. 18 (the Settled Estates Act, 1877), s. 4S. A limited power of leasing was given to tenants in tail by the stat. 32 Hen. 8, c. 28 ; but this statute has been repealed by the stat. 19 & 20 Vict. c. 120, s. 35. (Jc) As to alienation where the estate tail is in expectancy, see post, pp. 125- 128. (l) Corbet's case, Eep. pt. 1, 83 a ; DawJcins v. Lord Penrhijn, 6 Gh. D. 318, 325, 326, affirmed in H. L.,4 App. Gas. 51, 48 L. J. Gh. 304, 39 L. T. 583. 27 W. E. 173. Digitized by Microsoft® 62 THE LAW OF PROPERTY IN LAND. Exceptions. Alienation under Settled Land Acts. differs, it will be observed, from the power of alienation that was enjoj'ed by the owner of an estate in fee simple conditional at common law — and which is at the present day incident to an estate of that' nature in land of copyhold tenure — in that the birth of issue of the tenant in tail is not a condition precedent to the existence of the right of alienation. (7;2.) The general right of alienation enjoyed by a tenant in tail is subject, however, to some exceptions. Estates tail granted by the Crown, in reward of services, cannot be barred, even as against the tenant's issue, while the ulterior estate expectant on the failure of the estate tail continues in the Crown. (71) And, in some cases, inalienable estates tail have been created by private Acts of Parliament. And an estate in tail special cannot be barred where the tenant's husband or wife (as the case may be) from whom the issue was to proceed, is dead, and no issue of the parties, capable of inheriting, is living ; (0) for in such case (as will here- after be seen) the estate is reduced to an estate for the life of the tenant. (jj) The powers of alienation, and other powers given by the Settled Land Acts, 1882 to 1890, to tenants for life (q) are, by the Settled Land Act, 1882, extended to tenants in tail — including those who are by statute restrained from barring or defeating the entail, and although the reversion is in the Crown ; excejDt where the land, in respect of which the tenant is restrained from alienation, was purchased with money provided by Parliament, in consideration of public services. (7-) Capital money arising from a sale or other disposition of land under the Acts by a tenant in tail, and (m) See ante, p. 40. {n) 34 & 35 Hen. 8, c. 20 ; 3 & 4 Will. 4, c. 74, s. 18. (0) 3 &4 Will. 4, 0. 74, s. 18. (p) See ivfra, p. C4. Formerly, a widow who was tenant in tail ex provisione viri, i.e., by gilt of her husband or any of his ancestors, could not bar the entail, unless with the concurrence of the person who would be entitled to enter if she were dead (stats. 11 Hen. 7, c. 20, and 32 Hen. 8, o. 36, s. 2 ; Burton, § 708), but this restriction has been removed by the Fines and Recoveries Act, except as to estates tail under settlements prior to that Act (3 & 4 Will. 4, i;. 74, s. 16). (g) See post, p. 77. (r) 45 & 46 Vict. c. 38, s. 58. Digitized by Microsoft® ESTATES IX P0SSES3I0X. G3 iavestments of such capital money, are, however, considered as land, and are held and devolve in the same manner as the land would have been held and have devolved if it had not been disposed of.(s) Determination. — An estate tail expires where, on the Modes of. death of the original donee of the estate, or of a succeeding tenant, there is a total failure of issue of the donee, or (if Failure of the estate is limited to issue of a certain class) of issue of '^^"^" the class entitled to succeed. And where the estate is limited in special tail, it ceases to exist as an estate tail, on possibility of issue becoming extinct, (i!) Where an estate tail has been given subject to a condition Operation of subsequent, or subject to a conditional limitation (whether conditioaal'^ having efEect by the common law or by way of executory limitation, interest) the estate may be determined or expire prior to the failure of issue, by virtue of the condition or limitation. (it) Again, a disposition by the tenant in tail whereby he dis- Where barred, poses of or acquires an estate in fee simple, under his power of barring the entail, of course extinguishes the estate tail. In the case of an estate tail in land of copyhold tenure, EnfranoMse- an enfranchisement at common law of the land, by con- ™™* "^ ""p^" hold. veyance of the freehold in fee simple by the lord of the manor to the copyhold tenant in tail, extinguishes the copyhold estate tail.(v) But an enfranchisement effected under the Copyhold Acts has not this effect, but merely converts existing copyhold estates into estates of freehold tenure, (w) Sect. III. — Estates for LiFE.(a;) Creation. — An estate for life is created either by the act By act of of a party — or, in other words, by means of an express P*'''^ ' (s) See ss. 22 (5), 34 ; and post, p. 87. (i) See infra, p. 64. (u) See ante, pp. 45-49. {v) Dunn V. Green, 2 P. Wms. 9 ; Challoner v. Murhall, 2 Ves. 524 ; i?.i- parte School Board for London ; In re Hurt, 41 Ch. D. 547, 58 L. J. Oh. 751.' 60 L. T. 817, 38 W. E. 61 ; Scriv. Cop. 46, 283. (lo) 4 & 5 Vict. c. 35, a. 81 ; 15 & 16 Vict. ^. 51, s. 46 ; see ante, p. 35, {x) For definition of an estate for life, see ante, p. 42. An estate for life is in practice occasionally granted, subject to the payment by the tenant of an annual rent, and to covenants similar to those contained in leases for years. In such cases it is usually called a ' lease for life.' Digitized by Microsoft® 64 THE LAW OF PJiOPEllTY IN LAND. ty operation of law (in tliree cases) : (1) estate tail after possi- bility of issue extinct, (2) estate of husband jWe mariti. (3) estate in dower. grant or disposition, either irvter vivos or by will — or through the mere operation of law, that is, independently of any act done with the intention of creating an estate. Of estates for life by operation of law there are, however, only three instances, namely, the ' estate tail after possibility of issue extinct ; ' the interest, at common law, of a husband, in his marital right, in his wife's real estate ; and the interest of a widow in her deceased husband's real estate. An estate tail after possibility of issue extinct occurs where an estate has been limited in tail special,(?/) and the tenant survives his or her wife or husband (as the case may be) from whom the issue under the entail was to proceed, and no such issue is living ; as where land has been limited to a man and the heirs of his body by his present wife, and the wife dies leaving no issue of the tenant by her, or his issue by her afterwards fails in his lifetime. In such case, the estate is reduced by operation of law to a life estate. This estate can only arise by the death of the person from whom the tenant's issue is to proceed. During life, the possibility of issue is presumed to exist, however advanced the age may be.(r) The interest, at common law, of a husband, by marital right, in his wife's real estate — an interest to which he is entitled so far only as his rights in this respect are not excluded by rules of equity or statutory enactments (a) — is, in the first instance, an estate determinable on the death of either the husband or wife ; but subsequently, under certain conditions hereafter mentioned, his interest becomes an estate (called an ' estate by the curtesy') for the full term of his life, although he survive the wife ; though as regards lands subject to the custom of gavelkind, he loses this estate by his re-marriage. (&) The interest of a widow in her deceased husband's real estate is an estate to which, under certain conditions here- after mentioned, a woman is entitled, after her husband's (y) See ante, p. 41. (z) See Co. Litt. 27 b, 28 a ; 2 Bl. Comm. 124, 125 ; Leiois Bowles's case, Eep. pt. 11, 79 b, Tudor L. C. E. P. 37. (a) As to whicb, see post, pp. 431-436. (6) See 2 Bl. Comm. 126 et seq. On this subject generally, see post, pp. 428, 429. Digitized by Microsoft® ESTATES IN POSSESSION. 65 death, for the term of her life, in a part of the husband's lands. This interest is called ' dower,' or (where the land in which it exists is copyhold) ' freebench.' In land subject to the custom of gavelkind, and occasionally in copyhold land, the interest exists only during widowhood.(c) Use and Enjoyment. — The tenant's rights of use and enjoyment may be considered, first, generally ; and, secondly, with reference specially to improvements, emblements, and fixtures. (i.) General Pdghts. — Liability for Waste. — The tenant's General rights, rights of use and enjoyment, so far as they extend, resemble those of a tenant in fee simple or fee tail. But, as regards acts the efiecfcs of which may extend beyond the period of the tenant's life, the rights of a tenant for life are limited. He is answerable for acts of ' waste ' Liability for to persons entitled in succession to him ; unless, indeed, the ^^'^^*^- estate has been granted to him expressly ' without impeach- ment of waste,' i.e., free from liability for waste \{d) or unless the estate be an estate tail after possibility of issue extinct — the exemption from liability for waste, in the latter case, being due to the estate having originally been an estate of inheritance, (e) A tenant for life is thus liable for waste whether the tenure of the land be freehold or copyhold ;(/) and, as has been seen, waste by a copyhold tenant may also be a ground of forfeiture of his estate to the lord of the manor. (^) Waste, generally, is the destruction or material alteration Waste of things forming an essential part of land (in the legal '^^'^'^'^^■ sense of that word) whereby an estate of inheritance in the (c) See 2 Bl. Comm. 129 et seq. On this subject generally, see jjost, pt. 3, c. 7, s. 2. (d) 2 Bl. Comm. 283. But by the Settled Land Act, 18S2, the tenant is not liable for waste in respect of certain acts done under the authority of that statute ; see ss. 6, 29, 35. (e) Co. Litt. 27 b ; 2 Bl. Comm. 125, 283. A remedy fur waste by a tenant for life or years was first given by the Statutes of Marlbridge (52 Hen. 3, c. 23) and of Gloucester (S Bdw. 1, c. 5). As to the remedy under these statutes (the writ of waste), which was abolished by stat. 3 & 4 Will. 4, c. 27, s. 36, see 2 Bl. Comm. 283. The modern remedy is by action for damages, or for an injunction to re- strain the commission of waste : see infra, p. 123. (/) Cornish y. New, 1 Finch 220 ; Scriv. Cop. 251. ((/) Ante, p. 53. E Digitized by Microsoft® 66 THE LAW OF PROPERTY IN LAND. Voluntary ; permissive. Question of liability for permissive waste. Waste in timber and other trees. land is, or may possibly be, diminished in value, or other- wise injuriously affected. (A) Waste caused by the act of a person is called ' voluntary ' waste. It is committed chiefly by felling or destroying trees, or destroying or damaging buildings, or opening mines or pits, or changing the course of husbandry. Waste through the omissioa to do acts, or, as it is called, 'permissive' waste, consists in suffering buildings, &c., to decay through neglect to do repairs. (i) That a tenant for life is liable for permissive waste is asserted by Sir B. Coke, and other writers,(y) and this view has been adopted in some judicial decisions. (/j) It has been held, however, in several modern cases, that the remedies afforded by the rules of equity for waste are not available against a tenant for life in respect of permissive waste ; (/) and it has recently been held that pecuniary damages in respect of such waste cannot be recovered against the tenant,(m) or his personal representative after his death ; (n) unless, indeed, the tenant has acquired the land subject to a stipulation or condition to the effect that he shall keep buildings or other objects in repair — in which case he, or his personal representative after his death, will be liable for pecuniary damages in respect of permissive waste involving a breach of such stipulation or condition. (o) With regard to waste by the felling of trees, the Settled Land Act, 1882, gives power to a tenant for life of land that is ' settled land ' under that Act, to cut and sell timber on the land, which is ripe and fit for cutting, although the (A) 2 Bl. Comm. 281 ; Burton, § 718 ; Jones v. Chappdl, L. R. 20 Eq. 539, 541, 44 L. J. Ch. 658. (i) Co. Litt. 53 a ; Coke, Inst., pt. 2, 145. ( j) Co. Litt. 53 a, 54 b ; 2 Coke, Inst., pt. 2, 145 ; see 2 Bl. Comm. 281 ; 1 Wms. Saunders, 574. (Ic) See Yelloidy v. Gover, 11 Ex. 274 ; Dnvies v. Davies (1888, Kekewioh ,J.), 38 Ch. D. 499, 57 L. J. Ch. 1093, 58 L. T. 514, 36 W. E. 399. (l) Lansdowne v. Lanndowne, 1 J. & W. 522 ; Wan-en v. Budall, 1 J. & H. 1 ; Powys V. Blacjrave, Kay 495, 4 De G. M. & Q. 448 ; In re Hotchh/s 32 Ch. U. 408, 55 L. J. Ch. 546, 55 L. T. 110, 34 W. K. 569 ; In re Courtier 34 Ch. D. 136, 55 L. T. 574, 35 W. E. 85 ; Lewin, 574. (m) Barnes v. Bowling (1881, Q. B. 1)., Lopes and Stephen, J J. ), 44 L. T. 809. (n,) In re Cartwric/ht, Avis v. Newman (1889, Kay, J.), 41 Ch. D. 532, 58 L. J. Ch. 590, 60 L. T. 891, 37 W. R. 612. (o) Re Sldngley, 3 Mac. & Gor. 221 ; Woodhouse v. Walher, 5 Q B D 404 49 L. J. (J. L. 609, 42 L. T. 770, 28 W. E. 765. Digitized by Microsoft® ESTATES IN POSSESSION. &1 tenant be impeacliable for waste in respect of timber ; pro- vided the consent of the trustees of the settlement, or an order of the Court, be obtained for the purpose. Three- fourths of the proceeds of the sale are to be dealt with as capital money under the Act ; and the other fourth part is to go as rents and profits, and therefore belongs to the tenant for life.^;) Subject to this enactment, however, the cutting of timber, or certain other trees, by a tenant for life is, as a general rule, deemed waste. Oak, ash, and elm are, in general, timber, if they are upwards of twenty years old. Local custom may, however, determine what kinds of trees are, or the age at which they become, timber. (g-) But the tenant may cut timber, in the usual course, on land where timber, that is cultivated merely for the production of timber. (r) ^°' ■"*? ''® And (independently of the above enactment) if timber is decaying, or for any other special reason ought to be cut, the Court may order it to be cut and sold, and the interest of the proceeds of the sale to be paid to the tenant for life, and the capital to be secured to succeeding owners. (s) The tenant has also the common law right to reasonable ' estovers ' or ' botes,' that is, an allowance of wood for repair of his house, for fuel, for making and repairing instruments of husbandry, and for repairing hedges and fences ; and, for these purposes (or the first of them at any rate), it seems that he may cut timber, (i!) But it is waste to take more wood for estovers than is necessary, or to apply it for any other purpose. (tt) Underwood, and branches usually lopped, {p) 45 & 46 Vict. c. 38, s. 3.5. As to the life estates to which the Act applies, see s. 2, sub-ss. 1, 5, and s. 58, and^osi, p. 77. As to trustees of the settlement, see s. 2, sub-s. 8, and ^josf, p. 84. And as to capital money, see jiosi, p. 85. [q) 2 Bl. Comm. 281 ; Co. Litt. 53 a. See per Jessel. M.R., Honywood v. Hony- wood, L. R. 18 Eq. 306, 311, 48 L. J. Ch. 652, 30 L. T. 671, 22 W.B. 749. (r) Honywood v. Honywood, supra; Daskwood v. Mayniac (1891), W. N. 17, 136. (s) Tooher v. Annesley, 5 Sim. 235; Tollemachn v. TollemacJte, 1 Hare 456 ; :Earl Coidey v. WeUesUy, L. E. 1 Eq. 656, 14 L. T. 245, 14 W. R. 528 ; Hony- wood V. Honywood, supra. By the Settled Estates Act, 1877 (40 & 41 Vict. c. 18), .s. 16, the Court may order the sale of timber on any settled estate. This enact- ment, however, seems to be in effect superseded by the above provision of the Settled Land Act, 1882. (t) Co. Litt, 41 b, 53 b, 54 b ; 2 Bl. Comm. 35, 122. Estover is derived from the Norman-French estoffer, to furnish ; the Saxon word iote is synonymous with estover ; see 2 Bl. Comm. 35. (u) Gorges v. Stanfield, Cro. Eliz. 593 ; Simmons v. Norton, 7 Bing. 640 ; Com. Dig. Waste (D) ; 5 Co. Litt. 53 b. Digitized by Microsoft® 68 THE LAW OF PEOPEETY IN LAND. Voluntary waste in buildings, in mines, &c. may be cut by tbe tenant ; also trees that are not timber- — ■ with the exception of fruit trees, and trees planted for ornament, or for the protection of banks, &c.,{v) and trees under twenty years of age, which, if above that age, would be timber ; unless, in the latter case, the trees are cut to allow of the growth of other timber in the same plantation. (^y) Voluntary waste in buildings is committed by demolish- ing, or otherwise destroying or damaging, buildings ; or by removing fixtures annexed thereto, as wainscots, doors, windows, furnaces, or the like. (a;) But it has been held that it is not waste to remove a building, if no injury is done thereby to the inheritance, (y) And, though Sir E. Coke states that the building a new house is waste, (a) it is now settled that this is not the law ; at any rate, where the building does not diminish the value of the land. («) It seems formerly to have been considered waste to alter a building, so as to change its character ; (&) but it may be doubted whether it would be now so held, if the value of the building were not diminished. (c) The destruction of a building by lightning or tempest does not create a liability for waste. (f^) And, by a statute of George III., a person on whose premises a fire accidentally begins, is not liable for loss caused thereby, (e) Opening new mines for coal or other minerals, or pits for gravel, lime, clay, brick, stone, or the like (unless for repairs- of bilildings on the land), is waste. But the tenant may continue the working of mines or pits that were open when he came into possession. (/) [v) Co. Litt. 53 a ; Pidgeley v. Bawling, 2 Col. 275 ; Bateman v. HotcliTcin 31 Beav. 486 ; Phillipps v. Smith, 14 M. '& W. 589 ; Earl Coioley v. Wdlesky, L K. 1 Eq. 656, 14 L. T. 245, 14 W. E. 528. w) Honywood v. Honyioood, supra. (x) Co. Litt. 53 a ; 2 Bl. Comm. 281. {y) Doe d. Grubh v. Burlington, 5 B. & Ad. 507. (z) Co. Litt. 53 a. (a) Lord D'Aroj v. Askwith, 1 Hob. 284; Jones v. Chappell, L. E. 20 Eq. 539, 44 L. J. Ch. 658 ; but see Smyth v. Carter, 18 Beav. 78. (6) London, Citi/ of, v. Greyme, Cro. Jac. 181, 182 ; Cole v. Green, 1 Lev 309 ; 2 EoU. Abr. 815, pi. 19. (c) See Young v. Spencer, 10 B. & C. 145. (d) 2 EoU. Abr. 820; 1 Cruise, t. 3, c. 2, s. 24 ; 2 Bl. Comm. 281. (e) 14 Geo. 3, c. 78, repealing 6 Anne, c. 31. {/) Co. Litt. 53 b ; 2 Bl. Comm. 282 ; Viner v. Tavghan, 2 Beav. 466 - Harl Cowley v. Wellesley, L. E. 1 Eq. 656, 14 L. T. 245, 14 W. E. 528. Digitized by Microsoft® ESTATES IN POSSESSION. 69 Waste by changing the course of husbandry is committed by changing by the conversion of one kind of land into another ; as the Landry °^ '^"'' changing of arable into wood, or meadow into arable, or the converse ; or by stubbing up underwood. (^) Where an estate for life is granted expressly without Equitable impeachment of waste, the tenant is free from liability for ^^^ waste of any kind, except such as is prohibited by the rules of equity notwithstanding the terms of the grant. In equity, although a life estate be granted without impeach- ment of waste, the tenant is liable for malicious waste ; as demolishing or dismantling a mansion-house ; (K) or felling- timber planted, or left, for shelter, or ornament of a mansion- house or grounds ; (i) or grubbing up a wood, so as to destroy the wood absolutely {j) — unless, indeed, in the grant of the estate he be expressly empowered to commit such waste. And the rights of a tenant in tail after possibility of issue extinct, as to waste, are similarly restricted. (/i;) Waste of this kind is called ' equitable waste ' ; since a tenant for life, without impeachment of waste, was formerly liable in equity only for such waste, and not at common law. But, by the Supreme Court of Judicature Act, 1873, the rule of equity as to waste of this kind by a tenant for life, under a grant without impeachment of waste, is expressly made a rule of law also.(Z) (ii.) Rights with Respect to Improvements, Emblements, and Improvements. Fixtures. — Any improvements of the land by a tenant for life, even though of a permanent nature, must be effected at the sole cost of the tenant,(«i) unless he be empowered by the terms of the instrument by which his own and the succeeding estates in the land were limited, or by statute, to charge the cost of the improvements upon the land. (cj) Co. Litt. 53 a, 53 b ; 2 Bl. Comm. 282 ; Simmons v. Norton, 7 Bing- 640. (/(.) Vane v. Lord Barnard, 2 Vern. 738. (i) Bolt V. Lord Somerville, 2 Eq. Gas. Abr. 759. (j) Aston V. Aston, 1 Ves. Sen. 263. (k) Attorney- General -v. Dulce of Marlhorourjh, 3 Madd. 498, 538. (I) 86 & 37 A^ct. u. ee, s. 25, sub-s. 3. (m) Nairn v, Marjoribanlcs, 3 Russ. 582 ; Hibhert v. Cooke, 1 S. & S. 552 ; Caldecott v. Brown, 2 Hare 144. Digitized by Microsoft® 70 THE LAW OF PEOPEETY IN LAND. of Land Act, 1864. Extensive and beneficial powers in this respect have been given to tenants for life by modern statutes,(?t) and Improvement especially by the Improvement of Land Act, 1864,(o) which has, in effect, superseded all previous statutes relating to this subject. Under this Act, as extended by subsequent Acts,(p) money may be raised by the tenant, with the sanction of the Board of Agriculture,(2') for various improve- ments. These include drainage and irrigation works, reclamation, clearing, and planting, &c., of land ; the making of embankments, reservoirs, railways, docks, canals, tramways, roads, piers and landing-places, sewers, &c.-; the erection of mansion-houses, cottages, farm-houses, mills, and other buildings ; the laying out of markets and market-places, and of gardens, and other open spaces in connection with the conversion of land into building land ; the sinking of trial pits, &c., for mines, and other works. The money is repayable, with interest, by instalments, extending over a limited number of years, and is charged upon the estates of the tenants and his successors, and is recoverable in the same way as tithe rent-charge ; and, as between the tenant for life and his successors, the instalments which accrue during the continuance of the life estate are payable by the tenant for life, and those accruing subsequently fall on persons entitled in succession to him.(r) Agricultural The provisions (hereafter mentioned) of the Agricultural fssf °^' ^''^' Holdings (England) Act, 1883, whereby agricultural tenants are entitled to compensation for improvements, and the landlord is entitled to charge the costs of improvements {n) 8 & 9 Vict. c. 56 ; 9 & 10 Vict. c. 101, amended by .subsequent Acl.s ; 27 & 28 Vict. c. 114 (tbe Improvement of Land Act, 1864) ; 34 & 35 Vict. c. 84 (Limited Owners' Kesidences) ; 40 & 41 A'ict. c. 31 (Eeservoirs and A\'!iter Supplyl; 45 & 4G Vict. c. 38 (Settled Land Act, 1882), and see post, p. 85, note (o). (o) See preceding note. By tbe stat. 8 & 9 Vict. c. 56, money migbt be applied by the tenant for life in drainage worlcs, and charged on the land, with the sanction of the Court of (Chancery. The stat. 9 & 10 Vict. c. 101, enabled tenants for life and others to obtain advances from the State for drainage works, such advances to be charged on the land as above. {p) See note (n), supra. [q) As to -which, seepost, p. 412. (r) See Improvement of Land Act, 1864 {svprci), ss, 26, 51, 63, 66. And nee the Settled Land Act Amendment Act, 1887 (50 & 51 Vict. c. 30), as to the application of capital money arising under the Settled Land Act, 1882, in the redemption of statutory charges fur improvements. Digitized by Microsoft® ESTATES IN POSSESSION. 71 upon the inheritance of the land, apply to tenants holding by leases for lives as well as to tenants for years.(s) If a tenant for life, having sown the land, dies before Emblements, harvest, his personal representatives will be entitled to the emblements, with liberty to come upon the land to take them.(i!) The tenant himself has the same right on the determination of his estate in his lifetime — as where an estate pur autre vie determines by the death of the cestui que vie — unless the estate be determined through the tenant's voluntary act ; as by surrender, or by marriage of a woman who holds during widowhood, or by other breach of condition. Where, however, the determination of the tenant's estate, by his own act, also puts an end to the estate of his under- tenant — as where A., holding during widowhood, grants a life estate to B. and then marries, whereby B.'s estate as well as A.'s determines — the under-tenant is entitled to emblements ; (it) except that, if he be a tenant of a farm or lands at a rack-rent, (i;) he is, under a modern statute, to continue to hold upon the terms of his lease, till the expira- tion of the current year of his tenancy, in lieu of having emblements ; and the succeeding owner, in such case, is entitled to the rent, as from the expiration of the estate for life.(w) Fixtures {x) set up by a tenant for life, for purposes of Fixtures. trade, ornament, or domestic convenience, may be claimed by his personal representatives on his decease, or by the tenant himself, if his estate expires in his lifetime, as against the succeeding owner of the land. (3/) And the Agricultural (s) 46 & 47 Vict. c. 61, ss. 1-6, 29, 61. See infra, p. 91. (<) 2 Bl. Comm. 122 ; Co. Litt. 55 b, 56 a. As to what are emblementF, see ante, p. 8. Hops, through growiBg out of ihe old roots, and therefore not in strictness emblements, go to the personal representatives of the tenant for life ; probably on account of the expense of cultivation : Latham v. Attwood, Cro. Car. 515 ; 1 Cruise, t. 3, u. 1, s. 25. (m) Com. Dig. Biens (G) ; Co. Litt. 55 b ; Gland's case, Ei-p. pt. 5, 116 a ; 2 Bl. Comm, 123, 124. {v) As to the meaning of this term, see jMsf, p. 94. ("') 14 & 15 Vict. c. 25. {x) As to what are fixtm-es, see ante, p. 9. (y) Laioton v. Lawton, 3 Atk. 13 ; Lord Dudley v. Lm'd Warde, 1 Amb. 113 ; D'Mjncoiirt ». Gregory, L. 1!. 3 Eq. 382, 36 L. J. Ch. K)7 15 AV. 1!. I8fi 1 "VVms. Exors. 746 ; Brown, Fixt., 191. Digitized by Microsoft® "^ THE LAW OF PROPERTY IN LAND. Holdings (England) Act, 1883, gives an agricultural tenant, holding for lives under a landlord, the same right to remove fixtures, &c., as is thereby given to an agricultural tenant for years. (3) Rights of ; Alienation. — Of the various changes made by modern legislation in the law of property, few, if any, are more important than the enlargement, by recent statutes, of the powers of alienation exercisable by tenants for life. But as these statutory powers exist concurrently with the rights of alienation previously incident to life estates, the latter will be first considered. And since, by the statutes referred to, the effect of the system of strict settlement of land — under which the owner in possession is usually a tenant for life — has been considerably modified, the discussion of the statutes will be preceded by a brief explanation of the nature and operation of a strict settlement. at common Rights of Alienation independent of Recent Statutes. — By the common law, a tenant for life has the following rights of alienation. A tenant for the term of his own life may alienate inter vivos to the extent of his estate — that is, for the term of his life or less ; but he cannot grant an estate to endure beyond the term of his life. A tenant imr autre vie may, in his lifetime, alienate for the term of the life of the cestui que vie ; and he has this power, although the estate pur autre vie be limited to special occupants in succession to him ; as where the limitation is to the tenant and his heirs, or heirs of his body, or to him and his executors or adminis- trators ; and even though there be a further limitation to another person on failure of his heirs, &c. And where the estate is so limited as a quasi-entail — that is, to the tenant pur autre vie and the heirs of his body — he can make such alienation (whether he have issue born or not) without observing the formalities requisite for the barring of an estate tail. (a) But at common law the tenant could not so alienate by will. Consequently, if a tenant pur autre vie of law (s) 46 & 47 Vict. u. 61, ss. 34, 61. See infra, p. 91. (a) Co. Litt. 41 b; Saltern v. Saltern, 2 Atk. 376 ; 1 Prest. Abslr. 438-140 ; Fearne, U. K., 498. Digitized by Microsoft® ESTATES IN POSSESSION. 73 land of freehold tenure died during the lifetime of the cestui que vie, and there was no person entitled to hold the land, either by virtue of an alienation by the deceased tenant Common in his lifetime, or as special occupant, the land was left without an owner ; for, so long as the cestui que vie lived, it could not revert to the grantor, he having parted with his interest in it for that term. In such case, any person might take possession of the land for the remainder of the life of the cestui que vie. Such possession was called ' com- mon occupancy,' or ' general occupancy.' Until possession was so taken, the freehold was said to be in abeyance. (&) If, however, the land were of copyhold tenure, the lord of the manor was entitled, by virtue of his seisin, to hold the land during the rest of the life of the cestui que vi6.(c) Common occupancy was abolished, however, by a statute its abolition. of Charles II. ; (d) and by that Act, as subsequently amended, provision was made with regard to the testamentary aliena- Testamentary tion of an estate 2^ur autre vie, and its devolution in default of estates ^wr' of such alienation. These enactments were repealed, and awtre vie. re-enacted with amendments, by the Wills Act, 1837. That Act empowers the owner of an estate pur autre vie (whether of freehold or copyhold tenure) to dispose of the same by will, whether or not there be a special occupant ; and pro- vides, in effect, that, in default of testamentary disposition of the estate, if it pass to the heir as special occupant, it shall be chargeable with the debts of the deceased tenant, as in the case of an estate in fee simple ; and that if there be no special occupant, it shall pass to the executor or administrator of the deceased tenant; and that if it come to his executor or administrator, either by reason of a special occupancy, or by virtue of the Act, it shall be applied in the same manner as the personal estate of the deceased tenant. (e) It seems to be doubtful, however, whether, an estate pur (6) Co. Litt. 41 b, 342 b ; 2 Bl. Comm. 258. (c) Roll. Abr. 511 ; 1 Cruise, t. 10, o. 2, s. 28 ; see ante, ji. 30. {d) 29 Car. 2, c. 3 (Statute of Frauds), s. 12, amended b^- 14 Geo. 2, o. 20, 6. 9. These enactments did not apply to copyholds. (e) 1 Vict. c. 26, 6s. 3, ; this Act does not apply to wills made before the 1st January 1838. Digitized by Microsoft® 74 THE LAW OF PEOPEETY IN LAND. autre vie, limited as a quasi-entail, can be disposed of by will under this statute.(/) Conditions, The exercise of any of the above-mentioned rights of inff'a^fenation alienation incident to a life estate may be, in effect, restrained, either absolutely or to any less extent, by means of either a condition subsequent,(c) or a conditional limitation, (7t) (whether having effect by the common law or as an execu- tory interest), annexed to a grant of the estate, and provid- ing for its forfeiture or defeasance in the event of alienation, or attempted alienation, contrary to the terms of the con- dition or limitation. (i) Conveyances By modem statutes, tenants for life have been empowered pm-poser ^'^ convey the fee simple, on the purchase of the land by under statutes, railway companies or other bodies, under statutory autho- rity,(;') and on the sale or mortgage of the land by the order of a Court, under certain circum stances. (/.;) Its form- and Strict Settlement. — A strict settlement of land — the chief effect purpose of which is to secure the devolution of land from each owner to his eldest male descendant — may be briefly described as the limitation of land to a person as tenant for life, and after his death to his eldest son as tenant in tail ; and, failing the estate of the eldest son, to the second son in tail, and so to other children. Until a tenant in tail under the settlement attains the age of twenty-one years, there is no owner who, by virtue of his estate in the land (that is, independently of the statutory powers presently mentioned) can alienate the fee simple. For the owner in possession has a life estate only ; and though the person entitled in (/) Dillon V. Dillon, 1 Ball & B. 77 ; Allen v. Allen, 2 Dr. & War. 307 ; lie Barber's Settled Estates, 18 Ch. D. 624, 628, 50 L. J. Ch. 769, 29 W. K. 909. [g) Co. Litt. 223 b ; 1 Shep. Touch. 130, 131 ; Dommett v. Bedford, 6 T. K. 684; Hurst v. Burst, 21 Ch. D. 278, 51 L. J. Ch. 729, 46 L. T. 899, 31 W. E. 327 ; and see notes to Bradley t. Beixoto, Tudor L. C. E. P. 968. As to conditions subsequent generally, see ante, p. 45. (/») Lewin, 101-103, and cases there cited ; Brandon v. Bohinson, 18 Yes. 429 ; notes to Bradley v. Beixoto, supra. As to conditional limitations generally, see ante, pp. 46-49. (i) But such a condition or conditional limitation will not prevent alienation under the Settled Land Acts : see post, p. 88. ( j) 8 & 9 Vict, c. 18 (tie Lands Clauses Consolidation Act, 1845). {h) 11 Geo. 4 & 1 Will. 4, o. 47, s. 12 ; 2 & 3 Yict. C..60 ; 13 & 14 Vict. c. 60, ». 29. Digitized by Microsoft® ESTATES IN POSSESSION. 75 succession has an estate tail, yet, being an infant, he cannot alienate. Hence, the succession of the child on the death of his father (the tenant for life) is secured during the child's infancy. On his attaining the age of twenty-one, he can, with the concurrence of the tenant for life,(Z) bar the entail, and thereby acquire an estate in fee simple, under the proYi- sions of the Fines and Eecoveries Abolition Act; {m) subject, of course, to the preceding life estate vested in his father. Thereupon, a further settlement is usually made, whereby the Ee-settlement. land is limited, subject to the father's life estate, to his son (lately the tenant in tail) as tenant for life, and on Ms death, to his first and other sons or children in tail, as in the pre- vious settlement ; the alienation of the fee simple (unless under the statutory powers presently mentioned) being thus again suspended, till a tenant in tail of the next generation shall attain the age of twenty-one. And this process of settlement may be repeated as each succeeding tenant in tail reaches the age of twenty-one. (w) In order to provide for the due management of land held Powers of in strict settlement, powers of leasing, (o) and other powers set™e*m''entg° of dealing with the land — including, sometimes, a power of disposing of the fee simple by sale — have commonly been conferred by the settlement, either on the tenant for life, or on trustees appointed by the settlement. Formerly, where the settlement contained no such powers of dealing with the land, or powers inadequate to the requirements of the case, a private Ach of Parliament,(p) authorizing the necessary dispositions of the land, was sometimes obtained. But, as will be seen, the Settled Estates Act, 1877, facilitated the alienation of settled lands, by substituting the sanction of the Court for the authority of Parliament, for this purpose ; and the more extensive powers of alienation given by the Settled Land Acts render unnecessary, in general, the crea- tion of express powers for the purpose in settlements of land. (I) See post, p. 126. (m) See ante, p. 59. (h) As to strict settlements of land, see 4 Ciuise, t. 32, c. 24, es. 6-17 ; 3 l)aT. Uonv. pt. 1, 257 et seq. ; Elphinstone, Conv., 325. (o) By the statutes 12 & 13 Vict. c. 26, and 13 & 14 Vict. c. 17, validity is given under certain conditions to leases made by a tenant for life in excess of his leasing power under the settlement. (p) As to private Acts of Parliament, see 2 Bl. Comm. 344 ; 1 Steph. Comm. ch. 21 ; andpost, p. 410. Digitized by Microsoft® 76 THE LAW OF PEOPEETY IN LAND. The Settled Rights of Alienation under Recent Statutes. — The Settled Estates Act, :Estates Act, 1877.— This Act(^) authorizes the tenant for life of a settled estate — i.e., of hereditaments, of any tenure, that are the subject of a settlement (?•) — (provided the settlement was made after the 1st November 1856,(s) and does not contain an express declaration to the contrary) to grant leases of the whole or part of the settled hereditaments (except a principal mansion-house, or its demesnes, or land usually occupied with it) for any term not exceeding twenty- one years ; subject to certain conditions as to the reserva- tion of the best rent that can reasonably be obtained without taking a fine, and as to the form and provisions of the lease. (i) And the Act provides that, with the sanction of the Court,(«.) the tenant may grant leases for various terms (according to the nature of the lease), subject to conditions prescribed by the Act, whatever may be the date of the settlement.(v) By other provisions of the Act, the Court may, on the application of the tenant for life, and with the concurrence (in most cases) of the other parties interested in the hereditaments, order the sale of a settled estate, if the Court shall deem it proper, and consistent with a due regard to the interests of all parties entitled ; unless the exercise of this power is expressly prohibited by the settle- ment, (ly) The money arising from the sale is to be applied, either in the redemption of the land-tax upon, or of any incumbrance affecting, the hereditaments sold, or other hereditaments settled in the same way, or in the purchase of other hereditaments to be settled in the same way as the hereditaments sold, or in the payment of the money to any person becoming absolutely entitled ; and in the meantime it is to be invested as cash under the control of the Court (o) 40 & 41 Vict. c. 18. This Act repeals and re-enacts, with amendments, the Leases and Sales of Settled Estates Act, 1856 (19 & 20 Vict. u. 120), and .subsequent amending Acts. (r) Settlement in this Act means any in.strument or instruments by virtue of which hereditaments stand limited to, or in trust for, any persons by way of buccesbion : see s. 2. (s) S. 57. This is the day on which the Leases and Sales of Settled Estatea Act, 1856, came into operation. [t) S. 46. (u) I.e., the Chancery Division of the Hijjh Court of Justice. (v) S. 4. (w) Ss. 16, 23, 24, 38. Digitized by Microsoft® ESTATES IN POSSESSION. 77 may be invested, and the interest is to be paid to the tenant for life, (a;) Tlie Settled Land Acts, 1882 to 1890. — The provisions of Application of the Settled Estates Act, 1877, are in a great measure super- *e Acts. seded by those of the Settled Land Acts, 1882 to 1890,(?/) which confer upon tenants for life further powers of aliena- tion, exercisable, in most cases, without the sanction of the Court or the concurrence of any person entitled in succession to the tenant for life. These Acts apply to land of any tenure, which is the subject of a settlement made either before or after the date of the commencement of the Settled Land Act, 1882 (the 1st January 1883). The term settlement, as used in the Acts, means any Settlement instrument or instruments by virtue of which any land, or ^° J'' * ^'^ estate or interest in land, stands for the time being limited to, or in trust for, any persons by way of succession. (s) The person for the time being beneficially entitled, under Tenant for a settlement, to the possession, or receipt of the income or g'^^'^^^^jj^f ' rents and profits, of settled land, for his life, is the tenant powers of, for life under the Acts, (a) And in addition to the tenant for life as thus defined, certain other persons have, under the Acts, the powers thereby given to the tenant for life ; and the provisions of the Acts, referring to a tenant for life, to a settlement, and to settled land, extend to each of such persons, and to the instrument under which his estate or interest arises, and to the land therein comprised. The persons referred to include the following, whose interests are, in a legal sense, estates for life, as well as some other persons(&) entitled to various interests in land : — (1) a tenant (x) Ss. 34, 36. (y) 45 & 46 Vict. c. 38 (the Settled Land Act, 1882) ; 47 & 48 Vict. c. 18 (the Settled Land Act, 1884) ; 50 & 51 Vict. c. 30 (the Settled Land Acts Amendment Act, 1887) ; 52 & 53 Vict. o. 36 (the Settled Land Act, 1889) ; 53 & 54, Vict. c. 69 (the Settled Land Act, 1890). (z) S. L. Act, 1882, s. 2, sub-s. 1 ; and see sub-s. 2. Me Knowles, 27 Ch. D. 707, 54 L. J. Ch. 264, 51 L. T. 655, 33 "W. E. 364. (o) S. L. Act, 1882, 8. 2, eub-ss. 5 and 10 (i.); He Paget, 30 Ch. D. 161, 55 L. J. Ch. 42, 53 L. T. 90, 33 W. E. 898. (6) Namely, a tenant in fee simple, with an executory limitation over (see ante, p. 54) ; a tenant in tail (see ante, p. 62) ; a tenant for years determinable on life not holding merely under a lease at a rent, including such a tenant whose estate is liable to cease in any event during that life (see^osi, p. 101) ; a person entitled to a base fee (koo ante, p. 54) ; and a person entitled to the income of land under a trust or direction for payment thereof to him during his own or any other life {seepoet, p. 181). Digitized by Microsoft® 78 THE LAW OF PROPERTY IN LAND. Powers under the Acts. Leasing powers. pur autre vie not holding merely under a lease at a rent ; (2) a tenant for his own or any other life, whose estate is liable to cease in any event during that life, whether by its expiration, or by conditional limitation, or otherwise, or to be defeated by an executory limitation, gift, or disposition over, or is subject to a trust for accumulation of income for payment of debts or other purpose ;(c) (3) a tenant in tail after possibility of issue extinct ; and (4) a tenant by the curtesy (whose estate is to be deemed, for the pui-poses of the Acts, an estate arising under a settlement made by his wife).(cZ) The powers of alienation (e) given by the Acts relate to (i.) leases ; (ii.) sales; (iii.) enfranchisements ; (iv.) exchanges ; (v.) partitions ; (vi.) mortgages. (i.) Leases. — The Acts empower the tenant for life to lease the whole, or any part, of the settled land, or any right over the same, for any purpose, and (except in certain cases presently mentioned) whether involving waste or not, for any term not exceeding ninety-nine years for a building lease, sixty years for a mining lease, and twenty-one years for any other lease ; (/) except that he may not lease the principal mansion-house, if any, on the settled land, and the pleasure-grounds and park and lands (if any) usually occupied therewith, without the consent of the trustees of the settlement or an order of the Court. But where a house is usually occupied as a farm-house, or where the site of any house and the pleasure-grounds and park and lands (if any) usually occupied therewith do not exceed twenty-five acres [c] lie Pagetj svpra; Me Strmigways, SicJdey v. Strangways, 34 Ch. D. 423, 35 W. R. 83. {d) S. L. Act, 1882, S.58; S. L. Act, 1884, s. 8. (c) As to the power given by the S. L. Act, 1882, of cutting and sale of timber, see supra, p. 67. It may be here mentioned that this Act empowers the Court to approve of any action or defence, or parliamentary or other pro- ceedings, being taken for the protection of settled land, or for recovery of land being, or alleged to be, subject to a settlement, and may direct costs, &c., in relation thereto to be paid out of property subject; to the settlement (s. 36) ■ .see Re Aylesford (Earl), 32 Ch. D. 162, 55 L. J. Ch. 523, 54 L. T. 414, 34 W. E. 410. (/) S. L. Act, 1882, s. 6. Wliere the estate which is the subject of the settle- ment is a term of years, the tenant apparently cannot, by virtue of the above powers, grant a lease of greater extent than the term comprised in the settle- ment: see S.20, noticed post, p. 82. As to the different kinds of leases, seejjos*, p. 94. Digitized by Microsoft® ESTATES IN POSSESSION. 79 in extent, the house is not to be deemed a mansion-house within the meaning of the preceding enactment, (y) The Acts require that every lease shall be by deed, and be Requisites of made to take effect in possession not later than twelve months leases, after its date ; except that a lease may be made by writing under hand only where the term does not extend beyond three years from the date of the writing, and where no fine is taken, and the lessee is not exempted from punishment for waste. It is also required that the best rent that can be reasonably obtained be reserved, regard being had to any fine taken, and to money laid out for the benefit of the settled land, and generally to the circumstances of the case ; and that the lease contain a covenant for the payment of the rent, and a condition for re-entry on non-payment of the rent within a period not exceeding thirty days ; and that a counterpart of the lease be executed by the lessee, and delivered to the tenant for life.(7i.) With respect to building leases, the Acts provide that BuiUing every such lease shall be made, partly in consideration of the 1^^^^^- erection, or improvement, &c., of buildings ; and that a peppercorn rent,('i) or other nominal rent, may be made payable for the first five years, or less, of the term ; and that where the land is contracted to be leased in lots, the rent may (within certain specified limits) be apportioned among the lots.(y) It is also provided that a building lease, or an agreement for such a lease, may contain an option, to be exercised within ten years, for the lessee to purchase the land at the best price reasonably obtainable, regard being had to the rent reserved ; such price being either a fixed sum, or equal to a stated number of years' purchase of the highest rent reserved by the lease or agreement. (/i;) With respect to miaing leases, the Acts provide that the Mining leases. (g) S. L. Act, 1890, 8. 10, repealing s. 15 of S. L.' Act, 1882. The Court referred to in tlie Acts is the Chancery Division of the High Court of .Justice ; but concurrftnt jurisdiction is given by the Acts to the Chancery Court of the Onunty Palatine of Lancaster, as regards land in the County Palatine ; also to Onunty Courts, where the value of the land does not exceed £500, or the rental J£30 : S. L. Act, 1882, ». 46. (h) S. L. Act, 1882, s. 7 ; S. L. Act, 1890, s. 7. (() See post, p. 271. (?) S. L. Act, 1882, s. 8. (k) S. L. Act, 1889. Digitized by Microsoft® 80 THE LAW OF PEOPEETY IN LAND. Other leasing powers. rent may be according to the acreage worked, or the minerals raised, and may be made to vary according to the price of the minerals or substances got, or any of them ; and that a fixed or minimum rent may be made payable ; and that the lease may be made partly in consideration of improvements executed by the lessee for mining purposes ; and, further, that if the tenant for life is impeachable for waste in respect of minerals, three-fourths of the rent, and otherwise one-fourth thereof, is to be set aside and invested as capital money under the Acts, and the residue is to go as rents and profits. (/) The powers given by the Acts to the tenant for life with respect to leases include also a power of making a lease for giving effect to a contract for a lease on the part of a preceding owner, and which, if made by the latter, would have been binding on his successors ; a power of leasing for giving effect to a covenant for renewal, enforceable against the owner for the time being of the settled land ; a power of leasing for confirming, as far as may be, a previous void or voidable lease ; a power to accept a surrender of a lease of settled land, and to grant new leases, in conformity with the Acts, of the land comprised in any surrendered lease ; and, where the settlement comprises a manor, a power to grant licences to tenants of copyhold or customary land, parcel of the manor, to make such leases as the tenant for life is empowered to make of freehold land.(7?i) The Acts also provide that the Court may authorize the tenant for life to make building or mining leases for longer periods, or on other terms than those above specified, where such leases are customary, or it is difficult to make leases according to the provisions of the Acts.(m) Powers of sale. (ii.) Sales. — The Acts authorize the tenant for life to sell the settled land, or any part thereof, or any easement, right, or privilege over the same, at the best price that can reasonably be obtained, and in one lot or several lots. Variations by leave of Court. (I) S. L. Act, 1882, ss. 9, 11 ; S. L. Act, 1890, s. 8 ; i?c Jiidc/e, 31 Cli. 11 504, 55 L. J. Ch. 265, 54 L. T. 549, 34 W. K. 159. As to how the price of the minerals is to be assessed, see S. L. Act, 1890, s. 8. (m) S. L. Act, 1882, sf. 12, 13, 14. As to the power of granting licences for leases of copj holds independently of the above provision, see^Msf, p. 369. ()!) S. L Act, 1882, s. 10. Digitized by Microsoft® ESTATES IN POSSESSION. 81 and either by public auction or by private contract, subject, however, to the like restrictions as to the principal mansion- house (if any) and the pleasure-grounds and park and lands (if any) usually occupied therewith, as apply to leases. (o) It is also provided that where personal chattels are settled as heirlooms, i.e., so as to pass with the settled land, the tenant for life may, with the sanction of the Court, sell the chattels or any of them.(p) (iii.) Enfranchisements. — Where the settlement com- Powers of en- prises a manor, the Acts allow the tenant for life to effect '^^"'^ isemen . an enfranchisement by sale of the seignory of freehold land, or of the freehold and inheritance of copyhold land, of the manor, (g') (iv.) Exchanges. — Under the Acts, the whole or part of Powers of the settled land may be exchanged by the tenant for life for ^^° other land. And on an exchange, any easement, right, or privilege may be reserved, or granted, over or in relation to the settled land or other land, or may be given or taken in exchange for any other easement, right or privilege. Every exchange is to be made for the best consideration that can reasonably be obtained ; and land in England is not to be given in exchange for land out of England. (?■) (v.) Partitions. — Where an undivided share, or undivided Powers of shares, in land are subject to the settlement, the tenant for yj-jg^"^^"^'" life is authorized by the Acts to concur in making a parti- tion of the land ; and he is given the like powers with regard to easements, rights, and privileges as in the case of an exchange. Every partition is to be made for the best consideration that can reasonably be obtained, (s) (vi.) Mortgages. — Where money is required for the pur- Powers of pose of discharging an incumbrance on the settled land or "' part of it, the tenant for life is empowered to raise the (o) S,"'L. Act, 1882, ss. 3, 4 ; S. L. Act, 1890, s. 10 ; In re Brown's Will, 27 Ch. D. 179, 53 L. J. Ch. 921, 51 L. T. 156, 32 W. E. 894. Property which, when vested in a tenant in fee simple, is by law inalienable, cannot be sold tinder the Acts : Be Sir J. Rivett-Carnac's Will, 30 Ch. D. 136, 54 L. J. Ch. 1074, 58 L. T. 81, 33 W. E. 837. {p) S. L. Act, 1882, s. 37 ; Re Earl of Radnor' s Will Trtists, 45 Ch. D. 402. (q) S. L. Act, 1882, s. 3 (ii.). As to seignories and enfranchisements of copyholds, see ante, pp. 27, 35. (r) S. L. Act, 1882, ss. 3 (iii.), 4 ; S. L. Act, 1890, s.5. (s) S. L. Act, 1882, 6s. 3 (iv.), 4; S. L. Act, 1890, s. 5. F Digitized by Microsoft® 82 THE LAAV OF PKOPEIiTY IN LAND, Ancillary powers. Conveyances, &c. money required, and the amount of tlie costs of the trans- action, by mortgage of the settled land.(<) Powers given to the tenant by the Acts, of raising money on mortgage for purposes connected with the exercise by him of other powers under the Acts, are referred to in the following paragraph. Other powers given by the Acts to the tenant for life, and ancillary to the foregoing, are : — A power to transfer an incumbrance affecting land sold, exchanged, or partitioned, under the Acts, from that land to other settled land, with the consent of the incumbrancer ; (u) a power on sale, ex- change, partition, or grant of a mining lease, to dispose of the surface apart from the minerals, or vice versd; a power to raise money required for enfranchisement, or for equality of exchange, or partition, by mortgage of the settled land or any part of it ; a power on, or in connection with, a sale or grant for building purposes or a building lease, to cause or require any parts of the settled land to be appropriated and laid out for streets, open spaces, &c. ; (v) a power on a grant in fee simple for building purposes, to reserve a rent- charge in fee simple out of the land convey ed.(i6') The Acts further provide that the tenant for life may, as regards land sold, given in exchange or on partition, leased, mortgaged, or charged, and as regards easements or other rights or privileges sold or leased, convey or create the same by deed for the estate or interest the subject of the settlement, or for any less estate or interest, in such manner as to give effect to the transaction. Such deed, to the extent to which it is intended to, and can, operate under the Acts, will transfer the land, &c., conveyed thereby, free from all interests, &c., under the settlement, except such as have been actually created for value prior to the conveyance ; but subject, of course, to estates and interests having priority to the conveyance. (a;) The tenant for life is also empowered to make a conveyance or lease for the purpose (i) S. L. Act, 1890, B. 11. («) S. L. Act, 1882, s. 5 ; Re Chaytor's Settled Estates Act, 25 Ch. D. 651, 53 L. J. Ch. 312, 50 L. T. 88, 32 W. E. 517. (v) S. L. Act, 1882, ss. 16, 17, 18. (lu) S. L. Act, 1890, s. 9. [r) S. h. Act, 1882, b. 20. Digitized by Microsoft® ESTATES IN POSSESSION. 83 of giving effect to a contract made by a preceding owner, and which if made by the latter would have been valid as against his successors in title, (y) It will be observed that the authority of the Court is Sanction of required to enable the tenant to make certain leases, or to tru^tees^ re- sell heirloom chattels ; and that for a lease or sale of a quired in , . , T . T 1 111 certain cases. principal mansion-house and the pleasure-grounds and park and lands usually occupied therewith, either the consent of the trustees of the settlement or an order of the Court must be obtained. (s) Subject to these restrictions, the tenant for life is free from all control in the exercise of the powers of alienation given him by the Acts, (a) The Acts require, however, that the tenant for life, before Notice to be making a sale, exchange, partition, lease, mortgage, or charge, frugtees of shall give one month's notice in writing to each of the settlement, trustees of the settlement, who must be not less than two, unless a contrary intention is expressed in the settlement ; and must also give the like notice to their solicitor, if he be known to the tenant for life.(&) But this requirement does not apply to the making of a lease for a term not exceeding twenty-one years at the best rent that can be reasonably obtained without fine, and whereby the lessee is not exempted from punishment for waste. Such a lease may be made without notice, and notwithstanding that there are no trustees of the settlement for the purposes of the Acts.(c) And where the notice required by the Acts is notice of an intention to make sales or leases, it may be notice of a general intention, i.e., not confined to a single proposed transaction ; but a tenant for life must, on request of a trustee of the settlement, furnish to him such particulars and information as may be reasonably required by him from time to time, with reference to transactions expected, or in progress, or immediately intended. And it is also provided that any trustee may, by writing, waive notice in any particular case, or generally, or accept less than a month's [y) S. L. Act, 1882, ss. 12, 31. {z) So also for the cutting and sale of timber : see supra, pp. 6S, 67 (a) See Wheelwright v. WalJcer, 23 Ch. D. 752, 52 L. J. Ch. 274, 48 L. T. ) ; Thomas v. Williams, 24 Ch. D. 558, 52 L. J. Cb. 603. Digitized by Microsoft® 70 {b) S. L. Act, 1882, s. 45. (c) S. L. Act, 1890, s. 7. 84 THE LAW OF PEOPERTY IN LAND. notice ; and that a person dealing in good faitli witli the tenant for life is not to be concerned to inquire whether the requisite notice has been given to the trustees, (d) Trustees of the The trustees of the settlement for the purposes of the Acts are (1) the persons (if any) who, under the settlement, are for the time being trustees with power of sale of the settled land, or with power of consent to, or approval of, the exercise of such power — or if there are no such persons, then (2) the persons (if any), for the time being, who are by the settlement declared to be the trustees thereof for the purposes of the Acts — or if there are no such persons, then (3) the persons (if any) who, under the settlement, are for the time being trustees with power of, or upon trust for, sale of any other land comprised in the settlement and subject to the same limitations as the land to be sold, or with power of consent to, or approval of, the exercise of such a power — or if there are no such persons, then (4) the persons (if any) who, under the settlement, are for the time being trustees with future power of sale, or under a future trust for sale, of the land to be sold, or with power of consent to, or approval of, the exercise of such a power, and whether the power or trust takes effect in all events or not — or if there are no siich jDersons, then (5) persons appointed by the Court to be trustees of the settlement, or their duly appointed successors in the ofSce.(e) Eegard to be The Acts require that the tenant for life, in exercising had, in exercise j^j^g powers, shall have regard to the interests of all parties oi powers, to . ^^ ' ° ^ interests of all interested under the settlement, as if he were a trustee for paities. them. But it is provided that a purchaser, lessee, mortgagee, or other person, dealing in good faith with the tenant shall, as against all parties entitled under the settlement, be conclusively taken to have given the best price, considera- tion, or rent, as the case may require, that could reasonably be obtained by the tenant, and to have complied with all the requisitions of the Acts.(/) Where the tenant for life is himself the purchaser, and in some other cases of dealings {d) S. L. Act, 1884, s. 5 ; Ilaiten v. Sussell, 38 Ch. D. 334. (e) S. L. Act, 1882, e. 2 (8); S. L. Act, 1890, s. 16. As to appointment of new trustees, see post, p. 190, and S. L. Act, 1882, s. 38 (appointment by Ccuvt. (/) S. L. Act, 1882, ss. 53, 54. Digitized by Microsoft® ESTATES IN POSSESSION. 85 with him with respect to the settled land, the trustees of the settlement are to stand in his place, and, in addition to their powers as trustees, are to have the powers of the tenant for life in reference to negotiating and completing the transaction. (//) The Acts provide that the capital money — i.e., the money Payment of produced by sale of the settled land or heirlooms,(A) or „^^^^ ^^g received as a fine on the grant of a lease, (-i) or for en- -^"te- franchisement, &c., or raised by mortgage under the Acts, or set aside under a mining lease, or on the sale of timber(y) — shall be paid either to the trustees of the settlement or into court, at the option of the tenant for life ; and where it has been paid into court, it may, if the Court thinks fit, be at any time paid out to the trustees of the settlement, for the purposes of the Acts.(/i:;) Subject to a provision that money arising from the sale Its investment of heirlooms may, with the sanction of the Court, be invested or application. in the purchase of other chattels, to be held on the same trusts as the chattels sold,(^) capital money is to be invested or applied — by the trustees of the settlement (where it has been paid to them), according to the direction of the tenant for life, or (in default thereof) at the trustees' discre- tion ; or under the direction of the Court (where it has been paid into court), on the application of the tenant for life or the trustees («i) — in one of the several investments or modes specified in the Acts. These comprise (1) Government securities or other securities on which trustees are by law authorized to invest trust money ; (?i) (2) securities author- ized by the settlement ; (3) bonds, mortgages, debentures, (f/) S. L. Act, 1890, =. 12. (/«) As to proceeds of lieirlnoms, see Be Duhe of Marlhoronqh's Settlement, 32 Ch. D. 1, 55 L. J. Ch. 329, 54 h. T. 914, 34 W. E. 377 ;' Me Houghton Estate, 30 Ch. D. 102, 55 L. J. Cb. 37, 53 L. T. 196, 33 W. E. 809. (i) S. L. Act, 1884, s. 4. (j) See supra, p. 67. Money paid into court under the Lands Clauses Con- solidation Act, 1845, or any other Act, or in the hands of trustees of a settle- ment, and which is liable to be laid out in the purchase of land under a settle- ment, may be dealt with as capital money uniler tlie Settled Lands Acts (S. L. Act, 1882, ss. 32, 33) : lie Mackenzie's Truxts, 23 Ch. D. 750 ; Be Maberly, 33 Ch. D. 455; Be Mundijs Settled Estates (1891), 1 Ch. 399. {k) S. L. Act, 1882, s. 22 ; S. L. Act, 1890, =. 14. [l) 8. L. Act, 1882, s. 37. (m) S. L. Act, 1882, s. 22. (n) For these, see Trust Investment Act, 1889 (52 & 53 Vict. ^. 31), and post, p. 192. Digitized by Microsoft® 86 THE LAW OF J'KOPEETY IN LAND. or debenture stock, of any railway company in the United Kingdom, incorporated by special Act of Parliament, and having paid a dividend for ten years next before the in- vestment on its ordinary stock; (4) the discharge of in- cumbrances on the settled land, including land-tax and tithe rent-charge ; (5) the payment for any improvements authorized by the Act ; (o) (6) the payment of any sum for equality of exchange, or partition, of settled land ; (7) the purchase of the seignory of any part of the settled land being freehold, or of the fee simple of any part thereof being copyhold, or of the reversion in fee of any part thereof being leasehold for years or life ; (8) the purchase of land in England, including leaseholds having sixty years to run, or mines, or any right convenient for'the settled land ; (9) pay- ment to any person absolutely entitled ; and (10) payment of costs. (p) Payment for As regards the application of capital money in payment improvements £qj. ^^ improvement under the Acts, if the money is in the Acts. hands of the trustees of the settlement it may be so applied by them (after approval by them of a scheme for the execu- tion of the improvement), on a certificate of the Board of Agriculture that the work, or part of it, has been executed ; or upon a like certificate of an engineer or surveyor nominated by the trustees, and approved by the Board of Agriculture or the Court; or upon an order of the Court. Capital money in Court may be. applied according to the direction of the Court in payment for the improvement, aft£T a scheme has been approved by the Court. (g-) T'^-'^S -..yi ^agee~ (o) See S. L. Act, 1882, ss. 2o/,30. irheimr--u'vementsautbo^n7 f yVoti ' are referred to above (p. 70) in f coniiq ^ , ,,tli tlm^ Improves ' „ "' -'^aua ,,c, 1864, since by the provision of ^jtbe fftit jt, 1882 (1^. 30), lo? [^,,"'^.^ ^« 'aiM under tbe Act of 1SG4 for effec{ ii'\?il, *lie improvements *W?'"^f° h *ie S. L. Act, 1882. Other imprcP^ieiiM^re authorized by the S^jiN^t, IS )0, s. 13 (including the rebuilding "f the principal mansion-house on th^^s^'jed land, provided the sum so appii^cl do not exceed half the annual rental ^ jiie settled land) ; and by the Hcising of tbe Working Glasses Act, 1890 (5? & 54 Vict. c. 70), o. 74. And tiy i-hs Settled Land Act Amendment .\cf; j^^sy (50 & 51 Vict. c. 30), where money advanced for any improvement author: ^ed by the S. L. Act, 1882, is secujed by rent-charge, capital money applied in Redeem- ing the rent-charge is to be deeuied to be applied iu payment for an 'impi-ove- ment authorized by the S.xi. Act, 1882. And by the Agricultural Holdings Act, 1883, capital money unde'ktlie S. L. Act, 1882, may be e' ^jj^^j ^,j payment for improvements effectedSw a landlord under the form'.,. _^^^^ ^j. j„ redemption of a charge for such impro>SU''"ts (46 & 47 Vict. u. 61 's. L'y).' (p) S. L. Act, 1882, S9. 21, 23. See als^s to costs, s. 47. (q) S. L. Act, 1882, s. 26. Digitized by Microsoft® ESTATES IN POSSESSION. 87 may, however, order capital money to be applied in pay- ment for improvements, notwithstanding that a scheme was not previously submitted for approval to the trustees of the settlement, or to the Oourt.(r) The Acts provide that capital money, or the securities Devolution of upon which it is invested, are for all purposes of disposition, and''^ter™t!^ transmission, and devolution, to be considered as land ; and are accordingly to be held for, and to go to, the same persons successively, and in the same manner, and for and on the same estates, interests, and trusts, as the land would have been held and have gone, under the settlement, if it had not been disposed of; and the income of the securities is to go in the same way as the income of the land would have gone, if the land had not been disposed of.(s) And a rent-charge in fee simple, reserved on a grant for building purposes, will ■be subject to the same interests as were subsisting in the land granted. (<) But where capital money is pui'chase- money paid in respect of any estate or interest in land less than the fee simple, or in respect of a reversion dependent on any such interest, it may be laid out, invested, accumu- lated, and paid, in such manner as, in the judgment of the trustees or of the Court, will give to the parties interested in that money the like benefit therefrom as they might have had from the interest or reversion in respect whereof the money was paid, or as near thereto as may be. (it) Land acquired by purchase, or by exchange, or on parti- Settlement of tion, under the powers given by the Acts, is to be made a'^der^Acts!'' subject to the provisions of the settlement, as nearly as circumstances permit, and is to be settled accordingly. (■?;) The powers of a tenant for life under the Acts are not Powers under T 1 T . .,--,. p, Acts not as- assignable, and remain exercisable by him alter any signable, and assignment, by operation of law or otherwise, of his interest cannot be under the settlement ; and a contract by him not to exercise (r) S. L. Act, 1890, s. 15. As to the obligation of the tenant for life and his successors to maintain, &c., improvements effected under the Acts, see S. L. Act, 1882, s. 28. (s) S. L. Act, 1882, s. 22, sub-ss. 5, 6. {t) S. L. Act, 1890, s. 9. (m) S. L. Act, 1882, s. 34 ; Be Oriffith's Witt, 49 L. T. 161 ; CottreU v. Cottrell, 28 Ch. D. 628, 54 L. J. Ch. 417, 52 L. T. 486, 33 W. R. 361. {v) S. L. Act, 1882, s. 24. Digitized by Microsoft® 88 THE LAW OF PEOPEETY IN LAND. Provisions of Acts as to powers under settlements. Modes of : — death ; operation of condition or conditional limitation ; any of his jDowers is void. But if lie liave assigned his estate for value, he cannot exercise his powers under the Acts (except powers of leasing, where the assignee is not in actual possession of the land), without the consent of the assignee. Any prohibition, limitation, or condition, in any instrument, tending or intended to prevent or restrict the exercise of any of the statutory powers, is void as far as it might so operate. And, notwithstanding anything in a settlement, the exercise by the tenant for life of any power under the Acts is not to occasion a forfeiture. (w) The powers given by the Acts do not prevent or affect the exercise by a tenant for life, or by trustees, of any other powers given by a settlement or by statute or otherwise ; save that where there is a conflict between the provisions of a settlement and the provisions of the Acts relative to any matter in respect of which the tenant for life exercises, or contracts or intends to exercise, any of the powers of the Acts, the provisions of the Acts prevail ; and in such case the consent of the tenant for life is necessary to the exercise by the trustees of the settlement, or other person, of any power given by the settlement for any purpose provided for in the Acts.(a;) Determination. — An estate for life expires on the death of the person for the term of whose life it was held, whether that person be the tenant himself, or a cestui que vie. Where the estate has been granted subject to a condition subsequent, or subject to a conditional limitation (whether having effect by the common law, or by way of executory interest), it may be determined or expire according to the terms of the condition or limitation. (y) An estate for life may also be determined through its merger in another estate in the same land.(s) It has been provided by statute that any person who is entitled in succession after the expiration of an estate pur [w) S. L. Act, 1882, ss. 50, 51, 52 ; Be Pnr/efs Settled Estates, 30 Cb. D. \6\ ; In re Haynes, Kemp v. Haynes, 37 Ch. 1). 306. [x) S. L. Act, 1882, s. 56; and see 8. L. Act, 1884, ss. 6 (2), 7, and post, p. 182, as to the application of the above enactment to trusts for sale. ()y) Ante, pp. 45-49. As to conditions of re-entry in leases, see also infra' p. 103. {z) As to merger, see post, p. 129. Digitized by Microsoft® ESTATES IN POSSESSIOX. 89 moire vie, may, on showing ground for belief that the cestui Where cestvA qioe vie is dead, obtain an order from the Lord Chancellor (a) be'deemed for the production of the ceshii que vie by the tenant, and if dead, he be not produced accordingly, he is to be deemed to be dead. (6) Sect. IV. — Estates foe Years. Creation. — The ordinary mode of creation of an estate Mode of. for years is a grant of the land, or other subject, either inter vivos or by will (but more commonly inter vivos), for the term intended to be created ; followed, where the subject of the lease (c) is land, by the grantee's entry thereon. By the common law, the grantee has not, until he has entered, an actual estate in the ]and.((^) Before entry, he has merely a right to enter, and thus to acquire the estate granted. This right (which is transferable by the grantee, and devolves Interesse on his deathj &c., like an actual estate) is called an interesse '^''""'"• termini, or interest in the term. His interest is of this nature, not only where he has a right to enter immediately, but also where the term is limited to commence at a future time, in which case he, of course, cannot enter until the arrival of the time named.(e) Entry is not requisite, however, to vest the estate in the lessee where it is created by an instrument having effect under the Statute of Uses ; the operation of which, in this respect, is explained hereafter. (/) A tenancy from year to year is created, in some cases, by Yearly tesaiicy operation of law. A lease whereby land is demised at an ^ ""^ ^ annual rent (whether payable quarterly or otherwise), but no term is expressly limited, impliedly creates a tenancy from year to year. (17) And where, on the expiration of a lease (a) Now from the Chancery Division of the High Court of Justice. (h) 6 Anne, c. IS. See In re Owen, 10 Ch. D. 166, 48 L. ,J. Ch. 248, 27 W. R. 305 ; In re Pople, 40 Ch. D. ,589. (c) For the definition of an estate for years, and meanings of the words 'term,' ' lessor,' 'lessee,' ' lease,' see ante, p. 43, andj;o«i, p. 346. (d) Litt. s. 58 ; Co. Litt. 46 a; and see^ost, p. 346. (e) Co. Litt. 46 b ; 2 Bl. Comm. 144 ; Burton, § 836. See, as to the distinction between an interesse termini and a remainder, post, p. 120. (/) Post, pp. 353, 356. (ij) Richardson v. Lavgridge, 4 Taunt. 128, Tudor L. C. E. P. 4 ; Doe d. Martin v. Watts, 7 T. K. 83, 85. Digitized by Microsoft® 90 THE LAW OF PROPERTY IN LAND. Division of subject. In absence of express agree- ment. for years at a rent, (A) the tenant remains in occupation, and continues the payment of the rent, he holds as yearly tenant upon such of the terms of his former lease as are applicable to a yearly tenancy. (*) Use and Enjoyment. — The rights of the tenant as to use and enjoyment may be considered, first, with reference to leases whereby the ordinary relation of landlord and tenant is created ; and, secondly, with reference to long terms — usually one thousand or five hundred years — whereby provision is made for the raising of money, or the repayment of money lent- is secured. (1) Bights under Ordinary Leases. — The lessee's rights of use and enjoyment, under a lease that gives rise to the ordinary relation of landlord and tenant, are, in practicCj usually regulated, in most respects^ by express agreement between the lessor and the lessee. The rights and liabilities of the latter, independently of such stipulations, may be first considered — with regard to waste, compensation for. im- provements, removal of fixtures, and rights to emblements. Extent of liability. Common law as to. Waste. — With respect to waste, the position of a lessee for years is the same as that of a tenant for life.(y) Hence, he is not, it seems, liable for permissive waste. (/c) It is said, however, that a tenant from year to year of a house is bound to keep it wind and water tight ; but it is not clear that he is liable in this respect, further than for the consequences of his own acts.(/) Improvements. — Dy the general common law, a lessee for years is not entitled, as against the lessor or any other suc- (h) JDisho/i V. JIua-ui'd, 2 B. & C. 100. (/■) Doed. liigge v. BelJ, b T. R. 471, 2 Sm. L. C. 110; 2[artin >. &iuth, L. K. 9Ex. 50, 43 L. J. C. L. (C. P.) 42, 30 L. T. 268, 22 W. E. 330. As to the implication of a yearly tenancy, at law, in tine case of a tenant holding under an agi'eement for a lease, or under a lease not made by deed, and void at law on that account, and the effect of the rules of equity as to such a huldinsr, see post, p. 347. (J) See ante, pp. 65-09, and notes ; Woodfall, 030, 631. (k) Ibid. ; and see Smith, L. & T., 296. (I) See Auwortli i. Johnson, 5 C. & P. 239 ; Leach v. Thomas, 7 C. & P. 327 ; Woodfall, 617, 618. Digitized by Microsoft® ESTATES IN POSSESSION. 91 ceeding owner, to any compensation, or charge upon the land, for improvements effected by him ; even where such im- provements are of a permanent character. Nor is he entitled, on the ground of his having no claim to compensation, to remove a building or other erection (not being a mere fixture) added by him during the term ; for such removal would be an act of waste on his part. The lessee may, however, be entitled to compensation for Local custums. improvements by special local custom ; and such customs exist, with respect to agricultui-al tenancies, in many places. (m) As regards tenancies for years, or from year to year,(7i) Agricultural of agricultural and pastoral lands, and market gardens, (England) Act, the common law on this subject is altered by the 1883. Agricultural Holdings (England) Act, 1883.(o) This Act gives the agricultural tenant a right, as against his landlord, to pecuniary compensation for improvements of certain specified kinds, made by the tenant with the landlord's pre- vious consent in writing; and also for other specified im- provents made by him, not necessarily with the landlord's consent ; it being required, however, that the execution of drainage improvements (one of the class of improvements for which the landlord's consent is not requisite) should have been preceded by notice to the landlord. And the tenant cannot deprive himself, by agreement, of this right ; though the parties may agree as to the terms of compensation. In default of agreement, the sum to be paid to the tenant for compensation is to be ascertained by arbitration in the manner provided by the Act. Where notice is given by the tenant of an intended drainage improvement, the landlord may execute it himself, and charge the tenant with interest, not exceeding £5 per cent, per annum, on the outlay, or such annual instalments, payable for a period of twenty-five years, (m) See AVoodfiill, cli. 20, s. 5. {n) Also for lives : 46 & 47 Vict. c. 61, s. 61. And see ante, p. 71. (o) 46 & 47 Vict. c. 61, amended hy the Tenant's Compensation Act, 1890 (53 & 54 Vict. c. 57), as to which see post, p. 228. This Act repeals the Agri- cultural Holdings (England) Act, 1875, and the Agricultural Holdings (England) Act, 1875, Amendment Act, 1876, the former of which Acts gave the tenant a similar right to compensation for improvements, but provided that the operation of the Act might he excluded hy contract between the parties. Digitized by Microsoft® 92 THE LAW OF PKOPEETY IX LAND. Allotments and Cottage Gardens Act, 1887. and to be recoverable as rent, as will repay the outlaywith. interest at the rate of £3 per cent, per annum. (p) A further alteration of the common law on this subject has been made by the Allotments and Cottage Gardens (Compensation for Crops) Act, 1887, as resfiects tenancies, for any terms, of allotments {i.e., parcels of land of not more than two acres, cultivated as gardens or farms, or partly as gardens and partly as farms) and cottage gardens (i.e., such allotments attached to cottages). The Act gives the tenant, on the expiration of the tenancy from any cause, the right, notwithstanding any agreement to the contrary, to obtain from the landlord compensation in money (the amount to be settled by arbitration, if the parties cannot agree thereon) for growing crops, including fruit ; and for fruit trees and fruit bushes planted with the landlord's consent in writing ; and for labour expended, and manure applied, since the taking of the last crop, in anticipation of a future crop ; and for drains, out-buildings, pig-styes, fowl-houses, and other structural improvements, made with the landlord's written consent. Eent due from the tenant, &c., may be deducted from the amount of the compensation ; and the tenant is not to be entitled to any compensation under the Agricultural Holdings (England) Act, 1883, where he is entitled to com- pensation under this Act.((^) (Jenerai rule. Fixtures. — Fixtures annexed by the lessee, for the pur- poses of trade or domestic use, may be removed by him during the term, or during the continuance of his possession as tenant. (?') This exception (established by a series of judicial decisions) to the rule of the early common law, that all fixtures form part of the land,(s) was not, however, ex- (p) Ss. 1, 3, 4, 5, 7-23, 55. The above provisions apply only to improvements effected after the 1st January 1884, the date of commencement of the Act. As to improvements made beiore that date, see s. '1 of the Act. The landlord may obtain a charge on the land for money paid by him as above : see post, pp. 287, 413. (}) 50 & 51 Vict. 0. 26, amended by the Tenant's Compensation Act, 1890 (53 & 54 Vict. c. 57), as to which see post, p. 228. As to the exercise, by cer- tain lessees for years, of tlie pawers given by the Improvement of Land Act, 1864 (as to which see ante, p. 70), see s. 8 of that Act. ()•) London and Westminster Loan and Discount Co. v. Drake, 6 C. B. N. S. 798, 810; Leader v. Ilobmvood, 5 C. B. N. S. 546; Amos & Ferrard, Fixt, c. 2 ; Brown, Fixt., c. 5. (s) See ante, p. 9. Digitized by Microsoft® ESTATES IN POSSESSION. 93 tended to fixtures put up for agricultural purposes. But by Under Agri- the Agricultural Holdings (England) Act, 1883, the tenant ^^gg^gig^^jj of a holding to which that Act applies, may before, or within Act, (1883. a reasonable time after, the determination of his tenancy, and upon giving a month's previous notice in writing to his landlord, and provided he has paid all rent due, and has per- formed all his obligations under his tenancy, remove any engine, machinery, fencing, ot other fixture which he has affixed to his holding, or any building erected by him thereon for which he is not otherwise entitled to compensation, and which has not been affixed or erected pursuant to some obligation, or instead of some fixture or building belonging to the landlord. But this right of removal is subject to a right, which the Act gives the landlord, of purchasing, at a valuation to be made as provided by the Act, any fixture or building comprised in the notice of removal. (i() Emblements. — Where an estate for years determines by General rule, the completion of the period for which it was granted, the lessee is not entitled to emblements ; a rule based on the view that, as he knew the expiration of his term, it was his own folly to sow where he could never reap the profits. (it) Nor can he claim emblements where the estate determines through his own act ; as by forfeiture, or by notice given by a tenant from year to year to his landlord. But the lessee or his personal representative is entitled to emble- ments where the determination of the estate occurs at a time that could not be previously known to the lessee, and other- wise than by his voluntary act ; as where land has been demised for a certain term if the lessee should so long live, and he has died before the expiration of the period ; or where an estate from year to year is determined by notice given by the landlord to the tenant, (v) By a modern statute, however, which has already been Statutory referred to, where a lease of a farm or lands, held at a rack- ^ '^'^^*'°"^- [t) 46 & 47 Vict. 0. 61, s. 34. Similar rights as to fixtures, &c., put up with the consent in writing of the landlord, are contained in the stat. 14 & 15 Vict. c. 25, s. 3, which is still in operation. The repealed Agricultural Holdings (England) Act, 1875, also contained similar provisions on the subject, but, as already mentioned, the operation of that Act might he excluded by agreement between the parties. («) Litt. ». 68 ; 2 BI. Comm. 145. (d) Co. Litt. 55b ; 2 Bl. Coram. 145. Digitized by Microsoft® 94 THE LAAV OF PKOPEKTY IN LAND. Local customs as to crops. rent, determines through the death, or cesser of estate, of a lessor who is entitled for his life or any uncertain interest, the lessee is entitled, in lieu of having emblenaents, to con- tinue to hold upon the terms of his lease until the expira- tion of the current year of his tenancy. (i«) And, as has been mentioned, the tenant of an allotment or cottage garden is now entitled, by statute, to compensation, on the expiration of his tenancy, for growing crops. (i;) Local customs, modifying the general rule of the common law as to emblements, exist in many of the counties of England. The custom is, in some instances, that the tenant may take the crops after the determination of the term, and, for that purpose, may retain possession, or re-enter. In other instances, the incoming tenant, or sometimes the land- lord, takes, at a valuation, the crops raised by the outgoing tenant. (2/) Express pro- visions as to use and enjoyment. Building lease. Occupation lease. The nature of the stipulations by which, in ordinary leases, the lessee's rights of use and enjoyment are regu- lated, may be next considered. The provisions of leases vary, in this respect, according to the subject of the demise and the purpose for which the lease is granted. Of the several kinds of leases, as thus distinguished, building leases, occupa- tion leases, and mining leases are the principal instances. A ' building lease ' is a lease of land — frequently for a term of ninety-nine years, or thereabouts, but sometimes for a term of such length as to be practically equivalent to a per- petuity — at a rent of the annual value of the land (called a ' ground-rent ') ; the lessee undertaking to erect and main- tain buildings on the land. (2) An ' occupation lease ' is a lease of a house or other building, or of a farm ; the last being sometimes called a ' farming lease ' — granted for a term which, in general, does not exceed twenty-one years, and at a rent which is usually the full annual value of the building or land, and is then called a ' rack-rent.' (io) 14 & 15 Vict. u. 25 ; ante, p. 71. (x) Ante, p. 92. (y) Woodfall, cli. 20, s. 4. Such a custom applies unless it is excluded by the terms of the lease: Wigglesivorth v. Dallison, l)o\igl. 201; S.C., 1 Sm L C 569. (z) See 3 Davidson, Conv., 525, note (c) ; Elphinstone, Conv., 210. Digitized by Microsoft® ESTATES IN POSSESSION. 95 A lease of minerals, or ' mining lease,' usually contains Mining lease. numerous stipulations respecting the working of the mines, and is frequently granted subject to the payment by the lessee of a ' royalty,' i.e., a fixed sum to be paid in respect of every ton, or other certain quantity, of minerals raised ; a fixed rent (called a ' dead rent ') being also commonly reserved. (a) Besides the reservation to the lessor of a rent, or royalty, Eeseryations. to be paid by the lessee, a lease sometimes contains re- servations to the lessor of other rights, such as rights of way, rights to the use of drains, sporting rights, &c. Covenants (b) on the part of the lessee, whereby he incurs Covenants, obligations to the lessor, are also usually inserted in a lease ; and though an agreement for the grant of a lease do not stipulate for the insertion of any covenants in the lease, the lessor is nevertheless entitled to require the insertion of usual covenants on the part of the lessee. (c) The following are usual lessee's covenants : — To pay the rent or royalty reserved by the lease ; to pay all taxes, rates, and outgoings, except landlord's property tax ; (d) for keeping the subject- matter of the lease in repair ; (e) refraining from committing waste in other ways ; giving up possession in proper repair on the determination of the term ; and permitting the lessor to enter and view the state of repair. (/) Covenants as to insurance by the lessee, or for payment by him of the premiums on an insurance effected by the lessor ; covenants (a) Elphinstone, Gonv., 226. As to rents generally, seej'ost, pt. ii. cli. 3. (b) A covenant is properly a contract contained in a deed ; but in reference to leases tlie term is here used to denote any contract contained in a lease, whethei- the lease be made by deed or not. (c) Woodfall, p. 125. {d) By statute, the tenant is entitled to deduct from his next payment on account of rent, the property-taz he has paid, and the landlord is bound to allow such deduction, and any contract for the payment of the rent in full without allowing such deduction is made void : 5 & 6 Vict. c. :io, ss. 73, 102- 104. By the Tithe Act, 1891 (54 Vict. c. 8), a contract by a lessee to pay tithe rent-charge is made void. As to this Act, see post, p. 285. (e) As to the extent of a lessee's liability under a covenant to keep, or leave, in tenantable repair, see Crawford v. Newton, 36 W. E. 54; Frcrndfoot v. Hart, 25 Q. B. D. 42, 59 L. J. C. L. 389, 63 L. T. 171, 38 W. E. 730. Under a covenant to repair, the lessee is liable in case of destruction or damage by fire, ■whether accidental or not {Bullock v. Dommitt, 6 T. E. 650), unless loss by fire is expressly excepted. ( f ) See further as to what are ' usual ' lessee's covenants, 5 Davidson, Conv., pt'l, p. 51 ; Hampshire v. WicJiens, 7 Ch. D. 555, 47 L. J. Gh. 243, 38 L. T. 408, 26 W. E. 491. Digitized by Microsoft® 96 THE LAW OF PEOPEETY IN LAND. Operation of lessee's covenants. Indemnity to lessee on assignment of lease. Liability of assignee of lease upon covenants. restrictive of the lessee's right to assign or underlet without the lessor's licence ; and covenants against using the premises for certain trades or businesses, or other specified purposes, are also of frequent occurrence. The lessee is liable for the consequences of any act or omission, whether intentional or not, contrary to the terms of any of his covenants. Usually, in practice, the lessee's covenants are so framed as to be binding on him, and en- forceable after his death against his estate, throughout the term, even though he or his representatives should have assigned the lease to another person. But by a modern statute, the personal representatives of a deceased lessee are empowered to assign the lease to a purchaser— after satisfying all subsisting liabilities under the lease, and setting aside sufficient to meet any future claim in respect of a fixed sum agreed to be laid out on the land — without appropriating any part of the lessee's estate to answer any future liability under the lease. Under this Act, the personal representatives will not, after assigning the lease to a purchaser, be per- sonally liable in respect of any subsequent breach of a covenant contained in the lease, by reason of their not having retained assets of the deceased to satisfy the claim. But the Act expressly preserves the right of the lessor to follow the assets of the deceased into the hands of the persons among whom they may have been distributed by the personal representatives, (g) In consequence of the lessee's liability for breaches of covenants in the lease, notwithstanding its assignment to another, he is entitled, on assigning the lease, to be indem- nified by the assignee against such liability, (/i) And, in practice, an express covenant by the assignee for this purpose is usually contained in the instrument of assignment. In addition to his liability to indemnify the lessee, the assignee of a lease is liable to the lessor in respect of certain covenants contained in the lease. Covenants upon which the assignee is so liable are said to ' run with the land.' They bind the assignee, on account, it is said, of (g) 22 & 23 Vict. c. 35, s. 27. {h) Sug. V. & P. 37 ; MIoule v. Garrett, L. K. 5 Ex. 132, 7 Ex. 101, 41 L. J. C. L. (Ex.) 62. Digitized by Microsoft® ESTATES IN POSSESSION. 97 a privity of estate existing between him and the lessor, notwithstanding that there is no actual contract between the lessor and the assignee. (-i) Hence, the lessor may- have rights of action against both the lessee and an assignee of the lease, in respect of the same breach of covenant. There is, however, a material distinction be- tween the liability of the assignee and that of the original lessee. The assignee is liable only for breaches occurring during the time that the term remains vested in him ; his liability, therefore, ceases (except for previous breaches) upon his assigning the term to another person. (j ) Since the estate of a lessee for years vests on his death Lessee's in his personal representative,(/v) the latter, being an representative assignee of the lease by operation of law, is personally liable a" assignee. upon the covenants contained in it to the same extent as an assignee by an express transfer ; save that he may claim exemption from liability for rent, so far as the rent exceeds the profits of the land which he has received, or with reason- able diligence might have received. (^) Covenants that run with the land, at common law, are Wliat cove- such as relate to the land, or to any other thing in existence ^™h\iig" ^nd at the time of the demise, and constituting the subject, or part of the subject, of the lease. Covenants respecting things which, though not in existence at the time of the lease, afterwards become part of the subject of demise (such as a covenant to keep in repair houses to be built on land demised), also run with the land at law, if the lessee has covenanted expressly for himself and his assigns. Whether such covenants will run with the land at law, if not expressly extended to assigns, seems to be donbtful.(«i) Covenants running with the land, at law, include cove- instances uf. (j) spencer's case, Rep. pt. 5, 16 ; S.C., and notes, 1 Sm. L. C. (iS ; Sue. V. & V. 582. The assignee is similarly entitled to the benefit of covenants entered into by the lessor and running with the land -post, p. 118. (j) Pitcher v. Tovey, 1 Salk. 81 ; Leleux, v. Nash, 2 Str. 1221 ; Tat/lor v. Mum, 1 Bos. & Pul. 21 ; Karley v. Jung, 2 C. M. & E. 18. [k) See ante, pp. 10, 11. [1) Wms. Exors. 1763, 1766; "Woodfall, 304, 305; In re Bowes, Earl of Strathmore v. Vane, 37 Gh. D. 128, 57 L. J. Ch. 455, 58 L. T. 3U9, 36 AV. E. '^^^^ necessary to enable the tenant in tail to alienate lute bar. as against persons entitled to estates in remainder, reversion, or otherwise, subsequent to the estate tail.(/) The protector may give or withhold his consent at discretion ; and he can- not, by agreement, restrict his freedom in this respect ; but the consent, once given, is irrevocable. (^) {z) See as to what are to be deemed estates under the settlement, within the Act, 6s. 22, 25, 26. (o) S. 22. Where there are two or more co-owners of the prior estate, each is protector as to his undivided share : s. 23. (6) Ss. 26, 27, 31. (c) S. 28. (cZ) S. 82. The office survives on death of one of two or more appointed protectors : Bell v. Holthj, L. E. 15 Eq. 178, 42 L. J. Ch. 266, 28 L. T 9 21 W. E. 321. (e) S. 33. As to where the protector is of unsound mind, or convicted of treason or felony, or an infant, see^ost, pp. 491, 494, 496 ; and as to the pro- tectorship in the case of a married woman, see s. 24, andj70st, p. 484. (/) S. 34 ; see ante, p. 59. ((?) Ss. 36, 37, 44. Digitized by Microsoft® ESTATES IN EXPECTANCY. 127 "Where the tenure of the land is freehold, the protector's How given, consent must be given either by the deed by which the tenant in tail disposes of the land, or by a separate deed, to be executed on or before the day of the execution of the former deed, and to be duly enrolled, at or before the time of the enrolment of that deed. (A) Where the tenure is copyhold, the consent is to be given by deed, executed by the protector at or before the time of the surrender of the land, and entered upon the court rolls of the manor ; or by his concurrence in the surrender — which concurrence must be expressly stated in the memorandum or entry of the surrender, upon the court roll.(i) A tenant in tail in remainder may, however, without the Entail may be consent of the protector, make a disposition of the land en- against Issue tailed, by deed duly enrolled, which will be effectual as witliout pro- against all persons entitled by virtue of the estate tail ; that ggnt is, as against the tenant himself, and all issue entitled under the entail. (/c) Where the estate so created is expressed to be an estate in fee simple, it is called a ' base fee ' ; Base fee. a term which, as has been seen, was formerly applied to the similar estate created by fine.(/) Without the pro- tector's consent, however, the tenant in tail, as already stated, cannot alienate as against persons entitled to estates subse- quent to the estate tail. Hence a base fee is defined by the Act to be ' that estate in fee simple into which an estate tail is converted where the issue in tail are barred, but per- sons claiming estates by way of remainder, or otherwise, are not barred. '(m) The Act provides, however, that where a base fee has been Its enlarge- created,the person who would have been tenant in tail, had the ™^°'' entail not been barred, shall have power to dispose of the land (by deed duly enrolled under the Act),(?i) as against all persons whose estates are to take effect after the determina- tion, or in defeasance, of the base fee, so as to enlarge the {h) Ss. 42, 46. As to the enrolment, see ante, p. 59. (J) Ss. 51, 52. As to surrenders of copyholds, see post, p. 370. {k) S. 34. (.1) Ante, p. 58. (m) S. 1. The owner of a hase fee in possession has the powers of alienation, &o., given to tenants for life and others by the Settled Land Ads, 1882 to 1890 ; see ante, p. 77, note (h). (ra) See ss. 1 and 41. Digitized by Microsoft® 128 THE LAW OF PEOPEETY IN LAND. base fee into a fee simple absolute ;(o) but if there be a protector of the settlement by which the estate tail was created, his consent must be given to such disposition. (2;) The Act also provides, that where a base fee, created under the Act, and the immediate reversion or remainder in the same lands, shall be united in the same person, the base fee shall be ijjso facto enlarged into as great an estate as the tenant in tail (with the consent of the protector, if any) might have created under the Act, if the remainder or reversion had been vested in any other person — that is (in general), an estate in fee simple. (^) No protector- The Act, it will be observed, expressly provides that the prior estate, to which the protectorship is incident, shall be an estate under the same settlement with the estate tail. Hence, where an estate tail is expectant on a life estate created by a prior instrument, the tenant in tail may dispose of the fee simple absolute, subject to the life estate, without the consent of the tenant for life.(r) ship where the estates are created by different in- strumeuts. Modes of. Determination. — The law as to the determination of vested remainders is, in general, the same as that relating to the determination of corresponding estates in possession. (s) A vested remainder expectant on an estate tail is, of course, extinguished by an absolute bar of the entail. (i!) A vested remainder may also cease to exist through its union with a base fee — in which case, as above stated, the latter estate may be enlarged into a fee simple absolute. It may also (0) S. 19 ; Bankes v. Small, 34 Ch. D. 415, 36 Ch. D. 716, 56 L. J. Ch. 254, 5G L. T. 21, 35 W. E. 288. {p) S. 35. (q) S. 39. Prior to this enactment, the base fee would merge in the reversion, which would remain subject to any charges or incumbrances previously affecting it. But the enlargement nf tie base fee, under the above Act, excludes or destroys the reversion ; and thereby all charges on the reversion are annihilated : 6 Cruise, t. 39, ss. 104, 105. For the cases in which the tenant in tail cannot create an estate in fee simple, see ante, p. 62. ir) Berrington v. Scott, 32 L. T. 125. (•s) According to some writers, where the particular estate is granted subject to a condition of re-entry, by the common law an entry for breach of tlie condition puts an end not only to the particular estate, but also to any estate in remainder expectant on its determination. (See Lift. s. 723 ; Fearne, C. R, 383, n. ; Shep. Touch. 120, &c.) It seems, however, that the condition in such case would be void as being repugnant to the grant of the remainder (see 1 Sand., Uses, 155; Fearne, C. E., 270 ; 1 Shep. Touch, by Preston, 120), unless (as would usually be the case) the words of condition could be construed as a con- ditional limitation (see ante, p. 47). [t) See ante, p. 59. Digitized by Microsoft® ESTATES IN EXPEGTAXCY. 129 ) Where, in a settlement of land of freehold tenure, the legal estate was limited to a person for his life, with remainder to his child or children unborn, and in other cases where a contingent remainder was liable to fail by the premature determination of a preceding life estate, it was formerly the practice to insert, in the settlement, a limitation of an estate in remainder to trustees, to take effect upon the determination of the life estate, by forfeiture or otherwise, during the life of the tenant for life, and to continue during the rest of his life ; the estate of the trustees being declared to be limited to them upon trust for the tenant for life, and to preserve contingent remainders. In this way, the destruction of a contingent remainder, by the premature determination of the particular estate, was prevented. For in case of such determination, the estate of the trustees would take effect in possession — the trustees not being at liberty to prevent this, by any alienation of their estate ; and there was thus a particular estate in possession, through- out the lifetime of the tenant for life. (2) By the Real Property Law Amendment Act, 181'5, how- ever, a contingent remainder was made capable of taking effect, notwithstanding the determination, by forfeiture, surrender, or merger, of the particular estate, as if such determination had not happened. (?-) This enactment, in effect, protected contingent remainders against failure through the premature determination of the particular estate : and thus rendered unnecessary, for this purpose, a limitation to trustees to preserve contingent remainders. It {2}) Fearne, C. E., 310; Scriven, Cop., 60. As to contingent remainders of equitable estates not being liable to failure as above mentioned, see jMst, p. 173. (2) 2 Bl. Comm. 171, 172 ; 2 Cruise, t. 16, c. 7. (r) 8 & 9 Vict. c. 106, s. 8. Digitized by Microsoft® ESTATES IX EXPECTANCY. 137 did not, however, provide for the case of the regular deter- mination of the particular estate, by the completion of the period for which it was limited, before the vesting of the contingent remainder — -as where land was limited to A. for his life, with remainder to the first of his sons who should attain the age of twenty-one, and A. died before any son of his had attained that age. In such cases, therefore, a limitation to trustees to preserve contingent remainders was still desirable — the estate of the trustees being limited to take effect in possession, on the expiration of the particular estate, and to continue till the happening of the event upon which the contingent remainder was to become vested. But a further alteration in the law on this subiect has Contingent been made by the Contingent Remainders Act, 1877, with Act, 1877. respect to every contingent remainder, created by any instru- ment executed after the passing of that Act (2nd August 1877), or by any will or codicil revived or republished after that date, in tenements or hereditaments of any tenure — and which would have been valid as a springing or shifting use, or executory devise, or other limitation, had it not had a sufficient estate to support it as a contingent remainder. The Act provides that every such contingent remainder shall, in the event of the particular estate determining before the remainder vests, be capable of taking efiect, in all re- spects, as if the contingent remainder had originally been created as a springing or shifting use, or executory devise, or other executory limitation. (s) In the cases to which this Act applies, its effect is to ren- ^*^ ^^^'='- der a contingent remainder capable of taking effect on the fulfilment of the condition upon which it is limited, irrespec- tive of the prior failure, by any means, of the particular estate ; for, as will be seen hereafter, executory interests (which comprise springing and shifting uses, and executory devises) do not depend, for their validity and effect, upon any prior estate. Thus, in the case (above cited) of a limitation to A. for life, with remainder to the first of his sons who shall attain the age of twenty-one, the remainder will vest, under the Act, as soon as a son attains twenty-one, notwithstanding the previous death of A. So, in the case of a limitation to (s) 40 & 41 Vict. c. 33. Digitized by Microsoft® 138 THE LAW OF PKOPEETY IN LAXD. A. for life, with remainder to the heir of B.,the remainder will vest, under the Act, on the death of B., though A. have died before B. And where the remainder is limited to a class of persons, none of whom have acquired vested interests at the expiration of the particular estate, the remainder will vest, under the Act, in those members of the class with respect to whom the condition is eventually fulfilled. Thus, if land be limited to A. for life, with remainder to each of his children who shall attain twenty-one, and at his death no child of his has attained that age, the remainder will vest in such, if any, of his children as eventually attain twenty-one. But where one or more members of the class acquire vested interests before the determination of the particular estate, it is not clear that those who subsequently fulfil the condition of the gift, will be entitled under the Act. Thus, if, in the case last cited, a child of A. had attained twenty-one before A.'s death, it seems that the children afterwards attaining that age would be excluded, notwithstanding the Act ; since the Act applies only in the event of the failure of the particular estate before the contingent remainder vests ; and here one of the children has acquired a vested interest before the determination of the particular estate. (<) Eight to Where a contingent remainder may vest after the deter- mtermediate niination of the particular estate, as above explained, the rents and . profits. ownership of the land, and therefore the right to the rents and profits during the interval between the determination of the particular estate and the vesting of the remainder, will be in the person by whom, or out of whose interest, the particular estate and the remainder were granted,('(") or in his successors, if he be dead. Mode of. Creation. — Contingent remainders are created by grant, made either inter vims or by will, in accordance with the rules applicable to remainders generally ; ()(■) and in con- formity, also, with the following rules, which apply to contin- gent remainders only. (t) See ante, p. 134 ; Wms., Seisin, 208. (u) Fearne, C. B., 241, n. ; Jarman, Wills, i. 651, 653, ii. 169, and cases there cited. It is otherwise in the case of a contiogent remainder in personalty, or in realty and personalty blended in one gilt : ibid. [lo) See ante, pp. 119-122. Digitized by Microsoft® ESTATES IN EXPECTANCY. 139 (i.) By the common law,(a^) a contingent remainder of an (i.) If an estate of freehold must liave a particular estate of freehold hold "ifJlTst" (that is, an estate for life, or in tail) to support it ; or, in have partiou- other words, the particular estate upon which a contingent f,-eeholcl. remainder of an estate of freehold is expectant, must not itself be an estate less than freehold. Thus, if land be granted to A. for one hundred years, if he shall so long live, with remainder in fee to the heirs of B., a living person, the remainder is void.(?/) Such, at least, is the case where the remainder is created by grant inter vivos. Where, however, it is granted by will it is held to be valid ; not, indeed, as a remainder, but as an executory interest — a construction adopted in order to effectuate the testator's intention.(3) The rule in question, Hke others applicable to remainders, is based on the feudal principle already referred to, that there should be at all times a tenant having the seisin, or feudal possession. Where an estate of freehold is limited as a vested remainder after an estate for years (as to A. for ten years, with remainder in fee to B., a living person), the seisin passes immediately to the remainderman. (a) And where an estate for years is limited as a remainder, whether vested or contingent, after an estate for years, the seisin, of course, remains in the grantor. But on the limitation of a contingent remainder of an estate of freehold, if the particular estate be merely a chattel interest, the seisin of the freehold — which cannot pass to the remainderman, while the remainder is contingent — must either pass to a person entitled to an estate in remainder, subsequent to the contingent remainder, or remain in the grantor ; and, in either case, it cannot afterwards pass to the person entitled to the contingent remainder.(5) It is remarkable that this rule — a useless relic of feudalism — should have remained unaltered. (c) At the present day, there is no substantial difference between the [x) This rule does noi apply to tlie limitation of an equitable estate by way of contingent remainder : see post, p. 173. (!/) Co. Litt. 217 a ; Fearne, C. E., 281 ; 2 Bl. Comm. 171 ; Goodrir/ht v. Cornish, 1 Salk. 226. (s) See jiosi, p. 148, and cases tbere cited. (a) 2 BI. Comm. 167. (6) Fearne, C. K., 281, 285; Burton, §§ 32, 33, (c) Qiuere wliether it would now be held to apply to limitations in a deed operating under the Statute of Uses see post, p. 148. Digitized by Microsoft® 140 THE LAW OF PKOPEIiTY IN LAND. Effect of this rule upon settlements. seisin of tlie tenant of an estate of freehold, and the posses- sion of a tenant for a term of years. (ii.) Cannot (ii.) An estate cannot be limited to the issue of a person childof mboru ^^^orn, in remainder, after a limitation of a particular estate person after to that person ; for, under such a limitation, the remainder tfat*person. *o *^e issue of the unborn person is void.(cO Where land is limited to a living person for life, a remainder may be limited to his unborn child or children ; but the rule in question forbids the limitation of a further remainder to descendants of such child or children. This rule prevents the settlement of land upon successive generations of unborn descendants, in a series of life estates ; as to A. for life, with remainder to the first son (then unborn) of A. for his life, with remainder to the first son of the first son of A. for his life, and so forth. The ordinary limitations of land in strict settlement — namely, limitations of life estates to persons living at the date of the settlement, and of remainders in tail to their children, then unborn — repre- sent the full extent to which j)rovision can be made, con- sistently with the above rule, for the devolution of land from ancestors to descendants. (e) As will hereafter be seen, another rule, known as the ' rule against perpetuities,' pre- scribes a period within which every estate or interest in expectancy, whether remainder or executory interest, must vest.(/) But the rule above stated is distinct from the rule against perpetuities ; and therefore applies, although the limitation to the issue of the unborn person be expressly confined to such issue as may acquire a vested interest within the period prescribed by the rule against perpetuities — as where land is limited to A. for life, with remainder to his first son for life (A. having then no son), with remainder to the first son of such son who shall be born in the life- time of A.{g) Eep. pt. 10, 50 \> ; Fearne, C. K., Momjpenny v. Derivrj, 21). M. & G. 145 ; Whithi v. Milchell, 42 Gh. D. (d) 2 Prest. Abstr. 114 ; Eep. pt. 2, 51 a ; 502 ; Momjpenny v. Dering, 2 D. M. & G. 1 494, 44 Ch. D. 85, 59 L. J. Ch. 485, 62 L. T. 771, 38 W. E. 337. This rule appears to be derived from the old doctrine, that there cannot be a possibility upon a possibility in the creation of a contingent remainder {as to which, see Rep. pt. 2, 51 a ; Eep. pt. 10, 50 b ; 2 Bl. Coram. 170). (e) As to strict settlement, see ante, p. 74. (/) See poist, p. 324. (g) See Whithy y. MitclteV , supra. Digitized by Microsoft® ESTATES IX EXPECTAXCY. 141 The rule above stated is subject to a modification in the Cy-pres case of a gift, by will, to an unborn person for his life, with '^°°'"'^s- remainder to his child, or to his children (whether success- ively or in common), in tail. In such case, it is held that the unborn person takes an estate tail, instead of a life estate as expressed in the will. This rule is called ' the cy-pres doctrine,' since its aim is to give effect to the testa- tor's intention, so far as it can be lawfully carried out without transgressing the general rule — to which, manifestly, the testator's expressed intention is opposed. Though the gift to the unborn person's issue fails as a remainder, the issue are not necessarily excluded from the succession, as they would be if the limitations were construed strictly ; for the land will devolve upon the issue, if any, as heirs in tail, so long as the entail remains unbarred. (A,) The cy-^wes ■doctrine, however, does not apply where the estate given to the child of the unborn person is an estate for life, or in fee simple ; its application being confined to limitations of estates tail. And it does not apply to limitations contained in a deed.('i) Use and Enjoyment. — The rights of a contingent re- Eights with mainderman with respect to the use and enjoyment of the "^^^P^^ *"• land, have reference, chiefly, to waste committed by the tenant of the particular estate. At common law, a con- tingent remainderman had no remedy for waste committed Eemedies for by the owner of a particular estate. Nor was he entitled ■*^^'^- in equity to any relief, where the owner of the particular estate could destroy the contingent remainder by forfeiture, surrender, or merger, of the particular estate. But where an estate was vested in trustees to preserve contingent re- mainders, waste by the tenant for life would be restrained in equity, for the benefit of the contingent remainderman ; and it seems that, upon the vesting of his remainder, he would be entitled to damages for waste previously com- (7«) Fearne, C. E., 204, n.; Humherstony. Humherston, 1 P. Wms. 332 Monypenny v. Dering, 16 M. & W. 418 ; Vanderplanh v. King, 8 Hare 1 Hampton v. Holman, 5 Ch. D. 183, 46 L. J. Ch. 248, 36 L. T. 287, 25 W. li 459. (i) Seaivard t. WiUcocJc, 5 East 198 ; Bristow v. Warde, 2 Ves. 336 ; Rale -7. Few, 25 Beav. 335; 2 Prest. Abstr. 166. Digitized by Microsoft® 142 THE LAW OF PKOPEETY IN LAND. mitted.(/c;) And in the case of collusion between the owner of the particnlar estate and the owner of the next vested estate of inheritance, or where both these estates were vested in the same person, the proceeds of the waste (which otherwise would belong, as has been seen, to the owner of the next vested estate of inheritance), would be secured for the benefit of the owners of the successive estates.(0 Under the present law, it seems that every contingent remainder- man, whose estate is not liable to fail through the destruc- tion or determination of the particular estate, is entitled to the above remedies, although there be no estate vested in trustees to preserve the contingent remainder. (wi) Rights of. Alienation. — At common law, a contingent remainder was alienable to the extent only that where the person in whom the remainder must vest, if it should vest at all, was ascertained, he might release it to a person having a vested estate in the land, or might dispose of it by will to any person. (m) In equity, however, a conveyance of a contingent remainder, for valuable consideration, was enforced. (o) But by the Real Property Law Amendment Act, 1845, a contin- gent interest, and a possibility coupled with an interest, in tenements or hereditaments of any tenure, are made alien- able by deed — whether the object of the limitation of such interest or possibility be or be not ascertained. (^) And by the Wills Act, 1837, contingent interests are made devisable, whether the testator be or be not ascertained as the person, or one of the persons, in whom the same may become vested, (g') ilodes of. Determination. — The former liability of a contingent remainder to failure through the determination, from any cause, of the particular estate, and the alterations made in the la^w on this subject by the Real Property Law Amend- (7.;) Fearne, C. R, 413, 502 et seq. ; Garth \. Cotton, 1 Ves. Sen. 524, 540, 1 Lead. Cas. Eq. 806. {I) See ante, pp. 123, 124. (m) See 1 Lead. Cas. Eq,, notes to Garth v. Cotton, supra. (n) Lampet's case, Kep. pt. 10, 40 a; 2 Prest. Abstr. 283 ; Burton, § 40. (o) Fearne, C. R., 306, n. ; 2 Prest. Abstr. 283 ; Story, Eq. Jnrisp. § 1040 b. ip) 8 & 9 Vict. 0. 100, s. 0. (q) 1 Vict. u. 20, s. 3. Digitized by Microsoft® ESTATES IN EXPECTANCY. 143 ment Act, 1845, and the Contingent Eemainclers Act, 1877, have already been noticed. (r) Contingent remainders under instruments made before the passing of the latter Act, or otherwise not within its provisions, (s) are still, however, liable to failure through the determination of the particular estate by the death of the tenant, or by any other means than forfeiture, surrender, or merger (the cases in which they are protected from failure, by the first or the above Acts), before the happening of the contingency on which the remainder is to become vested. And any contingent remainder that is expectant on an estate tail is, of course, liable to be extinguished through an absolnte bar of the entail. (if) The only other cause of failure of a contingent remainder, as such, is the non-fulfilment of the condition on which its vesting depends. (ti) Sect. III. — Executory Interests. Definition. — The term ' executory interest ' is used to Executory iu- denote any estate in expectancy, created by express limita- ^'^^^^^ defined, tion, and not taking effect as an estate in remainder. The essential features of estates in remainder, as distin- Distinguished guished from estates of the present class, have already been i-e^imier considered, (ly) In general, any legal estate in expectancy which is limited to have effect in possession upon the deter- mination of a preceding particular estate is an estate in remainder. («) On the other hand, where an estate is limited in expectancy, to take effect in possession upon an event that must, or may, happen before the expiration of an estate immediately preceding it ; or after the expiration of an estate limited in priority to it ; or to take effect in defeasance of (that is, in substitution for) a prior limitation (r) Ante, pp. 134-137. (s) See liereon, ante, pp. 137, 138. (f) See ante, p. 50. (v) Tliat a contingent remainJer is not liable to failure though merger, see ante, p. 130. (w) Ante, p. 121. (x) P'or an exception, in the case of a limitation by will of a particular estate for years with a contingent estate of freehold expectant thereon, see 2}ost, p. 148. Equitable estates in expectancy, though limited by way of remainder are properly executory interests : see post, p. 178. Digitized by Microsoft® 144 THE LAW OF PROPERTY IN LAXD. of an estate in fee simple, the estate so limited belongs to the class of executory interests, (j/) Uses of land. Distinctions between uses and common law estates. Origin. — The distinctions between executory interests and estates in remainder, may be explained by a statement of the origin of the rules relating to interests of the former class. Limitations in estates in expectancy, otherwise than by way of remainder, were not recognised by the common law, and were originally capable of taking effect only as creating equitable estates. Equitable, as distinguished from legal, estates are treated of in a subsequent chapter ;(s) at present, it need only be stated that the person in whom the equitable estate is vested, has the actual, or beneficial, enjoyment of the rights of ownership, by the operation of the rules of equity ; while the ownership, according to the common law, is vested in another — the latter being, however, bound to hold the land, merely as a trustee for the equit- able owner. Equitable estates were introduced into the legal system through the recognition and enforcement, by the Court of Chancery, of declarations of the use of land. Under certain conditions, a declaration that the legal owner should hold to the use of another, entitled the latter to the equitable ownership, or, as it was originally called, the ' use ' of the land. In some circumstances, also, a use, though not declared, was implied, in favour of a person other than the legal owner, (a.) The rules adopted by the Court, as applicable to uses, were in some respects similar to, in others different from, the rules of the common law governing estates in land. Among the equitable rules that did not conform to the common law, were those that dealt with limitations of estates in expectancy, otherwise than by way of remainder. Thus, the use might be so limited in expectancy, that, until the happening of the event upon which it was to have effect as an estate in possession, an equitable estate in fee simple, and not (as in the case of a remainder) a particular estate merely, should vest in another person. So also, the use might be so limited as to take effect in possession either in {y) Feavne, C. R., 386-395, 526. For examples, see post, pp. 149, 150. (2) Ch. 6 (pt. i.). (a) See post, pp. 352, 357. Digitized by Microsoft® ESTATES IN EXPECTANCY. 145 defeasance of, or after the expiration of, a prior particular estate limited by way of use. And such equitable estates in expectancy might be created by will, no less than inter vivos ; for the use was alienable by will — and in this respect, also, it differed from the legal estate, which could not, at com- mon law, be disposed of by testament.(&) By these, and various other, differences, (c) uses were dis- Inconven ences tinguished from estates at common law. The tendency of "^^^' these distinctions was to create obstacles to the enforcement of the rights, at common law, of lords, creditors, and others, against the land ; for these rights, not being rights con- ferred by the rules of equity, were not available against the equitable owner.((i) To remedy the inconveniences thus Alterations occasioned,(e) statutes were passed at different times, making ■*' ^''^ " ^" uses subject to the rules of the common law, for certain purposes ;( Z') and, finally, by a statute of Henry VIII. (a.d. 1535), commonly called the Statute of Uses,((7) which superseded the earlier statutes, uses were converted into legal estates. The Statute of Uses, after reciting the various incon- The'Statute veniences to which uses had given rise, enacted, in effect, ° "^^^' that where any person or persons should be seised of any lands, &c.,(7i) to the use, confidence, or trust of any other person or persons or corporation, the person or persons or corporation entitled to the use, confidence, or trust, in fee simple, fee tail, for life, term of years, or otherwise, or in remainder or reversion, should from thenceforth stand and be seised, and deemed to be in lawful seisin and possession, of the same lands, &c., of and in the like estate as he or they had in the use, trust, or confidence ; and that the estate that was in the person or persons so seised to such use, confidence, or trust, should be deemed to be in him or (&) Burton, § 120. (c) Seepost, p. 171. (d) Bacon, Law Tracts, Uses, 327 et seq. (e) See the preamble of the Statute of Uses, audi post, p. 171. (/) As to these statutes, see 1 Cruise, t. 11, c. 2, ss. 41-45; 1 Sand., Uses, 15-53. The most important was the stat. 1 E. 3, u. 1, which gave the equit- able owner the power of conveying the legal estate. (o) 27 Hen. 8, u. 10. In conveyance.s and pleadings it is usually called ' The statute for transferring uses into possession ' : 2 Bl. Comm. 332. (li) The statute specifies ' honours, castles, manors, lauds, tenements, rents, services, reversions, remainders, and other hereditaments.' K Digitized by Microsoft® 146 THE LAW OF PROPEKTY IN LAND. Operation of the statute. Recognition at law of execu- tory interests. Executory interests created by will. them that had such use, confidence, or trust, in such quality, manner, form, and condition as he or they had before in the use, confidence, or trust. (^) By the operation of this statute, uses to which it applies are executed ; that is, the cestui que use (as the person, in whose favour the use has been declared, is called) imme- diately acquires, by force of the declaration of use, not merely the beneficial interest, as before the statute, but also the legal estate — which, before the statute, would have been vested in the person holding to the use. The latter, through the operation of the statute, takes no actual estate or interest in the land ; for though, in form, the land is con- veyed to him (as to A. and his heirs, to the use of, &c.), the effect of the superadded use is to make the limitation to the grantee a nullity. (A;) Uses, being thus converted by the statute into legal estates, ceased to be subject to the exclusive jurisdiction of the Court of Chancery, and came within the cognizance of the Courts of common law jurisdiction. These Courts, how- ever, applied to the legal estate created by a declaration of use, rules similar, in many respects, to the rules of equity by which uses, as equitable estates, had originally been governed. (^) Among the rules thus adopted, were those that sanctioned the creation of estates in expectancy, other- wise than by way of remainder ; or, in other words, as executory interests (m) — which thus obtained validity as legal estates in expectancy. The Statute of Uses, however, by converting uses into legal estates, put an end to the power of creating executory interests by will, which had been incident to uses as equitable estates; for, by the common law, as has been mentioned, land was not devisable by will. But, shortly after the passing of this statute, an Act was passed, by which the legal ownership of land was made alienable by will ; (n) and the testamentary power over land being thus restored, gifts (i) S. 1. S. 2 enacts to the same effect, where several persons are jointly seised to the use, confidence, or Irust or of any of them that are so jointly seised. (/;) 2 Bl. Comm. 333. [l) Mid. {m) Ante, p. 143. (rt) Stat. 32 Hen. 8, o. 1, explained by stat. 34 & 35 Hen. 8, o. 5 ; see 2^ost, p. 386. Digitized by Microsoft® ESTATES IN EXPECTANCY. 147 by will of the legal estate, by way of executory interest, were held to be valid, by analogy to similar gifts of the use before the Statute of Uses.(o) A declaration of use of land of copyhold tenure is not Executory executed by the Statute of Uses. The statute, it will be f'^rests in ■^ _ _ ' land 01 copy- observed, applies only where one is seised to the use of hold tenure. another ; and the term ' seised ' is not applicable to the possession of copyhold land.(p) Hence, it has been doubted whether executory interests could be created in copyholds ; at least, by conveyance int&r vivos.(q) Their validity, when created by will, was imquestionable, since executory interests limited by will take effect independently of the operation ■of the Statute of Uses.(r) And modern decisions have established the validity of such executory interests, created inter vivos, though the Statute of Uses does not apply to them.(s) Since the owner of an estate for years, or other chattel Executory interest, is not seised of the land, in the technical sense, (i) estateffor" ■a use declared of such an interest is not executed by the years. •Statute of Uses.(v) Hence, a legal estate for years in lands •of freehold tenure cannot be the subject of an executory interest ; at least, where the interest is limited wtfcr vivos. By will, however, a legal estate for a term of years may foe given to one, with a gift over to another on the death of the former, or upon any other specified event. The gift over takes effect, not by way of remainder, but as an executory interest ; the whole term being primarily vested in the first donee, and divested in favour of the second upon the happening of the event.('iy) And, by the rules of equity, the equitable interest in a term of years may be limited as an executory interest, either inter vivos or by wUl, as well as by way of remainder. («) (o) 2 BI. Comm. 334. {p) See ante, p. 30. {}) See Fearne, C. R., 276, 277 ; 5 Cruise, t. 37, c. 1, s. 99 ; 1 Watk. Cop. 197 et seq. ; 2 Prest. Abstr. 34 ; 1 Scriven, Uop. (4tli ed.), 159-194. (r) 1 Watk. Cop. 210 ; see post, p. 151. (s) Bodclington v. Abernetliy, 5 B. & C. 776 ; B. v. Lord of Manor of Oundle, 1 A. & E. 283. (t) Ante, p. 44. (u) See hereon, post, pp. 172, 356. {w) Manning's case, Eep. pt. 8, 94 b ; Fearne, C. R. , 401-404 ; Lampet's case, Rep. pt. 10, 46 a ; and see ante, p. 121. (x) Post, p. 173 ; and see ante, p. 121. Digitized by Microsoft® 148 THE LAW OF PEOFEE'L'Y IN LAND. Limitations of It may here be observed that estates in remainder, as well dedaratiou ^^ ^^ executory interests, may be created by declaration of use, of use. as when land is conveyed to X. and his heirs, to the use of A. for life, with remainder to the use of such of his children as shall be living at the time of his death; and that a remainder so limited is subject, in general, to the rules applicable to remainders created by grant at common law.(y} Hence, it has been held that where land has been limited to A. and his heirs, to the use of B. for a term of years, if he should so long live, with remainder to the use of the heirs of the body of B., the limitation to the use of the heirs of the body of B. is void, as being a limitation of a contingent remainder of an estate of freehold without a particular estate of freehold to support it.(s) The soundness of this view has, however, been doubted, on the ground that, since the limitation to the use of the heirs of the body was void ab initio as a remainder, it might have been held to be valid as a limitation of an executory interest. (a) A similar limitation in a wUl has been upheld, as being, in effect, a limitation of an executory interest. (6) Mode of. Creation. — An executory interest is created by a grant of the interest, specifying the event in which it is to arise, and made either mfo?' vivos or by will. A grant inter vivos of the legal estate in land of freehold tenure, by way of executory interest, must be made by ' declaration of use ' — that is, by a limitation ' to the use of ' the grantee in the event upon which the interest is intended to arise ; since, as has been seen, it is through the operation of the Statute of Uses upon such a declaration that the limitation in this case takes effect, (c) SpriDgiDg and Executory interests created inter vivos, by declaration of use, as distinguished from those created by will, are called shifting uses, and executory devises. (y) Ohndleif/h's case, Eep. pt. 1, 120 a ; Sug. Pow. 35,36; Fearne, C. JR. 284. (st) Adams v. Savage, 2 Lord Eaym. 8.54 ; Bawley v. Holland, 22 Vin. Abr 189. See ante, p. 139. (cj) Sug. Pow. 36 ; 1 Sand., Uses, 147, 148. (/)) Scatterwood v. Edge, 1 Salk. 229 ; Gore v. Gore, 2 P. Wms. 28 ; Harris V. Barnes, 4 Burr. 2157. See ante, p. 139. (c) See further as to limitations to uses, post, p. 352 et seq. Digitized by Microsoft® ESTATES IN EXPECTANCY. 149 ' springing uses,' or ' shifting uses.' Executory interests created by will are termed ' executory devises.' The term springing use is applicable, where the use is Springing use. not so limited that, on becoming executed, it will take effect in defeasance of a preceding estate limited by the same instrument. Thus, if land be limited to A. and his heirs, to the use of B. and his heirs after four years, or after the grantor's death, or ten years after the death of a person to whom a prior estate for life is limited, or in some other specified event, the use declared in favour of B. and his heirs is a springing use. Until the happening of the event upon which the use is to arise, the use — and therefore the legal estate in fee simple — remains in, or (in the technical phrase) 'results to' the grantor, subject to any limitation of a prior estate ; for, as has been seen, the grantee to the use (A., namely, in the above instance), takes no interest under the limitation. ((^) The use is called a shifting use when, on becoming Shifting use. executed, it must defeat, or be substituted for, a prior estate created by the same' instrument. Thus, if lands are limited to the use of A. and his heirs, and, if B. should pay a certain sum, then to the use of B. and his heirs ; or to the use of A. and his heirs until his marriage, and then to uses declared by the instrument — in these instances, the latter uses are shifting uses, since they arise in defeasance of the estate previously vested in A.((?) Since the Statute of Uses applies only to limitations Doctrine of under which persons are seised to the use of others, it ^as *''"''*^^'' ''"'''*• formerly thought that, in certain cases, it could be made applicable to the execution of shifting uses,(/) only by the aid of a legal fiction. Thus, if land were limited to A. and his heirs, to the use of B. and his heirs until the happening of some specified event, and then to the use of C. and his heirs, it seemed that, since B.'s estate (which was executed by the statute) was co-extensive with the estate limited to A., the whole seisin of A. was exhausted, and, consequently. id) 1 Sand., Uses, 142, 143 ; 2 Bl. Comm. 334. (e) 1 Sand., Uses, 150, 155; Siig. Pow. 27, 28. (/) Or in the execution of a use limited by way of remainder, as to wliicli, see svjira, p. 148. Digitized by Microsoft® 150 THE LAW OF PEOPEKTY IN LAND. that there would be no person seised to the use of C. an(3 his heirs, when the event on which the shifting use waa limited should happen. To meet this difiSoulty, it was assumed that a ' possibility of seisin,' or scintilla juris, as it was called, remained in the grantee to uses, and became an actual seisin when required for the execution of the future use. According to this doctrine, A. (in the above case) would have a scintilla juris remaining in him, by virtue of which, on the happening of the event, he would be seised to the use of 0. and his heirs. This scintilla juris, it was thought, might be destroyed by alienation so as to prevent the future use from arising : but this seems never to have been established, and the doctrine had no other practical importance. In modern times, moreover, the opinion pre- vailed that executory uses took effect by relation to the seisin originally vested in the grantee ; {g) and a modern statute (A) has so enacted, and has thus, in effect, extinguished the scintilla juris. Executory Executory devises may be created in the form of direct gift to the grantee ; that is, without a declaration of use in his favour ; their operation, however, being similar to that of springing and shifting uses.('i) Thus, a devise to A., tO' take effect six months after the death of the testator ; and a devise to the children of A., A. having no children at the death of the testator, are examples of executory devises ; and in these instances the devises are analogous to springing uses, inasmuch as they do not, on taking effect, divest pre- ceding estates given by the will. Until such a devise takes effect, the inheritance vests in the person entitled to the testator's real estate generally, either under his will, or as his heir-at-law. In the case of a devise to A. and his heirs, but if A. die under the age of twenty-one, or if he die without issue, or in some other event, then to B. and his heirs, the devise to B. is an example of an executory devise analogous to a shifting use, since, on taking effect, it defeats a previous estate limited by the will. (Z;) A devise devises. {g) Sug. Pow. 19; Burton, § 1G2 ; 1 Sand., Uses, 15-\ i4-.'. (h) 23 & 24 Vict. c. 38, s. 7. (i) 2 Bl. Comm. 334 ; Burton, § 282. (h) Fearne, C. 1!., 395, 399, 537, 543. Digitized by Microsoft® ESTATES IN EXPECTANCY. 151 to A. during his life, and from and after his death, to such of his children as, either before or after his death, shall attain twenty- one, is also an instance of an executory devise analogous to a shifting use. On A.'s death, the inheritance vests in such of his children as have attained twenty-one, or, if none have attained that age, in the testator's heir ; and a proportionate share will pass to each child who afterwards attains the required age, upon the happening of that event.(Z) An executory devise may, however, be created by declara- Executory tion of use, similar in form to a limitation inUr vivos of a *'''®^ '" "' *'' springing or shifting use. But in such case the declaration of use takes effect rather by force of the testator's intention than through the operation of the Statute of Uses ; for the statute is held not to apply to testamentary declarations of use.(?7i,) As will hereafter be seen, an executory interest may be Powers, created to take effect in possession through the act of a person, named for the purpose in the instrument creating the interest. Thus, land may be limited to A. and his heirs, to such uses as A. shall appoint ; and this is, in effect, a limita- tion of an executory interest in favour of such person, and for such estate, as A. shall afterwards appoint. The authority to make an appointment, in pursuance of such a limitation, belongs to the class of interests called ' powers,' which are treated of hereafter, (n) The creation of an executory interest is a means whereby, Power of J.1 j.rj.i.*j.j_ i_ T revocation. on the grant of an estate or interest, a power may be reserved of revoking the grant. For an estate may be granted subject to an executory interest in favour of the grantor, no less than in favour of any other person ; and the event m which such executory interest is to take effect in possession, may be the exercise of a power, reserved to the grantor, or given to some other person by the terms of the grant, of declaring the grant revoked. Thus, if A., tenant in fee simple, grant to the use of B. and his heirs, subject to a pro- viso empowering A. himself, or C, a third person, to revoke (n Lechmere v. Lhyd, 18 Cb. D. 524 ; Milrs v. Jarvis, 24 Ch. D. 633 ; Bladc- man v. Fysli (1891), W. N. 1891, p. 99 ; ef. Festing v. Allen, ante, p. 134, note (?n). (m) 1 Sand., Uses, 241 ; Sug. Pqw. 148. See post, p. 390. (n) See 2^081, pt. ii. cb. 1. Digitized by Microsoft® 152 THE LAW OF PKOPEKTY IX LAND. the grant, A. has an executory interest in the land, which will take effect in possession on the exercise by him or by C, of the power of revocation. For this purpose, it is not essential that the fee simple be expressly limited to A., in case of the power being exercised ; for, in that event, the fee simple will result to him by operation of law. — It is to be observed that a power of revocation can have effect only as creating an executory interest in favour of the grantor, and in accordance with the rules applicable to executory interests. At common law, the reservation of a condition of re-entry is the only mode whereby an estate can be made determinable by the act of the grantor.(o) Rights witli Use and Enjoyment. — The right of the owner of an Astrwa^t executory interest to redress for waste committed by owner of a prior estate, depends on the extent of the prior estate, and on the event in which the executory interest is to take effect. If it be limited to take effect after, or in defeasance of, an estate for life, or term of years, and upon a certain event, the owner will have the same remedies for waste as are given to a vested remainderman ; while, if the event be uncertain, his rights in this respect will be the same as those of a contingent remainderman. If the executory interest be limited in defeasance of a prior estate in fee simple, the owner of the latter estate may, as has been seen, be restrained from committing equitable waste. (^) Eights of. Alienation. — The restrictions imposed by the common law on the alienation of contingent remainders, and the rule of equity by which effect was given to such alienations when made for valuable consideration, (g') applied equally to execu- tory interests. (/•) The Eeal Property Law Amendment Act, 1845, however, made executory interests, in tenements or hereditaments of any tenure, alienable by deed ; (s) and the Wills Acts, 1837, permitted the alienation of such interests by will.(i;) (o) Cn. Litf . 237 a ; Chance, Pow., ss. 279, 3211. As to conditions of re-entry, see ante, p. 45. ip) See ante, p. 53. (q) See ante, p. 142. (r) 2 Prest. Abstr. 118, 202. (.s) 8 & 9 Vict. c. 106, s. 6 ; ante, p. 142. (t) 1 Vict. c. 26, s. 3. Digitized by Microsoft® ESTATES IN EXPECTANCY. 153 Determination. — The Conveyancing Act, 1882, enacts Modes of. in eifect that where, under an instrument coming into ^'"^^'^.^°"' ' o veyancing operation after the 31st December 1882, a person is Act, 1882. entitled to land in fee, or for a term of years absolute or determinable on life, or for a term of life, with an executory limitation over, on default or failure of all or any of his issue, whether within a specified period or not, the execu- tory limitation shall become void, if and so soon as there shall be living any such issue who shall have attained the age of twenty-one years.('y) Thus, if land be limited to the use of A. in fee simple, but if he die without issue living at his death then to the use of B. in fee simple, and A. have a son who attains twenty-one, under the Act B.'s execu- tory interest thereupon becomes void, and A. is tenant in fee simple absolute ; whereas if the Act did not apply, it would be uncertain, throughout A.'s lifetime, whether the executory limitation to B. would take effect or not. Subject to the foregoing enactment, an executory interest Other events. is not liable to failure, unless it be limited conditionally upon the happening of a specified event — in which case, of course, it cannot take eflfect unless the condition be fulfilled ; or unless it be limited to take effect after or in defeasance of an estate tail — in which case it is extinguished by an absolute bar of the entail, (w) And since an executory interest, when not vested, is not, in law, an actual estate, it is not subject to determination through the operation of the law of merger, where it is held together with an imme- diate estate in possession in the same land.(a;) (w) 45 & 46 Vict. 0. 39, s. 10. (i«) See ante, p. 59. {x) 3 Prest. Conv. 55, 493 e,t seq. ; Goodtitle v. ^¥hite, 15 East 174, 196 ; see ante,\-p. 130. Digitized by Microsoft® CHAPTER V. ESTATES IN COMMCJNITY.(a) Estates in Definition. — Estates are held 'in community,' when two ^T^'rt"^*^ or more persons are concurrently owners of the land, or other subject of ownership, and no one of them is entitled to a specific part of the subject ' in severalty ' ; that is, as sole Four different kinds. Classification.^ — Of ownership in community, four dif- ferent kinds are recognised. These are distinguished, as (i.) 'joint tenancy'; (ii.) ' tenancy in coparcenary'; (iii.) ' tenancy in common ' ; and (iv.) ' tenancy by entireties.' Estates held according to any of the first three modes are, technically, said to be held ' in undivided shares ' ; because each of the co-owners has a proportionate, though not separate, share of the whole subject. In tenancy by entireties, however, as will be seen, each co-owner is re- garded as owner of the whole, and not of a share. Any of the several estates, whether in possession or in expectancy, may be held in joint tenancy, or in tenancy in common, or in tenancy by entireties ; but tenancy in coparcenary is applicable only estates of inheritance. Joint tenancy defined. Its character- istics. Sect. I. — Joint Tenancy. Definition. — Joint tenancy may be defined as ownership in community, in equal undivided shares, by virtue of a grant in terms which import an intention that the co-tenants shall hold one and the same estate. Its essential charac- teristics are usually distinguished as unity of interest in the (a) As to ownersliip in community generally, see nvte, p. 3. Digitized by Microsoft® ESTATES IN COMMUNITY. 155 co-tenants ; unity of the title under which their interests are held, and (at common law) of the time of the vesting of such interests ; unity of possession ; and survivorship. (&) By ' unity of interest,' in reference to joint tenancy, is Unity of meant a similarity of estate (as regards its extent, or dura- ' tion) in each joint tenant. Since joint tenants hold under a grant of a single estate, their interests are necessarily the same in extent. Thus, one cannot be tenant in fee simple, and the others in tail, or for life, or for a term of years. But where two or more are joint tenants for life, one of them may have the inheritance in severalty, subject to the joint estate ; as where land is granted to A. and B. for their lives, and to the heirs (or heirs of the body) of A.(c) By ' unity of the title ' of joint tenants, is meant the Unity oftitle. creation of their interests by one and the same act ; that is, by the same grant or devise. Joint tenants cannot acquire under different titles. (c^) And, at common law, ' unity of time ' of commencement of the title was requisite ; that is, the interests of the tenants must have vested at one and the same time. Thus, if the fee simple, in remainder after a life estate, were limited to the heirs of A. and the heirs of B. — A. and B. being alive at the time of the limitation, but subsequently dying at different times — their respective heirs would not be joint tenants, but tenants in common ; since their interest would not have arisen at the same moment. (e) But by means of limitations operating by way of springing or shifting use, or executory devise, the interests of joint tenants may be made to arise at different times. (/) The nature of the ' unity of possession ' of joint tenants, Unity of is technically described as a seisin, or possession, per my po^^^^^'""- et per tout; that is, by the moiety or half, and by all. Each joint tenant is entitled to an equal undivided share of the land ; but the possession of each of them is treated, in law, as a possession of the whole, land. (^) (6) See 2 Bl. Coram. 180 ; Co. Litt. 180 b. (c) Co. Litt. 188 a ; Litt. s. 285 ; 2 Bl. Comm. 181. id) Co. Litt. 189 a ; 2 Bl. Comm. 181. (e) Co. Litt. 188 a ; 2 Bl. Comm. 181. (/) Gilb. Uses by Sug. 134; Fearne, C. E., 312. ((?) Litt. 6. 288 ; Co. Litt. 186 a ; 2 Bl. Comm. 182, Digitized by Microsoft® 156 THE LAW OF PEOPERTY IN LAND. Survivorship. ' Survivorship,' or (as it is styled in the civil law) the jus aecrescendi, is the feature which chiefly distinguishes joint tenancy from coparcenary, and from tenancy in common. On the death of one of the joint tenants, the estate — whether it be an estate of inheritance, or for life, or a chattel interest — remains to the survivors as joint tenants, or if there be but one survivor, then to him, as owner in severalty. For, as already explained, each joint tenant has a concurrent interest in the whole ; and as this interest is not divested by the death of any of his companions, the whole remains in the survivors or survivor.(7i.) Mode of. Creation. — Joint tenancy can be created only by grant, either inter vivos or by will ; it never arises through the mere operation of l&w.{i) The limitation of an estate to two or more persons, without the addition of any words defining their respective shares or indicative of the mode in which they are intended to hold, creates a joint tenancy of the estate ; though, in practice, the estate is commonly limited to the co-tenants expressly as joint tenants. (Z.) Limitation to Where land is limited to two persons of the same sex, heirroTthetr'^ and the heirs of their bodies ; or to two persons who cannot bodies. lawfully intermarry, and the heirs of their two bodies ; or to a man and two women, or to two men and one woman, and the heirs of their three bodies — since the parties cannot, in any of these cases, have one heir of their bodies, the limitation is construed to vest the land in them as joint tenants for life only, and as tenants in common in tail, subject to the joint life estate. (/) A limitation to a man and woman who can lawfully intermarry, and the heirs of their two bodies, creates a joint estate in tail special, under which, after the death of the survivor, the issue (if any) of their two bodies can alone inherit. (wi) The rule of the common law, that a limitation of an estate to two or more persons, without further words, gives rise to a Exceptions in equity to general rule. (/i) Litt. ss. 280, 281 ; 2 Bl. Comm. 184. (i) 2 Bl. Comm. 180 ; 2 Cruise, t. 18, u. 1, o. 3. (7c) 2 Bl. Comm. 180. See, as to limitations in joint temmcy, post, p. 381. (/) Lilt. B. 288 ; Co. Litt. 182 b, 184 a ; 2 Cruise, t. 18, c. 1, ss. 7-10 ■ Forrest : Whiteway,3 Ex. 367. (m) 0. Litt 25 b. Digitized by Microsoft® ESTATES IN COMMUNITY. 157 joint tenaDcy, is subject, by tbe rules of equity, to exceptions, based on the presumed intention of the co-tenants to exclude the incident of survivorship, in the three following cases. (i.) Where land belonging to two or more persons, and (i-) Land held used by them in a business carried on by them in partner- ^ ^'^^ "^'^' ship, or other joint undertaking, has been limited to them without words expressly defining the mode in which they are to hold — thus creating a joint tenancy at law — they will, in equity, be tenants in common. The legal estate will be subject to survivorship ; but, by the rules of equity, the survivors or survivor will hold in trust for the repre- sentatives of the deceased tenant, to the extent of his share. (71) This is an extension of a principle of the com- mon law (the application of which was confined to chattels belonging to partners), that between partners the rule of survivorship does not obtain (jus accrescendi inter mercatores locum non liabef).{o) (ii.) Where land is purchased by two or more persons, (ii.) Joint pur- and is limited to them as above mentioned, they hold as ''^^'^®' tenants in common in equity, provided the purchase-money has been advanced by them in unequal amounts, and this is shown in the conveyance to them. But if they have advanced the money in equal shares, they will be joint tenants in equity, as well as at law.(p) (iii.) Where two or more advance money on mortgage of (iii.) Joint ad- land, they will, in equity, hold the security as tenants in ^ol-tsage common, whether they have advanced the money in equal or unequal proportions ; unless a contrary intention is ex- pressed, (j) Use and Enjoyment. — With regard to use and enjoy- Eights of joint ment, the rights of joint tenants, as between themselves, '^°™*^ ^ '"• (») Jefferefjs v. Small, 1 Vern. 217 ; Jackson v. Jaclcson, 9 Ves. 591 ; Lyster T. Dollancl, I Ves. 431, 434 ; and see 53 & 54 Viot. 0. 39 (Partnership Act, 1890), s. 20 (3), andyost,p. 174. (0) See Co. Litt. 182 a. {p) See Lahe v. Craddock, 3 P. Wms. 158 ; S.C, and notes thereto, 1 Lead. Cas. Eq. 217 et seq. (q) Petty v. Styward, 1 Eq. Cas. Abr. 200 ; Bigden\. Vallier, 2 Ves. Sen. 252, 258 ; Edioards v. Fashion, Prec. Ch. 382 ; In re Jackson, 34 Ch. D. 732 (tenancy in common presumed, though the mortgage deed contained declaration of joint interest). Digitized by Microsoft® 158 THE LAW OF PEOPERTY IN LAND. Waste by joint tenant. Outlay by joint tenant in improve- ments. have alone to be here considered ; for their rights as against other persons are similar to those of owners in severalty, (r) Bach joint tenant has a right to enter upon every part of the land ; and therefore, if one of them be in possession, the other has no remedy against him, by action of trespass or for recovery of the land, unless he has been expelled by his co-tenant ; (s) though, of course, if he can otherwise get possession, he has an equal right to retain it. And at common law, if one joint tenant took the whole, or more than an equal share, of the profits of the land, the other could not claim an account of them ; unless the former had constituted himself the bailiff or receiver of the latter.(i!) But a statute of Queen Anne gave to joint tenants a remedy by action of account, against each other, for re- ceiving more than an equal share of the profits ; (v) and, independently of this statute, a similar remedy is given in equity to a joint tenant who has been excluded from possession. (■!y) Where an advowson is held in joint tenancy, all the co-tenants must join in the presentation of the clerk.(a;) A joint tenant has a remedy, by injunction, to restrain his co-tenant from committing wilful and malicious waste that tends to the destruction of the inheritance.(2/) Ordinary waste by a joint tenant will not be so restrained ;(«) but it may be the subject of an action for an account under the above-mentioned statute, (a) A joint tenant, who has laid out money for the benefit of the land, cannot enforce contribution from his companion in respect of the outlay ; but if an action be brought for (r) This remark applies also to tbe rigbts of coparceners and tenants in common, (s) 3 Leon. 262 ; Com. Dig. Estates, (h) 8 ; Hurray v. Hall, 7 C. B. 441 ; Stedman v. Smith, 8 B. & B. 1. (t) Co. Litt. 199 b, 200 a. {v) 4 Anne, u. 16, ». 27. (w) Tyson v. FairclougTi, 2 Sim. & St. 142 ; Sandford v. Ballard, 30 Beav. 109 ; Porter v. Lopes, 7 Ch. D. 358, 37 L. T. 824. (x) 2 Bl. Gomm. 182 ; 3 Cruise, t. 21, v. 2, „. 25. ({/) 2 Bl. Comm. 183 ; Arthur v. Lamb, 2 Drew. & Sm. 428 ; Job v. Potion, L. K. 20 Eq. 84, 44 L. J. Cb. 262. (z) Martyn v. KnowUys, 8 T. E, 145 ; Jacobs v. Seward, L. R. 4 C. P. 328, 5 H. L. 464; Bailey v. Hobson, L. K. 5 Gh. 180. (a) Job V. Potton, supra; Re Mary Smith, L. R. 10 Cb. 79, 85, 23 W. R. 297. Digitized by Microsoft® ESTATES IN COMMUNITY. 159 the partition of the land, he will be allowed what he has expended necessarily, or with the concurrence of his co- tenant. (6) Alienation. — A joint tenant may alienate inter vivos his Rights of. undivided share. But he cannot dispose of it by will ; for his will would not take effect until after his death, and by his death the right of the surviving tenant is already vested, (c) And although he may alienate inter vivos, such alienation, since it destroys the unity of the title, puts an end to the joint tenancy (at least as regards the share disposed of), by converting it into a tenancy in common. Thus, if one of two joint tenants conveys his share to a third person, the latter will hold as tenant in common of the land with the other tenant. But if there were three or more joint tenants, the alienee of one of them will be tenant in common with the others, while the latter, as between themselves, will continue to hold as joint tenants. ((^) If one of two joint tenants releases his share to his com- Release to panion, the latter, being the sole tenant, will hold in °°' ^"^^ " severalty. But if there be three or more joint tenants, and one of them releases his interest (e) to one of his com- panions, the latter holds, with respect to the share so released to him, as tenant in common of the land with the others ; but with regard to the remaining shares, the joint tenancy of the land continues to exist. If, however, one of several joint tenants releases to all his companions, they continue to hold as joint tenants. (/) It may be here mentioned that, under the Settled Land Application of Acts, 1882 to 1890, two or more persons entitled as tenants j^^^.^^^ 2332^0 in common, or as joint tenants, or for other concurrent 1890, to estates estates or interests, to life estates in settled land, together ^° ''°™™'^°' y- constitute the tenant for life for the purposes of the (6) iSwan v. Swan, 8 Price 518 ; Leigh v. VicJceson, 12 Q. B. D. 194, 15 Q. B. D. 60, 54 L. J. C. L. 18, 52 L. T. 790, 33 W. R. 538. (c) Litt. B. 287 ; 2 Bl. Comm. 186. This is sometimes expressed by the legal maxim, jus accrescendi ultima; voluntati prcefertur : Co. Litt. 185 b. {d) 2 Bl. Comm. 185, 186 ; Litt. ss. 292, 294, 304 ; 2 Cruise, t. 18, c. 2, s. 8. (e) The mode of alienation by one joint tenant to his companion is a release of the alienor's interest to the alienee ; see post, p. 349. (/) Co. Litt. 193 b; 2 Cruise, t. 18, c. 2, s. 24. Digitized by Microsoft® 160 THE LAW OF PKOPEETY IN LAXD. Acts;(5') and that the term ' land ' in the Acts includes an undivided share in land.(/i-) Modes of. Determination. — Joint tenancy may be determined or dissolved in any of the following ways : — (i. ) Alienation. (i.) Alienation (inter vivos) by a joint tenant of his un- divided share converts the joint tenancy, as has been stated, into a tenancy in common, as between the alienee and the other tenant or tenants ; or, in the case of a release by one of two joint tenants to his companion, into an estate in severalty. The alienation has this effect, whether it be absolute, or by way of mortgage only.('i) If a joint tenant in fee simple grants a lease for years of his undivided share, the reversion will survive, though the lease will, of course, be binding on the survivor.(A;) A mere contract by a joint tenant to alienate his share operates in equity as a severance of the joint tenancy ; but the legal ownership of the share is subject to survivorship until the alienation is effected. (/) (ii.) Sarvivor- (ii.) Survivorship is a mode of determination of joint ^ '^' tenancy ; for where all the undivided shares become vested by survivorship in one of the joint tenants, he, of course, holds in severalty. (iii.) Acoes- (iii.) Accession of interest, also, causes the determination siono mteiest. q£ g, joint tenancy. If the unity of interest is destroyed by one of the joint tenants acquiring a further interest in the land — as where the inheritance is granted to, or descends upon, one of two joint tenants for life — the joint tenancy is dissolved, and the parties hold as tenants in common, (m) (iv.) Partition. (iv.) Partition, also, is a mode of dissolving joint tenancy. Partition is the division of land, or other subject held in ((/) S. L. Act, 1882, s. 2 (6) ; S. L. Act, 1884, s. 6 (2) ; Se Atlinson, 30' Ch. D. 605, 31 Ch. D. 577, 54 L. T. 403, 34 W. E. 445. (7t) S. L. Act, 1882, s. 2 (10), a. 19 ; see, however, In re ColUnge's Settled Estates, 36 Cb. D. 516, 57 L. J. Ch. 219, 57 L. T. 221, 36 W. E. 264. (i) YorJe v. Stone, 1 Eq. Gas. Ahr. 293. (i) Co. Litt. 185 a ; 2 Cruise, t. 18, c. 1, s. 57 ; c. 2, g. 11. (I) 2 Cruise, t. 18, c. 2, ss. 20, 21 ; Caldwell v. Fellowes, L. E. 9 Eq. 410, 39 L. J. Ch. 618, 22 L. T. 225, 18 W. E, 486 ; Re Wilford's Estate, 11 Ch. D. 267, 48 L. J. Ch. 243 ; BaiUie v. Treharne, 17 Ch. D. 388, 50 L. J. Ch. 295, 44 L. T. 247, 29 W. E. 729. (m) 2 Bl. Comm. 186 ; 2 Cruise, t. 18, c. 2, ss. 2-6. Digitized by Microsoft® ESTATES IN COMMUNITY. 16] undivided shares, whereby each of the owners acquires a specific portion of the land or other subject, in severalty. It may be effected either by the agreement and voluntary act of the parties interested, or by judicial process, or by award of the Board of Agriculture. (o) Where both or all the joint tenants are personally capable Voluntary of alienating, they may, of course, divide the land among P^'''''"'"- themselves, as they think fit ; and the portion allotted to each tenant is conveyed to him in severalty, by deed of release executed by the other or others.(p) In equity, how- ever, the mere agreement of the parties operates as a par- tition ; and the Court will, if necessary, compel the convey- ance to each tenant of the share agreed to be allotted to him.(2') Under the early common law, a partition of the land held Aotioo for in joint tenancy could be effected only with the consent, and P^"^'' ^°°' by the joint act, of all the co-tenants. (r) A statute of Henry VIII., however, gave to joint tenants, severally, a remedy by action at law to enforce partition, (s) In later times, the Court of Chancery, also, acquired a jurisdiction (which is now vested in the Chancery Division of the High Court of Justice) (i) to decree a partition of land held in joint tenancy ; and this jurisdiction is exercised at the in- stance of any one or more of the co-tenants, and irrespective of the consent of the other or others of them, and whatever be the extent of the applicant's estate. (m) The remedy thus given by the Court of Chancery eventually superseded the action for partition under the statute of Henry VIII. ; and, by a modern statute, the latter remedy has been abolished. (a;) (o) As to which, seepost,^. 412. (p) Co. Litt. 187 a ; 2 Cruise, t. 18, o. 2, s. 29 ; 8 & 9 Vict, c 106, s. 3. As to the power of partition given to tenants for life and others by the Settled Land Acts, 1882 to 1890, see ante, p. 81. (q) 2 Cruise, t. 18, c. 2, ss. 45, 46. (r) Litt. B. 290. (s) 31 Hen. 8, >;. 1 ; 32 Hen. 8, c. 32. {t) By the Supreme Court of Judicature Act, 1873 (36 & 37 Vict. c. 66), ss. 16, 34. The County Courts have a similar jurisdiction when the subject-matter of the action does not exceed in value £500 (31 & 32 Vict. o. 40, s. 12). (li) See Agarv. Fairfax, 17 Ves. 533 ; S.C, and notes thereto, 2 Lead. Cas. Eq. 451. {x) 3 & 4 Will. 4, c. 27, s. 3. L Digitized by Microsoft® 1868 and 1876. 162 THE LAW OF PROPERTY IN LAND. Formerly, partition could be decreed only of lands of free- hold tenure ; but, by a modern statute, copyholds were made subject to partition by decree. (3/) By Board of Under modern statutes, the Board of Agriculture may AgriouHure. make a partition, by order under seal, of land held in joint tenancy ; and such an order, which may be made on the application of any one or more of the joint tenants, effectuates the partition without any further conveyance or release.(2) Partition Acts, By the Partition Act, 1868 (amended by the Partition Act, 1876),(a) the Court (&) is empowered to order a sale, instead of a partition, of land held in joint tenancy, where it appears that a sale and distribution of the proceeds would be more beneficial to the parties, (c) The Act also provides that, on the request of the parties interested to the extent of a moiety or upwards, the Court shall direct a sale, unless it sees good reason to the contrary ■,{d) and further, that if any party interested requests a sale, the Court may, if it think fit, direct a sale, unless the other parties interested, or some of them, undertake to purchase the share of the party requesting a sale.(e) Prior to this Act, the Court had no power to direct a sale, if any of the co- tenants insisted on a partition, however inconvenient a partition might be.(/) {«/) 4 & 5 Tict. c. 35, s. 85. (z) See 8 & 9 Yict. c. 118 ; 11 & 12 Vict. u. 99 ; 15 & 16 Vict. c. 79 ; 22 & 23 Vict. c. 43 ; 52 & 53 Vict. c. 30 ; and see post, p. 412. (o) 31 & 32 Vict. c. 40, amended by 39 & 40 Vict. c. 17. (6) I.e., the Chancery Division of the High Court of Justice, or (where tlie Buhject-matter of the action does not exceed in value £500) the County Court : see note ('), supra. (c) S. 3. See Drinlcwater v. Eatdiffe, L. R. 20 Eq. 528, 44 L. J. Ch. 605, 33 L. T. 417, 24 W. R. 25 ; GUlert v. Smith, 11 Oh. D. 78, 48 L. J. Ch. 362, 40 L. T. 635, 27 W. R. 719 ; affd. noni. Fitt v. Jones, 5 App. Cas. 651. (d) S. 4. See Femherton v. Fames, L. R. 6 Ch. 685, 19 W. R. 709 ; Lj/s v. Lys, L. R. 7 Eq. 126, 19 L. T. 409, 17 W. B. 394 ; Wilkinson v. Joherns, L.' R. 16 Eq. 14; Fowe v. Gray, 5 Ch. D. 263, 46 L. J. Ch. 279, 25 W. R. 250 ; FuHer V. Lopes, 7 Ch. 1). 358, 37 L. T. 824. (e) S. 5. See Drinlcwater v. Fatchffe, supra; Gilbert v. Smith, supra; Williams v. Games, L. R. 10 Ch. 204,' 44 L. J. Ch. 245, 32 L. T. 414, 23 \V. R. 779 ; Fichardson v. Mary, 39 Ch. D. 45, 57 L. J. Ch. 1049, 59 L. T. 165, 36 W. R. 807. (/) Agar v. Fairfax, and notes thereto, ubi sup. Digitized by Microsoft® ESTATES IN COMMUNITY. 163 Sect. II. — Tenancy in Copakoenary. Definition. — Tenancy in coparcenary may be defined as Coparcen;iiy ownership in community of an estate of inheritance, in equal ^ "^ ' undivided shares, by co-heirs. Coparcenary is distinguished, like joint tenancy, by the Its character- unities of interest and title of the tenants. Coparceners (as the tenants are usually called) have also unity of posses- sion, inasmuch as they hold in undivided shares. But each coparcener is deemed to be entitled to an undivided share merely, and not (as joint tenants are) to the entirety also of the estate. ((/) Hence, there is no right of survivorship be- tween coparceners. On the death of a coparcener without having disposed of his or her undivided share, the share passes to the heir or heirs, according to the law of descent on intes- tacy,(A.) and the coparcenary continues between such heir or heirs and the other co-owners. (■i) Consequently, the rule as to the vesting of the interests at the same moment, which at common law applied to joint tenancy, has no application to ■coparcenary.(Z;) Creation. — Tenancy in coparcenary differs from the other Mode of. kinds of ownership in community in that it cannot be created by grant or other limitation, (Z) but arises solely by operation of law. It may arise either under the general common law, or under the custom of gavelkind or other similar local custom. By the general law, coparcenary arises through the sue- By general cession of females, or persons entitled through females, as heirs of an intestate owner in fee simple, or in tail ; for the rule of primogeniture (as will be hereafter seen) does not apply to the succession of female heirs. (wi) Thus, if a tenant in fee simple die intestate, leaving as his heirs two or more females — daughters, sisters, or other relations of equal ((/) Co. Litt. 163 b, 164 a; 2 Bl. Coram. 187, 18§. {k} SeejMst, pt. 3, ch. 6, o. 1. (i) 2 Bl. Comm. 188 ; 2 Cruise, t. 19, s. 6. (i) Co. Litt. 164 a, 174 b; 2 Bl. Coram. 188. [l) See Berens v. Felhwes, 35 W. E. 356. (m) Litt. B. 241. See post, p. 421. Digitized by Microsoft® 164 THE LAW OF PEOPEETY IN LAND, By special custom. Rights of coparceners as to. Eights of. degree — these persons will take the estate as coparceners in equal undivided shares. And the issue of a deceased female, who would have been entitled to a share of the land as co- parcener had she been living, may be entitled as heir, to that share, in coparcenary with the other co-tenants. (ii) By the custom of gavelkind, or other similar local custom, male as well as female heirs (whether descendants or col- lateral relations) of the intestate, succeed as coparceners. (o) Use and Enjoyment. — With respect to the use and en- joyment of the land, or other subject of the tenancy, the rights and duties of coparceners are, in general, similar to those of joint tenants ; except that coparceners have not the remedy against each other by action of account, which is given by the statute of Queen Anne, above referred to, to joint tenants. (p) Coparceners of an advowson are entitled to present to the living in turns, according to seniority, if they cannot agree to present jointly. (5) Alienation. — A coparcener may alienate his or her share either inter vivos, or (if the estate be the fee simple) by will. The alienee will hold as tenant in common with the other coparcener or coparceners, while the remaining coparceners, if there were more than two, will continue to hold in co- parcenary as regards their shares ; unless, indeed, one of the coparceners acquire, as alienee, the shares of all the other coparceners — in which case the alienee, of course, becomes owner in severalty of the whole. (?') Modes of. Betermination. — Tenancy in coparcenary may be deter- mined or dissolved in any of the following ways : — (i.) Alienation. (i.) Alienation of any of the undivided shares converts the coparcenary, as has been stated, into a tenancy in common, either wholly or in part ; or (where all the shares become [n) See 2 Bl. Comm. 216-218, and ^30s«, p. 421, note {cj). (0) Litt. s. 265 ; see as to gavelkind, ante, p. 25. (p) 4 Anne, c. 16 ; ante, p. 158. (5) 3 Cruise, t. 21, c. 2, s. 27 ; 2 Bl. Comm. 189. (r) 2 Bl. Comm. 188. As to the mode of alienation by one coparcener to another, see Burton, § 317, anApost, pp. 349, 851. Digitized by Microsoft® ESTATES IN COMMUNITY. 165 vested in one of the co-tenants) into ownership in severalty. The alienation by a coparcener of a less estate than that for which the coparceners hold, and a contract by one coparcener to alienate her share, would apparently have the same effect as similar dispositions of a share held in joint tenancy.(s) (ii.) The devolution of all the undivided shares upon one (ii.) Devolu- of the coparceners as sole surviving heir, on the intestacy of iJ|™gtacy. the other coparcener or coparceners, converts the ownership into severalty. (i() (iii.) By partition between the coparceners, each of them (iii.) Partition, acquires a specific portion of the land, or other subject, in severalty. The different modes by which a partition may be effected between coparceners are the same as those applicable to joint tenancy, (w) The provisions of the Par- tition Acts, 1868 and 1876j(a3) also, apply to estates held in coparcenary. Sect. III. — Tenancy in Common. Definition. — Tenancy in common jnay be defined as Tenancy in ownership in community in undivided shares, accruing under 5°™"°° ^' different titles, or by virtue of a grant in terms importing that the tenants are to hold distinct interests. (2/) Tenants in common, though they have unity of possession, in Character- that their shares are undivided, are not (as joint tenants are) deemed to be entitled to one and the same estate. Hence there is no survivorship between tenants in common. And neither equality of share, nor unity of interest, or of title, or of time, is essential to tenancy in common. Thus, one tenant in common may be entitled to two-thirds, and the other to one- third, of the land ; one may hold in fee simple, the other in tail, or for life ; one may have acquired by descent, the other by purchase ; or one by purchase from one person, the other by purchase from another ; and the one's estate may have vested fifty years ago, the other's but yesterday.(2) (s) See ante, p. 1(50. (t) 2 Bl. Comm. 191. (m) Ante, pp. 160-162. Coparceners, however, had a right at common law of enforcing partition ; while this right was first given to joint tenants and tenants in common by the stat. 31 Hen. 8, u. 1 : see ante, p. 161. (x) See ante, p. 162. (y) See 2 Cruise, t. 20, s. 1 ; 2 Bl. Comm. 191. (s) 2 Bl. Comm. 192 ; 2 Cruise, t. 20, ss. 6, 14. Digitized by Microsoft® 166 THE LAW OF PEOPERTV IN LAND. Modes of. (i.) Alienation by joint tenant or coparcenei*. (ii.) Accession of interest to joint tenant. (iii.) Grant. Cross-re- mainders be- tween tenants in common. Creation. — It has been seen that a tenancy in common arises upon the alienation by a joint tenant, or coparcener, of his or her undivided share ; the alienee becoming tenant in common with the other co-tenant or co-tenants, though the latter (if they be two or more) remain joint tenants, or co- parceners, as between themselves, (a) It has also been seen that this kind of ownership in com- munity may arise through an accession of interest to one of two or more joint tenants. (S) A tenancy in common is also created by grant, either inter vivos or by will, to two or more persons. The grant must be made in terms which sufficiently indicate that the grantees are intended to hold as tenants in common. Unless the land is limited to them in unequal shares, or for different estates, words showing the intention that they shall hold as tenants in common are necessary ; for in the absence of any such words, the limitation will be construed as creating a joint tenancy, (c) In certain cases, however, as has been seen, a limitation that gives rise to a joint tenancy at law, is construed in equity as creating a tenancy in com- mon, in order to effectuate the presumed intention of the parties.(d!) It may here be mentioned that in settlements of land, where the land is limited to two or more persons as tenants in common in tail, ' cross-remainders ' of their respective shares are frequently limited ; that is, the share of each of the tenants is limited, in case of the determination of his estate, to the other tenant or tenants, to hold in tail ; the result being, that on the failure of the estate of any one of the co-tenants, his share accrues to the share or respective shares of the other co-tenant or co-tenants, and the ultimate estate, expectant on the failure of the estates tail limited to the co-tenants, does not come into possession till they have all determined.((?) (a) Ante, pp. Ifid, 164 ; 2 Bl. Comm. 192. (6) Ante, p. 160. (c) 2 Bl. Comm. 193 ; ante, p. 156. See, as to limitations in tenancy in common, post, p. 381. (d) Ante, p. 157. (e) Butler's note on Co. Litt. 195 a. Cross-remainders in tail may be implied in wills (though not in limitations inter vivos) : see 2)0St, p. 401. Digitized by Microsoft® ESTATES IN COMMUNITY. 167 TJse and Enjoyment. — The rights of tenants in common, Eights of as to use and enjoyment of the land, are similar to the rights, co^^on"* in this respect, of joint tenants. (/) The remedy given by as to. the statute of Queen Anne (already mentioned) to joint tenants, is, by the same statute, given to tenants in com- mon. ((/) And tenants in common of an advowson must join in presenting to the living.(/i) Alienation. — A tenant in common has the same powers Eights of. of alienation of his share, either inter vivos or by v^ill, as the owner of an estate in severalty ; and the tenancy in com- mon continues between the alienee and the other tenant or tenants, (i) Determination. — Tenancy in common can be determined Modes of. or dissolved in two ways only — (i.) By all the interests becoming vested, by gift or otherwise, in one of the tenants, whereby he becomes owner in severalty of the entirety ; (k) (ii.) By partition between the tenants ; the different modes of effecting which are the same as those applicable to joint tenancy. (/) And the provisions of the Partition Acts, 1868 and 1876, apply to estates held in common. (m) Sect. IV. — Tenancy by Entireties. Definition. — Tenancy by entireties may be defined as Tenancy by eutiretie defined. ownership in community by a man and his wife, under a '=°*i"^«'i«'s grant or limitation made to them after their marriage, and operating according to the rules of the common law. The distinctions between this and the preceding forms of Character- ownership in community, result from the principle of the '^ ^'^^' common law that husband and wife are, for certain purposes, (/) As to which, see mite, p. 157 ; 2 Cniise, t. 20, ss. 9-20 ; 2 Bl. Coram. 194. (ff) 4 Auue, u. 16. See ante, p. 158. (/i) 3 Cruise, t. 21, c. 2, o. 32. (i) Tenants in common cannot convey to one another by release: Burton, § 317. See post, p. 349. As to the application of the Settled Land Acts, 1882 to 1890, to life estates held by tenants in common in settled land and to an undivided share in land, see atite, p. 159. {k) 2 Bl. Comm. 195. {I) See ante, pp. 160-162. (»j?) 31 & 32 Vict. c. 40 ; 39 & 40 Vict. c. 17 ; ante, p. 162. Digitized by Microsoft® 168 THE LAW OF PEOPEETY IN LAND. Effect at common law of limitation to husband and Tvife and third person. Grrantees who subsequently Intermarry not tenants by entireties. to be considered in law as but one person. In accordance witli this principle, if an estate were limited to a man and Ms wife, they would not, at common law, take the estate in undivided shares as joint tenants, but each would have the entirety, per toiit and not per my. As a result of this en- tirety of interest, no partition could be made between the husband and wife. And though the husband might dispose of the interest, to which he was entitled in his own right or in right of his wife, in the land,(«) neither of them could make any further disposition of the land without the con- currence of the other ; and if they made no such joint dis- position, the estate would remain to the survivor.(o) At common law, under a limitation to a husband and his wife and a third person, the husband and wife would take one equal moiety between them as tenants by entireties, and would hold it in joint tenancy with the third person, by' whom the other equal moiety would be held.(p) But if land were limited to a man and woman who after- wards intermarried, they were not, at common law, tenants by entireties, but joint tenants, or tenants in common (ac- cording to the form of the limitation), as well after as before the marriage. (§') Married Women's Property Act, 1882. Alteration of Law. — The Married Women's Property Act, 1882,(r) has altered the rules of the common law on this subject, and has, in effect, abolished tenancy by entireties, as regards estates to which that Act applies. A limitation to husband and wife will, under the Act, make them joint tenants, or tenants in common, according ' to the terms of the limitation. (s) It has been held, however, that under a limitation to a husband and wife and a third person, made since the Act came into operation, the husband and («) As to which, s^e jiost, p. 428 ct seq. (o) 2 BI. Comm. 182 ; 2 Cruise, t. 18, u. 1, ». 45. (p) Litt. s. 291 ; Burton, § 757 ; Me Wylde's Estate, 2 D. M. & G. 72 case of personalty, to which also the above nile applies) ; but see Warringtt Warrington, 2 Ha. 54 ; In re Dixon, Bijram v. Tidl, 42 Ch. D. 306. (g) Co. Litt. 187 b. (r) 45 & 46 Vict. u. 75. See post, p. 434. (s) In re March, Mander v. Harris, 27 Ch. 1). 166, 54 L. J. Ch. 143, 51 L. T, 380, 32 W. R. U41. 24 (a 'on V. Digitized by Microsoft® ESTATES IN COMMUNITY. 169 wife will be entitled to one equal moiety, and tlie third person will take the other moiety, as before the Act, though the husband and wife will not be tenants by entireties ; since the Act has not altered the previous law except as between husband and wife.(^) (t) III re Jupp, Jupp V. Buclcwell (Kay, J.), 39 Ch. D. 148, 57 L. J. Ch. 774, 59 L. T. 129, 36 W. E. 712 ; cf. In re March, supra. Digitized by Microsoft® CHAPTER VI. EQUITABLE ESTATES. Sect. I. — Equitable Estates Genebally. Equitable Definition. — By the rules of equity, a person may be en- estate defirecl. (;itig,j to an estate in land, or any other subject of the law of property, while the ownership of the same subject, accord- ing to the common law, is in another person. Such an estate is called an ' equitable estate ; ' while the estate of the owner at common law is termed the ' legal estate.' To the equitable estate are attached all the advantages or benefits of ownership ; and the owner of the legal estate is bound to hold and deal with that estate solely for the purpose of effectuating the rights of the equitable owner. (a) The obligation to which the owner of the legal estate is thus 'Trust,' subject is termed a ' trust ';(&) he himself is called a 'c^tid'me 'trustee;' and the equitable owner is called the 'cestui que trust: trusts Uses, Origin. — In further explanation of the nature of equitable estates, their origin may be here briefly noticed. It has already been seen that their introduction into the legal system was due to the recognition by the early Chancellors, in the exercise of their equitable jurisdiction, of declarations of the use of land.(c) It appears that uses were originally employed in evasion of statutes that restrained the conveyance of land to religious corporations ; {(I) the land being conveyed {a\ Story, Eq. Jurisp., § 964 ; 1 Spence, 496. (6) The -word ' trust ' is by 6ome writers applied to tine equitable estate, or interest of the cestui rjue trust : see 2 Spence, 875. (c) Ante, p. 144. {d) As to tbese statutes, see post, p. 498. Digitized by Microsoft® EQUITABLE ESTATES. 171 to a person capable of holding it, with a declaration or direction that he should hold to the use of the spiritual body ; and, in course of time, similar conveyances were frequently made in favour of lay persons. At first, however, uses had no legal recognition ; the person holding to the use being bound in conscience only to give effect to the declaration of use. But in the reign of Henry V., or perhaps earlier,(e) the Chancellors began to recognise uses as subjects of their equitable jurisdiction, and enforced them accordingly. (/) The use thus became an estate in land, though au estate that owed its existence solely to the rules of equity. The only estate recognised by the Courts of common law jurisdiction was that of the person who held to the use of the other, and in whom the legal estate, or ownership according to the common law, was vested. The refusal of these Courts to recognise uses was perhaps not unreasonable ; since, as has been mentioned, the creation of a use was a means whereby the rights at common law of feudal lords, creditors, and others might be evaded by the actual owner of the land. For uses were exempt from the restrictions imposed on the legal estate, not only in the incidents mentioned in the pre- ceding chapter, (^) but also, in that they were not liable to the feudal burdens, and could not be taken in execution for debts, and were transferable without any formalities. (A) As has been seen, the inconveniences resulting from these distinctions led to the passing of various statutes regulating uses,(i) and, eventually, to the enactment of the Statute of Uses, whereby uses of freeholds were converted into legal estates, (/i;) Soon after the passing of the Statute of Uses, it was No use upon judicially decided that where land was limited to the use of ^ "^^■ one person, to hold to the use of another — as to A., to the use of B., to the use of C. — the operation of the statute was (e) See Digby, Hist. L. E. P., 280. (/) The Stat. 15 E. 2, o. 5, extended the restrictions imposed by previous statutes on conveyances of legal estates to corporations, to conveyances to the use of corporations. ig) Ante, p. 144. (A) 2 Bl. Comm. 330, 331. (i) Ante, p. 145. (7t') 27 Hen. 8, c. 10. For its provisions, see ante, p. 145. Digitized by Microsoft® 172 THE LAW OF PEOrERTY IN LAND. confined to the execution of tte first use, and the second use was void.(Z) It might reasonably have been held that the instant the first use was executed in B., he became seised to the use of 0., and that the statute would execute this use, as it did the first. It seems, however, that this construction was not adverted to ; and it was established that ' no use could be limited on a use.'(m) But inasmuch as it was evident that the person in whom the first use was executed was not intended to have any beneficial interest, the Court of Chancery held that, though the second use was not exe- cuted by the statute, yet a trust was thereby created for the benefit of the person in whose favour it was declared ; and that this trust was binding in equity on the owner of the legal estate, (n) In course of time, equitable interests thus created acquired the incidents of actual estates. Thus, by means of a limitation of a use upon a use, an estate, though it belong to the class of those to which the Statute of Uses applies, may yet be an equitable estate. Statute of It was further held that the operation of the Statute of Uses applies XJses was confined to the execution of passive uses — that is, only to passive . . ^ i i ^ i- uses. such as did not require the retention of the legal ownership by the person seised to the use, for the purpose of enabling him to discharge specified duties. Where active uses or trusts were declared — as where land was limited to the use, or in trust, that the grantee should receive the rents and profits and deal with them in a prescribed manner, or should sell the land — it was held that the grantee retained the legal estate, as being necessary for the discharge of his duties ; and that the rights of the parties for whose benefit the use or trust was created, were enforceable as equitable interests, (o) Trusts of The Statute of Uses, as has been seen, applies only to years and"^ estates of freehold in lands of freehold tenure. Hence, a copyholds not limitation of a use upon a use is not essential to the creation affected by the Statute of ^^^^^- (l) TyrreVs case (4 & 5 Philip & Mary), Dyer 155; Oirland ». Sluirp (37 Elizabeth), Cro. Eliz. 382. (m) 2 Bl. Comm. 835, 336. («) Id. (o) 1 Sand., Uses, 253. See Lewin on Trusts, 210-212; Baher v. White, L. R. 20 Eq. 166, 23 AV. li. 670. As to the application of the above rule to limitations by will, see post, p. 390. Digitized by Microsoft® EQUITABLE ESTATES. 173 of an equitable interest in an estate for years ; nor to the creation of an equitable estate in land of copyhold tenure. In either case, a limitation to a person, merely ' to the use of or 'in trust for' another, creates an equitable estate in favour of the latter.(p) Under various circumstances, equitable estates arise by Equitable the mere operation of rules of equity, in favour of persons opgraTio/ot to whom no beneficial interest has been limited. Equitable law. estates so created differ, in some respects, from those created by actual limitation as above described, and may be regarded as forming a distinct class of equitable interests. Analogy of Equitable to Legal Estates. — Equitable General rule- estates are, in general, analogous to estates as regulated by j^^'"^ " '^^ the common law. The general rule on this point is expressed in the maxim ' equity follows the law.' Thus, equitable estates may be limited in fee simple, in tail, for life, years, or at will ; and in possession or in expectancy ; and either in severalty or in community ; and their incidents are, generally, similar to those of legal estates. This general rule is subject, however, to some important Exceptions, exceptions. Thus, as has been seen, the legal estate in a term of years, or other chattel interest, cannot be limited inter vivos to one for life, with remainder to another, nor by way of executory interest ; but the equitable interest in chattels real may be so limited. (j) Again, it has never been necessary that an equitable estate, limited by way of contingent remainder, should (if it were an estate of freehold) have a particular estate of freehold to support it ; or that it should vest on or before the expiration of the particular estate ; for each of these requirements is satisfied by the seisin vested in the trustee, (r) Other qualifications of the general rule are mentioned hereafter.(s) (p) 1 Cruise, t, 12, o. 1, ss. 35, 67 ; Baher v. White, supra; Allen v. Bewsey, 7 Ch. D. 453, 37 L. T. 688. (g) See ante, pp. 121, 147. (r) Fearne, C. R., 303, 321 ; Be Eddels' Trusts, L. R. 11 Eq. 559, 40 L. J. Ch. 316, 24 L. T. 223, 19 W. R. 815 ; Astley v. Micklethwait, 15 Ch. D. 59, 43 L. T. 58, 28 W. R. 811 ; see ante, pp. 134, 139. (s) See distinctions as to modes of alienation and as to the application of the rale in Shelley's case, post, pp. 373, 382. See also ante, pp. 156, 157, as to cases in which joint tenants at law are, in equity, tenants in common. Digitized by Microsoft® 174 THE LAW OF PKOPEETY IN LAND. Trusts for conversion. (i.) Where land held by partners in trade. (ii.) Where land held in mortgage. (iii.) Where express direc- tion to con- vert. The rule that equity follows the law is subject to important exceptions as regards its applicability to land subject to a trust for its conversion into money, and to money subject to a trust for its application in the purchase of land. Until actual conversion, the legal ownership is governed, in the former case, by the law applicable to land, and, in the latter, by the law applicable to money. But, in certain cases, the equitable interest is, to some extent, governed by the rules that would be applicable thereto if the land or money (as the case may be) had been actually converted, although no conversion has, in fact, taken place. This occurs in the following cases. (i.) Land belonging to partners in trade as such, and vested in them jointly, is subject, in equity, in the absence of stipulation to the contrary, to an implied agreement between the partners for sale of the partnership assets upon a dissolution of the partnership, for the purpose of division among the partners. Hence, on the death of a partner, his share in land vested in the partners as real estate is con- sidered (unless it has been otherwise agreed between the partners) to be converted into personal estate, and is trans- missible accordingly. The legal estate in the land remains in the surviving partners or partner, but subject to a trust for the personal representatives of the deceased partner, to the extent of his share. (<) These equitable rules have now, however, been superseded by provisions, to the same effect, of the Partnership Act, 1890. (i^) (ii.) On the death of a person in whom an estate in fee or for life in land is vested by way of mortgage, as security for a debt due to him, his interest in the land is, in equity, deemed to be converted into personal estate, and is trans- missible accordingly. («) In this case also, it will be ob- served, no express declaration of trust is needed to effect the conversion. (iii.) Where land is vested in a trustee, with an express direction for its sale, the equitable interest in the land so (J) Ante, p. 157. («) 53 & 54 Vict. c. 39, s. 20 (3), s. 22. (x) See hereon, and as to the devolution of the mortgagee's legal estate as personalty under the C. & L. P. Act, 1881, post, p. 233. Digitized by Microsoft® EQUITABLE ESTATES. 175 directed to be converted is subject, in general, as regards its transfer, its devolution on death, and its liability for debts, to the rules applicable to money. And similarly, where money is vested in a trustee with an express direction for its application in the purchase of land, the equitable interest in the money so directed to be converted is, in general, subject, in the above respects, to the rules applicable to laad.(?/) The equitable conversion is effected by the mere direction to the trustees, in accordance with the maxim ' equity regards that as done which ought to be done.' But to effect such conversion, there must be an absolute direction to convert, either immediately or at a future time. (2) A mere expres- eioa of desire or intention, on the part of a testator or settlor, that his land should devolve as money, or his money as land, will not effect a conversion. (a) And though there be an effectual trust for conversion, a person absolutely entitled to the equitable interest in the subject of the trust may elect to take it (whether it be land or money) in its unconverted state. (6) A person entitled in equity to a share only in the money to arise from the sale of land, under a trust for its conversion, cannot, without the concurrence of the other parties interested, elect to take his share as land, as the sale of the remainder of the land would be thereby prejudiced ;(c) but a person entitled in equity to a share in land, to be purchased under a trust for the application of money in the purchase of land, may, in general, elect to take his share in monej.(d) (iv.) Where money arising from the purchase of land by (iv.) Where a railway or other company, under powers of compulsory 't""^ ^■i^'^' •, •' i ./ ' J. r- .; chased under compulsory powers. (y) Fletcher v. Ashlurner, 1 Bro. 0. G. 497 ; S.C, and notes thereto, 1 Lead. ■Gas. Eq. 968 ; and see ante, pp. 11, 12. (a) Polletj V. Seymour, 2 Y. & G. Ex. 708 ; Re Raw, 26 Gh. D. 601, 53 L. J. ■Ch. 1051, 51 L. T. 283, 32 W. E. 986 ; but see Earlom v. Saimiers, 1 Amb. 241. (a) Johnson v. Arnold, 1 Ves. Sen. 169 ; Edwards v. TucJe, 3 D. M. & G. -40 ; -llyett v. 3Ieldn, 25 Gh. D. 735, 53 L. J. Ch. 241, 50 L. T. 54, 32 W. K. 513. (6) Notes to Fietdier v. Ashburner, supra; Lewin, ^5i et seq. Where the cestui que trust is entitled to an estate tail, under a trust for conversion of money into land, he must execute a disentailing deed under the Fines and Becoveries Act to enable him to take the money : 3 & 4 Will. 4, c. 74, s. 71. (c) Holhway v. Raddiffe, 23 Beav. 163, 26 L. J. Ch. 4U1. [d) Seely v. Jago, 1 P. Wms. 389. Digitized by Microsoft® 176 THE LAW OF PROPEKTY IN LAND. purchase, is paid into court by the purchasers, (e) and does not belong absolutely to a person who is sui juris, it is deemed to be impressed with the quality of land, and is subject, in equity, to rules similar to those applicable to money held on trust for conversion into land.(/) Courts having equitable jurisdiction. Equitable Jurisdiction of Courts. — Prior to the changes made by the Supreme Court of Judicature Acts, 1873 and 1875, the Court of Chancery had exclusive cognizance of matters relating to equitable estates,(^) except that, by modern statutes, a limited equitable jurisdiction in such matters was conferred upon the County Courts. (/t) Since the rules of equity were not administered by the superior Courts of common law jurisdiction, those Courts could not recognise the cestui que trust, or at most could regard him only as a tenant at will of the trustee. (i) But by the Supreme Court of Judicature Act, 1873, equitable estates and rights are to be noticed and acted upon by all Courts ; and in case of conflict between the rules of equity and those of the common law, the former are to prevail. (/;) The Act, however, provides that all causes and matters which may be commenced in the High Court of Justice, for the execution of trusts, are to be assigned to the Chancery Division. (Z) Trusts by declaration, and trusts by operation of law. Division of Topics. — In considering the modes of creation of equitable estates, the rights of owners thereunder, and the causes of their determination, equitable estates created by declaration of trust — that is, by actual limitation to or in favour of the cestui que trust, as above described — may be distinguished from equitable estates created by the mere operation of law ; that is, such as are raised by force merely (e) See 8 Vict. c. 18 (the Lands Clauses Consolidation Act, 1845), ss. C9, 70, 73. {J) Kelland v. Fulford, 6 Ch. D. 491, 47 L. J. Oh. 94. ( L. T. 580, 37 W. K. 69, that where, by the settlement, the sale is postponed fur a certain peiiod which has not expired, the trust is not a trust for sale within ihe Act. (a) S.56 (2); see ante., p. 88. (6) But see Taylor v. Foncia, 25 Ch. D. 646, 53 L. .J. Ch. 409, 50 L. T. 20, 32 W. K. 335. (c) See post, p. 312. Digitized by Microsoft® notice. 184 THE LAW OF PROPERTY IN LAND. acting under the trusts of the settlement, is to be affected by the order, unless and until it is so registered, (ff) Modes of. Determination. — The rules as to the determination or failure of equitable estates are, in general, similar to those applying, in this respect, to legal estates. The following, however, are peculiar to equitable estates, (e) Equitable An equitable contingent remainder, as has been men- mainders. tioned, has never been liable to determine by the failure of the particular estate prior to the vesting of the re- mainder.(/) Merger of tlie On the acquisition of the legal estate by the equitable th"'w'^ '" owner, in his own right, if the legal estate so acquired be in estate. extent equal to, or greater than, the equitable estate, the latter is merged in the legal estate, and no longer exists as distinct from the legal ownership. ((/) Alienation by If a person acquire the legal estate by conveyance from chaser^ with'out ^^^ trustee, for Valuable consideration paid or rendered, without notice that the land is the subject of an equitable estate or interest, he is entitled to retain the land as owner, free from the claims of the cestui que trust. The equitable estate is thus extinguished, and the only remedy of the cestui qioe trust is against the trustee personally, for his breach of trust in thus disposing of the land. For the purchaser is deemed to have, under the circumstances, an equal right in equity with the cestui que trust ; and he is preferred to the latter by reason of his having the legal ownership. (A) And the legal estate affords the same pro- tection to a sub-purchaser, with notice, from a prior purchaser {d) 47 & 48 Vict. c. 18, s. 7 ; 53 & 54 Vict. c. 69, s. 19 ; In re Harding's Estate [1891], 1 Ch. 60. (e) As to the former distinction between legal and equitable estates in fee simple with regard to escheat, and the alteration of the law on this subject by the Intestates' Estates Act, 1884, see post, p. 467, 468. (/) Ante, p. 173. {(j) Burton, ^ 1388 ; Lewin, 14 ; Howard v. Earl of Shrewsbury, L. I?. 17 Eq. 378, 397, 43 L, J. Ch. 495, 29 L. T. 86J, 22 W. R. 290. (h) Bassett v. Xosiportliy, Finch 102 ; S.C, and notes thereto, 2 Lead. Cas. Eq. 1 ; Pllcher v. liawlins, L. E. 7 Ch 259 ; Muntford v. Stoliwasser, L. R. 18 Eq. 556, 43 L. J. Ch. 694, 30 L. T. 859, 22 W. E, 833 ; Heath v. Crealoch, L. E. 10 Ch. 22 ; Lewin, 858. As to what constitutes notice, see infra, p. 200. See further on this point, and as to the acquisition of the legal estate under a voluntary conveyance, oi' by a purchaser willi notice, infra, p. 201. Digitized by Microsoft® EQUITABLE ESTATES. 185 without notice ; and also to a sub-purchaser without notice, from a purchaser with notice.(i) The Trustee. — In connection with the subject of equitable estates created by declaration of trust, the estate and office of the trustee, his powers, and his rights, may be here con- sidered. Estate of Trustee. — In the case of a trust created inter Extent of. vivos, the legal estate in the land, held by the trustee for the purposes of the trust, is an estate of such extent as is ex- pressly limited to him.Qc) But where the trust is created by will, the legal estate, thereby given to the trustee, is deemed (subject to the enactment next mentioned) to be of such ex- tent only as is required for the purposes of the trust. Thus, if land were devised to A. and his heirs, upon trust to pay the rents to B. for his life, and, subject thereto, were devised to 0. in fee simple, A. would take the legal estate for the life of B. only, notwithstanding that the limi- tation to him was, in terms, sufficient to create an estate in fee simple. (Z) This rule, however, has been altered, to some extent, by the Wills Act, 1837, which provides that where real estate is devised to trustees, the devise shall be con- strued to pass the fee simple, or other the whole estate or interest which the testator had power to dispose of, unless a definite term of years, or an estate of freehold, be thereby given, expressly or by implication. (wi) When the legal estate is vested in two or more trustees, DeTolution of it is, in practice, limited to them as joint tenants, in order *n°f;f ^^eath^*^ that, on the death of any one of them, it may pass to the survivors or survivor. On the death of a sole trustee, the estate, if it be a chattel interest, vests in his legal personal (/) Harrison v. Forth, Prec. Cb. 51 ; Mertins v. JolUjfe, 1 Amb. 311. The protection thus afiForded by tlie legal estate was taken away by section 7 of the Vendor and Purchaser Act, 1874 ; but this enactment was repealed by the Land Transfer Act, 1875, s. 129. (it) Wyhliam v. Wyhham, 11 East 458 ; Cooper v. Kijnock, L. R. 7 Ch. App. 398, 41 L. J. Ch. 296, 26 L. T. 10, 20 W. E. 503. (I) See Lewin, 216 et seq. ; Baker v. White, L. E. 20 Eq. 166, 171, 23 W. E. 670 ; Marshall v. Girujell, 21 Ch. D. 790. The same rule applies to limitations of estates for years to trustees : Stevenson v. Mat/or of Liverpool, L. E. 10 Q. B. 81, 44 L. J. 0. L. (Q. B.) 34, 31 L. T. 673, 23 VV. E. 346. (m) 1 Vict. 0. 26, s. 30 ; and see s. 31 ; Berry v. Berri/, 7 Ch. D. 657, 47 L. J. Ch. 182, 38 L. T. 474, 26 W. R. 327. Digitized by Microsoft® "186 THE LAW OF J'KOPEETY IN LAND. representative. Formerly, if it were an estate of inheritance, it passed, on the sole trustee's death, to any person to whom he had devised it ; or, if he had not devised it, to his heir- at-law. (71) But the Conveyancing and Law of Property Act, 1881, has provided, as to trustees dying after the com- mencement of the Act (i.e., on or after the 1st January 1882), that an estate or interest of inheritance, or limited to the heir as special occupant, in any tenements or heredita- ments, corporeal or incorporeal, vested on any trust in any person solely, shall, on his death, notwithstanding any tes- tamentary disposition, devolve to, and become vested in, his personal representative, in like manner as if the same were a chattel real.(o) It has been enacted by the Copyhold Act, 1887, however, that this provision shall not apply to land of copyhold or customary tenure vested in the tenant on the court rolls of any manor, upon any trust. (p) The person to whom the estate of a sole trustee passes on his death, of course holds it subject to the trust. (f^) Estate of The estate vested in the trustee is, in equity, protected trustee pro- against claims of his creditors and others, which might be tected agaiDst . ° claims of his asserted agamst the land, if the trustee were the actual creditors &c. ^^^g^ ^f ^^^.-^ ^^j^ ^^ ^.j^g Bankruptcy Act, 1883, estates and interests vested in a bankrupt as trustee are excepted from the property which, under the Act, passes to his creditors, (s) And, by a modern statute, the escheat of the estate on failure of heirs of the trustee was, in effect, prevented. ((!) («) Lewiu, 22l.) et seq. (o) 44 & 45 Vict. c. 41, s. 30. (See In re Pilling s Trusts, 20 Cli. D. 432, 53 L. J. Cb. 1052, 32 W. E. 853.) This section (sub-s. 2) repeals s. 48 of the Land Transfer Act, 1875, under which a fee simple, vested in a bare trustee, passed on his intestacy to his legal personal representalive. (p) 50 & 51 Vict. 0. 73, s. 45 ; see In. re Milk' Trusts, 37 Ch. D. 312, 40 Ch. D. 14, 60 L. T. 442, 37 W. B. 81. (. 1S8. Digitized by Microsoft® EQUITABLE ESTATES. 191 the purposes of the Settled Land Acts, 1882 to 1890, whether appointed by the Court, or by the settlement, or under provisions contained in the settlement. (jjj) Where there are two or more co-trustees, they form col- Where several lectively but one trustee, and therefore must, in general, act i^'joi^'^^! l^^!' jointly in the execution of the trust. (^) And on the death vivorship and 01 any one oi them, the oince passes to the surviyors or sur- vivor, unless the contrary is expressed in the instrument creating the trust.(r) Whether, on the death of a sole or sole surviving trustee, the office can be executed by the person in whom the legal estate vests in that event, (s) will depend on the settlor's intention, as appearing by the trust instrument, or to be implied therefrom, (i!) The section of the Conveyancing and Law of Property Act, 1881, already mentioned, which provides for the devolution of an estate of inheritance held on trust, upon the personal representatives of the deceased trustee, also enacts that, for the purposes of that section, the personal representatives, for the time being, of the deceased, shall be deemed, in law, his heirs and assigns within the meaning of all powers and trusts. («) And, prior to that enactment, where land was limited to a person, ' his heirs and assigns,' upon specified trusts, his heir or devisee, in whom on his death the legal estate vested, could execute the trusts. («) ip) 63 & 54 Vict. c. 69, s. 17 ; cntte, p. 84. {q) Lewin, 258; Lulce v. South Kensington Hotel Company, 11 Cb. D. 121, 48 L. J. Ch. 361, 40 L. T. 638, 27 W. E. 514. (r) Lewin, 261, 262 ; and see s. 38 of tlie Conveyancing and Law of Property Act, 1881. (s) I.e., the legal personal representative of the deceased trustee, in oases within section 30 of the Conveyancing and Law of Property Act, 1881, as amended by s. 45 of the Copyhold Act, 1887 (see ante, p. 186), or where the trust estate is a chattel real. (t) Lewin, 230 et seq., and cases there considered. (u) 44 & 45 Vict. c. 41, s. 30, as amended by 50 & 51 Vict. c. 73 (the Copy- hold Act, 1887), s. 45. (a;) Titley v. WohtenJiolme, 7 Beav. 425 ; Hall v. May, ?, K. & .J. 685 ; Os- horne to Rowlett, 13 Ch. D. 774,, 49 L. J. Gh. 310, 42 L. T. 650, 28 W. R. 365 (overruling Conlce v. Crawford, 13 Sim. 91) ; Re Morton and Hallett, 15 Ch. D. 143, 49 L. J. Ch. 559, 42 L. T. 602, 28 W. E. 895 ; Me Canningham and Frayling [1891], 2 Ch. 567. It has been held that the above provision of the C. & L. P. Aof, 1881, does not enable the legal personal representative of a last surviving trustee to execute a trust for sale given to trustees or the survivor of them merely: Re Inglehy and Norwich Union Insurance Co., 13 Ir. L. R. 326, Digitized by Microsoft® 192 THE LAW OF PEOrKETY IN LAND. Statutory powers. As to invest- ment of trust moneys. Poivers of Trustees. — A trustee's powers, or, in other words, his rights of dealing with the trust estate without the ex- press authority of the cestui qioe tricst, may, like his duties, be prescribed by the trust instrument. (?/) By modern statutes, however, certain powers that, previously, were commonly given by the trust instrument, are made incident to the trustee's office. Thus, a trustee's power of investing trust moneys, which formerly, unless expressly extended by the trust instrument, was confined to investments in Consols,(«) has been extended, by statute, to the various British Government stocks, and other securities — including Indian Government stocks ; securities the interest of which is guaranteed by Parliament ; stocks of the Banks of Eng- land and Ireland ; stocks of various public local autho- rities ; debentures, or guaranteed or preference stock of any railway company, or company for supply of water in the United Kingdom, incorporated by special Act of Parliament, and having paid for the preceding ten years a dividend of not less than £3 per cent, per annum in the case of a rail- way company, or not less than £5 per cent, per annum in the case of a water company, on its ordinary stock ; the stock of any railway or canal company in the United King- dom, whose undertaking is leased to such a railway company as before mentioned, in perpetuity, or for not less than two hundred years, at a fixed rent ; debenture stocks or annuities of railway companies in India, the interest of which is guaranteed by the State, and the stocks of such rail- way companies, the dividend on which is paid or guaranteed by the State ; securities for the time being authorized for the investment of cash under the control of the Court ; and real or heritable securities in the United Kingdom (a) — the term ' real securities ' including (in addition to mortgages of estates of inheritance or for life) mortgages of leaseholds held for an unexpired term of not less than two hundred [y) Lewin, 572. (z) Lewin, 314. (a) See 52 & 53 Vict. c. 32 (the Trust Investment Act, 1889). As to powers of investment of capital money under the Settled Land Act, 1882, see ante, p. 85. Digitized by Microsoft® EQUITABLE ESTATES. 193 years, and not subject to any rent exceeding one shilling a year, or to any right of redemption, or to forfeiture for non- payment of rent.(c) Again, by the Conveyancing and Law of Property Act, Powers of 1881, trustees for sale are given various powers for enabling ^^^ ^^^ them to carry out the sale.(rf) The last-mentioned Act also makes the receipt in writing Power to give of a trustee, for moneys, securities, or other personal pro- ^^'^^^^ ^' perty, or effects, a sufficient discharge for the same, and exonerates the person paying, transferring, or delivering the same, from seeing to the application, or being answerable for any loss or misapplication, thereof. (e) It was originally a rule of equity (subject, however, to some exceptions), that a person paying money to a trustee, with notice of the trust, was bound to see to the application of the money, and therefore was not discharged by the receipt of the trustee, without the concurrence of the cestui que trust ; unless the trust instrument expressly empowered the trustee to give receipts. (/) The Conveyancing and Law of Property Act, 1881, also Power to com- gives power to trustees to compound for things due to the trust estate ; {g) and powers (hereafter described) of manage- Powers as to ment of the lands of infants, and of receipt and application infants, of the income of such lands, and of dealing with the income of property held in trust for infants.(/i) Powers of insuring buildings, and of renewing leases, Powers of insuring, and "" of renewing (c) See 51 & 52 Vict. c. 59, s. 9 (the Trustee Act, 1888). '^^^^^■ {d) 44 & 45 Vict. c. 41, s. 35. See Dunn v. Flood, 25 Ch. D. 629, 53 L. J. Ch. 537, 49 L. T. 670, 32 "W. E. 197. A similar provision (repealed by this Act, s. 71) was contained in Lord Cranworth's Act (23 & 24 Vict. c. 145). The Trustee Act, 1888 (51 & 52 Vict. c. 59), s. 3, protects trustees and purchasers from them, under certain conditions, from liability for sales under depreciatory conditions. (e) S. 36. And see the Trustee Act, 1888 (51 & 52 Vict. u. 59), s. 2, authorizing the receipt of money, under certain conditions, by a solicitor on behalf of a trustee. A power to trustees (under trusts expressed or implied) to give receipts is given by Lord St. Leonards' Act (22 & 23 Vict. c. 35), s. 23. Lord Cranworth's Act, supra, also contained a like power, but this provision is repealed by the C. & L. P. Act, 1881, s. 71. ^ The Settled Land Act, 1882, s. 40, contains a similar provision as to receipts given by trustees of the settlement. (/) See Elliott v. Merryman, and notes, 1 Lead. Cas. Eq. 72. {g) S. 37. (h.) Ss. 42, 43 ; see j)OSi, pp. 487, 488. Digitized by Microsoft® 191. THE LAW OF PROPERTY IN LAND. under certain conditions, are given to trustees by the Trustee Act, 1888.(4) Power to sell Under a modern statute, trustees may, with the sanction surface and ^f ^j^g Q j,^. ggjj ^j^g g^rface of land separately from the minerals ' c i j /7\ separately. minerals, or the minerals separately from the surface ; («) which they could not previously do, unless expressly author- ized by the trust instrument. Powers under The Copyhold Act, 1887, provides that anything by the Copyhold Acts. Q^pyj^^j^ Acts required or authorized to be done by the lord of a manor, or the tenant or owner of any land or right, may be done by such lord, or tenant, or owner, not- withstanding that he may be a trustee for any person. (Z) Right of Rights of Trustees. — Although a trustee cannot claim trustees to ^.^^ remuneration for his trouble, he is entitled to repay- indemnity, •' .._-,.,, reimbursement ment of all expenses, and to be indemnified against all rf expenses, liabilities, properly incurred by him for the purposes of the trust ; and such expenses and indemnity are a charge upon the trust estate ; or, if the estate be insufficient, the cestui que trust is personally liable.(m) It has recently been decided that, since it is the duty of a trustee in whom leasehold houses are vested, to keep the property free from risk of forfeiture on breach of the covenants of the lease, he is entitled for that purpose to have the rents applied in per- formance of the covenants, and is not bound to be satisfied with an indemnity against the consequences of a breach of the covenants. (?i) Under Settled The Settled Land Act, 1882, contains provisions for the 1882. ' protection of the trustees of the settlement in respect of acts, &c., done under the Act; and for the reimbursement of their expenses out of the trust property, (o) (i) 51 & 52 Vict. c. 59, ss. 7, 10, 11. (7^) 25 & 26 Vict. u. 108. (I) 50 & 51 Vict. c. 73, s. 39 ; see ante, p. 36. {m) Lewin, 634 et seq. ; Stott v. llilne, 25 Oh. D. 710, 50 L. T. 742. It was formerly usual (though not necessary) to insert a clause for this purpose in the trust instrument. But by Lord St. Leonards' Act (22 & 23 Vict. c. 35), s. 31, every trust instrument is to be deemed to contain such a clause. (n) In re Fowler, 16 Ch. D. 723, 44 L. T. 99, 29 W. E. 891 ; cf. In re Courtier, 34 Ch. D. 136, 55 L. T. 574, 35 W. R. 85. (o) 45 & 46 Vict. c. 38, ss. 41-43. Digitized by Microsoft® EQUITABLE ESTATES. 195 A trustee is also entitled, where the rights of the parties Right to insti- interested are doubtful, or other difficulties occur in the ; "g^ fo^pj^t,.' execution of the trust, to seek the advice of the Court, and, tection or if necessary, to institute proceedings to have the trust ad- ministered by the Oourt.(p) The Settled Land Act, 1882, provides for the decision by the Court of differences between the tenant for life and the trustees of the settlement, re- specting the exercise of any of the powers of the Act, or matters relating thereto. (y) A trustee is entitled, on the completion of the trust, to a Right to settle- settlement of accounts between himself and the cestui que ™j"untg trust ; and to an acknowledgment by the latter in discharge of all claims, (r) Sect. III. — Equitable Estates created by Operation OF Law.(s) Equitable estates created by operation of law merely. Arise through arise through trusts that have their origin in the construe- consjr "ftive tion put, in equity, upon certain acts of persons. Trusts oftrasts. this class are sometimes called, generally, ' constructive trusts ; ' but, usually, this term is applied to trusts by opera- tion of law of a particular kind — the class being divided into ' resulting trusts ' and ' constructive trusts.' Equitable estates of the present class are here considered, as thus divided. Sub-sect. 1. — EcjuitcMe Estates arising through Resulting Trusts. Deflnition. — A resulting trust exists, where real or per- Resulting sonal estate is transferred under circumstances that give rise to a presumption of an intention that the whole, or part, of the beneficial interest in the estate transferred, should be retained by (or technically ' result to ') the person {p) See 22 & 23 Vict. c. 35, s. 30 ; Rules of the Supreme Court, 1883, OrJ. Iv. rr. 3, 4 ; Lewin, 350-352. {q) Sect. 44 ; and see s. 46, sub-s. 3. (r) Lewin, 358. (s) See ante, pp. 173, 176. trust defined. Digitized by Microsoft® 196 THE LAW OF FKOPEETY IN LAND. entitled to sucli estate previously to the transfer ; though no such intention is expressed in the instrument by which the transfer is made. Instances. Purchase in name of another. Limitations of joint tenancy at law creating tenancy in common in equity. Imperfect declaration of trust, lapse, failure, &c. , of trust. Instances. — The following are instances of equitable estates arising through resulting trusts. Where a person buys land,(<) and, by his direction, the legal estate therein is conveyed to another person, it is pre- sumed that the actual purchaser intends the purchase to be for his own benefit, and takes the conveyance in the name of another merely for some collateral purpose of his own. In such case, the nominal purchaser holds as a trustee for the actual purchaser ; and the equitable estate, accordingly, results to the latter. And so, if the limitation is to the purchaser and another jointly, the latter holds the undivided share vested in him, as a trustee for the purchaser. But the presumption of a resulting trust may be rebutted by evidence that the purchaser intended the transferree to hold for his own benefit ; and this is pre- sumed to have been his intention where the transferree is his wife, or child, or one towards whom he stands in loco parentis.{u) Instances of resulting trusts occur in the cases (men- tioned in a former chapter) where limitations that, at common law, create a joint tenancy are, in equity, construed as giving rise to a tenancy in common. Though the legal estate vests in the survivors or survivor of the co-tenants, it is held by them or him in trust for the successors of the deceased co-tenant, to the extent of his undivided share, (a;) Whenever an estate is given to a person by an instrument, from the terms of which it appears, or may be gathered, that the donee is not intended to hold for his own benefit, a trust is thereby created. Hence, if the particular trusts on which the land is intended to be held are not stated ; as where land is conveyed or devised ' upon trust,' without any further declaration of trust, or upon trusts to be after- (i) The rule in question applies to both real and personal estate : Lewau, lljS. (u) See Dyer v. Dyer, 2 Cox 92 ; S.C., and notes thereto, 1 Lead. Gas. Eq. 236 ; Lewin, cli. 9, s. 2, and cases cited. (x) See ante, oh. 5, pp. 15C, 157. Digitized by Microsoft® EQUITABLE ESTATES. 197 wards declared, and no declaration is ever made — or if the intended trusts are declared, but are too vague or uncertain to be enforced, or are void for unlawfulness — or if the intended cestici que trust never becomes entitled, and the trust consequently lapses ; as where land is given by will in trust for a person who dies in the testator's lifetime — in these cases, the equitable interest results to the donor, or his successors ; for whom, consequently, the donee holds as trustee. (?/) On the same principle, where realty or personalty is Surplus after ,..,,, ,„^ ^ ' . ^ % ^ fulfilment of limited on trust tor a particular purpose — as tor payment trust, of the settlor's debts — and after the purposes of the trust have been satisfied, a surplus remains, the equitable interest in the surplus results to the settlor, or his successors. (a) If, however, an estate be limited, charged with the pay- ment of money — as in the case of a devise of land by will, charged with payment of the testator's debts — there is no resulting trust of the surplus remaining after the charge is satisfied ; for the trust which (as has been seen) is implied in such a case, applies only to the amount charged on the esta,te.(a) It may here be observed that, where the purposes of a Total failure of trust for the conversion of land into money, or money into *'""^' ^"^ *> ' •> ^ convprsion. land, fail entirely before the trust for conversion comes into operation — as where land is devised to trustees, upon trust to sell the same, and pay the proceeds to A., and A. dies in the testator's lifetime — the direction for conversion fails with it ; and the land or money results to the settlor, or his successors, in its original form.(&) And if the trust for conversion is contained in a will, a Partial failure, similar rule applies, where the failure of the purposes of the conversion is partial only — as where land is devised upon trust for sale, and for payment of the proceeds to A. and B. in equal shares, and A. dies in the testator's lifetime ; or where there is a residue remaining after the fulfilment of (i/) See Lewin, 147, 148, and cases there cited ; Brigys v. Fenni/, 3 Mac. & Gor. 546. (z) Lewin, 146, and cases there cited; Cooke v. Smith, ib Ch. D. 38, 59 L. .J. Ch. 577, 63 L. T. 361, 38 W. E. 641. (a) Lewin, ibid. ; and see ante, p. 178. (?)) Bipley v. Watei-worth, 7 Ves. 4'2r> ; Clarke v. Franklin, 4 K. & .J. 257. Digitized by Microsoft® 198 THE LAW OF PROPERTY IN LAND. Partial failure, uader deed. the trust — as wliere land is devised on trust for sale, and payment of the testator's debts, and there is a surplus after payment of the debts. In these cases, the portion as to which the trust fails, or the residue (as the case may be), will result as land or money according to its original form, as if the conversion had not taken place. For conversion directed by will is presumed to be intended by the testator for the purposes of his will only.(c) But where the trust for conversion is contained in a deed, it takes effect for all purposes, if at all ; hence, on a partial failure of a trust for conversion directed by deed, the portion as to which the trust fails, results according to the form into which it has been converted. (rf) Sub-sect. 2. — Equitahk JSstatcx arising through Constrndire Trusts. Constructive trust defined. Definition. — -Where a person holds the legal estate in land or any other object, to which, or to a claim upon which, another person is entitled by the rules of equity — though no trust has been declared or results in his favour — an obligation is, in equity, imposed on the owner of the legal estate to hold for the benefit of the person having such equitable right, to the extent of his claim ; and this obliga- tion is called a constructive trust. Instances. Trusts under contracts for sale of land. Instances. — Constructive trusts arise under various cir- cumstances. The following are instances of equitable interests arising through such trusts. Where a contract for the sale of land is binding upon, and enforceable by, each of the parties thereto, the vendor holds the land, as from the time the contract was made, as trustee for the purchaser ; though he is not bound (unless by express agreement) to convey, or give possession of, the land, or (c) Achroyd v. Smithson, 1 Bro. C. C. 503, 1 Lead. Cas. Eq. 1027 ; Cocjan v. Stephens, 1 Beav. 482. The subsequent devolution of the resulting portion is determined, however, by the form in which it exists — i.e., as land or money: Smith V. Claxton, 4 Madd. 484 ; Curteis v. Wormald, 10 Ch. D. 172, 40 L. T. 108, 27 W. R. 419. Aiidreir.i^ 5 Sim, 424 ; V. Franklin, 4 K. & .T. 257. Griffith V. Sicletts, 7 Hare 299 ; Clarke Digitized by Microsoft® EQUITABLE ESTATES. 199 account for its profits, to the purchaser, until payment of the purchase-money, (e) The purchaser's equitable interest in the land, under the contract, will devolve, in case of his death (assuming the contract was for the purchase of the fee simple), upon his heir-at-law or devisee. The vendor is similarly entitled, from the time of the making of the con- tract, to the purchase-money, as personal estate. Hence, if the vendor die before completion of the contract, the right to the purchase-money belongs to his personal repre- sentative. It may here be observed that, by the common law, on the Legal estate in death of a vendor of land before he had conveyed it to the ^"^ '^^^"^ purchaser, the legal estate in the land (supposing the sale was of the fee simple) passed to his heir-at-law, or devisee, who, however, might be compelled to convey it to the purchaser.(/) But where the vendor has died since the commencement of the Conveyancing and Law of Property Act, 1881, and, at the time of his death, the contract was binding absolutely on both parties, the legal estate apparently will pass, under that Act, to his personal representative, as being a trust estate ; except where the land is of copyhold tenure.(^) If the contract were not so binding at the time of the vendor's death — as where his title to the land had not then been investigated and accepted — he would not, it seems, be deemed to have been a trustee of the land for the purchaser ; (h) though, if the contract were eventually carried out, the purchaser's right to the legal estate might be enforced against the vendor's heir or devisee, as above explained. And if the contract were binding on the vendor at the time of his death, and his death has occurred since the commencement of the Conveyancing and Law of Property Act, 1881, the personal representatives of the vendor are empowered by that Act to convey the legal estate to the purchaser.(i) The foregoing rules apply generally to any (e) See Lewin, 141, 142, and cases cited ; Sug. V. & P. 291 ; Lysaght v. Edwards, 2 Ch. D. 499, 507. (/) Sug. V. & P. 177, 187. {g) 44 & 46 Vict. u. 41, ». 30 ; 50 & 51 Vict. c. 73, s.45; see arete, pp. 185, 186. (A) Lysaqht v. Edwards, supra ; see /)» re Carpenter, Kay 418 ; In re Collvu/, 32 Ch. i). 333. (i) 44 & 45 Vict. c. 41, s. 4. Digitized by Microsoft® 200 THE LAW OF PROPEKTy IN LAND. Trust of land purchased with notice of prior claims thereto. What consti- tutes notice. Constructive. Conveyancinj! Act, 1882, as to notice. other contract for the transfer of land for valuable con- sideration ; as a contract to grant a lease at a rent, or to settle land in consideration of an intended marriage. (Z;) It has been seen that a person who acquires the legal ownership of land for valuable consideration is not bound by an equitable interest in, or claim to, the land, of which he has no notice.(^) But if he have notice of the equitable right, before the legal estate in the land has been conveyed to him, or before he has paid the price, he will be constructively a trustee of the land for the person entitled to the equitable interest, to the extent of that inter est. ())i) The notice which will have this effect, may be either ' actual ' (that is, express) or ' constructive.' Constructive notice is that which the law imputes to a person, where he has omitted to use due diligence in ascertaining the facts, of the case. Thus, if a purchaser of land neglect to investigate the title to the land, he will be deemed to have notice of all facts which he would have learned through such investigation. And notice to the counsel, or solicitor, or agent, of the purchaser is, under some circumstances, deemed to be notice to the purchaser himself, (m) But with regard to what constitutes notice to a purchaser, the Conveyancing Act, 1882 (which, however, rather defines than alters the pre- existing law on this point), provides that a purchaser shall not be prejudicially affected by notice of any fact, instrument, or thing, unless (i.) it is within his own knowledge, or would have come to his knowledge, if such inquiries and inspections had been made as ought reasonably to have been made by him ; or (ii.) in the same transaction with respect to which a question of notice to the purchaser arises, it has come to the knowledge of his counsel as such, or of his solicitor or agent as such; or would have come to the knowledge of his solicitor or other agent as such, if such inquiries and in- spections had been made as ought reasonably to have been made by the solicitor or other agent. But a purchaser is (k) Lewiii, 140, 141. (I) Ante, p. 184. {m) Lewin, 858 et seq. (n) As to what is constructive notice and generally as to notice, see Le Nevi V. Le Neve, Amb. 436 ; S.C.,aiid jioies thereto, 2 Lead. Gas. Eq. 26; Dart, V. & P. ch. 15, s. 5 ; Sug. V. & P. 755 et seq. Digitized by Microsoft® EQUITABLE ESTATES. 201 not to be affected by notice, by reason of the foregoing pro- vision, in any case where he would not have been so affected, if it had not been enacted. (o) A purchaser of an equitable estate or interest in land Trust atfeetiag takes it subject to any prior right thereto, although he have equitabirin- no notice of such right. For, as has been seen, it is the terest, in case ownership of the legal estate that affords protection against ^'^' ^ a prior equitable right in land. Where neither party has the legal estate, the earlier in date of the interests is entitled to priority, (p) A person who acquires land by voluntary conveyance Trust affecting (that is, a conveyance not made for valuable consideration) ^^^^ ^^ p/j^^ holds it subject to any prior equitable interest or claim by claim, which the transferror was bound, even though the transferree have acquired the legal estate in the land without notice of the equitable claim. For, as a general rule, a volunteer (that is, a person taking by voluntary conveyance) acquires, in equity, no better title than his transferror had.(2) (o) 45 & 46 Vict. 0. 39, s. 3 ; In re Cousins, 31 Ch. D. 671, 55 L. J. Gh. 662, 54 L. T. 376, 34 W. R. 393. (p) Lewin, 695. See Oarritt v. Eeal and Personal Adoance Company, 42 Ch. D. 263, 58 L. .J. Ch. 688, 61 L. T. 163, 37 W. R. 612. (17) Lewin, 858 et seq. Digitized by Microsoft® PART II. RIGHTS OF PROPEETY INPERIOR TO OWNERSHIP.(a) Rights com- EiGHTS of property in land that belong to the class of rights ^lass. inferior to ownerships are of various kinds. In this class are included powers, or rights of alienation merely ; rights of creditors in lands of their debtors ; rights to rent, tithe rent-charge, &c., payable in respect of, or charged upon, estates in land ; rights of common, or rights to profits of lands of others ; and easements, or limited rights of use, merely, of lands of others. (5) These different rights are here considered in the above order, and, generally, according to the method pursued in treating of estates in land.(c) CHAPTER I. POWERS. Power defined. Definition. — A ' power,' or ' power of alienation,' may be defined as a right of property whereby a person is entitled merely to alienate an estate or interest in land, or in some other subject, ((i) A power is to be distinguished from the right of aliena- (a) As to the natiire of these rights, as distinguished from rights of ownership, see ante, p. 3. (6) To the present class of rights properly belong, also, certain franchises, seignories in gross, and possibilities of reverter. These rights, however, have already been noticed. See as to franchises, ante, p. 15 ; as to seignories, ante, pp. 27, 28 ; and as to possibilities of reverter, aide, p. 114. (c) See ante, p. 50. (d) See Chance, Pow., s. 1 ; Burton, § 173 ; per Fry, L.J., 17 Q. B. D. 531 Digitized by Microsoft® POWEKS. 203 tion that is incident to an estate. It exists as a right dis- Distinguished tinct from any other interest, even though it be vested (as it fji^aton'in- may be) in a person who has also some other interest in the cident to same land. Thus, A. may have a power of alienating the fee o^"ership. simple, or any less estate, in land of which B. has the owner- ship subject to the exercise of the power. Or, A. may have a similar power of alienation, and also, as a separate right of property, the fee simple, or some other estate, in the same land. In the former case, A. can alienate only by virtue of his power, that being his only interest in the land. In the latter case, he may alienate either by virtue of his power, or in exercise of the right of alienation incident to his estate in the land. Classiflcation. — A power may have effect either by the Four classes of common law ; or by express statutory enactment ; or under P"™^''^- the law relating to executory interests in land ; or by virtue of rules of equity. Hence, powers may be divided, with regard to their nature, or modes of operation, into four classes : (i.) Common Law Powers; (ii.) Statutory Powers; (iii.) Powers under the Law relating to Executory Interests ; (iv.) Equitable Powers. (e) (i.) Connnon Law Fowe,rs. — The only instances of powers Powers given over land that have effect by the common law, or ' common ^^^^^ ^°^ ^^^^ law powers,'(/) are powers given by will to the testator's of land, executors to sell his real estate in order to raise money for the payment of his debts, or of legacies given by the will ; the land not being devised for the purpose to the executors, but devolving, until the power is exercised, upon the testator's heir-at-law. Such directions to executors were recognised in the early law as valid in wills of lands which, by custom, were devisable at common law ; {g) and after the extension of the (e) See Sug. Pow. 45 (where powers given by statute are included under ihe head of common law authorities); Chance, Pow., s. 4. (/) 2 Prest. Abstr. 247 ; and see Co. Litt. 237 a ; but see Chance, Pow., f-s. 5-il. A power of attorney is sometimes regarded as an instance of a common law power ; but as it merely nominates an agent to act in the name, and on be- half, of a principal, it is not a power in the sense of a right of property : see Sug. Pow. 45, 46. (g) Litt. s. 169. See stat. 21 Hen. 8, o. 4, as to the application of such powers to wills and uses before the Statute of Uses. Digitized by Microsoft® 204 THE LAW OF PROPERTY IN LAND. testamentary power by statute, in the reign of King Henry Yni.,{h) their validity in wills generally was establisllecl.(^) Upon an alienation in pursuance of such a power, the estate passes to the alienee by force of the will, as if he had been named therein as devisee ; the exercise of the power being merely the nomination of the person who is to take the estate under the will.(^-) In this respect, a mere power of sale, given to executors, differs from a devise of land to the executors, in trust for sale ; for under such a devise, the testator's estate in the land vests in the executors as trustees, and the purchaser takes by the conveyance from them. This distinction is important with reference to the mode of pro- viding by will for the sale of copyhold land. If copyholds are devised, for sale, to executors or trustees, they must, before selling, be admitted as tenants holding of the lord of the manor.(^) But if the executors are merely empowered by the will to sell the land, the purchaser from them may be admitted as taking directly under the will ; and thus the admittance of the executors, with the payment of the fine due on admittance, is avoided. (m) Executors may When a testator directs his real estate to be sold for pay- have power of mg^i; of his debts, or of legacies given by the will, but the cation. will does not name the person by whom the sale is to be made, a power of sale is given, by implication, to the execu- tors, if the proceeds of the sale are to be distributed by them.(w.) Nature and (ii.) Statutory Powers. — Where a power of alienation is instances of. given by an Act of Parliament, an alienation in pursuance of the power derives its effect from the Act.(o) A power may be thus given to a person, either as the holder of some office, Where incident or as having an interest in the land. An instance of the to an office. , . (A) 32 Hen. 8, c. 1 ; 34 Hen. 8, c. 5 ; post, p. 386. (i) Co. Litt. 113 a, 236 a; 2 Shep. Touch. 448 ; 2 Prest. Abstr. 246 ; Sug. Pow. 45. (k) Sug. Pow. 45, 146. [l) As to admittance to copyholds, see post, p. 370. (in) Glass V. Biclmrdson, 9 Plare 698 ; M. v. Corhett, 1 E. & 13. 836 ; B. v. Wilson, 3 B. & S. 201 ; Siig. Pow. 154, note (1). (ji) Sug. Pow, 118. (o) Ibid. 45. Digitized by Microsoft® POWERS. 205 former is the power which (as will be seen) the Bankruptcy Act, 1883, gives to the trustee in a bankruptcy, of disposing of the bankrupt's estate. (j)) Another instance of a statutory power annexed to an ofiice is the power, given by a modern statute to trustees and executors, of selling or mortgaging land for the payment of a testator's debts, or legacies be- queathed by his will. This Act provides, in effect, that where, by a will coming into operation after the passing of the Act (13th August 1859), the testator has charged his real estate, or a specific part of it, with payment of his debts, or any legacy, and has devised the whole of his interest in the estate so charged to a trustee or trustees, and has not made any express provision for the raising of the debts or legacy out of the estate, the trustee or trustees may, not- withstanding any trusts actually declared by the testator, raise such debts or legacy by sale or mortgage of the land so devised to them ; and that if the testator has not so de- vised such real estate, the executor or executors for the time being, under his will, shall have the same power of raising such moneys ; and that purchasers or mortgagees shall not be bound to inquire whether the powers so conferred have been duly exercised by the persons acting in the exercise thereof, (g) But the Act does not extend to the case of a devise of the whole of the testator's estate to a person, other- wise than as a trustee. Such a devisee holds the land, as has been seen, subject to an implied trust for payment of the debts, (r) and may, therefore, sell or mortgage the land, for that purpose, as owner. As instances of statutory powers annexed to interests in Where annexed land may be mentioned the powers of sale, leasing, &c. , '" '^^ int^i's*-'- given by statute to mortgagees (as will hereafter be seen) ; (s) and the powers given, as has been seen, to tenants for life and others, by the Settled Estate Act, 1877, and the Settled Land Acts, 1882 to 1890.(0 (p) Post, p. 460. (q) 22 & 23 Vict. c. 35 (Lord St. Leonards' Act), ss. 14-18. (r) See ante, p. 178. (s) Post, pp. 235, 236, 241. (t) Ante, p. 76 ei seq. Digitized by Microsoft® 206 THE LAW OF PROPERTY IN LAND. Nature of. (iii.) Powers under the Laiv relating to Executory Interests. — The nature of executory interests in land, and the modes in which limitations of such interests take effect, have already been considered. (;c) It has been seen, moreover, than an executory interest may be limited to take effect in possession through the exercise of an authority given to a person by the instrument containing the limitation, or reserved thereby to the grantor, of nominating or declaring the person or per- sons to take, and the interest to be take a, by virtue of the limitation. The person to whom such authority is given or reserved, is said to have a power of appointing a use or interest ; and an appointment made by him, in pursuance of the power, operates as a declaration of use or interest, as effectually as if it had been contained in the instrument limiting the executory interest.(y) Examples of— Thus, if A., owner in fee simple, grant by deed to B. and where created j^jg heirs, to such uses as B. (or the grantor himself) shall by declaration _ ' \ & _ / of use. appoint, and B. (or the grantor) subsequently appoints to the use of 0. and his heirs, the appointment takes effect, by way of springing use, as if the land had, in the first instance, been limited to B. and his heirs to the use of 0. and his heirs ; the fee simple, until appointment, resulting to A. And so, if A., owner in fee simple, grant to B. and his heirs to such uses as B. (or the grantor) shall appoint, and, until appointment, to the use of X. and his heirs, and B. (or the grantor) subsequently appoints to the use of 0. and his heirs, the appointment takes effect, by way of shifting use, as if the land had been limited, by the first iustrument, to the use of X. and his heirs until the happening of some event, and then to the use of C. and his heirs. In these examples, the uses that may be declared are wholly in the discretion of the person to whom the power is given ; but, as will be seen, his discretion in this respect may be limited by the terms of the power, (s) Creation of, by Where land is limited by will, subject to a power of this class, an appointment under the power takes effect as an [x] Ante, ch. 4, o. 3. {y) See ante, p. 151. (s) Post, p. 209. Digitized by Microsoft® POWEES. 207 executory devise. But as executory devises do not depend for their operation on the Statute of Uses, a power of appoint- ment may be created by will, as well by a devise simply to the persons or for the purposes to be specified by the ap- pointment, as by a devise to u&es to be declared by the appointment. Thus, if land be devised to such persons or for such purposes as B. shall appoint, and, in the meantime, to X. and his heirs, and B. appoint to C. and his heirs, the appointment takes effect as an executory devise of the fee • simple to 0. Since an appointment, in pursuance of a power of declaring Appointment uses, vests the legal estate in the appointee as md%d que, use,, *? "^"'J^ ^^ an appointment under such a power to a person, to hold to the use of another, operates as a declaration of a use upon a use, vesting the legal estate in the former person, and an equitable estate in the latter. And, in this respect, an appointment has the same effect where the power of declaring the use is given by will, as where it is given by deed. (a) But where (as in the example given above) a will creates a power of appointment by a simple devise — that is, not as a power of declaring a use — an appointment under the power to one person to the use of another will operate as a declaration of use in favour of the latter, and will accordingly vest in him the legal estate. (6) It has been seen that, on the grant of an estate or interest. Powers of a power of revoking the grant may be reserved to the grantor, ^™j**'°" or his successors, under the law relating to executory interests. The exercise of a mere power of revocation has the same effect as an appointment, in favour of the person to whom the use or interest results on the exercise of the power — that is, the grantor of the estate or interest, or his successors. Powers of the present class include, therefore, powers of revocation merely, as well as powers of limiting estates or interests. (c) In the preceding remarks as to powers of the present Powers of appointment of copyholds, (a) Sug. Pow. 146, 147. (6) Ibid. 191, 196, 197. And see ante, p. 151, as to the construction of uses declared by will. A conveyance under a common law, or statutory power, to one person to the use of another, similarly vests the legal estate in'the latter : Sug. Pow. supra. (c) See ante, p. 151. Digitized by Microsoft® 208 THE LA^V OF PROPERTY IN LAND. class, powers over estates in land of freehold tenure are alone referred to. But since, as has been seen, executory interests may be created in land of copyhold tenure (although copy- holds are not within the Statute of Uses),(^) a power of ap- pointing copyholds may be given, either upon a conveyance of the land by surrender,(«) or upon its devise by will ; and, on an appointment in pursuance of the power, the person in whose favour the appointment is made will be entitled to be admitted as tenant of the land, under the surrender or devise. (/) Powers over chattel in- terests. Nature of. (iv.) Equitable, Powers. — Equitable estates and interests in land may be the subjects of powers of appointment or revo- cation resembling powers of the class last described. Such powers are called ' equitable powers ' ; and the rules by which they are governed are, in general, similar to the rules applicable to powers taking effect under the law relating to executory interests. The person in whose favour an appoint- ment is made, imder a power of the present class, is entitled, as cestui que trust, to an equitable estate or interest of such extent as is appointed to him ; and the trustee in whom the legal estate is vested is bound to hold for his benefit accordingly.(^) It has been seen that an executory interest in a term of years, or other chattel real, cannot (except in some cases of gift by will) be created otherwise than as an equitable interest. (^) Hence, powers over chattels real can only be created as equitable powers. Powers of sale, Where land is vested in a person as trustee, and he is *^''-' °^ ^^^^^^'^^ expressly empowered to alienate, for the purpose of sale, g8gees. lease, or mortgage of the land, an alienation by him, in pursuance of the power, passes not only the estate vested in (d) Ante, p. 147. (e) As to the conveyance of copyholds by surrender, see post, p. 370. (/) See Chance, Pow., 27-30; Elton, Cop., 30; Scriv. Cop. 12.5; Boddington V. Ahernethy, 5 B. & C. 776 ; B. v. Oundle, 1 A. & E. 283. But it has been held that the lord cannot be compelled to accept a surrender to uses to be appointed by the surrenderee, and until appointment to the use of the latter and his heirs, unless such a surrender be authorized by a special custom : Flacl; v. Downing College, 13 C. B. 945. (g) Sug. Pow. 45, 4(5. (7j) Ante, p. 147. Digitized by Microsoft® POWERS, 209 liim as trustee, but also the beneficial or equitable interest in the land — which, in the absence of an express power for the purpose, he could not transfer. Of the same nature are a mortgagee's powers of sale, leasing, &c., where such powers are given by the mortgage instrument, and not by statute. Powers of this kind, though not usually distinguished as equitable powers, are such in eifect. Powers of Appointment and of Revocation. — In the Powers here following portion of this chapter, powers having effect under """^"^^"^^ • the law relating to executory interests, and equitable powers analogous to the former, are alone considered. Common law powers do not call for further notice ; and statutory powers, and powers of sale, &c., given to trustees and mortgagees, are considered in connection with the estates and interests to which they are annexed. Powei's of the kinds under consideration — other than Meanings of powers of revocation merely — are called, generally, ' powers of *'^'^™^- appointment.' They are sometimes called ' powers of revo- cation and new appointment ' ; because an appointment under such a power must necessarily (to the extent of the estate or interest created thereby) revoke or defeat a pre- ceding limitation. The person in whom a power of appoint- ment is vested is commonly called the ' donee ' of the power, or (when he exercises the power) the ' appointor' ; and a person in whose favour the power is exercised is called the ' appointee.' Powers of revocation are, in practice, framed as powers of revoking the existing limitations and appointing new ones. A mere power of revoking the existing limita- tions (Ic) is, however, subject, so far as it extends, to the rules applicable to powers of appointment. General and Particular (or Special) Powers. — Powers Powers are are distinguished, with regard to their objects or purposes, fpgcial. into ' general ' powers, and ' particular,' or ' special,' powers. A power of appointment is general, when no restriction is imposed, by the terms of the power, as to the persons in (Ic) As to wtioh see ante, pp. 151, 207. As to whether a power of revocation of uses impliedly authorizes a limitation of new uses, see Sug. Pow. 371 ; contra, 2 Prest. Abstr. 277. Digitized by Microsoft® 210 Modes of. Words of creation. THE LAW OF PEOPERTV IN LAND. whose favour, or the purposes for which, the power uiay be exercised. The donee of such a power has, accordingly, the same powers of disposition as an owner ; and he may, more- over, appoint to himself. A power of apf)ointment is par- ticular, or special, when it expressly restricts the right of appointment to a specified person or class of persons — as to a wife, or a child or children ; or authorizes an appointment for some specified purpose only — as a power to lease or sell land.(/) A power of revocation, merely, necessarily belongs to the class of particular or special powers. («i) Creation. — A power of appointment over land is created, as has been shown, by a limitation, either inter v-icos or by will, of the legal estate in the land, as an executory interest — or by a corresponding limitation of the equitable estate — to take eflTect in possession through the exercise of an authority or power, given to some person hy the instrument containing the limitation, or thereby reserved to the grantor or his successors. (n) Occasionally, a power to revoke the previous limitations, as well as to appoint, is expressly given by the instrument creating the power ; but this is not necessary, since the revocation of the previous limitations is implied in the appointment of the new estate or interest. (o) A power of appointment, or of revocation merely, may be given, or reserved, by any words, whether formal or informal, that clearly indicate an intention to create a power, (p) The donee of the power {q) must, in general, be named, or other- wise sufiiciently indicated ; and, in the creation of a special power, the intended extent and limits of the power, with regard to its objects or purposes, and — in the case of a power of appointment — with regard to the interests that may be appointed, must, of course, be stated. {I) Sug. Pow. 394. As to the ordinary special powers in settlements of land, see 3 Davidson, Conv., 479-590; Elpliinstone, Conv., 352 et sap (m) See ante, p. 207. (n) Ante, p. 206. And see further as to the creation of powers of revocation merely, ante, p. 151. (o) Sug. Po^. 478 ; 1 Sand., Uses, 160. (p) Sug. Pow. 102. (}) Ante, p. 209. Digitized by Microsoft® POWERS. 211 Transfer and Devolution. — A power cannot be transferred How far by the donee to another, unless it be expressly given to the ^"^^"^ ^'^ ^ donee and his assigns ; for a power is exercisable only by a person to whom it is given by name or description, (r) Practically, however, this rule applies only to special powers. For the donee of a general power of appointment may dele- gate the execution of the power to another, as his agent ; ■or he may appoint to such uses as another person shall appoint, and thus give to such person a general power of ap- pointment.(s) "Where the power, whether general or special, is given to a person named, and his assigns, the donee may transfer it to another. And where it is extended to the heirs or personal representatives of the person named as donee, it will pass to them on his death, by operation of law.(^) And where it is expressly annexed to an office (as where it is given to executors by that description), it may be exercised by the persons or person for the time being filling that office. (it) A power given to two or more persons by name, and not Joint power, expressly made exercisable by one, or some, of them, must be exercised by both, or all, the donees, and cannot, on the death of any of them, be exercised by the survivor or survivors ; (x) except that, by the Conveyancing ConveyanciDg and Law of Property Act, 1881, a power given to two or ^g^^ af to^"*^ more executors or trustees jointly, by an instrument coming into operation after the commencement of that Act, may (unless the contrary is expressed by such instrument) be exercised by the survivor or survivors of them ; (t/) and by the Conveyancing Act, 1882, a joint power, which has been duly disclaimed, under the Act, by any of the several donees, may be exercised by the other or others, or their survivors or survivor, unless a contrary intention is ex- pressed in the instrument creating the power, (s) (r) Sug. Pow. 180. (s) Jbid. 181, 195. (t) Ibid. 180. (m) Ibid. 126, 127 ; In re Coolce's Oontract, 4 Cli. D. 454 ; Crawford v. Forshaw [1891], 2 Ch. 261. (.V) Sug. Pow. 126. (y) 44 & 45 Vict. c. 41, s. 38. (z) 45 & 46 Vict. c. 39, b. 6 (2). As to disclaimer of a power under this Act, see post, p. 220. Digitized by Microsoft® 212 THE LA'\\' OF PEOPEETY IN LAXD. Eules respect- ing. Execution. — The execution of powers, or, in other words, the rules respecting their exercise, may be considered with reference to (i.) the discretion of the donee of a power as to its exercise ; (ii.) the modes of execution of powers ; (iii.) the objects or purposes of powers. Extent of. Power im- perative, or in the nature of a trust. (i.) Discretion of Donee as to Exercise of Poiuer. — A power may be exercised, or left unexercised, at the discretion of the donee of the power. And if it is not exercised, no claim or remedy can be asserted by an object of the power (that is, a person in whose favour it might have been exercised) against a person who is entitled to the land, in default of exercise of the power.(«) In order to secure an interest to an object of the power, a limitation to him in default of appointment is necessary. But a mere power of appointment must be distinguished, in this respect, from a trust or duty, to be carried out by a person by means of a power vested in him — as where land or money is given to the children of a person in such shares as he shall appoint, and there is no gift to the children in default of appointment. Such a power as this is called a ' power imperative,' or (more usually) a ' power in the nature of a trust.' If no appointment be made under such a power, the Court, on the application of persons who are objects of the power, will give effect to the intention of the donor of the power ; (5) and, in the case of an intended gift to a class of persons (as in the above examples), will hold them to b© entitled in equal shares. (c) General rules as to. (ii.) Modes of Uxeciitioa of Powers. — Where the terms of a power do not specify the mode in which it is to be exe- cuted, it may be executed either by deed or by will, or by any other writing, (rf) But where the form of instrument, (a) Toilet V. Toilet, 2 P. Wms. 489, 1 Lead. Cas. Eq. 269 ; Sug. Pow. 588. (6) Sug. Pow. 588 et seq. ; Lewin, 19, 834 ; Harding v. Gh/n, 1 Atk. 469, 2 Lead. Cas. Eq. 1077 ; Brown v. Bigr/s, 4 Ves. 708 ; In re jeferifs Trusts, L. E. 14 Eq. 1.S6, 21) L. T. 821, 2(1 W. E. 667. (c) Doyley v. Attorney- General, 4 Vin. Abr. 486; Salusbury v. Denton, ?, K. & J. 529; In re Pkene's Trusts, L. E. 5 Eq. 346; Wilson %. Diiguid, 24 Ch. D. 244, 53 L. J. Cli. 52, 49 L. T. 124, 31 W. E. 945. {d) Sug. Pow. 203 ; i» re Jaclson's IVIll, 13 Cli. D. 189, 49 L. J. Ch. 82 (;/: Freeland v. Pearson, L. E. 3 Eq. 658, 36 L. J. Ch. 374. Digitized by Microsoft® TOWERS. 213 by which the power is to be executed, is stated ; as if it is to be executed by deed, or by will — or certain formalities, to be observed in the execution, are prescribed ; as signa- ture, sealing and delivery, the presence of witnesses, or the number of witnesses — or the execution of the power is made subject to any condition, such as the consent of a person — the failure to observe any such requirements, in the execution of the power, renders the execution void ; (e) unless the defect is remediable in equity, or the appointment is protected from failure by one of the statutory provisions presently mentioned. In equity, a defective execution of a power of appointment Defective is aided — that is, the person in whom the land is vested ™ ^^^ere'aided in default of exercise of the power is compelled to transfer it equity, in accordance with the intention of the appointor — where the appointment is in favour of a purchaser, lessee, or mort- gagee, or a creditor of the appointor, or his wife or child, or a charity ; but only if the defect is not material — as if it consists in the non-observance of some formality required in the execution (as signing, sealing, or the presence of wit- nesses) ; or if there is a valid contract to execute the power, or a recital in a deed showing an intention to appoint, but no actual appointment ; or if a power to appoint by deed has been executed by will. But if, under a power to appoint by will, the appointment be made by irrevocable deed, this — being a material defect (since it defeats the intention that the power shall be revocable till the donee's death)— will not be aided in equity. (/) With regard to appointments made by will, however, the Wills Act, Wills Act, 1837 (which applies to wills made after that ^f^^4iSi*of year), jarovides, in eifect, that no appointment by will in powers by will, exercise of a power shall be valid, unless executed in the manner in which wills, generally, are required by that Act to be executed ; and that every will so executed shall, as regards the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding some (e) Sug. Pow. 206-208 ; Hawkins v. Kemp, 3 East 410. (/) Sug. Pow. c. 11, ss. 1-3 ; Toilet v. Toilet, 2 P. Wms.489 ; S.C., and notes thereto, 1 Lead. Cas. Bq. 269 ; Cooper v. Martin, L. E. 3 Ch. App. 47, 17 L. T. 687, 16 W. E. 234 ; Kennard v. Aennard, L. R. 8 Ch. 227 ; /Smith v. Adidns, L. E. 14 Eq. 402, 41 L. J. Ch. 628, 27 L. T. 90. Digitized by Microsoft® 214 THE LAW OF PROPERTY IN LAND. Statutory pro- vision as to execution intei vivos of powers. Partial execu- tion of power. Reservation of power of revo- cation. additional, or other, form of execution, or solemnity, shall have been expressly required by the terms of the power.(^) With regard to appointments made (after 13 August 1859) by instruments other than wills, another statute pro- vides that a deed executed and attested by two or more witnesses, in the ordinary manner, shall, as respects execu- tion and attestation, be a valid execution of a power of appointment by deed, or by any instrument in writing not testamentary, notwithstanding some additional, or other, form of execution, or attestation, or solemnity, shall have been expressly required by the terms of the power ; but that this provision shall not operate to defeat any direction in the instrument creating the power, whereby the consent of any person, or some act (having no relation to the mode of exe- cution and attestation) is made essential to the validity of the appointment ; or prevent the donee of the power from executing it conformably to the power. (A) A power of appointment, or of revocation merely, may bo executed from time to time as to different parts of the land, or as to different estates, until it has been executed to the full extent — e.g., under a general power, a life estate may be appointed at one time, and the fee at another time. And if the whole estate be appointed, but by way of mort- gage or charge only, in equity the appointment is partial only, and the right of redemption remains in the donee, and is subject to the power. (^) On the execution of a power, ■ whether general or special, a power of revocation and new appointment may be reserved, whether such reservation be expressly authorized by the instrument creating the power, or not ; and this may be done on every subsequent execution of the power. (Z) But an appointment by deed, which does not expressly reserve a power of revocation, cannot be revoked, even though the instrument creating the power expressly authorize revoca- tion from time to time.(;) If, instead of a power of revo- (g) 1 Vict. c. 2G, s. 10. (h) 22 & 23 Vict. c. 35 (Loril St. Leonards' Act), s. 12 (0 8ug. Tow. 273, 274. (k) Ibid. 3137. (/) Jhid. 3G9. Digitized by Microsoft® POWEKS. 215 cation, and new appointment, a power of revocation only be reserved, a new appointment might, it seems, be made under the original power, after revocation of the prior appointment . (« ( ) (iii.) Objects or Purposes of Powers. — The rules under Rules apply this head apply only to the exercise of special powers ; for po^ers'ouly. the donee of a general power has the same rights, in these respects, as an owner. In the case of a power to appoint to certain persons, or Appointment to persons of a specified class, an appointment to a person \^^ j^ ^^ who is not an object of the power, is, of course, invalid, object of the Hence, under a power to appoint to children, an appoint- ment cannot be made to a grandchild. (m) Grandchildren, or remoter issue, however (as well as children), are, in general, objects of a power to appoint to ' issue. '(o) Where, in a settlement for the benefit of children, under which the eldest son takes the land, a power is given of appointing portions to younger children, a younger child who eventually becomes the eldest by survivorship, and, as such, is entitled to the land, cannot, in general, take a portion under the power, as having been originally an object of it.(^) An appointment ia excess of the power, i.e., which ex- Appointment tends beyond the limits of the power, is wholly void, unless po^^^r the excess can be distinguished from the rest of the appoint- ment. Where the excess can be so separated, the appointment is void only to the extent of the excess. (g) Thus, under a Excess as to power to appoint an estate of specified extent, the appoint- ment of any other estate, whether of greater or less extent than that authorized by the terms of the power, would be entirely void ;(r) except that, under a power to lease for a [m) Sug. Pow. 369, 377. (n) Ibid. 503. As to the validity of the appoinlment whereby, in the same instrument, a stttlenient is made by the appointee, see infra, p. 218. (o) EocUeij V. Mawhey, 1 Ves. 142, 150. (p) Sug. Pow. (i78-9 ; Chadwich v. Doleman, 2 Vern. 528 ;• Collingwood v. Stanhope, L. K. 4 H. L. 43, 17 W. K. 537. {q) Sug. Pow. 498 ; see Can- v. Atkinson, L. K. 14 Eq. 397, 26 L. T. 680, 20 W. R. 620 ; Williamson v. Farwell, 35 Ch. D. 128. ()■) 2 Prest. Abstr. 272 ; In re Porter's Settlement, Porter v. De Quetteville, 45 Ch. P. 179, 59 L. .T. Ch. 595, 63 L. T. 431. Digitized by Microsoft® 216 THE LAW OF PilOPEETY IX LAND. Excess as to objects. term of years, a lease for a longer term than that authorized by the power has been held, in equity, to be void for the excess only, and to take effect as an execution of the power for the term authorized. (s) An appointment to persons, some only of whom are objects of the power, is, in general, void only where the shares or interests intended to be appointed to the objects of the power cannot be ascertained, or are not within the scope of the power ; for if these can be ascertained, and are such as the power authorizes, the excess alone will be void.(i) And, by the cy-pr&s rule (already mentioned in connection with estates in remainder),(M) an appointment by will to an object of the power for life, with remainder in tail to his child or children, who are not objects of the power, will be construed as an estate tail in the object of the power.(,r) If an appointment be made, with a direction (not author- ized by the terms of the power) that the land shall be settled in a certain manner, the direction, in general, is void, and the appointment is absolute.(2/) And so, if, under a power to appoint to a married woman, an appointment be made to her, with a restraint on anticipation, the restraint is void, and the appointment is absolute.(2;) But where, under a power to appoint an estate, an appointment is made to a trustee, in trust for the objects of the power, or to a trustee, upon trust to sell the estate, and divide the proceeds among the objects of the power, the appointment is valid, in equity, as being substantially within the terms of the power. («) Non-exclusive Formerly, under a power to appoint to a class of persons lawasto'-™^^(^® the children of the donee), an appointment could not be alterations by made to one Or some only of the objects of the power, to the exclusion of any of them ; unless such an appointment was Excess as to limitations. (s) Sug. Pow. 519 ; Oamphdl v. Leach, Amb. 740. For the statutoiy, provisions as to relief against defects in leases under powers, see ante, p. 75, note (o). («) Sug. Pow. u. 10, b. 1. (u) Ante, p. 141. {x) Pitt V. Jackson, 2 Bro. C. C. 51 ; Sug. Pow. 4;iy. (j/) Sug. Pow. 516. (z) Fry V. Capper, Kay 163. See as to the restraint on anticipation Ij}- a married woman, post, p. 477. (a) Sug. Pow. 405-407 ; Kenworthtj v. Bate, G Ve.s. 7'J3. Digitized by Microsoft® POWERS. 217 expressly authorized by tlie terms of the power. (&) And, originally, it was requisite that the share of each of the appointees should be more than a merely nominal share. The latter requirement was abolished by a statute of the year 1830 ;(c) and by a statute of the year 1874.',(d.) the inclu- sion of each of the objects of the power in the appointment is rendered unnecessary. The last Act enacts that no appointment, made after the passing of the Act, in the exercise of any power to appoint among several objects, shall be invalid on the ground that any object of the power has been altogether excluded : but every such appointment shall be valid, notwithstanding that any one or more of the objects shall not thereby, or in default of appointment, take a share, or shares, of the property subject to such power ; but that nothing in the Act shall prejudice or affect any provision in an instrument creating a power, which shall declare the amount, or the share or shares, from which no object of the power shall be excluded, or some one or more object or objects of the power shall not be excluded. Under this Act, there- fore, in order to prevent the exclusion of an object of the power, the share, or the least share, to be taken by him in the event of an appointment, must be specified in the instru- ment creating the power. It is a rule of equity, that a special power is to be exer- Frauds on cised exclusively for the end or purpose for which it was P""'^''^' created ; according to the true meaning of the terms of the power. If the appointment is made for any jjurpose that is not within the scope of the power, it is liable to be set aside as a ' fraud upon the power ' ; even though such pur- pose is not stated in the instrument by which the appoint- ment is made, and the appointment is, literally, within the terms of the power. Thus, if an appointment is made to an object of the power, upon a contract, or even a mere under- standing, that the appointor is to receive some benefit from the appointee, by means, or in consequence, of the appoint- ment (as some part of the thing appointed, or a sum of money), (b) Sug. Pow. ^. 8, s. 5. (c) 1 Will. 4, ^. 46. (d) An Act to alter and amend the law as to appointments under powers not exclusive, 37 & 38 Vict. c. 37, passed 30tli July 187-t. Digitized by Microsoft® 218 THE LAW OP PKOPEKTY IX LAND. the appointment may be set aside as fraudulent. And an appointment may be invalid, as being a fraud on the power, although no benefit to the appointor be intended ; as where an appointment is made to an object of the power, upon an agreement that the appointee shall make a settlement of the subject appointed, or of some interest in it, on persons who are not objects of the power ; for the motive which dictated the appointment is not material. (t) It has been held, how- ever, that where, on an appointment to an object of the power, a contemporaneous settlement is made by him on persons who are not objects of the power, the appointment is valid, even though the appointment and settlement be contained in the same instrument ; if it does not appear that the settlement was made in pursuance of a prior bargain between the parties. (/) Modes of. Determination. — The exercise of a power of appointment Exercise of extinguishes the power, if the appointment disposes absolutely of the whole estate or interest subject to the power, and no power of revocation, or of revocation and new appointment, is reserved ; but otherwise, as has been seen,(g) a power may continue, notwithstanding its previous exercise. Death of donee As has been seen, a power of appointment determines with wh^src"nse t ^^^ death of the person in whom it is vested, unless it ex- is requisite, pressly extend to his successors. (A) And if a person whose consent is necessary to the exercise of the power, die before its exercise, and without having assented, the power is deter- mined. (i) (e) Sug. Po^y. c. 1'-', f. 2 ; Aleyn v. Belchier, 1 Eden 132 ; S.G., and notes, 1 Lead. Gas. Eq. 437 ; Topliam v. Diile of Portland, 11 H. L. C. 32, L. E. 5 Oh. App. 40, 39 L. .T. (_'h. 25;i, 22 L. T. 847, 18 W. R. 235 ; Cooper v. Cooper, L. I!. 8 Eq. 312, 5 Oh. App. 203, 39 L. J. Ch. 240, 22 L. T. 1, 18 W. K. 299 ; In re Kirwan's Trusts, 25 Ch. D. 373, 52 L. J. Ch. 952, 49 L. T. 292, 32 W. R. 581 ; cf. Eoach v. Trood, 3 Ch. D. 429, 34 L. T. 105. 24 W. R. 803 ; Senty v. JVrey, 19 Ch. D. 492, 21 Ch, D. 332, 53 L. J. Ch. 6l'.7 ; In re Turner's Settled Estckes, 28 Ch. D. 205, 54 L. J. Ch. 690, 52 L. T. 70, 33 W. R. 205; In re Deane, Brl/h/er v. Deave, 42 Ch. D. 9, Gl L. T. 492, 37 AV. E. 786 ; In re Crawslwy, Crawshay v. Orawshay, 43 Ch. D. 615, 59 L. J. Ch. 395, 62 L. T. 489, 38 VV. R. 600. (/■) Sug. Row. 670 ; Sirley v. Birley, 25 Beav. 299 ; In re Gossett, 19 Beav 529. ((j) Ante, p. 214. (7i) Ante, p. 211. As to the effects of bankruptcy, and of lunacy, of the donee of tlie power, sea post, pp. 458, 439. (!) Sug. Row. 252. Digitized by Microsoft® POWERS. 219 If a power be exercisable only within a prescribed period Lapse of time. of time, it is, of course, determined on tlie expiration of that time. A special power of appointment is extinguished by failure Failure of of the objects (k) or purposes (I) of the power. pur^poses! If the donee of a power of appointment have also an Effect of estate in the land, and the power be ' appendant,' or ' appur- alieDatioa of tenant,' to the donee's estate — in other words, if the power power append- fae such that any appointment thereunder must necessarily ^"jj^^°^ appur- take effect out of the estate ; (m) as in the case of a limitation to such uses as A. shall appoint, and, until appointment, to the use of A. and his heirs — an alienation by the donee, by virtue of his estate, prevents any subsequent exercise of the power in derogation of the estate comprised in the aliena- tion. (^i) Thus, if A., in the above example, grant the fee, as owner thereof, the power is extinguished. But if the estate of the donee of the power does not comprise the whole interest subject to the power (as if he be tenant for life, and the power extend to the fee) the alienation of his estate does not prevent the subsequent exercise by him of the power, provided it be not exercised in derogation of the previous alienation ; and it may therefore be exercised with the con- sent of the alienee. (o) Where, however, the power is a power ' collateral ' or ' in Distinction as gross ' — that is, where it is such that the estate (if any) of coHateral or^"^ the donee would not be affected by an exercise of the power ; in gross, as in the case of a limitation to a person for his life, with a power of appointment to his children after his death (p) — (7c) 4 Cruise, t. 32, c. 19, s. 32. Cf. In re Van Hagan, Ki Ch. D. 18, 50 L. .J. Ch. 1, 44 L. T. 161, 29 W. E. 84 ; In re Thurston, 32 Ch. D. 508, 55 L. J. Ch. 504, 54 L. T. 833, 34 W. E. 528. (I) Farwell, Pow., 24. As to the application of this rule to powers nf sale in settlements, &o., see ^VolUi/ v. Jenkins, 23 Beav. 53 ; Troioer v. Knightley, 6 Madd. 134 ; and^josi, p. 327. (m) See Sug. Pow. 46, 47. (n) Ibid. 57. (o) Alexander V. Mills, L. E. 6 Ch. 124, 40 L. J. Ch. 73, 24 L. T. 206, 19 W. R. 310 ; Hardaher v. Mooi-house, 26 Ch. D. 417, 53 L. J. Ch. 713, 50 L. T. 554, 32 W. R. 638. (2?) Sug. Pow. 46, 47. A power is also called ' collateral ' or ' in gross,' when the donee of the power has no estate or interest in the land. And if it be a power that he cannot exercise for his own benefit, it is sometimes called a power 'simply collateral.' — Ibid. Digitized by Microsoft® 220 THE LAW OF PEOPEKTY IN LAXD. Eelease or disclaimer of power. Acquisition of estate. tlie alienation of the donee's estate, of course, does not restrict the subsequent exercise of the power, (g') The donee of a power may release it to a person having an estate in the land, and thus extinguish it. And a covenant not to exercise the power will, in equity, have the effect of a release, (r) Prior to the Conveyancing and Law of Property Act, 1881, a power simply collateral could not be released ; (s) but that Act provided that the donee of any power, whether coupled with an interest or not, might by deed release, or contract not to exercise, the power.(i) And the Conveyancing Act, 1882, enables the donee of any power, whether coupled with an interest or not, to disclaim the power by deed.(ii) If, subsequently to the creation of a power over land, the donee acquire an estate in fee simple in the land, the power, it seems, is extinguished. (a;) (5) Sug. Pow. 79. (r) lUd. 82, 83. [s] Ihid. 49, 82 ; Palmer v. Lode, 15 Gh. D. 294. (*) 44 & 45 Vict. u. 41, =. 52. («) 45 & 46 Vict. i;. 39, o. 6. As to disclaimers geuerally, see post, p. 308. (x) Cross V. Hudson, 3 Bro. C. C. 30. But see Sug. Pow. 98. Digitized by Microsoft® CHAPTER II. EIGHTS OF OEEDITOES. The rights of creditors, as such, in the lands of their debtors, Different kinds comprise rights under mortgages, charges, and liens ; and ^^S^^^- rights in respect of judgment debts, Crown debts, and debts of deceased persons. (a) Sect. I. — Eights dndee Mortgages. Definition. — A mortgage of land may be defined as the Mortgage transfer, express or implied, of an estate or interest in the defined. land, as a pledge (6) or security, merely, for the payment of money due, or to become due, to the person to whom the security is given. The latter is called the ' mortgagee ; ' and the person by whom the security is given is termed the ' mortgagor. '(c) Mortgages are distinguished as either ' legal ' or ' equitable.' Mortgages are Where a mortgage is made by transfer to the mortgagee of '?,'^^ °'^ ^'l"'*'" an estate or interest, which is such at law as well as in equity, or, in other words, is a legal as opposed to a merely equitable interest, the security is called a ' legal mortgage.' Where the effect of the mortgage is to vest in the mortgagee (a) The rights of creditors under bankruptcies are not here considered since on bankruptcy, the land ceases to be the debtor's, and passes to the trustee for the creditors. See post, pt. 3, ch. 9. (b) A mortgage differs, however, from the security called, distinctively, a pledge. The latter is applicable to chattels only ; and it does not entitle the creditor to all the rights incident to a mortgage. A mortgage is also to be distinguished from the security created by charge or lien, as to which see post p. 250. (c) In the Conv. and L. P. Act, 1881, the term 'mortgagee' incluc'es any person deriving title under the original mortgagee ; and the term 'mortgagor' includes any person deriving title under the original mortgagor, or entitled to redeem a mortgage : 44 & 45 Vict. c. 41, s. 2 (vi.). In the present chapter, the terms are used in these senses, except where the context shows that the orii'in.il parties to the transaction are alone referred to. ° Digitized by Microsoft® 222 THE LAW OF PROPEETY IN LAND. Ordinary form. Vivum vadium. Mortuum vadium. a merely equitable estate or interest in tte land, th.e security- is termed an ' equitable mortgage.'(cf) The distinction between legal and equitable mortgages is important, as will be seen, with reference both to the creation of the security, and to the rights and remedies of the mortgagee. Arrangement of Topics. — Mortgages may be considered with reference to (1) The Mortgagor's Estate or Interest, sub- ject to the Mortgage ; (2) The Modes of Creation of Mort- gages ; (3) The Rights of the Mortgagee ; (4) The Determina- tion of the Security. (1) Mortgagor's Estate or Interest. — Mortgage, at Comrrwn Laio. — The rights and duties of the parties to a mortgage are regulated chiefly by the rules of equity, which, in a great measure, supersede the principles of the common law applicable to legal mortgages, and also give validity to equitable mortgages. Under the early common law, a mortgage was usually a transfer of the debtor's estate to the creditor, subject to a condition that if the debt, with the interest due thereon, -were paid on a day named, the debtor should be entitled to re-enter, and resume his former estate ; but that if the sum were not paid on that day, the estate transferred to the mortgagee should become absolute, i.e., free from the condition. (e) The common law, however, recognised certain forms of mortgage under which the debtor was not liable to lose his estate. These were the vivum vadmm, a transfer of the estate to the creditor, to be held by him until out of the profits of the land he had satisfied himself his debt, where- upon the debtor might re-enter ; (/) and a transfer — which seems to have been called mo7'tuum vadmm (jf) — under which the creditor held the land until the sum due was paid ; the creditor in the meantime receiving the rents and profits [d) Miller, Eq. Mortg., 1 ; Fisher, Mortg., 49. In practice, the term ' equitable mortgage ' is frequently used as meaning an informal, as distinguished from a formal, mortgage, whereby an equitable interest vests in the mortgagee. As to this distinction, see^ost, pp. 231, 232. (e) Litt. s. 332 ; Coote, Mortg., 7, 8. (/) Co. Litt. 205 a; Coote, Mortg., 5. (g) See Glanville, lib. 10, c. 6. Littleton, however (s. 332J, uses the term mortuum vadium as meaning the ordinary mortgage by conditional conveyance. Digitized by Microsoft® RIGHTS OF CREDITORS. 223 witliout account. (A) But these forms of mortgage seem never to have been generally employed, and they Avere vfholly obsolete even in early times ; being superseded by the conditional conveyance above described. Eqioity of Bcdcmption. — The mortgagor's liability to Its introduc- absolute forfeiture of his estate, under a mortgage in the ''°"' ordinary form, being found inconvenient, a remedy was in course of time introduced by the Court of Chancery. The Court established the rule that, notwithstanding default in payment on the day named, and the consequent forfeiture at law, the mortgagor should, in equity, retain the right of redemption of the estate ; or, in other words, should continue entitled to have the estate re- vested in him on payment of the sum due. This remedy (which was granted by the Court in the exercise of its general jurisdiction to relieve against forfeitures at law) was based on the principle that a mort- gage was intended merely as a pledge, or security, for a debt.(i) The equitable right of redemption, thus established, is an An essential essential incident of a morts'ae'e. Even though the instru- '"'="5^'^* °^ . . J. , . mortgage. ment of transfer contain no provision for the redemption of the estate, but is in form an absolute conveyance, evidence will be admissible to prove that it was intended as a security only, so as to entitle the mortgagor to redeem. (Z;) More- over, the right of redemption cannot be restricted by any stipulation in the mortgage instrument ; as, that the mortgage shall be redeemable only within a certain time, or only by a certain person or class of persons (as by the mortgagor alone, or the mortgagor and the heirs of his body, only) (I) — a rule (7i) GlanTille, ibid. ; Coote, Mortg., 6, 7. This security was similar to, and was probably derived from, the antichresis of the Kornan Law : see Fisher, Mortg., 2, 3 (n.). A form of security called a 'Welsh mortgage ' was sometimes emfiloyed in l. ' mortgagor ' here includes any person entitled to redeem the mortgage. See ante, p. 221, note (c). Digitized by Microsoft® 240 THE LAW OF PEOPERTY IN LAND. enforcing the security created by a mortgage comprise : — (a) possession, and receipt of tlie rents and profits, of tKe land ; (j3) appointment of a receiver; (y) sale of the mortgaged estate ; (S) foreclosure of the equity of redemption. These may be considered in the foregoing order. (a) Possession (a) Where the legal estate is in the mortgagee, he may, and receipt of g^^ ^^^ ^^^^g during: the continuance of the security, enter rents and pro- . ■' . ° . . fits. into possession of the land, and receipt of its rents and profits, unless the mortgage deed otherwise provides, (y) The liabilities and rights of a mortgagee in possession have already been stated. («) A mortgagee whose security is effectual in equity only, cannot have possession, unless by order of the Court ;(a) as the right to the possession is incidental only to the legal ownership. (5) (/3) Appoint- (j3) The appointment of a receiver is a means whereby receiver ^ mortgagee, who desires to avoid the liabilities attending possession, or who is not entitled to have possession, may nevertheless take the rents and profits of the land. Formerly, a receiver could be appointed only under a provision for the purpose in the mortgage instrument, or by virtue of an order of the Court ; (a) and this is still the rule where the Receiver under mortgage is not created by deed. But the Conveyancing Act^i88°?°^ and Law of Property Act, 1881, empowers the mortgagee, under a mortgage made by deed since the 31st December 1881, to appoint, by writing, a receiver of the income of the land ; and such receiver will be the agent of the mort- gagor, who will be solely responsible for his acts or defaults, unless the mortgage deed otherwise provides. And the moneys received by him will be applicable (after discharge of prior claims) in payment of interest due under the mortgage • and the residue will be payable to the person who, but for the receiver's possession, would have been entitled to receive the income of the mortgaged land, or who is otherwise (y) Fisher, Mortjj., 402. That a mortgagee who has taken possession cannot relinquish same at pleasure, see la re Pri/tlieixh, Prytherch v. Williams 42 Ch. D. 590, 38 W. R. 61. (;;) Ante, pp. 234, 235. (a) I.e., the High Court of Justice, or, where the sum secured does not exceed £500, the County Court. See 51 & 52 Vict. u. 48, s. 67. . (I) Langton v. Lmujton, 7 B. M. & G. 30, 37. Digitized by Microsoft® EIGHTS OF CKEDITORS. 241 entitled to the land. This power may, however, be negatived or varied by the mortgage deed ; and it is not exercisable until the mortgagee has become entitled to exercise the power of sale (presently mentioned) conferred by the Act.(c) (7) The sale of the mortgaged estate, and payment of the (7) Sale of sum due under the mortgage, out of the proceeds of the sale, estate. is the course most commonly adopted by the mortgagee for the realisation of his security. His right to adopt this course depends, however, on his being expressly empowered so to do by the terms of the mortgage instrument, or by statute ; for a power to sell the mortgaged estate is not implied in equity. Formerly, the mortgage instrument usually contained an Power of sale express power of sale ; but where the mortgage has been anting Act, made by deed since the 31st December 1881, a power of sale 1881. given by the Conveyancing and Law of Property Act, 1881, in such case,{d) is now generally relied on ; the deed containing only such variations (if any) of the statutory power as may be thought proper. The Act empowers the mortgagee, («) when the money has become due, to sell, or to concur with any other person in selling, the mortgaged land, or any part of it, either subject to prior charges or not, and either by public auction or by private contract,(/) and to convey it by deed(^) to the purchaser, freed from all estates and interests to which the mortgage has priority, and subject to all estates and in- terests prior to the mortgage. The Act also makes the mortgagee's receipts sufficient discharges for the purchase- money, and protects him from involuntary losses arising through the exercise of the power, and the purchaser against any irregularity in the sale. The purchase-money (after prior (c) 44 & 45 Vict. 0. 41, s. 24. A power of appointing a receiver was given to mortgagees by an earlier statute, 23 & 24 Vict. c. 145 (Lord Cranwoith's Act), the provisions of which on this subject are repealed by the Conveyancing and Law of Property Act, 1881 (s. 71). {d) 44 & 45 Vict. c. 41, ss. 19-22. (e) See ante, p. 221, note (c). (/) The Act empowers the mortgagee, when the power of sale has become exercisable, to recover from any person not having an interest prior to the mort- gage, such documents of title to the land as the purchaser would be entitled to require from him : s. 21 (7). ig) Except that, in the case of copyhold or customary lanJ, the legal right to admittance is not to pass by a deed under this provision, unless a deed is other- wise sufficient by law or custom: s. 21 (1). Q Digitized by Microsoft® 242 THE LAW OF PEOPEETY IN LAND. incumbrances, to wliicli the sale is not made subject, liave been discharged, or provided for as required by the Act) is to be applied, first, in payment of the costs of the sale ; and, secondly, in discharge of the moneys due under the mortgage ; and the surplus (if any) is to be paid to the person entitled to the mortgaged land, or authorized to give receipts for the proceeds of the sale. But the power is not to be exercisable unless notice requiring payment of the mortgage-money has been served on the mortgagor, and default has been made by him in payment, for three months after such service ; or unless interest under the mortgage is in arrear and unpaid, for two months after becoming due ; or unless there has been a breach of some provision in the mortgage deed (other than a covenant for payment of the mortgage-money or interest), to be observed or performed on the part of the mortgagor or a person con- curring in the mortgage. And the power of sale conferred by the Act may be varied, or negatived, by the terms of the mortgage deed. (A.) Mortgagor's On a sale by a mortgagee under this power, or a similar concurrence m pQ^gp giyen by the mortgage deed, the concurrence of the power not mortgagor, or of any other person having an interest in the needed. ^g,^^ Subsequent to that of the mortgagee, is not necessary, and cannot be required by the purchaser, (i) And the pur- chaser is not liable to the mortgagor in case of any im- propriety or irregularity in the exercise of the power, of which the purchaser had not actual notice ; the mortgagor's only remedy, in such case, being against the mortgagee per- sonally. (Z;) But if the purchaser buys with knowledge of facts that render the sale improper, the transaction may be set aside at the instance of the mortgagor, unless the latter has waived his right to object to the saie.(Z) (h) Ss. 21, 22. A power of sale in certain cases was given to mortgagees by the Stat. 23 & 24 Vict. c. 145 (Lord Cranworth's Act), the provisions of which, on this snbieot, are repealed hy the Conveyancing and Law of Property Act, 1881, B. 71.' (i) Corder v. Morgan, 18 Ves. 344. (k) See Dicker v. Angerstein, 3 Ch. D. 600, 45 L. J. Ch. 754, 24 W. R. 844 ; Hoofe V. Smith, 17 Oh. D. 434, 50 L. J. Ch. 576, 45 L. T. 38, 29 W. R. 601. And see s. 21 (2) of the Conveyancing and Law of Property Act, 1881. (I) See Parkinson v. Hanhury, 1 Dr. & Sm. 143, 2 D. J. & S. 450, L. R. 2 H. L. 1 ; Selvnjn v. Garfit, 38 Ch. D. 273, 57 L. J. Ch. 609, 59 L. T. 233, 36 W. R. 513 ; In re TJwmpson and Bolt, 44 Ch. D. 492, 59 L. J. Ch. 651, 62 L. T. 651, 38 W. R. 524. Digitized by Microsoft® EIGHTS OF CREDITOES. 243 The mortgagee should have regard, in selling, to the inter- Duty of mort- ests of the mortgagor, as well as to his own claims — his duty, ^*°^^ "^ "'^' in this respect, being similar to that of a trustee for sale; and, like such a trustee, he cannot acquire the estate himself as purchaser. («i) And if he sells after tender of the amount Cannot sell due to him, the sale will be set aside as against him, and as ^|^ou*t°?ue °^ against a purchaser with notice of the tender, (n) If a mortgagee, selling under a power of sale, have notice Trust of of any subsequent mortgage or charge on the land, he must ^^^ g^ig hold the surplus in trust for the person of whose mortgage "ne'er power, he has notice, in preference to paying it to the mortgagor ; and if he have notice of more than one such mortgage, there will be a trust for the mortgagees according to their priorities. (o) If the sale take place after the death of the mortgagor, any Right to surplus that would have been payable to him, had he then ^"^^^^.'1^^°".'*'^^ been living, will be payable to the person in whom the equity gagor's death, of redemption has become vested. (|)) As the power of sale given by the Conveyancing and Law Sale where no of Property Act, 1881, does not apply where the mortgage is ex^pr^elTpower; made otherwise than by deed, the mortgagee in such case by order of the cannot sell, unless under an express power given by the veyancinff Tct mortgage instrument, or by virtue of an order of the Court. 1881, hereon. By the above Act, in any action, whether for foreclosure, redemption, sale, or the raising and payment in any manner of mortgage-money, the Chancery Division of the High Court, on the request of the mortgagee, or of any person interested in the mortgage-money or in the right of redemp- tion, may direct a sale of the mortgaged estate on such terms as it thinks fit.(g) Under this enactment a sale may be (m) Sug. V. & P. 65, 67. See Codcburn v. Edwards, 18 Ch. J). 449, 51 L. J. Ch. 46, 45 L. T. 600, 30 W. R. 446 ; Tomliii v. Luce, 43 Ch. D. 191. (ft) Jenhins v. Jones, 2 Giff. 99 ; Martinson v. Clowes, 21 Ch. D. 857, 51 L. J. Ch. 594, 46 L. T. 882, 30 W. R. 795. (o) Coote, Mortg., 283 ; Tanner v. Heard, 23 Beav. 555. The rnle is the same where the sale is by the mortgagor and mortgagee jointly : West London Commercial Bank v. Reliance Permanent Building Society, 27 Ch. D. 187, 29 Ch. D. 954. (p) Wright v. JSose, 2 S. & S. 323 ; Bourne v. Bourne, 2 Hare 35. (?) 44 & 45 Vict. 0. 41, s. 25. See also s. 5, under which money may, by leave, be paid into court to meet existing incumbrances, and the land may be thereupon sold free from incumbrances. Digitized by Microsoft® 244 THE LAW OF PROPEKTY IN LAND. directed, though the mortgage be merely by deposit, without any written agreement or memorandum. (r) Sale by order Where the mortgagor is a bankrupt, the Court of Bank- ?f *^°"'^'°^ ruptcy may, on the mortgagee's application, order a sale of the mortgaged land ; and, at any such sale, the mortgagee may bid and purchase. But a mortgagee who has a power of sale may, of course, sell under his power, notwithstanding the mortgagor's bankruptcy.(s) Mortgagor Where, after sale of mortgaged land, the legal estate holds legal remains in the mortg-agor, he will hold it in trust for, and be estate as i i / \ trustee after bound to convey it to, the purchaser.(?!) sale. (5) Foreclosure. (S) The right of foreclosure is incident to every mort- gage.('!6) Foreclosure is a judicial process by which, on failure in payment of the sum due Under a mortgage, within a certain period, the equity of redemption is barred or extinguished ; with the result that the estate or interest, which was previously a security merely for the debt, is thenceforth held by the mortgagee as owner.(.i) A mortgagee may commence proceedings for foreclosure at any time after the day named for payment in the mortgage instrument, and while any sum remains owing on the security. An account is taken, by direction of the Court, of the amount due under the mortgage for principal, interest, and costs ; and the mortgagor is allowed six months, after the amount has been (r) Wade v. Wihoi}, 22 Ch. D. 235, 52 L. J. Ch. 399, 47 L. T. 696, 31 W. E, 237 ; Oldham v. Stringer, 51 L. T. 895, 33 W. K. 251. An Act of the year 1858 (15 & 16 Vict. c. 86) empowered the Court to direct a sale instead of a foreclobure ; but underthat Act an equitable mortgagee by deposit was not entitled to an order for sale, unless there was also an agreement in writing to execute a legal mortgage : James v. James, L. K. 16 Eq. 153 ; York Union Banking Co. v. Astleij, 8 Ch. D. 444. (s) Bankruptcy Rules, 1886, rr. 73-77 ; and seepost, p. 462. (t) An equitable mortgagee, selling under the power given by the Convey- ancing and Law of Property Act, 1881, cannot himself convey the legal estate to the piu'chaser by virtue of his power of sale : In re Hodson and Howes' Contract, 35 Ch. 1). 668. ' [u) But securities by way of trust for sale cannot be foreclosed (ante, p. 232), nor could the ancient vivum vadium [ante, p. 222). [x) Proceedings for foreclosure or redemption of mortgages are taken in the Chancery Division of the High Court : Judicature Act, 1873 (36 & 37 Vict, c. 66), s. 34. Formerly an action was necessary for either purpose ; but now an application to a Judge in chambers by summons is sufficient : Ord. Iv. r. 5 a. The C'ounly Courts have also jurisdiction wheie the amount secured by ihc mortgage does not exceed £500 : 51 & 52 Vict. c. 43, s. 67. Digitized by Microsoft® EIGHTS OF CREDITORS. 245 ascertained, within which he may redeem the mortgage. On default in payment within that time, the mortgagee is entitled (unless the Court gives further time for payment) to a final order of foreclosure; whereby he becomes absolutely the owner of the mortgaged estate, and is entitled to have the legal estate in the land conveyed to him, if (the mortgage being equitable) it remains in the mortgagor ; (if) unless, in- deed, the Court, for special reasons, orders the foreclosure to be opened — that is, gives the mortgagor a further right to redeem, (s) To proceedings for foreclosure of a mortgage, all persons having incumbrances subsequent to the mortgage should be made parties, since they all have a right to redeem the mortgage ; and any who are not made parties will not be bound by the foreclosure, even though the mortgagee had no notice of their claims. (a) But a mortgagee may foreclose, without making a prior mortgagee a party to the proceed- ings ; and he will then hold subject to the prior mort- gage.(S) It has been seen that, in an action for foreclosure of a mortgage, the Court may direct a sale in lieu of fore- closure. (c) It may be here mentioned that the different remedies of a Mortgagee mortgagee, including his right to sue the mortgagor per- ™ig^i.g]^e^°eg'^ sonally for the debt, may be all pursued at the same time ; concurrently, though the whole amount eventually recovered mast not exceed what is due under the security. Thus, if on a sale of the estate there is a deficiency, the mortgagee may sue the mortgagor for the balance. And even after foreclosure, the mortgagee may be entitled to sue the mortgagor, on the ground that the value of the estate is less than the amount (y) Lees v. Fisher, 22 Ch. D. 283, 31 W. R. 94. (z) As to where this will be done, see Fisher, Mortg., 956 ; Coote, Mortg., 1107 ; CampbeU v. Solyland, 7 Ch. D. 166, 47 L. J. Ch. 145, 26 W. R. 109 ; Taylor v. Mostyn, 33 Ch. D. 226, 55 L. J. Cb. 893, 55 L. T. 651. (a) See Coote, Mortg., 1094. As to the time allowed for redemption where there are subsequent incumbrances, see Bartlett v. Bees, L. R. 12 Kq. 395, 40 L J. Ch. 599, 19 W. R. 1046 ; General Credit, <£c., Co. v. Olegy, 22 Ch. D. 549, 52 L. J. Ch. 297, 48 L. T. 182, 31 W. R. 421 ; t^mith v. Oldinc/, 25 Ch. D. 462, 51 L. J. Ch. 250, 50 L. T. 357, 32 W. R. 386 ; Mutual Life Assurance Society V. Langley, 26 Ch. D. 686, 51 L. T. 284, 32 W. R. 792 ; Piatt v. Mendel, 27 Ch. D. 246, 54 L. J. Ch. 1145, 51 L. T. 424, 32 W. R. 918 ; Dohle v. Manley, 28 Oh. D. 664, 54 L. J. Ch. 636, 52 L. T. 246, 33 W. R. 409. (6) Coote, Mortg., 1094. (c) Ante, p. 243. Digitized by Microsoft® 246 THE LAW OF PROPERTY IN LAXD. of the debt ; but by so doing he opens the foreclosure — that is, gives the mortgagor a further right to redeem.(d) Hence, the mortgagee cannot sue after foreclosure, if he has alienated the estate.(e) Modes of (■^•) Transfer of Mortgages. — A mortgagee may alienate his security, either inter vivos or by will. An absolute alienation inter vivos — or, as it is usually called, a 'transfer' of a mortgage — comprises an assignment of the mortgage debt, and a conveyance of the mortgaged estate or interest, or — if the estate be copyhold — a covenant for its surrender in favour of the transferree, and (if necessary) for the jwevious admit- tance of the mortgagee. (/) The estate is transferred subj ect to the existing equity of redemption ; or sometimes, where the mortgagor concurs in the transfer, with a new proviso for redemption. Where the land is copyhold, the transfer is completed by the admittance of the mortgagee, and a con- ditional surrender by him to the use of the transferree ; or sometimes, by a new conditional surrender by the mortgagor to the transferree ; the previous surrender being discharged by memorandum for that purpose, entered on the court rolls. (^) Where mort- If the mortgagor is not a party to the transfer, the trans- gagornota ferree should inquire of him the amount of the mortgage fer. debt, and give him notice of the transfer. For if before the transfer, or afterwards, but before notice of it has been given to the mortgagor, the latter pays the whole or any part of the debt to the mortgagee, he will, to that extent, be discharged from liability to the transferree. And whatever the mortgagor, before he has notice of the transfer, can claim by way of set- off against the mortgagee, he can claim equally against the transferree. (A) (d) That, in such case, the mortgagor has a right to rerleem, even though he has previously transfeiTed the equity of redemption to another person, see Palmer v. Hendrie, 27 Bpav. 349 ; Kinnaird v. Trollope, 39 Ch. 1). 036, 57 L. J. Ch. 905, 59 L. T. 433, 37 W. K. 234. (e) Loclcliart v. Hardy, 9 Beav. 349. (/) See as (o the conveyance of copj holds by surrender and admittance, post, p. 370. {(j) See further as to the forms of transfer of mortgages, 2 pt. 2 Davidson, Conv., Introd. s. 4 ; Elphinstone, Conv., ch. 9. (h) Coote, Mortg. 723 ; In re Lord Southampton's Estate, IG Ch. D. 178, 50 L. .J. Ch. 218, 43 L. T. 687, 29 W. R. 231 ; but see Bkkerton v. Walker, 31Ch.D. 151, 55 L. J. Ch. 227, ,53 L. T. 731, 34 W. R. 141 ; Hallv. Heirard, 32 Ch. D. 430, 55 L. J. Ch. 604, 54 L. T. 810, 34 W. R. 571. Digitized by Microsoft® EIGHTS OF CREDITORS. 247 A transferree of a mortgage, who has given, as the con- Transfcn-ee sideration for the transfer, a smaller sum than the amount ^^fj|^j '" " due under the mortgage, is not thereby precluded from secured by claiming the full sum due under the security.(i) mortgage. A mortgage made in the concise form sanctioned by the Transfer of Conveyancing and Law of Property Act, 1881, may be trans- f^^^_ orymoi ferred by a short form of deed, expressed to be made by way of statutory transfer of mortgage. (A;) It has been held that a mortgagee by deposit of title-deeds Mortgage by cannot effect a transfer of the mortgage by a parol voluntary transferable iiy gift, with delivery of the deeds. (Z) parol An alienation of a mortgage may be made by way of ' sub- Sub-mortgage, mortgage' — that is, as a security for money due from the mortgagee to the alienee. A sub-mortgage usually vests in the sub-mortgagee all the rights and powers of the original mortgagee, subject to a proviso for redemption. The proviso for redemption contained in the original mortgage, of course, continues in force; and, on redemption under that proviso, the sub-mortgagee receives the money, and deducts the debt due to him, paying the balance to the original mortgagee. (7)1) (4) Determination of Mortgages. — Redemption and Re- Modes of cenveyance. — The various ways in which a mortgagor's equity s"^™'"^* "" of redemption may be lost or extinguished have been already noticed. (■») The determination of a mortgage through re- demption of the estate by the mortgagor, and the right to a reconveyance of the estate on redemption, are here con- sidered. (0) The mortgage may be redeemed (j?) at anytime after the Redemption. (?) An exception occurs where a trustee buys up a mortgage on the estate of the cestui que trust, for less than its nominal amount ; in such case, the transferree can claim under the moitgage only the amount actually paid by him. [k) 44 & 45 Vict. c. 41, s. 27, and sched. 3. As to the statutory form of mort- gage, see ante, p. 231. {I) Re Biclmrdson, 30 Ch. D. 396, 55 L. J. Ch. 741, 63 L. T. 74tj, 34 W. E. 286. (to) See further as to sub-mortgages, 2 -pt. 2 Davidson, Conv., 138 ; Elphinstone, Coiiv., 205. (n) See ante, p. 224. (0) A mortgage may also be determined through the operation of the Statutes of Limitation. This subject is treated of hereaftei-, as a mode of transfer of estates : see pt. 3, ch. 8. (p) As to the persons who, besides the moi-tgagor, are entitled to redeem the mortgage, see ante, pp. 225, 228. Digitized by Microsoft® 248 THE LAW OF PROPERTY IN LAND. Redemption enforced by the Court ; or sale under Conveyanciug Act, 1881. day fixed by the mortgage instrument for paym6nt,(2) during the subsistence of the equity of redemption, by payment to the mortgagee of the amount due on the security. Unless the debt is paid at the time named for its payment in the mortgage instrument, the mortgagee is entitled to six months' notice before payment, or to six months' interest in lieu of notice, (r) But he is not entitled to such notice, or interest, if he sues for the debt.(s) And if he sues to recover posses- sion of the land from the mortgagor, the Court may stay the proceedings in the action, and compel a reconvey- ance of the land, on payment of the debt with interest and costs.(i) The mortgagor (1,1) may, if necessary, apply to the Court to enforce his right of redemption ; (x) and in such proceedings he may, under the Conveyancing and Law of Property Act, 1881, have an order for sale of the land, instead of redemp- tion ; or the Court may (as has been mentioned) order a sale, on the request of any person interested in the mortgage- money or in the right of redemption. (y) Where redemption is ordered, an account is directed to be taken of what is due to the mortgagee ; and it is ordered that, on payment by the mortgagor within six months after the amount due has been ascertained, the estate be reconveyed to, or otherwise re- vested in, the mortgagor, discharged from the mortgage ; but that, if the money be not paid within that time, the action be dismissed, (s) In the case of a legal mortgage, the dismissal of an action for redemption, on non-payment of the money within the appointed time, is equivalent to a foreclosure of the mortgage. («) (2) £rown V. Cole, 14 Sim. 428. (r) Sharpnellv. Slalce, 2 Eq. Gas. Abr. 603, pi. 34. (s) Letts V. Hutcldns, L. K. 13 Eq. 176 ; In re Alcock, 23 Ch. D. 372, 49 L. T. 240. (t) 15 & 16 Vict. C.76, s, 219. (u) Sie supra, note (p). (x) As to ilie Court in wliich the proceedings are to be taken, and tLe mode of proceeding, see ante, p. 244, note (x). (i/) 44 & 45 Vict. c. 41, s. 25 ; ante, p. 243. (s) See 2 pt. 1 Setoaon Decrees, 1040 ; Ballett v. Furze, 31 Cb. D. 312. {a) Coote, Mortg., 1187. This rule does not apply to an equitable mortgage by deposit of title-deeds : Marshall v. Shreicshury, L. R. 10 ,Ch. ,App. 250, 44L. J.Cb.302. Digitized by Microsoft® EIGHTS OF CEEDITOES. 249 When the amount due under the mortgage has been paid Kecoaveyance. off, or received out of the rents or profits of the land, and the mortgage is thus extinguished, the legal estate, if any, vested in the mortgagee, is held by him in trust for the mortgagor ; (6) vyho may accordingly require that it be reconveyed to him, discharged from the mortgage, (c) Where, on a mortgage of copyholds by conditional surrender, the mortgagee has not been admitted, there is no reconveyance, as the surrender is made void by entry of a memorandum of satisfaction on the court rolls. And so, in the case of an equitable mortgage, the interest of the mortgagee in the land is extinguished by the mere payment of the debt, and no re- conveyance is needed.(rf) And where a mortgage by a tenant in fee simple has been made by demise of the land to the mortgagee for a term of years, the payment of the debt extinguishes the mortgagee's interest in the land, since the term thereupon becomes a satisfied term.(c) A reconveyance of a mortgage made in the concise form Statutory re- sanctioned by the Conveyancing and Law of Property Act, '=™^^y*"'^''- 1881, may be effected by a short form of deed, expressed to be made by way of statutory reconveyance of mortgage. (/) Formerly, a mortgagee could not be compelled, on being Transfer iu paid off, to reconvey, at the request of the person redeeming, ve"anoe under to some other person ; unless, indeed, the proviso for re- Conveyancing demption contained a stipulation to that effect.(^) But the jg82' Conveyancing and Law of Property Act, 1881, as amended by the Conveyancing Act, 1882, provides that the mortgagor, or any incumbrancer, may, on redeeming, require the mort- gagee (unless he is, or has been, in possession) to assign the debt and convey the estate to any third person, notwithstand- ing any stipulation to the contrary.(A) (6) Fisher, Mortg., 962. (c) As to extinguishment of the legal estate of the mortgagee, after discharge of the mortgage, by the operation of the Statute of Limitations, see post, p. 447, note (c). {d) Fisher, Mortg., 966, 968. (e) Fislier, Mortg., 966 ; as to such mortgages, see ante, p. 230 ; and as to satistied terms, see ante, pp. 107, 108, and note (/), p. 108. (/) 44 Si. 45 Vict. u. 41, s. 29, and sched. 3. As to the statutory form of mortgage, see ante, p. 231. {g) Fisher, Mortg., 962. (A) 44 & 46 Vict. c. 41, s. 15; 45 & 46 Vict. c. 39, s. 12. See Teeoan v. Smith, 20 Oh. D. 724, 51 L. J. Ch. 621, 47 L. T. 208, 30 W. K. 716. Digitized by Microsoft® 250 THE LAW OF PROPERT\' IN LAND. Sect. II. — Eights under Equitable Charges AND Liens. Equitable Definitions. — An ' equitable charge ' may be defined as an charge. agreement, declaration, or direction, whereby real or personal estate is expressly or constructively made liable, otherwise than by way of mortgage, to the discharge of some pecuniary burden — as a debt or legacy, or the portion of a widow or child ; or is declared to be subject to a lien for securing the same.(i) Equitable lien, An ' equitable lien ' difiers from a charge, in that it is not created by express provision, but arises by mere operation of law. It may be defined as an obligation which, by force of a rule of equity, and not by express contract or direction, binds real or personal estate for the discharge of a debt or engage- ment. (Z;) As being recognised in equity only, it is to be distinguished from a legal lien, i.e., a lien which is valid by the common law, as well as in equity. A legal lien applies to chattels only, and is merely a right to retain possession of another's chattel, till money due from the latter is paid.(/) Effect of A security by way of equitable charge or lien does not charge or lien, confer on the party entitled to it the rights or remedies of a mortgagee. It gives rise to a trust, either implied or con- structive, in his favour, to the extent necessary for the realisation of the sum secured ; and it is enforceable by sale of the whole, or part, as the case may require, of the estate, under the decree or order of the Court.(fli) Instances of Instances. — An instance of an equitable charge, of common c arges. occurrence, is where debts or legacies are charged by will upon land of the testator. (91) A charge upon land is frequently (i) Fisher, Mortg., 84. (/;) Ihid. 107. An express contraci for a lien excludes such a lien as, but for the contract, might have arisen by foixe of law {ihid.). (1) 2 Spence, Eq. Jur., 19G. (m) Fisher, Mortg., 484 ; IloiJe r. Booth, 1 B. & AJ. 498; Att.-Gen. v. Sittincjbourne, cDc, liij. Co., L. E. 1 Eq. 636, 35 L. J. Ch. 318, 14 L. T. 92, 14 W'. R. 414. By the Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 34, pro- ceedings for sale and distribution of the proceeds of property subject to a lien or charge, are assigned to the Chancery Division of the High Court of Justice. The County Courts have jurisdiction where the amount of the charge or lien does not exceed £500 : 5l'& 52 "S'ict. c. 43, s. 67. (») As to which, see ante, p. 178 Digitized by Microsoft® RIGHTS OF CREDITORS. 251 created, also, as security for a debt, in lieu of a mort- gage. As an instance of an equitable lien may be mentioned tbe Instances of lien of a trustee upon the trust estate for his expenses, or other moneys properly laid out by him ; (o) or the lien of one of two joint owners of land on the whole of the land, for the cost of improvements effected by him thereon, (^j) Another instance of an equitable lien is the lien of a vendor Vendor'a lien of land, in respect of the purchase-money. The vendor of pjj."^^gg' land has a lien on the land for the whole, or any part, of the money, purchase-money remaining unpaid ; even where the land has been conveyed to the purchaser, and possession has been taken by him ; and though the vendor has, in the deed of convey- ance, acknowledged the receipt of the purchase-money. This lien binds the land, not only as against the purchaser himself, but also as against any subsequent owner, except a purchaser for value who has acquired the legal estate in the land without notice that the money was unpaid. The lien may be excluded, however, by the express terms, or manifest intention, of the contract between the parties ; and it may be discharged by the vendor taking other security in substitution for it.(^) The application of the statute known as Locke King's Act, Application of and the subsequent amending Acts, to a vendor's lien for 1'™'^^ '^•"S ^ ^ & ) _ Act to ven- unpaid purchase-money of land, may here be noticed.(7-) A dor's lien, vendor's lien having been held not to be a charge by way of mortgage, within the meaning of the principal Act,(s) the first amending Act enacted that, in the construction of that Act and the principal Act, the word mortgage should be deemed to extend to any lien for unpaid purchase-money upon lands or hereditaments purchased by a testator. This enactment was held not to extend to a lien for purchase- money on land purchased by a person who died intestate, (i!) (o) See ante, p. 194, and In re Pumfrey, 22 Ch. D. 255, 52 L. J. Ch. 228, 48 L. T. 516, 31 W. R. 195. (p) See Lahe v. Gibson, 1 Eq. Cas. Abr. 290, 1 Lead. Cas. Eq. 215. (2) As to the vendor's lien, see Mackreth v. Symmons, 15 Ves. 329 ; S.C, and notes thereto, 1 Lead. Cas. Eq. 355; and see, as 10 notice, ante, p. 200. {r) 17 & 18 Vict. 0. 113, amended by 30 & 31 Vict. c. 69, and 40 & 41 Vict. c. 34. As to these Acts, tee ante, pp. 225, 226. (s) Hood V. Hood, 8 Jur. N. S. 684. (i) Harding v. Hardinc/, L. E. 13 Eq. 493, 41 L. J. Ch. 523, 26 L. T. 656 Digitized by Microsoft® 252 THE LAW OF PROPERTY IN LAND. The later amending Act, however, expressly extends the operation of the preceding Acts to the case of a person dying intestate (after the 31st December 1877), seised, or possessed of, or entitled to, any land or hereditaments charged with a lien for unpaid purchase-money. The efEect of this legisla- tion is that, where the price of land purchased, or contracted to be purchased, has not been paid at the death of the purchaser, the purchase-money will not, as between the different persons claiming under the deceased, be payable (as it was before the Acts)(t(.) out of that part of the deceased purchaser's estate which is applicable in discharge of his debts generally,in exoneration of the purchased land ; but the person who acquires the purchaser's estate in the land, or his equit- able interest under the contract, («) either under his will or on his intestacy, will take it subject to payment of the purchase-money; unless the deceased has expressed a con- trary intention within the meaning of the Acts.(j^) Purchaser's A lien, similar to that of the vendor of land for unpaid hen for pur- ^^ purchase-money, ariscs in favour of the purchaser of land, where deposit. the contract for the sale of the land is rescinded, in respect of aay deposit or purchase-money that has been paid by him ; unless siichlien is excluded by the terms of the contract.(«) Charges or As will be seen in the next section, charges or liens, in the ''^"1 d"^bts^^' ''^^t™'® of equitable liens, have been given by statutes in respect of judgment and Crown debts. Mode of. Alienation. — Equitable charges and liens are assignable in the same way, and subject to the same rules, as other equitable interests, (a) Sect. III. — Eights in Eespect of Judgment Debts. Definition of judgment debt. Definition. — A 'judgment debt' is a sum of money ad- judged, by the sentence of a court of record, to be due to a (m) Hudson V. CooTc, L. R. 13 Etj. 417, 41 L. J. Ch. 306, 2(j L. T. 180, 20 W. E. 407. (*) See ante, p. 199. {y) In re Ooclccroft, 24 Ch. D. 94, 52 L. J. ("h. 811 ; In re Kershaw, Drake V. Kershaw, 37 Cli. 1). 674, 57 L. J. Ch. 599, 58 L. T. 512, 36 W. K. 413. {z) See notes to llada-eth v. Si/nwwns, 1 Lead. Cas. Eij. 355. (a) Fisher, Jlortg., 786; svejmt, pp. 373-375. Digitized by Microsoft® EIGHTS OF CREDITOKS. 253 person. (&) It is one of the class of debts called ' debts of record,' as being due by the evidence of courts of record, and enforceable by remedies peculiar to debts of that class, (c) At the present day, judgment debts are, practically, the only debts of record, except such as are due to the Crown under recognizances, (d) Modes of Enforcement against Land. — A judgment Remedies of creditor — -that is, a person to whom a judgment debt (e) is due^ jlt^. is entitled to different remedies for the purpose of making the debtor's interest in any land available for payment of the debt ; provided, at least, the judgment is that of a superior court;(/) or that, if it were originally a judgment of an inferior court, it has been removed into a superior court, by order of a judge of the latter court. (^) The modes of enforcing judgment debts, against land, comprise — (i.) execution under legal process ; (ii.) equitable charge or execution ; (iii.) sale of the land under order of the Chancery Division of the High Court. (A) (i.) Execution under Legal Proeess. — The process by which, Writof e%ti (h) Ab to courts of record, see 3 BI. Comm. 23 ; Bac. Abr., tit. Courts. (c) 2 Bl. Comm. 465. {d) As to recognizances, see 2 Bl. Cotnm. 341. Debts of record include, also, debts due upon the (now obsolete) securities called respectively Statutes Mer- chant, Statutes Staple, and Recognizances in the nature of Statutes Staple. The Statute Merchant and the Statute Staple were both recorded acknowledg- ments of debts ; in default of payment of which, the lands (as well as the goods) of the debtor might be seized, and held till the debt was satisfied out of the rents and profits. Such securities were originally available only for traders, but were, in effect, extended by means of the recognizance in the nature of a statute staple (under the stat. 23 Hen. 8, u. 6) to persons other than traders. (e) By the stat. 1 & 2 Vict. c. 110, s. 18, decrees and orders of courts of equity, rules of common law, and orders in matters of bankruptcy or lunacy, whereby money is payable to any person, arc to have the effect of judgments in the superior courts of common law ; and the persons to whom moneys are so pay- able are to be deemed judgment creditors within the Act. See also 27 & 28 Vict, c. 112, =. 2. (/) The superior courts of record are the House of Lords and the Courts consti- tuting the Supreme Court of Judicature ; also the Court of Chancery of the County Palatine of Lancaster, and the County Courts as regards their jurisdic- tion in bankruptcy (see Bankruptcy Act, 1883, s. 100). The inferior courts of record are the County Courts, except as regards their jurisdiction in bankruptcy. (cj) 1 & 2 Vict. c. 110, s. 22 ; 18 & 19 Vict. c. 15, s. 7 ; 51 & 52 Vict. c. 43, s. 151. (7i) As to the rights of creditors with respect to lands alienated by the debtor in fraud of creditors, see post, p. 338. Digitized by Microsoft® 254 THE LAW OF PEOPEKTY IN LAND. at law, interests in land are taken in execution, is a writ of execution called the ' writ of elegit.'ii) Process under. Under tliis writ, the sheriff delivers to the judgment creditor possession of the debtor's land, after it has been valued by a jury ; and the creditor retains possession, until the debt is satisfied out of the rents and profits of the land, as valued. By virtue of such possession, he has an interest in the land in the nature of a chattel real (called an estate by elegit) ; for on satisfaction of the debt, the debtor is entitled to resume possession of the land.(^") Before the Bankruptcy Act, 1883, the goods of the debtor were taken under the writ of elegit ; and the land was taken only if the value of the goods was in- sufficient to satisfy the debt. But, by the Act last mentioned, the writ of elegit is not to extend to goods. (Z) Extension of Originally, only a moiety of the debtor's lands could be ^deqlt by"i Si ^^^61^ under an elegit ; and copyhold lands could not be taken Vict. c. 110. at all. But this was altered by a statute of the year 1838, which made the remedy by elegit applicable to all lands, tene- ments, and hereditaments, including those of copyhold or customary tenure, which the debtor should be seised or pos- sessed of at the time of entering the judgment, or at any time afterwards, (m) Estates in ex- An estate in expectancy cannot be taken in execution by pectanoy— deciit, since there cannot be actual possession on such an estate. iiow far liable '' ' . ^ under 6%i«. A reversion on a lease for life or years at a rent, is an exception to this rule ; for the rent incident to the reversion may be taken under the writ.(w) Estates in The interest of one of several owners in community may conimunity -j^g ^^ken Under an eleqit ; and if the debtor be a joint tenant, Jiable under . . . elegit. the judgment may, since the Act of 1838 (though it could not previously), be executed after his death against the surviving co-tenant, (o) (t) So called because, by the statute 13 Edw. 1, c. 18, whicli introduced this writ, it was provided, in effect, that it should be in the election of the creditor to have a writ ol fieri facias against the debtor's goods, or the remedy afiforded by the writ in nuestion. (/c) 2 Bl. Comm. 161 ; 2 Cruise, t. 14. (I) 46 & 47 Vict. c. 52, s. 146. {m) 1 & 2 Vict. c. 110, s. 11. As to the date of entry of a judgment, see Ord. xli. Rules S. C. 1883. (n) 2 Cruise, t. 14, b. 59 ; 1 Rolle, Abr., 894. (o) 2 Cruise, t. 14, b. 73. Digitized by Microsoft® EIGHTS OF CKEDITOKS. 255 Equitable estates in land, arising under bare or simple Liability of trusts, are, under provisions of the Statute of Frauds and the ^^"g^'^g ^jj,jpj. Act of 1838, liable to execution by elegit, to the same extent elegit. as legal estates, (p) But this remedy is not available against an equity of redemption, or any equitable interest other than a simple trust in favour of the debtor.((/) Where, at the time of entering the judgment, or &fter- Liability of wards, the debtor has any power of alienation over land, &c., p^o^^f.^'^un^ei. ° which he might, without the assent of any other person, elegit. exercise for his own benefit, the land, &c., subject to the power is, by the Act of 1838, made liable to be taken in execution by elegit, for his debt.(r) It will be observed that the power need not, for this purpose, have been executed by the debtor. (s) Where a judgment debtor is a legal mortgagee of land, his Liability estate by virtue of the mortgage may be taken under an elegit; "^J^^^ 'under^ but (by a modern statute) not after the mortgage has been elegit. paid off, and the land conveyed to a purchaser. (^) Rents, and tithe rent-charge, are also subject to this mode Eents, &o.. ofexecution.^ _ _ ^^^ Formerly, land alienated by a judgment debtor after the Statutory pro- judgmBnt had been signed,(a;) continued liable to execution by pufc^^ggrg elegit, notwithstanding the alienation; except so far as pro- &c., against tection was afforded to the alienee under certain statutes, ^ebt™^" which were passed with the object of protecting purchasers and mortgagees of land, and (to some extent) other creditors having claims upon the land, against previous judgments enforceable against the land.(y) Under these enactments judgments of the three following classes, viz., (1) those entered prior to the 23rd July 1860, (2) those entered between that date and the 29th July 1864, and (3) those entered (p) 29 Gar. 2, u. 3, e. 10; 1 & 2 Vict. y,. 110, ». 11 ; 2 Cruise, t. 14, s. 68. (?) Dart, V. & P., 541 ; Dighy v. Irvine, 6 Ir. Eq. Eep. 149. As to the mode of execution against sucli interests, see post, p. 258. (r) 1 & 2 Vict. c. 110, e. 11. (s) As to the liability of land alienated by the debtor in fraud of his creditors, in the exercise of a general power of appointment, see post, p. 338. [t) Sug. V. & P. 525 ; 18 & 19 Vict. u. 15, s. 11. (m) 1 & 2 Vict. c. 110, e. 11. (x) See 29 Car. 2, c. 3, s. 15. [y) As to registration of judgments against lands in lliddlesex or Yorkshire in 01 der tc affect subsequent alienees, see post, p. 820, and note (6), ibid. Digitized by Microsoft® 256 TITE LAW OF PROPERTY IN LAND. (1) Judgments entered prior to 23rd July 1860. Land Charges Registration and Searches Act, 1888. (2) Judgments entered be- tween 23rd July 1860 and 29th July 1864. since the last-mentioned date, are subject to different pro- visions. (1) As regards any judgment entered prior to the 23rd July 1860, a purchaser, mortgagee, or creditor is not affected by the judgment, unless it has been registered in an index of judgments, kept formerly in the Court of Common Pleas and now in the Central Office of the Supreme Court, and such registration has been renewed where five years have elapsed since the original, or last preceding, registration. And not- withstanding the registration, a purchaser, or mortgagee without notice of the judgment is bound by it so far only as he would have been bound under the law prior to the Act of 1838, previously mentioned. (a) Moreover, under the Land Charges Registration and Searches Act, 1888, any writ or order issued for the purpose of enforcing such a judgment, and every delivery in execu- tion or other proceeding thereunder, will be void as against a purchaser for value (a term which, in the Act, includes a mortgagee, or lessee, or other person acquiring an interest or charge for valuable consideration), unless such writ or order is, for the time being, registered, in pursuance of the Act, in the register of writs and orders affecting land, established thereby and kept at the Office of Land Registry, or unless the pro- ceeding in which the writ or order was issued is, for the time being, registered as a lis 2xndens.(a) (2) A judgment entered between the 23rd July 1860 and the 29th July 1864 will not, though duly registered, bind a purchaser or mortgagee of the land, unless a writ or other process of execution has been issued and registered prior to the conveyance or mortgage, and has been put in force within three calendar months after its registration. (&) The above-mentioned provisions of the Land Charges Registra- (s) 1 & 2 Vict. 0. 110, s. 19 ; 2 & 3 Vict. u. 11, ss. 4, 5 ; 3 & 4 Vict. v;. 82, 6. 2 ; 18 & 19 Vict. c. 15, ss. 4, 5, 6. By 4 & 5 W. & M. c. 20, judgments were made void as against purchasers and mortgagees unless docketed or indexed, as provided by that Act ; but by the stat. 2 & 3 Vict. c. 11, these dockets were cloeed ; and judgments docketed under the Act of William and Mary were to be registered under the stat. 1 & 2 Vict. e. 110, in order to affect purchasers, mortgagees, or creditors. (o) 51 & 52 Vict. 0. 51, ss. 5, 6. The term 'judgment,' as used in this Act, does not include an order in bankruptcy (s. 4). As to registration of a Us pendens, see post, p. 312. (6) 28 & 24 Vict. c. 38, ss. 1,2; 27 & 28 Vict. c. 112, o. 3. Digitized by Microsoft® EIGHTS OF CEEDITOES. 257 tion and Searches Act, 1888, apply also to judgments of this class ; and registration of the writ or process of execu- tion under that Act renders unnecessary its registration under any earlier Act. (3) With respect to judgments entered after the 29th (3) Judgments July 1864, a statute of that year provides that the judgment 29th jlafy""^ shall not afEect any land, of whatever tenure, until the land has 1864. been actually delivered in execution by virtue of a writ oi elegit, or other lawful authority, in pursuance of the judgment.(c) The Act also requires that the writ or other process, under which the land has been delivered in execution, shall be registered, (rf) The effect of this enactment appears to be that the land of a judgment debtor cannot be taken in execution by the process of elegit, under any judgment to which the Act applies, if it has been alienated by him before the sheriff has made his return to the writ.(e) Judgments of this class are also subject to the provisions, above mentioned, of the Land Charges Registration and Searches Act, 1888, except where, at the commencement of that Act, the writ or order was registered under the Act of 1864, and the period for which it was so registered has not expired ; and registration of the writ or process of execution ander the Act of 1888 renders unnecessary its registration under the Act of 1864. (/) An estate for years, being a chattel interest, may be taken Estates for in execution, not only under a writ of elegit, but also under '^^^^^ ^1?^'? the writ of execution called fieri facias ; whereby the chattels facias as well of the debtor are seized and sold by the sheriff, for the satis- ^^ <^^S"*- faction of the debt.(^) (ii.) Equitable Charge or Execution. — By the Act of 1838, Equitable a judgment was made an equitable charge upon land or I'^&'^I^Y^t'^c hereditaments of or to which, at the time when the judgment no. was entered up, or afterwards, the debtor was seised, pos- (c) 27 & 28 Vict. c. 112, s. 1. (d) S. 3. (e) See Guest v. Cowbridge By. Co., L. K. 6 Eq. 619, 628. (/) See 51 & 52 Vict. c. 51, ss. 5, 6 ; and supra, p. 256. ( L. J. C. L. 86, 40 L. T. 760, 27 W. E. 921 ; Attorney- General v. JJitc/itll, 6 Q. B. D. 548, 50 L. J. C. L. 406, 44 L. T. 580, 29 W. E. 683. (Jc) Ss. 42, 44. The duty is payable wlien the right to the possession of the succession accrues (s. 20) ; lience the purchater of an interest expectant on the death of a person is liable for the duty, which in such case is payable by the purchaser, as between him and the vendor : 2 pt. 1 Davidson, Conv., 314. (I) S. 42. As to the incidence of the duty on a sale under the Settled Estates Act, 1877, see In re Warner's fiettled Estates, 17 Ch. D. 711, 50 L. J. Ch. 542, 45 L. T. 37, 29 W. E. 726. (»)i) Sug. V. & P. 556. But by s. 52 of the Ait a certificate fiom the Inland Digitized by Microsoft® EIGHTS OF CllEDITOKS. 263 a recent Act, land does not remain subject to this charge, as against a purchaser or mortgagee, after the expiration of twelve years from the happening of the event (whether before or after the Act) which gave rise to an immediate claim for the duty ; or if such twelve years expires within six years from the date of the passing of the Act (31st May 1889), then after the expiration of six years from that date ; or, in certain events, after the expiration of shorter periods specified in the Act.(?i) Money arising from the sale of real estate under a trust Liability of for the sale thereof, and personal estate subject to a trust g^f^^f j^^°^ for investment in land, are subject in some instances to duty and money to under the Legacy Duty Act ; (o) and, otherwise, are subject jg^^^ j^ ^^ty" to succession duty.(p) And, by a recent Act, legacies charged upon real estate, or payable out of the proceeds of sale of real estate, which were previously subject to legacy duty, are made subject to succession duty.(^) Sect. V. — Eights in Eespect of Debts of Deceased Persons. Estates and. Interests Liable. (r) — Fee Simijle. — On the Liability, death of a tenant in fee simple, the estate passes to his heir ^""^ ^f°^^ ^'^ . . mortgage, or devisee, subject to any mortgage, charge, lien, or claim in judgment, &c. respect of a judgment debt (s) or Crown debt, which may have been enforceable against it at the time of his death. EeTenue Office that the duty has been paid protects a bond fide purchase from any claim for the same : see Howe v. Lichfield, L. E. 2 Uh. 155, 36 L. J. Ch. 313, 16 L. T. 436, 15 W. K. 323. (m) 52 Vict. c. 7 (Customs and Inland Revenue Act, 1889), ss. 12, 13. (o) 36 Geo. 3, u. 52. See Be Be Lancey, L. E. 5 Ex. 102 ; De Lamey v The Queen, L. E. 7 Ex. 140, 41 L. J. Ex. 64, 26 L. T. 400, 20 W. E. 441. {p) 16 & 17 Vict. Ki. 51, ss. 29, 30. {q) 51 Vict. c. 8 (Customs and luland Eevenue Act, 1888), s. 21. [r) An interest in a rent-charge, tithe rent-charge, or right of common existmg apart Irom ownership of land, is liable fur the debts of the person in whom It is vested, on his death, to the same extent as a corresponding right of ownership, or estate, in land vested in him. As to the lights of creditors with respect to land appointed to a volunteer in exercise of a general power of appointment, or alienated in fraud of creditors, see post, pp. 338, 339. (s) As to enforcement of judgment debts against the land of the deceased, see In re SUphard, Atkins v. Shephard, 43 Ch. D. 131, 59 L. J. Ch. 819 63 L. T. 335, 38 W. E. 745 ; Ord. xlii. r. 23 (a). Digitized by Microsoft® 264 THE LAW OP PROPERTY IN LAND. Liability for unsecured debts — (1) At common law. Statute of Fraudulent Devises. (2) In equity ; equitable Charge of debts on land. At common law, an unsecured creditor had no remedy after tlie decease of his debtor, in respect of the latter's real estate, unless the debt was due on a contract under seal, expressly binding the debtor's heirs as well as himself. Upon such a contract, an action lay against the deceased debtor's heir, who was liable to the extent of the value of any estate in fee simple, in land of freehold tenure, that might have devolved on him as heir-at-law of the deceased. (m) Originally, this remedy was not available if the debtor had devised the land by will, or the heir had alienated the land. But, by a statute of William and Mary, and subsequent statutes, a devisee by will of the land was made liable to the same extent as the heir ; and an heir or devisee, who had alienated the land, was made liable, notwithstanding the alienation, to the extent of the value of the land.(a;) And, by the Conveyancing and Law of Property Act, 1881, the contract, if made after the 31st December 1881, will be binding as above, although it be not expressed to bind the contractor's heirs ; unless a contrary intention is expressed in the contract. (y) By the rules of equity, another remedy against the devisee or heir-at-law of the deceased debtor may be open to creditors ; and this remedy, where it exists, is available for creditors, as well by simple contract, as by contract under seal. If the deceased debtor has, by his will, devised the land sub- ject to a trust, either express or implied, for payment of his debts, the creditors are entitled, as cestuis que trust, to have the land sold and applied in payment of their debts. Lands thus liable in equity for the payment of debts are termed ' equit- able assets. '(«) An implied trust for payment of debts may be created by a devise of the land subject to, or charged with, such payment; or by any other expression of the testator's intention that the land shall be liable for his debts. A mere direction in the will that the testator's debts shall be paid will also be suffi- (m) 2 Bl. Coram. 243, 244. This remedy is not available against the heir or devis-ee of copyhold land : 1 AVatk. Cop. 140. (x) 3 W. & M. c. 14 (the Statute of Fraudulent Devises) ; 6 & 7 Will. 3, o. 14 ; 1 Will. 4, L-. 47 ; In re Hedcjaley, 34 Ch. D. 379, 56 L. T. 19. (!/) 44 & 45 Vict. 0. 41, s. 59. iz) Silk V. Prime, Dick. 38.'. Digitized by Microsoft® KIGHTS OF CREDITORS. 265 cient for this purpose ; unless it appear that the direction is not intended to extend to the land. (a) The implied trust created by a testamentary charge of Parohaser not debts upon land binds the heir or devisee of the testator, to charge, except whom the land passes ; but it does not bind a purchaser from of partiealar the heir or devisee, even though the purchaser have notice of the debts. As it would be difficult to sell the land subject to such a liability, the testator is presumed to have intended that the purchaser should be exempt therefrom, on paying the purchase-money to the heir or devisee. But where only particular debts, or legacies, are charged, there is no such reason for the exemption of the purchaser from liability, and he accordingly takes the land subject to the charge.(&) It will be observed that the creditor has not the equitable (3) By statute remedy above mentioned, unless the deceased has, by his will, devised the land for, or charged it with, the payment of his debts. In modern times, however, a further remedy (supple- mentary to the equitable remedy, and practically superseding the remedy at common law of creditors by contract under seal) has been provided by statute. By a statute of the year 1833 (c) it was, in effect, enacted that, on the death of a person seised of, or entitled to, any estate or interest in land, or other real estate, whether freehold or copyhold, which he had not by will charged with, or devised subject to, the payment of his debts, such land or real estate should be assets to be administered in equity for the payment of his debts, whether by simple contract or contract under seal ; and that the heir or devisee of such person should be liable to be sued in equity, accordingly, by any creditor of the deceased. (rf) A purchaser of the land from the heir or devisee is, however, {a) Lecjh v. Eari of Warrington, 1 Bro. P. G. 511 ; Sliallcross v. Finden, 3 Ves. 737; Thomas v. Britnell, 2 Ves. Sen. 313; CooJev. Dawson, 3DeG. F. &J. 127 ; In re Bailey, 12 Ch. D. 268, 48 L. J. Ch. 628; Me Tanqueray-Willaume and Landau, 20 Ch. D. 465, 51 L. J. Ch. 434, 46 L. T. 542, 30 W. E. 801. (6) Elliot V. Merryman, 1 Barn. 78; S.C., 1 Lead. Gas. Eq. 72 ; Colyer v. Finch, 5 H. L. 905 ; Corser v. Cartwright, L. E. 7 H. L. 731, 45 L. J. Ch. 605; Be Tanqueray-Willaume and Landav, supra; Sug. V. & P. 658 et seq. (c) 3 & 4 Will 4, 0. 104. A previous statute, passed in 1807 (47 Geo. III. o. 74), had made estates in fee simple of deceased traders liable for their debts by simple contract, as well as by contract under seal. (d) That the rents and profits accruing after the debtor's death iire assets, as well as the corpus, see In re Hyatt, Bowles v. Hyatt, 38 Ch. D. 609, 57 L. J. Ch. 777, 59 L. T. 297. Digitized by Microsoft® 266 THE LkW OF PEOPEKTY IN LAND. free from this liability, on his paying the purchase-money to the heir or devisee, (e) Remedies The remedy, at common law, of a creditor by contract in ex^ectanc^^ under seal, is applicable where the estate is a reversion expectant on a term of years ; but where it is an expectant estate of any other kind, he cannot sue till the estate falls into possession. But estates in expectancy are liable in equity, under a devise of lands for payment of, or charged with, debts, and also under the statute of 1833, to the same extent as estates in possession.(/) Eemedies The rule of Survivorship, applicable to estates held in joint m ^"mmunity^ tenancy, exempts such an estate from liability for debts of a deceased joint tenant ; according to the maxim jus accrescendi prcefertur oneri'bus.{g) But the interest of a deceased tenant in common, or in coparcenary, is liable for his or her debts, to the same extent as an estate held in severalty. fiemedies By the Statute of Frauds, an equitable estate in fee simple against equit- ^g^g raade subject to the claims of creditors by contract under 51 nip p^t?ltp^ seal against the heir-at-law. (/i) This enactment was held to apply only to simple trusts. But equitable interests of every kind are subject, in equity, to the debts of the deceased owner, under a devise by will for, or charged with, payment of debts; and they are also liable for his debts under the statute of 1833.(i) To what debts Estates Tail. — On the death of a tenant in tail, the estate sn jec . -g (jijargeable, as against the heir on whom it devolves, with judgment and Crown debts due from the deceased, to the same extent as an estate in fee simple ; but it is not subject to, or applicable in discharge of, debts of any other kind.(^') Not subject Estates for Life. — On the death of a tenant for life, the to debts.except estate of the succeeding owner is not liable for any debts of ^aidrTvie!' ^^^ deceased tenant. But on the death of a tenant ^?(?' autre (e) Kindtrley v. Jervis, 22 Beav. 1 ; British 3Iutual Investment Co. \ . Smart, L. R. 10 Ch. App. 567. (/) Kam on Assets, 200, 201. (g) Co. Litt. 185 a ; 2 Cruise, t. 18, c. I, ss. 55, 56. (A) 29 Car. 2, c. 3, s. 10. (J) Lewin, 827. (jfc) 1 Cruise, t. 2, c. 2, ss. 33-38. As to the effect of a mortgage by a tenant in tail, by deed enrolled, see ante, p. 225. Digitized by Microsoft® EIGHTS OF CREDITOES. 267 vie in the lifetime of the cestui que vie, the estate is liable for the debts of the tenant. If it were limited to his heir as special occupant, it is liable in the same way as an estate in fee simple ; and otherwise it is applicable in discharge of his debts, as if it were personal estate.(Z) Estates for Years. — An estate for years — unless it be deter- Subject to minable on the death of the tenant;, as an estate granted to ^"' ^s^"^"" ^' A. for ninety-nine years, if he shall so long live — continues liable, after the death of the tenant, to the enforcement of any mortgage, charge, lien, Crown debt, or judgment, to the same extent to which any such claim is enforceable against an estate in fee simple, after the death of the owner. Moreover, an estate for years is applicable, as personal estate of the deceased tenant, in discharge of his debts of all kinds. Rights of Secured Creditors. — Formerly, in the ad- Former ministration by the Court of the estate of a deceased ^'fj.'^'^j;^^ j, insolvent person, a creditor whose debt was secured by Judicature mortgage or charge of any part of the estate, was allowed *' ''■ ' " to rank with the other creditors for the full amount of his claim, and afterwards to realise his security, paying over any surplus beyond the amount of his claim. But the Judicature Act, 1875, provides that, in the administration of the estate of a person dying insolvent after the commencement of the Act, the rules applicable under the law of bankruptcy, as to the respective rights of secured and unsecured creditors, shall prevail. (m) By the bankruptcy law, unless the secured creditor gives up his security, he must have it valued, and can only rank with the other creditors for any deficiency. (m) Relative Rights of Creditors Generally. — Subject to the Secured credi- rights of secured creditors with respect to the enforcement of their securities, the debts of the deceased are payable according to the following rules : — Where the estate or interest of a person in land passes on Creditors — generally. [1) Ante, p. 73. (m) 38 & 39 Vict. c. 77, s. 10. This enactment does not affect the priority of judgment debts in the administration of legal assets : Smith v. Morgan, 5 C. V. D. 337, 49 L. 3. C. L. 410 ; Inre Maggi, 20 i\. (A) 18 & 19 Vict. c. 15, ss. 12, 14. By tliis Act several previnus statutes, under whicbi particulars of certain rent-charL^e.s were required to be enrolled in Chancery, were repealed as to fiitnre transactions. (?:) Greaves v. Tofield, 1,4 Ch. D. 563, 50 L. .J, Ch. 118. [k) Ante, pp. 272, 273. Digitized by Microsoft® 278 THE LAW OF PROPERTY IN LAND. Usual pro- referred to,(Z) it was, nevertheless, the usual practice, before seouring'rent- *^® ^^^^ 1882, to insert in an instrument creating a rent- charges, charge an express power to distrain. And, as an additional remedy, the grantee was usually empowered, in case of the rent being in arrear, to enter upon the land, and take the rents and profits in satisfaction of the arrears, whereby he acquired, upon entry, a chattel interest in the land, which continued until the arrears were satisfied, (m) Provisions of But by the Conveyancing and Law of Property Act, 1881, tlie ConTeyan- ,t • ,■ e ^ • • j_i r • • • j. cingAct 1881 ™® insertion ot such provisions as the loregomg, in mstru- hereon. ments creating rent-charges since the 31st December 1881, is rendered unnecessary. The Act gives the person entitled to the rent a power to distrain, where the rent is in arrear for twenty-one days ; and, where it is in arrear for forty days, a power to enter and hold possession of the land (with- out impeachment of waste), and receive its income, until all arrears of the rent, and the costs and expenses, are paid ; and, in the like case, a power to demise, by deed, the whole or any part of the land for a term of years, with or without impeach- ment of waste, to a trustee, on trust by mortgage, or sale, or demise, of the land or any part of it, for the whole or any part of the term, or by receipt of its income, or other reasonable means, to raise and pay the rent and all arrears thereof, and costs and expenses ; and the surplus, if any, of the money raised, or income received, is to be paid to the person for the time being entitled to the land comprised in the deed, immediately expectant on the term created thereby. These remedies, however, are given by the Act subject to all estates, interests, and rights having priority to the rent, and are avail- able so far only as such remedies might have been given by the instrument under which the rent arises, and so far as a contrary intention is not expressed therein, (w) Sale by order In addition to the foregoing remedies for the recovery of raising amars arrears of rent-charge, the Court,(o) in the exercise of its of rent-charge, jurisdiction to enforce charges upon land,(^) may direct a sale (I) Ante, p. 274. As to the remedy by distress, see supra, p. 273. (m) 3 Davidson, Conv., 314 ; Elphinstone, Conv., 333, 334, [n) 44 & 45 Vict. c. 41, s. 44. These provisions are applicable to any rent charged on land, or on the income of land ; and whether by way of rent-charge or otherwise, not being rent incident to the reversion (sub-s. 1). (o) I.e., the Chancery Division of the High Court of Justice. {p) See ante, p. 250. Digitized by Microsoft® RENTS. 279 or mortgage of land subject to a rent-cliarge, in order to raise money for payment of arrears of tlie rent. This relief will be granted, if the arrears cannot be otherwise raised; as where the possession is vacant, and the land produces no income, or an insufficient income. (j) In addition to the foregoing powers of enforcing a rent- Action at law. charge as a right of property, the person entitled to the rent may recover arrears by action at law, as a debt due to him from the person by whom the rent is payable. And though a covenant to pay the rent does not run with the land, so as to bind a subsequent owner of the land (as in the case of a similar covenant in a lease for years), (?') arrears of rent-charge may, nevertheless, be recovered by action, as a debt due from the owner of the land, whether he be the grantor of the rent, or a subsequent owner, (s) By a modern statute, provision is made for the exoneration Exoneration of the estate of a deceased person from liability for the rent deceased ° or covenants contained in any conveyance, or agreement for person, conveyance, on chief -rent or rent-charge, granted to, or made with, the deceased ; (i) similar to the provision (already mentioned) for the relief of the estate of a deceased lessee from liability for the rent and covenants of the lease, (if.) Alienation. — A person entitled to a rent-charge has the Rigtts of. same powers of alienation of the whole or part of the rent, as the owner of an estate of similar extent in land. (a.') Determination. — A rent-charge may determine, or be ex- Modes of. tinguished, in the following different ways.(y) (q') Copirjger & Munvo, 434 ; C'lipit v. Jackson, 13 Price 721 ; Horton v. Hall, L. K. 17 Eq. 437, 22 W. E.. 391 ; Kelsey v. lielsey, L. R. 17 Eq. 495, 30 L. T. 82, 22 W. K. 433 ; Scottish Widows' Fund v. Craig, 20 Ch. D. 208. [r) Piatt on Covenants, 475. (s) Thomas v. Sylvester, L. R. 8 Q. B. 368, 42 L, J. C. L. (Q. B.) 237, 21 VV. R. 912 ; In re jilackburn and District Benefit Building Society, Ex parte Graham, 42 Cli. D. 343, 38 W. R. 178 ; Searle v. Coohe, 43 Ch. D. 519, 61 L. T. 189, 37 W. R. 730. («) 22 & 23 Vict. c. 35, s. 28. (it) See ante, p. 96. {x) 3 Cruise, t. 28, c. 3, s. 28. As to alienation unjer the Settled Land Acts, see post, p. 293, note {d). (y) As to the extinguishment of rent-charges under the Statutes of Limita- tion, &ee post, p. 451. Digitized by Microsoft® 280 THE LAW OF PEOPEKTY IN" LAND. (i.) Expiration (i.) Where it has been granted for an interest of limited of interest. duration, it determines on the completion of the period of its dTiration.(^) At common law, a rent-charge granted to a person during the life of another, expired in the event of his death in the lifetime of the ceshoi que vie; unless it was limited, in that event, to his heirs, or others, as special occu- pants — rent not being a subject of common occupancy,(a) But the enactments respecting the disposition and devo- lution of an estate jntr autre vie in land, under such circum- stances, apply equally to an interest pur autre vie in a rent- charge. (&) (ii.) Deter- (ii.) The determination of the estate on which the rent is Tstate'chafged. charged necessarily extinguishes the rent, as such ; though the grantor may still remain personally liable for its pay- ment, (iii. ) Merger. (iii.) If a person entitled to a rent- charge acquires the owner- ship of the land upon which it is charged, the rent merges in the ownership of the land, and is thus extinguished. The effect is the same, though the ownership of part only of the land be acquired ; (c) unless the acquisition occurs by opera- tion of law (as by descent on intestacy), in which case the rent-charge is apportioned, (c?) (iT.) Release. (iv.) The land may be released from the rent-charge, by the person entitled to the rent. At common law, a release of any part of the land operated as a release of the whole, (e) But, by a modern statute, it is provided that a release of part of the land shall operate only to bar the right to recover any part of the rent-charge out of the land released ; without prejudice, moreover, to the rights of persons interested in the land remaining unreleased, and not concurring in or confirm- ing the release. (/) Under this statute, if the owner of an (s) As to escheat of an interest in fee simple in a rent-cliarge, see^osi, p. 467. (a) Co. Litt. 41 b ; 2 Bl. Comm.260. As to common occupancy, see ante, p. 73. (6) Bearparli v. Hutchinson, 7 Bing. 178 ; 1 Vict. i;. 26, s. 3. See ante, p. 73. (c) Litt. s. 222 ; Burton, § 1122 ; Bennett v. Pass, 1 Bing. N. C. 888. It is otherwise in the case of acquisition of part of land subject to rent-service : see supra, p. 275. But qucere whether a rent-charge would not now be apportion- able in this case, as on an implied release of part of the land under the statute 22 & 23 Vict. c. 35, s. 10. (d) Litt. s. 224; Burton, § 1121. (e) Burton, § 1123. (/) 22 & 23 Vict. c. .35, s. 10. Digitized by Microsoft® EENTS. ^^^ unreleased part of tlie land does not join in the release, his land is liable only for a proportionate part of the rent.(^) (v.) A rent-charge may be redeemed under the provisions, (y.) Redemp- mentioned above, of the Conveyancing and Law of Property Act, 1881, as these apply to rent-charges, as well as to other rents. (/(,) (fl) Booth V. Smith, 14 Q. B. D. 318, 54 L. J. C. L. 119, 51 L. T. 742, 33 W. K. 142. (A) Supra, p. 275. Digitized by Microsoft® CHAPTER IV. TITHE RENT-CHARGE, AND OTHER STATUTORY CHARGES. Similar to rent-charges. Various charges on land, chiefly of the nature of rent-charges, are created by, or depend for their validity on, the provisions of modern statutes. Of these charges, the most important is the ' tithe rent-charge,' which may be first considered. Sect. I. — Tithe Rent-charge. Tithe rent- Definition. — Tithe rent-charge is an annual sum of money, charge defined, payable by the owner of land in lieu of tithes, under the stat- utes for the commutation of tithes, and charged upon the land. Tithes at com- mon law. All tithes originally ecclesiastical property. Tithes. — Tithes, for which the tithe rent-charge has been substituted, consisted of the tenth part of the produce, animal and vegetable, of land ; as the tenth head of the young of animals, the milk of cows every tenth day, the tenth sheaf of corn, &c. Tithes of vegetable produce were called ' predial tithes ' ; while those consisting of animal produce were termed ' mixed tithes.' And, by special custom, the right might extend to the tenth part of the profits of men's labour, or ' personal tithes. '(a) Frequently, however, a composition (usually a sum of money), called a modus, was rendered, by custom or pre- scription, in lieu of tithes. (&) By the common law, tithes belonged exclusively to the parochial clergy and other spiritual corporations, constituting the Established Church of England ; being one of the sources (o) 3 Cruise, t. 22, b. 1 ; 2 Bl. Gomm. 24; Burton, §§ 1173, 1174. (6) Burton, § 1188 ; 2 Bl. Oomm. 24 et seq. Digitized by Microsoft® TITHE EENT-CHARGE, AND OTHER STATUTORY CHARGES. 283 from which their revenues were derived. Originally, the rector (or parson) of the parish was in every case the actual incumbent, and, as such, was alone entitled to the tithes rendered by his parishioners. But in course of time, ecclesias- tical benefices became, in many instances, annexed to monastic corporations, who themselves filled the ofiice of rector (which, being spiritual bodies, they were capable of holding), and thus became entitled to the tithes and other emoluments of the benefice, while they deputed the actual discharge of the rectorial duties to a priest, who acted as their deputy, or vicar, (c) The vicar usually received the small tithes ;((^) the greater tithes being reserved to the monastery.(e) On the dissolution of the monasteries in the reign of King Grants from Henry VIII., statutes were passed vesting all their posses- i^y°^e° _*" sions (including parsonages, or churches, and tithes) in the King, and confirming his grants of such possessions.(/) Many of such grants were made to laymen, and have since continued to be held, under the original grantees, as lay interests ; the persons entitled thereto being thence called Lay impropri- ' lay impropriators. '((/) Commutation of Tithes. — By the Tithe Act, 1836,(/t) as Tithe Act, amended by subsequent statutes,('i) provision was made for the commutation of the tithe of every parish into a rent- charge, and for the apportionment of the rent-charge among the different lands in each parish ; and a board of Tithe Commissioners (now incorporated with the Board of Agricul- ture) (k) was appointed for the carrying out of the commuta- tion. The amount of the rent-charge, in each year, is regu- (c) This was tlie origin of vicarages, as distinguished from rectories : Barton, § 1205. (d) Tithes were distinguished as 'great' or 'small.' Corn, hay, wood, and some other vegetable produce were gieat tithes ; small tithes comprised some other vegetable produce, and all mixed and personal tithes : Burton, § 1180. (e) 3 Cruise, t. 22, s. 54; Burton, §§ 1205-1208 ; 1 Bl. Comm. 384. (/) 27 Hen. 8, c. 28 ; 31 Hen. 8, c. 13. (g) 3 Cruise, t. 22, ss. C2, 63. (/j) 6 & 7 Will 4, c. 71. (i) 1 Viot. c. 69 ; 1 & 2 Vict. c. 64 ; 2 & 3 Vict. c. 62 ; 3 & 4 Vict. o. 15 ; 5 & 6 Vict. c. 54 ; 9 & 10 Vict. c. 73 ; 10 & 11 Vict. c. 104 ; 14 & 15 Vict. c. 53 ; 23 & 24 Vict. c. 93 ; 31 & 32 Vict. c. 89 ; 36 & 37 Vict. c. 42 ; 41 & 42 Viot. c. 42 ; 45 & 46 Vict. c. 37, ss. 9, 10 ; 54 Vict. u. 8. (ii) See post, p. 412. Digitized by Microsoft® 284 THE LAW OF PROPERTY IN LAND. lated by tlie average price of corn during the seven years ending on the 25th December then next preceding.(^) Hop Extraordinary grounds, orchards, and market gardens were, under the charge. Tithe Acts, subject to an additional, or extraordinary, charge ; (in) but by the Extraordinary Tithe Redemption Act, 1886, this charge is aboHshed, and a rent-charge, at the rate of £4< per cent, per annum on its capitalised value, is substi- tuted for it.(n) Similar to Lay Interests in Tithe Rent-charge. — Tithe rent-charge estate ir land, ,-,-^g^y ^g^g titijgg might, before the commutation) be held for lay interests similar, in extent and modes of holding, to estates in land.(o) Where a person entitled to tithe rent-charge is also owner of the land in respect of which it is payable, the rent-charge does not merge in the land, by virtue of the unity of interest,(p) but remains a separate interest ; and therefore will not pass on a grant of the land, unless expressly included in the grant. No mei'ger of in land, when hoth vested in same person. Modes of. Creation and Transfer. — Every right to tithe rent-charge, as a lay interest, has it origin, as has been seen, in a grant from the Crown. Interests in the right thus derived may, generally, be created and transferred in the same manner, and to the same extent, as estates in land.(^) How payable. Payment and Recovery. — Tithe rent-charge is payable half-yearly ; and, like other rents, it is apportionable, under the Apportionment Act, 1870,(7-) in respect of time. Sums due on account of the rent-charge, and in arrear before the passing of the Tithe Act, 1891 (26th March 1891), Remedies for recovery. (I) r> & 7 Will. 4, c. 71, ss. 57, G7. The septennial average price is puhlished annually in the London Ga::efte : 4.5 & 4G Vict. c. 37, ss. 9^ 10. (;«) 6 & 7 Will 4, c. 71, ss. 40, 42 ; 2 & 3 Vict. c. Ii2, s. 26; 3 & 4 Vict. 0. 15, s. 18 ; 36 & 37 Vict. c. 42 ; Eussell v. Tithe Comniissloneis, L. K. 6 C. P. 596, 24 L. T. 908, 19 W. R 1007 ; Walsh v. Trimmer, L. R. 2 H. L. 208. (n) 49 & 50 Vict. u. 54. (o) 6 & 7 Will. 4, u. 71, s. 71 ; 3 Cruise, t. 22, ». 67. (p) 6 & 7 Will. 4, ^. 71, ». 71 ; Chapman v. Oatcomhe, 2 Bing. N. G. 516. [q) 3 Cruise, t. 22, s. 69. A lay interest in tithes is ' land ' within the Settled Land Acts : Be Esdaile, 54 L. T. 637 ; and see cases dUipost, p. 293, note {d). (r) 33 & 34 Vict. u. 35. See ante, p. 273. Digitized by Microsoft® TITHE EENT-CHAEGE, AND OTHER STATUTORY CHARGES. 285 are recoverable, to tlie extent of two years' arrears, by distraint, in the ordinary mode, on the land in respect of which the amount due is payable, if it be twenty-one days in arrear ; and if it be in arrear for forty days, and there is no sufficient distress on the land, it is recoverable, to the same extent, by a process of execution, under which the land is held by the person entitled to the rent-charge, until the arrears and costs are satisfied.(s) But, by the Tithe Act, 1891, any sum on account of tithe rent-charge which first becomes payable after the passing of that Act, is recoverable only by order of the County Court of the district in which the land is situate, made upon the application of the person entitled to such sum ; and such order is to be executed by an officer of the court, by distraint or execution as above mentioned, if the lands are occupied by the owner thereof ; and in any other case the order is to be executed by the appointment of a receiver of the rents and profits of the land.(i) The foregoing are the only remedies for recovery of arrears of tithe rent-charge ; (i!.) except that, by the Extraordinary Tithe Redemption Act, 1886, arrears of the rent-charge by that Act substituted for the extraordinary charge, are recoverable by action.(«) Where land is in the occupation of a tenant under a lease. Payment of any tithe rent-charge which has first become payable since *1* '*''''" the passing of the Tithe Act, 1891, is, by that Act, made pay- between land able by the landlord, notwithstanding any contract between Jg^^nT him and the occupier of such land ; and any contract, made after the passing of the Act, for the payment of the tithe rent- charge by the tenant is void. ^Vhere, however, such a con- tract has been made prior to the passing of the Act, the tenant is liable, under the Act, to pay to the landlord such sum as the latter has properly paid on account of the tithe rent-charge. (y) Determination. — A lay interest in tithe rent-change may Modes of. determine, or be extinguished, in any of the following ways. (s) 6 & 7 Will. 4, c. 71, ss. 81, 82 ; 54 Vict. u. 8, a. 10. («) 54 Vict. c. 8, s. 2 ; and see s. 4. (m) 6 & 7 "Will. 4, c. 71, s. 67 ; Griffinhoofe v. Bauhuz, 4 B. & B. 230 ; Bailey v Badham, 30 Cli. D. 84, 54 L. J. Oh. 1067 ; 54 Vict. c. 8, s. 2 (1). {x) 49 & 50 Vict. c. 54, s. 4 (5). {y) 54 Vict. c. 8, s. 1. Digitized by Microsoft® 286 THE LAW OF PKOPEETY IN LAND. (ii.) Merger. (iii.) Bedemp' tioD. (i.) Expiration (i.) Wliere the interest is one of limited duration (as for dufatio°n °^ ^^^® ^^ ^°^ years), it determines on the completion of the period of its duration, (s) (ii.) A person entitled to tithe rent-charge in fee simple, or fee tail, in possession, or who is tenant for life of tithe rent- charge and of land subject thereto (both being settled to the same uses), may, by deed or declaration under his hand and seal, with the approval of the Board of Agriculture, cause the rent-charge to merge in the land. (a) (iii.) Tithe rent-charge may be redeemed in certain cases. By a recent statute, it is to be redeemed where the land is taken for certain public purposes ; and it may be re- deemed upon the application of the owner of the land, or of the person entitled to the rent-charge, where it does not exceed twenty shillings, or where the land has been divided into numerous plots ; and upon the joint application of both parties, where the rent-charge exceeds twenty shillings.(5) By the Extraordinary Tithe Eedemption Act, 1886, an extra- ordinary tithe rent-charge, or the charge substituted for it by that Act, may be redeemed by payment of the capital value of the charge.(c) By the Tithe Act, 1891, where the tithe rent-charge for a period of twelve months exceeds two-thirds of the annual value of the land in respect of which it is payable, the County Court may order the remission of so much of a sum claimed on account of the tithe rent-charge as is equal to the excess. (c?) Eemission of tithe rent- charge. Sect. II. — Other Statutory Charges. The following are the principal instances of charges under this head. Such charges arise, however, in various other cases. ((') (z) As to escheat of an interest in fee simple in tithe rent-charge, see post, p. 467. As to its extinguishment under Statutes of Limitation, see post, p. 449. (a) 6 & 7 Will. 4, c. 71, s. 71 ; 1 & 2 Vict. c. 64, ss. 1, 2, 4 ; 2 & 3 Vict. o. 62, ss. 1-6; and see post, pp. 412, 413. (b) 41 & 42 Vict. c. 42. For the earlier provisions as to redemption, see 9 & 10 Vict. c. 73, and 23 & 24 Vict. u. 93. (c) 49 & 50 Vict. u. 54, =. 5. {d) 54 Vict. c. 8, s. 8 (1). (e) For a list of these charges, seeEIphinstone& Clark on Searches, ch. 9, And Digitized by Microsoft® TITHE RENT-CHAEGE, AND OTHER STATUTORY CHARGES. 287 Charges under Improvement of Land Act, 1864. — Money raised Money raised by tenants for life for effecting improvements, meats secured under the Improvement of Land Act, 1864, is thereby (as has by- been mentioned) made a charge upon the land, repayable with interest by instalments. Such a charge is of the nature of rent-charge, and is recoverable by the same means as tithe rent-charge. It has priority over mortgages and incum- brances affecting the land, with the exception of charges incident to tenure, tithe rent-charge, or prior charges of money for improvement of the land. It is personal estate, and is assignable. (/) Charges under Copyhold Acts. — Under the Copyhold Compensation Act, 1887, as has been seen, the compensation for enfranchise- ^^^ ''^^ ^^' ment of copyholds is, in general, a rent-charge on the land.((/) secured by. Such rent-charge is recoverable by the remedies given by the Conveyancing and Law of Property Act, 1881, for the recovery of rent-charges generally, and has priority over other incum- brances, except tithe rent-charge, &c. It is redeemable by the owner of the land ; and if the owner, after giving notice of his intention to redeem, fail to do so, the redemption-monoy is recoverable by the person entitled thereto, by the exercise of any of the powers given to a mortgagee by the Convey- ancing and Law of Property Act, 1881. (A) And, as has been seen, the Act also authorizes charges of the enfranchised land with compensation-money or expenses paid for enfranchise- ment, and charges of certain land or rents with the lord's expenses. Such charges are to be made by way of mortgage, with, and subject to, the powers and provisions of the Convey- ancing and Law of Property Act, 1881.(t) Charges under the Agricultural Holdings (England) Costs of im- Act, 1883. — Under this Act, as has been seen, a landlord may pra^ements ' ^ ' ./ secured by. be entitled to a charge upon land, for improvements effected thereon. The amount secured by such charge is repayable, see the Housing of the Working Classes Act, 1890 (a3 & 54 Vict. c. 70), ss. 36, 37, as to charges under that Act. (/) 27 & 28 Vict. c. 114, ss. 59-65. See ante, p. 70, Siuipost, p. 413. ig) See ante, p. 86. (h) 50 & 51 Vict. c. 73, ss. 16-18. (i) Ss. 23, 24. See ante, p. 36. Digitized by Microsoft® 1888. 288 THE LAW OF I'EOPKRTY IN LAND. with such interest, and by such instalments, and the charge is to be given effect to in such manner, as the Court, by the order of which the charge is created, thinks &t.(Jc) Eent-cbarge Charge for Redeemed Land-tax. — Under the earlier secure y. statutes relating to the redemption of land-tax, a person may be entitled to the land-tax chargeable upon land, and which has been redeemed under those Acts, as a rent-charge thereon. (Z) Under Land Registration of Land Charges. — By the Land Charges ^,^j[ff^^^S^'" Kegistration and Searches Act, 1888, it is provided that a Searches Act, ' land charge ' — a term which, as defined in the Act, applies to the various statutory charges above referred to — created after the commencement of the Act (1st January 1889) shall be void as against a purchaser for value (m) of the land charged therewith, unless and until such land charge is registered in a register of land charges established by the Act, and kept at the Office of Land Eegistry ; and that, after the expiration of one year from the first assignment inter vivos after the commence- ment of the Act, of a land charge created before that time, the person entitled thereto shall not be able to recover the same, or any part of it, as against a purchaser for value of the land charged therewith, unless such land charge is registered as above mentioned. (71) (Ic) 46 & 47 Vict. u. 61, ss. 29-32. See ante, pp. 91, 92. As to the mode of creation of such charges, see post, p. 411. (1) See Bourdin, Land Tax, 66-82 (3rd ed.). (m) As to the meaning of purchaser for value in this Act, see ante, p. 256. (n) 51 & 52 Vict. c. 51, ss. 10, 12, 13. Digitized by Microsoft® CHAPTER V. RIGHTS OF COMMON". Definition.- — 'Common,' or 'right of common,' is the name Right of com- given to the right that a person may have of taking some part of the natural produce or substance of another's land, or of taking game thereon, or of fishing in another's waters. The right is also called & profit a i^rendrc.ict) Varieties of Common. — Rights of common comprise — ' com- Different men of pasture,' the right of feeding beasts on another's land (the most usual of these rights) ; 'common of turbary,' the right of cutting turf on another's land ; ' common of estovers,' the right of cutting wood on another's land, for domestic and agricultural purposes ;(&) 'common of piscary,' the right of fishing in another's waters ; (c) ' common of faldage,' the right of folding sheep on another's land ;(cZ) to which may be added the right of digging for coals or other minerals, gravel, sand, &c., in another's land, when not accompanied by any right of ownership in the land itself ;(e) and the right of preserving, taking, and destroying game on another's land.(/) (a) 2 Bl. Coram. 32 ; Burton, § 1132. As to the application of the term 'servitudes' to rights of common, seejposi, p. 297. (6) As to the term ' estovers,' see ante, p. 67. (c) This right is to be distinguished from the rights of 'free fishery' and •^eeveral iishery.' As to free fishery, see ante, p. 15. A several fishery is an exclusive right of fishing in a given place, either with or without the ownership of the soil : Co. Litt. 4 b, 122 a ; Malcomson v. O'Dea, 10 H. L. Cas. 593, 610. See Mayor of Saltasli v. Goldman, 5 C. P. D. 431, 7 Q. B. D. 106, 7 App. Cas. 683, 43 L. T. 464 ; DuJce of Northumberland v. Houghton, L. E. 5 Ex. 127 ; Neill V. Duke of Devonshire, 8 App. Cas. 135. (d) See Robinson v. Duleep Slncjh, 11 Gh. D. 798, 48 L. J. Ch. 758, 39 L. T. 313, 27W. E. 21. (e) Go. Litt. 122 a; 2 Bl. Gomm. 34 ; Elton, Commons, 108; Burton, § 1156. (/) Burton, § 1157 ; Hall on Profits a prendre, ch. 21, and cases there cited ; T Digitized by Microsoft® 290 THE LAW OF PROPERTY IN LAND. Maybe annexed to ownership of land ; or in gross. Modes of. Common appendant. Common appurtenant. Grant. A right of common over land may exist either as an appen- dage to the ownership of other land, or as a merely personal right ; that is, independently of the ownership of any land. A right of common annexed to the ownership of land is called either ' common appendant,' or ' common appurtenant,' ac- cording to the mode in which the right arises or is acquired. A merely personal right of common is called ' common in gross.' Creation. — Gonmwn Appendant. — Rights of common of one description only, namely, common of pasture, may be annexed to the ownership of land, as the result of a rule of law merely ; that is, independently of any act of a person to which the acquisition of the right may be referred. It is to rights of common thus annexed to land that the term ' appendant ' is applied. (^) The tenants of manorial freeholds, i.e., lands of freehold tenure held of a lord of a manor, have, as appendant to their lands, the right of depasturing on the wastes of the manor (/i) such of their cattle as are necessary for the plough- ing or manuring of their lands, viz., horses, kine, and sheep — which are hence called ' commonable beasts. '(i) This right, therefore, is appendant only to arable land ; though it may be claimed, by usage, in respect of land partly built upon or con- verted into pasture — it being presumed, in such case, that all the land was originally arable. (^) Common Appurtenant. — A right of common of any descrip- tion may be acquired, as appurtenant to land, either by ex- press grant, or by prescription, or, in certain cases, by local custom. A right of common over land may be granted (V) for an interest similar in duration to an estate in fee simple or any less estate ; and where the grant is made to the owner of land in such terms as to show that it is to be enjoyed by the owners and see Duhe of Somerset v. Fogwell, 5 B. & C. 875 ; Bird v. Higginson, 2 A. & E. 696, 6 A. & E. 824. (gr) Elton, Commons, 14, 21, 22. (h) See ante, p. 27. (i) Co. Litt. 122 a; 2 Bl. Comm. 33; Burton, § 1133; TyrringhairCs case, Rep. pt. 4, 36 a ; Tudor R. P. Cas. 120 ; Bennett v. £eeve, Willes 227. (k) Roll. Abr. 397, E, 28, 29; Tyrringham' s case, supra ; Bacon, Abr. , Commons. (I) As to the form of the grant, see post, p. 345. Digitized by Microsoft® EIGHTS OF COMMON. 291 and occupiers for the time being of sucli land, it will be ap- purtenant thereto. Prescription, or acquisition by long usage, is considered Prescription, hereafter, in treating of the transfer of rights of property.(m) Rights of common may be appurtenant to copyhold lands Custom, by special custom, and thus be enjoyed by all the copyhold tenants within the manor, (w) So, the freehold tenants of Manorial , T . . . T . .1 1 ii tenants. two adjoining manors may, by immemorial usage, have the right of letting their cattle range over the wastes of both manors. This is called common pur cause de vicinage, ' by Common pur reason of vicinage.' It is limited, as regards the tenants of^jg^,j^(og each manor, to the number of cattle their own waste will maintain ; and it may be put an end to by the inclosure of either waste, (o) Another right, resembling the last, but Common of sometimes distinguished as ' common of shack,' is the right, which exists in some places, of the different owners of plots of arable land lying together and forming one field, to put their cattle, after harvest, to feed promiscuously in that field. It is limited, as regards each owner, to the number of cattle his own plot would support. (j)) With the exception of rights of common enjoyed by the No common by copyhold tenants of a manor, and such rights as common of ^^■^^J. ^ases. shack, a right of common cannot be claimed by virtue merely of a local custom. For this reason, a class of persons not in- corporated (as the inhabitants of a parish) cannot be entitled to a right of common merely as members of the class, unless the right has been conferred upon them by grant from the Crown, or by Act of Parliament. (2) Common of pasture appurtenant may be claimed in respect Extent of of any land, whether arable or not,(7') and may extend to pasture appurtenant. (m) See post, pt. 3, ch. 8, s. 2. (m) Elton, Commons, 7, &c. (0) 2 Bl. Comm. 33 ; Elton, Commons, 70 ; Williams on Commons, 183 ; Jones V. Eohin, 10 Q. B. 581 ; Commissioners of Sewers v. Glasse, L. E. 19 Eq. 134. (p) Elton, Commons, 30 ; Williams on Commons, 68 ; Sir Ililes Corhefs case, Eep. pt. 7,5a; Olieeseman v. Hardham, 1 B. & Aid. 706. ((/) Elton, Commons, 5, 7 ; GatewarcVs case, Eep. pt. 6, 59 b ; Baylis v. Tyssen Amhurst, 6 Cb. D. 500, 46 L. J. Ch. 718, 37 L. T. 493; Willitigaie v. Mait- land, L. E. 3 Eq. 103, 36 L. J. Ch. 64, 15 W. R. 83 ; Ohilion v. Corporation of Lotidon, 7 Ch. D. 735, 47 L. J. Ch. 433, 38 L. T. 498, 26 W. E. 474; Lord Elvers V. Adams, 3 Ex. D. 361, 48 L. J. C. L. 47, 39 L. T. 39 ; Tilbury v. Siha, 45 Ch. D. 98, 63 L. T. 141. (r) Sacheeerill v. Porter, Cro. Car. 482. Digitized by Microsoft® 292 THE LAW OF PEOPBETY TN LAHD. beasts tliat are not strictly commonable, as swine, goats, and geese, (s) It is restricted by law, however (in the absence of any usage or grant to the contrary), to cattle levant and cotichant on the land to which the common is annexed ; that is, to such number as the land can maintain by its produce through the winter or season in which they are excluded from the benefit of the common.(^) An unlimited right of com- mon (called common scms nombre, or 'without stint') cannot be claimed as appurtenant to land — unless, perhaps, by express grant.(tt) Common in Common in Gross. — A right of common of any description gross. Grant jj^^y \^q acquired as common in gross, either by express grant, or prescription. ■' '■ . . i / x ^ x o ; or by prescription at common law.(a;) Extent of. Use and Enjoyment. — A person entitled to a right of com- mon may remove fences or other obstructions, which prevent the enjoyment of the righ.t.{y) But he may not meddle with the soil, where (as in common of pasture) he has no interest in it ; and therefore, unless authorized by custom, he may not make a ditch on the land to let off the water, or destroy or drive oft' rabbits, or fill up their burrows.(£) Lord may Jeal Since the wastes of a manor belong to the lord of the manor, ^ b^ Tt'^ subject to the commoners' rights, the lord may, in general, commoners' do any acts of Ownership thereon, not destructive of those rights. rights.(«) Modes of. Alienation. — On an alienation of land, whether inter vivos or by will, all commons appendant or appurtenant to it will pass with it, although they be not referred to in the instrument of transfer, either expressly, or in general terms — that is, as (s) Co. Litt. 122 a ; Burton, § 1135. (*) Burton, §§ 1135-1137 ; ScJioles v. Margreaves, 5 T. E. 46. (m) Benson^. Chester, 8 T. E. 396; Burton, §§ 1138, 1139. (x) Elton, Commons, 15, 77 ; Williams on Commons, 184. But common in gross cannot be acquired under the Prescription Act (2 & 8 Will. 4, c. 71). See Slmttlemorth v. Le Fleming, 19 G. B. N. S. 687. {y) Arlett v. Bllis, 7 B. & C. 346 ; 3 Cruise, t. 23, s. 58. (2) 3 Cruise, t. 23, ss. 54, 55 ; and see 43 & 44 A''ict. c. 47, =. 1 (2) (Ground Game Act, 1880). (a) 3 Cruise, t. 23, s. 47 ; Lascelles v. Onslow, 2 Q. B. D. 433, 46 L. J. L 333, 36 L. T. 459, 25 W. E. 496 ; ffall v. JBgron, 4 Ch. D. 667 ; Robertson v Hartopp, 43 Ch. D. 484, 59 L. J. Ch. 553, 62 L. T. 585. Digitized by Microsoft® KIGHTS OF COMMON". 293 appurtenances to the land.(6) And on an alienation of part of the land, such rights of common may be apportioned be- tween the different parts.(c) Common appendant cannot be alienated separately from the land to which it is annexed ; nor can common appurtenant, unless it be common of pasture for a fixed number of beasts. But rights of common in gross are in all cases alienable, to the same extent as estates in land.(c^) Formerly, on an alienation inter vivos of land, the descrip- ' General tion of the land in the instrument of conveyance was usually IlL^^^^ """" followed by ' general words ' ; these being a comprehensive enumeration of the various rights that were, or might be, annexed to, or enjoyed with, the ownership of the land. These words were introduced into the conveyance, chiefly with the object of transferring such rights or advantages as were, in fact, enjoyed with the land, in the character of rights of common or other accessory rights, but which were not, strictly, appendant or appurtenant to the land, and therefore would not pass with it unless expressly transferred.(e) Thus, if land were expressed to be granted together with the rights of common ' used or enjoyed ' with the land, these words would revive, and pass to the grantee of the land, a right of common that had been extinguished by unity of ownership of the land granted with the land over which the right of common had existed (/) — a right which would not have passed by a mere grant of the land.((/) By the Conveyancing and Law of Property Act, 1881, Conveyanoing 1 r 1 J 1 -ij- n Act, 188], as however, a conveyance of land, buildmgs, or a manor, made ^^ General after the 31st of December 1881, is deemed to include, and ■words. (5) 2 Roll. Abr. 60. (c) TyrringhairCs case, Rep. pt. 4, 36, Tudor R. P. Cas. 120 ; Wild's case, Kep. pt. 8, 78 b ; Williams on Commons, 183. (d) See Cooke on Inclosures, 54 ; Elton, Commons, 128. Eights of common, &o., are 'land' within the Settled Land Acts, 1882 to 1890 ; see Act of 1882, s. 2, sub-s. 10. But the Acts do not authorize the sale of any interest which, when vested in a tenant in fee simple, is inalienable : Re Rivett-Carnac's Will, 30 Ch. D. 136, 54 L. J. Gh. 1074, 53 L. T. 81, 33 W. R. 837 ; Re Earl of Ayhsford's Settled Estates, 32 Ch. D. 162, 55 L. J. Ch. 523, 54 L. T. 414, 34 W. K. 410. (e) See authorities referred to post, p. 304, note {p). (f) As to extinguishment of a right of common in this way, see infra, p. 294. (o) Elton, Commons, 125, 126 ; Bradshaw v. Eyre, Cro. Eliz. 570 ; Clements V. Lambert, 1 Taunt. 205. Digitized by Microsoft® 294 THE LAW OF PEOPERTY IN LAXU. operates to convey, tlie various rights usually comprised in the general words, so far as a contrary intention is not expressed in the conveyance, and subject to its terms. (A) The general words, therefore, are not now usually inserted in such conveyances. Modes of. (i.) Expiration of period of duration. (ii.) Unity of ownership. (iii. ) Release. (iv.) Enfran- chisement. (v.) Disuse. Determination. — Eights of common determine, or are extinguished, in various ways, of which the following are the most important. (i.) A right of common, granted for an interest of limited duration, expires on the completion of the period of its duration, according to the rules applicable, in this respect, to an estate of corresponding extent in land.(i) (ii.) Unity of ownership of land to which a right of common is annexed, with the land subject to the right, extinguishes the right of common ; provided the estates in both lands are equal in extent, and the unity of ownership occurs through purchase or other act of a party, and not by operation of law merely. But if one of the tenants of a manor purchases a part only of land over which he has a right of common appendant, his right over the rest will continue ; though, on a purchase of a part of land subject to common appurtenant, or in gross, the right is entirely extinguished.(A;) (iii.) A right of common may be released to the owner of the land subject to the right ; and a release of part of the land operates as a release of the whole. (?) (iv.) Customary rights of common, annexed to land of copyhold tenure, are lost by enfranchisement, at common law, of the copyhold ; though not by enfranchisement under the OoiDyhold Acts.(7)i) (v.) Disuse of a right of common, if it show an intention to abandon the right — as where land, to which common of pasture is appendant or appi^rtenant, is converted into building ground and covered with houses — will extinguish the {h) 44&45Vii;t. C.41, s. 6. (j) See as to escheat, j'ost, p. 467. (7c) Tyrringhara's ease, supra ; Elton, Commons, 120, 123, 127 ; Burton, 1142. (Z) Elton, Commons, 129 ; Burton, § 1142. (m) See ante, p. 37. Digitized by Microsoft® EiaHTS OF COMMON. 295 right. But a merely temporary disuse will not have this effect, (w) (vi.) A right of common over waste of a manor may be lost (vi.) Eacroaoh- through an encroachment on the waste ; it being provided by ™^" ' statute, that a person who has taken part of waste land (though he have no original title to it), and has held it for twenty years, thereby acquires an absolute title to it, so as to extinguish all rights of common over it;(o) and encroach- ments made by a lessee of land are presumed, if they adjoin the land, to be made for the benefit of his landlord. (p) (vii.) An inclosure, legally made, of land subject to any (vii.) Inclo- right of common, extinguishes the right, as regards the land ^""^''" inclosed. By a statute of Henry III. (called the Statute of Merton), Inclosure— by and subsequent statutes,(2') the lord of a manor, or other bT^™Jgg'^*JJit owner of the waste land of a manor, is entitled to ' approve,' .ind under i.e., inclose, such part of the waste as he thinks fit, as against ^''^™*^^- persons having rights of common of pasture appendant or appurtenant (though not as against persons having common of pasture in gross) over the waste ; provided he leave sufficient for the due exercise of their rights of common. (r) And independently of these enactments, inclosures may be made by agreement between the owner of land and all persons having rights of common over it ; or under the provisions of other statutes, passed for facilitating the inclosure of waste lands. Of the statutes on this subject now in force, (s) the most inclosure Acts, important are the Inclosure Act, 1845, (<) and subsequent («) Moore v. Eawson, 3 B. &C. 332 ; Elton, Commons, 130-137, 144 et seq. ; cf. Carr v. Lambert, L. R. 1 Ex. 168, 35 L. J. C. L. (Ex.) 121, 14 L. T. 255, 14W. R. 405; Warrick v. Queen's College, Oxford, L. R. 10 Eq. 105, 6 Ch. App. 716, 25 L. T. 254, 19 W. R. 1098. (o) 6 & 7 Will. 4, c. 115, ss. 19, 20; 8 & 9 Vict. c. 118, ss. 50-52; 10 & 11 Viot. u. Ill, s. 3 ; 15 & 16 Vict. c. 79, s. 13. Ip) Doe d. Lewis v. liees, 6 Car. & P. 610 ; Doe d. Dunraven v. Williams, 7 Car. & P. 332 ; Earl of Lisburne v. Davies, L. R. 1 C. P. 259, 35 L. J. C. L. (C. P.) 193, 13 L. T. 795, 14 W. R. 333. {q) 20 Hen. 3, u. 4 ; 13 Edw. 1, »;. 46 ; 3 & 4 Edw. 6, u. 3. (r) As to approvement generally, see Elton, ch. 10. By stat. 39 & 40 Vict. 0. 66 (the Commons Act, 1876), s. 31, three months' notice of intention to make an approvement is to be published in newspapers. (s) As to the Inclosure Acts prior to the Act of 1845, see Elton, Commons, ch. 9. («) 8 & 9 Vict. u. 118. Digitized by Microsoft® 296 THE LAW OF PKOPERTY IN LAND. Title aurl tenure of in- closed land. Inclosure of common fields. statutes amending that Act.(i6) Under these Acts, the Board of Agriculture (a;) may, on the application of one-third in value of the persons interested,(2/) hold a local inquiry into the expediency of inclosing any land subject to rights of common ; and, with the consent of two-thirds in value of the persons interested, and of the lord of the manor (if the land be waste of a manor), may make an inclosure order allotting the land among the parties entitled, and report to Parliament on the expediency of making the inclosure ; and thereupon an Act may be passed authorizing the inclosure (several local inclosures being, if deemed expedient, included in one Act), and the allotment and inclosure of the lands take place accordingly, under the superintendence of the Board.(2) Lands allotted under Inclosure Acts become subject to the same title and tenure as the lands in respect of which the allotment is made; (ft) but with the consent of the party entitled and the lord of the manor, land allotted in respect of copyhold land may be declared to be of freehold tenure. (&) Provision has also been made, by modern statutes, for the inclosure of lands held in common fields, whereby each of the owners may acquire a portion of the land in severalty, freed from all rights of common of the other owners. (c) (w) 9 & 10 Vict. c. 70; 10 & 11 Vict. c. Ill ; 11 & 12 Vict. c. 99 ; 12 & 13 Viof. C-. 83 ; 14 & 15 Viot. c. 53 ; 15 & 16 Vict. o. 79 ; 17 & 18 Vict. c. 97 ; 20 & 21 Vict. c. 31 ; 22 & 23 Vict. c. 43 ; 31 & 32 Vict. c. 89 ; and 39 & 40 Vict, c. 56. The last-mentioned Act also contains provisions for the regulation and improvement of nninclosed commons, and special provisions as to suburban cpmmons, i.e., such as are within six miles of tovi'ns having not less than si.x thousand inhabitants. The foregoing Acts do not apply to Metropolitan commons, i.e., such as are situate within the Metropolitan Police District, which are subject to special regulations under the 29 & 30 Vict. c. 122, and subsequent Acts. (x) Seejiosi, p. 412, (//) As to who are deemed persons interested, see 8 & 9 Vict. c. 118, s. 16. {z) See Cooke on Inclosures, 83-89. (a) Sug. V. & P. 372. (6) 10 & 11 Vict. u. Ill, ». 6. (c) 4 & 5 Will. 4, .. 30 ; 6 & 7 Will. 4, c. 115 ; 3 & 4 Vict. o. 31 ; S & 9 Vict, c. 118 ; 9 & 10 Vict. c. 70 ; 10 & 11 Vict. c. Ill ; 11 & 12 Vict. c. 99 ; 12 & 13 Vict. c. 83; 15 & 16 Vict. 0. 79; 17 & 18 Viot. u. 97 ; 2u &21 Vict. u. 31. Digitized by Microsoft® CHAPTER VI. EASEMENTS. Definition. — An ' easement ' may be defined as a riglit of Easement property enjoyed by a person as accessory to the ownership • of land, and for its convenience, in or over the land of another person, by reason whereof the latter is bound to permit some definite use of his land (not involving a partici- pation in the soil or its produce), or to refrain from some particular use of it. (a) Basements resemble rights of common appendant and ap- Servitudes purtenant, in that they are annexed to the ownership of land )^g^"g ®^^^" for its benefit. They are, therefore, sometimes classed with such rights of common, under the name of ' servitudes ' ; a term borrowed from the Roman law, in which both kinds of rights formed a single class of rights of property. (6) In general, however, easements are regarded in English law as a class of rights distinct from rights of common ; the chief ground of distinction being, that the former are not, as the latter are,(c) rights of participation in the soil or produce of la,nd.(d) Instances. — Easements include the following rights : — Instances of rights of way (whether footpaths or carriage roads) over the easements, lands of others ; a right to use water flowing in a defined channel through another's land, or to obstruct the flow of such water, or to pollute it ; a right to draw water from a well on another's land ; a right to discharge a stream of water, or drainage, through land, or to discharge rain water (a) (7/. Goddard, 2. (b) Gale, 1 ; Inst. Just. ii. 3. (c) See preceding chapter. (d) Gale, 8. Digitized by Microsoft® 298 THE LAW OF PROPERTY IN LAND. upon land, from a spout, or projecting eaves ; a right to prevent the obstruction of access of light to a building, by- erections on neighbouring land; a right of support for buildings by neighbouring soil, or buildings ; a right to carry on an offensive trade. The foregoing are the principal instances of easements ; though others are recognised by law.(e) Eights of this class, however, are limited in number ; and rights restricting the use or enjoyment of land in other ways (as by preventing the owner from erecting build- ings that interrupt the passage of air,(/) or obstruct a pro- spect), (^) cannot be acquired as easements. (7i) Not annexed to ownership of land. Licence. May be annexed to ownership of land. Rights resembling Easements distinguished. — Easements in Gross. — These are rights similar in extent to easements, but not enjoyed as accessory to the ownership of land. An easement in gross, moreover, is not a right of property in the land in or over which it is enjoyed. (*) The right exists merely as the result of a licence, or permission, to do on a person's land an act that, without such authority, would be a trespass — as, a licence given to a person to use a path over another's land ; and it differs from an easement, in that it is not alienable, and may be determined at any time, by revo- cation of the licence. (A) Bights lender Restrictive Covenants. — As has been seen, a restriction on the use of land may be created by a restrictive covenant entered into by its owner ; and such a restriction may be imposed for the benefit of land belonging to the covenantee. (^) The burden imposed by such a covenant (e) See Gale on Easements, 19-22, where a list of the chief easements will be found ; Dalton v. Angus, 6 App. Cas. 740, 50 L. J. C. L. 689, 44 L. T. 844 ; Lemaitre v. Davis, 19 Ch. D. 281 ; Moody v. Steggles, 12 Ch. D. 261, 48 L. J. Ch. 639, 41 L. T. 25 ; Bass v. Gregory, 25 Q. B. t). 481 (right to passage of air through a defined channel). (/) Wehh v. Bird, 10 C. B. N. S. 268 ; Bryant v. Lefever, 4 C. P. D. 172, 48 L. J. C. L. 380, 40 L. T. 579, 27 W, E. 592; 'Harris v. Be Pinna, 33 Ch. D. 238, 54 L. T. 38 ; cf. Bass v. Gregory, supra. (g) Aldred'scase,'Rei>. pt. 9, 58 a; Attorney- General v. Douglity, 2 Ves. Sen. 453. (7j) Keppell v. Bailey, 2 My. &K. 517, 535 ; Aclroyd v. Smith, 10 C. B. 164 ; Sill V. I'upper, 2 H. & C. 121 ; Goddard, 105, 106. (i) Ackroyd v. Smith, 10 C. B. 164 ; Thorpe v. Brumfitt, L. E. 8 Oh. 650. (i) Wood V. Leadbitter, 13 M. & W. 838 ; Ackroyd v. Smitli, supra; Gale, 11; Goddard, 505. (Z) See ante, p. 52. Digitized by Microsoft® EASEMENTS. 299 differs from an easement in that the right to enforce the covenant is not a right of property affecting the ownership of the covenantor's land at law, as well as in equity, and whether the owner of the land has notice of it or not, but is merely an equitable right enforceable against the covenantor and subsequent owners of the land who acquire it with notice of the right, or by voluntary conveyance.(m) Incidents of Otunersliip. — Rights to which the owner of Exist by land is entitled, merely by virtue of, and as incident to, his ^^"^3^; ownership, as against the owner or owners of neighbouring land, are to be distinguished from easements. Such rights — which, as opposed to easements, are sometimes called ' natural rights of property ' — arise from the duty, to which all persons are subject, of abstaining, in the exercise of their rights, from interference with the rights of others. The right to the support of the surface of land, by adjacent or subjacent land belonging to a different owner ; and the right of the owner of land, through which a stream flows in a natural course, to use the water in any way — provided he does not prejudicially affect the similar rights of other riparian owners — are instances of such rights of property.(w) Puhlic Rights. — Easements are rights enjoyed by particular Easements dis- persons, and, as such, are to be distinguished from public J'"^'^' rights of a similar kind ; as the right of the public generally to use highways (whether carriage roads or footways), navi- gable rivers, &c. ; (0) or the right of the inhabitants of a certain parish to use, by virtue of custom, a footpath over a particular field, (p) Meanings of Terms. — Lands, as the subjects of an ease- 'Dominant ment, are commonly termed the ' dominant tenement,' and . g°^™^"!' the ' servient tenement.' The dominant tenement is the tenement.' land to the ownership of which the easement is annexed ; and the servient tenement is the land on which the burden of the easement is imposed. (m) See per Mellish, L. J., in Leech v. Schioeder, L. E. 9 Ch. App. 463, 474^5, 43 L. J. Ch. 487,22 W. E. 633. As to acquisition with notice, or by voluntary conveyance, see ante, pp. 200, 201. (n) See Goddard, 2 ; ante, p. 2. (0) Goddard, 96, 97; BoiirJce v. Davis, 44 Ch. D. 110, 62 L. T. 34, 38 W. E. 167. [p) Goddard, 24. Digitized by Microsoft® 300 THE LAW OF PEOPEETY IN LAND. Easements— An easement is said to be ' affirmative ' when it entitles 'affirmative,' ^he owner of the dominant tenement to do some act upon or negative '; . . „.,„ -r the servient tenement ; as m the case oi a right of way. it is called ' negative,' when it merely imposes on the owner of the servient tenement the duty of abstaining from using it in a particular manner ; as, not to obstruct the access of light to the dominant tenement. Again, an easement the enjoyment of which continues independently of the act of ' Continuous,' ^ny person — as a right to light — is said to be ' continuous ; ' tinuous ' ; while if it can only be enjoyed through, and by means of, the act of a person — as a right of way — it is called ' discon- ' Apparent,' or tinuous.' And an easement is said to be 'apparent,' where •non-apparent. ^]jgj,g g^pg external signs of its existence — as a right to light for a window ; and ' non-apparent,' where there are no such external signs — as a right to discharge water through an underground drain. (2') Modes of. Creation. — Easements are created — (i.) by express grant ; or (ii.) by implied grant ; or (iii.) by prescription. How made. (i.) JExpress Grant. — An easement may be granted either inter vwos,(r) or by will; and for an interest similar, as to its duration, to any of the several estates in land. The grant must be so expressed as to annex the right to the ownership of the dominant tenement ; as otherwise it may be construed as a licence merely.(s) Keservation of If, in an instrument by which an estate in land is con- in^^ffect as'' veyed inter vivos, an easement is expressed to be reserved to grant. the grantor of the land, this reservation operates as a grant of a newly created easement by the grantee of the land to the grantor.(i!) (ii.) Implied Grant. — On the alienation of an estate in land, a grant is implied, in certain cases, of one or more easements {q) Gale, 21. (r) As to the form of grant, see post, p. 345. (s) Goddard, 118. See judgment in Wood v. Leadbitter, 13 M. & W. at p. 845. But the instrument may he construed as a grant of an easement, though it be not technically expressed as such, if the intention to create an easement be clear : see Goddard, 139. (t) Goddard, 140. Digitized by Microsoft® EASEMENTS. 301 over other land of the grantor, as accessory to the land that is the subject of the alienation. Thus, where the owner of a tenement severs it, by dis- On severance posing of part of it — as, by the sale of one of two adjoining ° * ^''^" houses, or of a portion of a single plot of land, or of a house built on part of a plot of land — the grant of the disposed of part of the tenement is accompanied by an implied grant of such continuous and apparent easements, over the part of the tenement retained by the grantor, as are necessary for the enjoyment of the jiart disposed of, and have, in fact, been used for that purpose by the grantor, as if they were actual easements. A person, of course, cannot have an easement over his own land ; (ti) nevertheless, he may so use one part of his land, that an advantage similar to an easement is, in fact, enjoyed as incident to another part of it ; and such advantage may pass by implied grant, as an easement, ac- cording to the above rule. Thus, if A., being the owner of a house the windows of which overlook adjoining ground, and being also owner of that ground, grant the house alone to B., without expressly reserving the right to obstruct the access of light to the house, he impliedly grants to B. an easement of access of light to the windows of the house, over the gTound — this being a continuous and apparent easement, and a benefit previously enjoyed, and necessary for the use of the house. Consequently, neither A., nor any person claiming under him (whether as purchaser of the ground or otherwise), can so build on the ground as to obstruct the access of light to B.'s windows.(a;) And the same rule applies, where the owner of a house and adjoining land grants the house to one purchaser, and the land to another purchaser, (u) A rule expressed in the Eoman law by the maxim ' nvili res sua serviV : Dig. viii. 2, 26. (x) Palmer v. Fletcher, 1 Lev. 122 ; Sury v. Pigot, Poph. 166, Tudor R. P. Cas. 154 ; Coutts v. Gorham, Moo. & Malk. 396 ; Wheeldon v. Burrows, 12 Ch. D. 31, 48 L. J. Ch. 853, 41 L. T. 327, 28 W. E. 196 (in which the Court of Appeal dissented from Pyer v. Carter, 1 H. & N. 916, contra); Russell V. Watts, 25 Ch. D. 559, 10 App. Cas. 590, 53 L. T. 876, 34 W. B. 277 ; Birmingham, Dudley, and District Banking Co. v. Boss, 38 Ch. D. 295, 57 L. J. Ch. 601, 59 L. T. 609, 36 W. R. 914 ; Myers v. Catferson, 43 Ch. D. 470, 59 L. J. Ch. 315, 62 L. T. 205, 38 W. R. 488. See also Bit/by v. Bennett, 21 Ch. D. 659, 31 W. R. 222 (right to support for a building) ; Watts v. Kelson, L. R. 6 Ch. 166, 40 L. J. Ch. 126, 24 L. T. 209, 19 W. E. 338 (right to flow of •water to land) ; Brown v. Alabaster, 37 Ch. D. 490, 57 L. J. Ch. 255, 58 L. T, 265, 36 W. R. 155 (right of way). Digitized by Microsoft® 302 THE LAW OF PKOPEETY IN LAND. Easement of at the same time ; that is, the purchaser of the land cannot so build as to obstruct the access of light to the house, (y) Again, on a grant of land, a grant is implied of any ease- ment, over other land of the grantor, that is strictly necessary for the enjoyment of the land granted, as accessory thereto. Thus, in the case of a grant of a piece of land to which access can be obtained only by passing over other land of the grantor, a grant is implied of a right of way over the grantor's land to the land granted, as accessory to the ownership of the latter ; («) the grantor, however, having the right to select the particular way, where there are more ways than one available for the purpose, (a) So, also, on a grant of land, a reservation to the grantor (taking effect as a grant from the grantee of the land),(&) of any easement that is strictly necessary for the enjoyment of other land retained by him, is implied.(c) Thus, where land is granted with an exception of the mine- rals, and the minerals cannot be gained otherwise than through the land granted, a reservation to the grantor of a right to come upon the land, and do such acts as are necessary for the gaining of the minerals, is implied as an easement annexed to the ownership of the minerals.(c^) Prescription. (iii.) Prescription. — Easements may be acquired by pre- scription, or long usage. This mode of acquisition is con- sidered hereafter, in treating of the transfer of rights of property, (e) (y) Swanshorough v. Coventry, 9 Bing. 305 ; AUen v. Taylor, 16 Ch. D. 355, 50 L. J. Ch. 178 ; cf. Beddinrjton v. Atlee, 35 Ch. D. 317, 56 L. T. 514. (s) 1 Wms. Saund. 323 ; Clarh v. Cogije, Cro, Jao. 170 ; Corporation of London v. liiggs, 13 Ch. D. 798, 49 L. J. Ch. 297, 42 L. T. 580, 28 W. R. 610 ; Serffy. Acton Local Board, 31 Ch. D. 679. (a) Bolton v. Bolton, 11 Ch. D. 968, 48 L. J. Ch. 467, 40 L. T. 582. (6) See supra, p. 300. (c) Liford's case, Eep. pt. 11, 46 b ; Pinnington v. GaUand, 9 Ex. 1 ; Bavies v. Sear, L. R. 7 Bq. 427, 38 L. .T. Ch. 545, 20 L. T. 56, 17 W. R. 390; Wheeldon v. Burrows, 12 Ch. D. 31 (C. A., dissenting from Pger v. Carter 1 H. & N. 916), 48 L. J. Ch. 853, 41 L. T. 327, 28 W. R. 196 ; Corporation of London v. Biggs, 13 Cli. D. 798, 49 L. J. Ch. 297, 42 L. T. 580, 28 W R 610. {d) Earl of Cardigan v. Armitage, 2 B. & C. 197 ; Bainbridge, Mines, u. 7, 8. 1. A similar right would be implied in favour of a grantee of minerals, over the land of the grantor : ibid. \ (e) Post, pt. 3, ch. 8, s. 2. Digitized by Microsoft® EASEMENTS. 303 Use and Enjoyment. — An easement may, in general, be Extent of. used in such manner as is necessary for its most commodious enjoyment ;(/) but it may not be so used as to increase the burden imposed on the servient tenement. Thus, if a per- son have a right of way over land, to a particular place, he may not go beyond that ■pl&ce,(g) or divert the way. (A) But except for the purpose of preventing the imposition of such an additional burden, the owner of the servient tenement may not do anything to obstruct the enjoyment of the ease- ment, (i) The owner of the servient tenement is not bound to do Eepairs. repairs necessary for the enjoyment of the easement. The owner of the dominant tenement is entitled to do such re- pairs ; and where the enjoyment of the easement is had by means of an artificial work (as a drain), he is liable for any damage to the servient tenement, arising from neglect to repair. (A) Alienation. — An easement cannot be alienated apart from Mode of. the dominant tenement.(Z) On alienation of the dominant tenement, all easements annexed to it pass with it, although they be not expressly mentioned, or referred to, as included in the transfer, (m) And if the dominant tenement be alien- ated in portions to different grantees, or only a portion of it be alienated, the owner of each part will be entitled to the enjoyment of any easement that was annexed to the whole tenement ; unless the burden imposed on the servient tene- ment will thereby be increased, (w) The use of ' general words ' in conveyances of land, and the ' General provision of the Conveyancing and Law of Property Act, -^"^^^ -j]^^^^ 1881, whereby the insertion of general words in conveyances nature of of land, buildings, or manors, since the 31st December 1881, conTCjanoing Act, 1881, (/) Senlwuse v. Christian, 1 T. E. 560. (g) See Lawton v. Ward, 1 Ld. Eaym. 75. (li) Senhottse v. Christian, 1 T. R. 560. (i) See Tapling v. Jones, 11 H. L. Caa. 290 Newson v. Pender, 27 Ch. D. 43, 52 L. T. 9, 33 W. E. 243. (k) Gale, pt. 4, oh. 1. (l) Goddard, 11, 362. (m) Gale, 63. (») Codling v. Johnson^ 9 B. & C. 933. Digitized by Microsoft® hereon. 304 THE LAW OF PROPERTY IN LAND. has been rendered unnecessary, have already been men- tioned, (o) The general words formerly emj)loyed, and also the above-mentioned statutory substitute for those words, will pass a right or advantage usually enjoyed with the land conveyed, and resembling an easement thereto — such as a pathway commonly used for access to the land conveyed, and existing over other land belonging to the same owner.(|?) Modes of. Determination. — An easement may determine, or be ex- tinguished, in anjr of the following waj's. (i. ) Expiration (i.) By the Completion of the period for which it was duratimi ° granted — where it has been granted for an interest of limited duration. (ii.) Release. (ii.) By express release of the easement by the owner of' the dominant tenement, to the owner of the servient tene- ment, (g) (iii.) Abandon- (iii.) By abandonment of the easement ; that is, non-user raent. qJ .j-j^g riglit, under circumstances evincing an intention not to resume the enjoyment of it ; for, in such case, a release of the easement is implied. But mere non-user, unaccom- panied by circumstances from which a release can be implied, will not extinguish an easement. (■?■) (iv.) Unity of (iv.) By the union of the dominant and servient tenements ownership. ^^ |^jjg Same owner ; in which case, if the estates in the two tenements are co-extensive, the easement is merged in the ownership ; (s) but if the estates are not co-extensive (as where one is in fee, and the other for life or for years) the ease- ment is merely suspended during the unity of ownership, (i!) (o) See ante, p. 293. {j>) See 1 Dav. Conv. 72 ; Thomson v. Waterlov), L. E. 6 Eq. 36, 37 L. J. Ch. 495, 18 L. T. 545, 16 W. E. 686 ; Lanqley v. Hammond, L. E. 3 Ex. 161, 37 L. J. C. L. (Ex.) 118, 18 L. T. 858, 16 W. E. 937 ; Kay v. OxUy, L. E. 10 Q. B. 360, 44 L. J. C. L. (Q. B.) 210, 33 L. T. 164; Brett v. Glowser, 5 C. P. I). 376 ; Barkshire v. G-ruhh, 18 Ch. D. 616, 50 L. J. Ch. 731, 29 W. E. 929 ; Thomas v. Owen, 20 Q. B. D. 225, 57 L. J. C. L. 198, 58 L. T. 162, 36 W. E. 440 ; Boe v. Siddons, 22 Q. B. D. 224, 60 L. T. 345, 37 "W. E. 228. ((jr) Goddard, 496 ; Gale, 498. An Act of Parliament may have the effect of a release, e.g., the General Inclosure Act (41 Geo. 3, c. 109), s. 8. (r) Goddard, 496-504 ; B. v. Charley, 12 Q. B. 515 ; Tapling v. Jones 11 H. L. C. 290 ; Scott v. Pape, 31 Ch. D. 554, 55 L. J. Ch. 426, 54 L. T. 399, 34 W. E. 465 ; Greenwood v. Hornsey, 33 Ch. D. 471, 55 L. J. Ch. 917,55 L. T 135, 35 W. E. 163. (s) Gale, 502. {t) Thomas v. Thomas, 2 C. M. & E. 34. Digitized by Microsoft® EASEMENTS. 305 (v.) By cessation of the purpose for whicli tlie easement (v.) Cessation was enjoyed — or a change of such purpose, whereby an addi- ° ^'"^^° tional burden is imposed on the servient tenement ; as where a watercourse has been granted for the supply of a canal, and the canal is afterwards converted into a railway ; or where a way has been granted, to be used as a way to a cottage, and the cottage is afterwards converted into a tanyard.(tt) (vi.) By cessation of the necessity for the easement, in the (vi.) Cessation case of an easement of necessity ; as where A., having a way ° °^''^^^' y- of necessity to his land, afterwards obtains a way to the land over other land acquired by him. (as) (vii.) By an act done by the servient owner, with the con- (vii.) Act of ,0,1-,.. 1 • 1 J? -J. i J.1 servient owner, sent or the dommant owner, which oi necessity prevents the dominant enjoyment of the easement. (?/) owner consent- ing. (ij) National Guaranteed Manure Co. v. Donald, 4 H. & N. 8 ; per Parke, B., in Henning v. Burnet, 8 Ex. 187. {x) Holmes v. Goriiig, 2 Bing. 76. (!/) Liggins v. Inge, 7 Bing. 682. Digitized by Microsoft® PART III. TRANSFEE OP EIGHTS OF PEOPEETY IN LAND. Subject of the The Consideration of tlie various rights of property in land, present part. ^^ ^^^ preceding parts, has not included the discussion of the law regulating the transfer of these rights. For reasons already mentioned, (a) this branch of the subject is treated separately in the present part. CHAPTEE I. Transfer of right of property defined. NATURE AND MODES OF TRANSFER. Definition. — Every transfer of a right of property consists of a fact or event, on the occurrence of which the right, by provision of law, is lost by some person or persons in whom it was previously vested (either as a separate right, or as involved in, or combined with, some other right or rights), and is acquired by some other person or persons. And every acquisition of a right of property, or its loss by any means — other than its expiration on the completion of the period of its existence, or its merger in another right (6) — takes place by transfer of the right, (c) (a) Ante, p. 17. (b) As to merger, see ante, p. 129. Merger occurs as a consequence of a transfer of a right of property (as by its surrender, release, or forfeiture) ; but the transfer of the right is an event distinct from the merger. (c) Acquisition by common occupancy, on the death of a tenant pur atdre vie in the lifetime of the cestui qtte vie, was formerly an exception to the rule that every acquisition of a right of property takes place by transfer of the right. As to common occupancy and its abolition, see ante, p. 73. Digitized by Microsoft® NATURE AND MODES OF TBANSFER, 307 Modes of Transfer. — The fact which constitutes a transfer By act of a of a right of property may be either an act done by a person operation of with the intention of effecting the transfer, or a fact which law. takes effect as a transfer by mere operation of law — that is, independently of the will of any person. Hence, transfers of rights of property are distinguished as taking effect either ' by act of a party/ or ' by operation of law.' Where a transfer takes effect by act of a party, the right Act of party:— IS sometimes said to be acquired by ' purchase '; (c^) whether the occasion of the transfer be a sale or not.(e) The term ' alienation,' also, is commonly used as meaning, in a general sense, any transfer by act of a party. By ' alienation ' simply Alienation, is here meant, however, the voluntary transfer of a right of property, by the act of a person in whom the right, or the power of transferring it, resides. In some instances, transfers of rights of property are effected by acts of the Legislature, or of legal tribunals, or other public authorities ; and such transfers are here distinguished as ' extraordinary modes of alienation.' Transfers of rights of property by operation of law occur Transfers by through succession on intestacy, and (subject to restrictions "P^i'^''™ "^ imposed by modern statutes) through marriage ; also through the operation of the law of bankruptcy, and the Statutes of Limitation ; and by prescription, forfeiture, and escheat. Arrangement of Topics. — In the succeeding chapters of this part transfers of rights of property are considered as follows : — First, alienation (which is discussed under the three heads of alienation generally, alienation iwfor vivos, and alienation by will) ; secondly, extraordinary modes of aliena- tion ; and thirdly, the several modes of transfer by operation of law, in the order in which they are stated above. (d) Co. Litt. by Hargrave, 18 b, note (2). (e) Blackstone uses the term ' purchase ' in a wider sense, as denoting every mode of acquisition other than succession on intestacy : 2 Bl. Comm. 241. Digitized by Microsoft® CHAPTER II. ALIENATION GENERALLY. Valid aliena- tion, what necessary for. Requisites. — For the effectual transfer of a riglit of pro- perty in land, by alienation, it is necessary — (1) that the alienor be legally capable of transferring, and the alienee of acquiring, a right of the kind ; (2) that both parties freely consent to the transfer ; (3) that the alienor have a title to (that is, be legally entitled to dispose of) the subject of the transfer ; (4) that the alienation be valid, as regards its object or purpose ; (5) that it be made ia a proper form. Of these requisites, the first is considered in later chapters, vsrhich treat generally of legal capacity with reference to rights of property in land. The fifth is dealt with ui the two chapters next following the present. The second, third, and fourth form the subject of the present chapter. -Consent pre- sumed unless contrary shown. Sect. I. — Consent of the Parties. Presiunption of Consent. — Disclaimer. — In the absence of evidence to the contrary, an alienation is presumed to have been made with the free consent of both alienor and alienee, (a) But the contrary may be shown (with the effect of invalidating the alienation), by proof that either party was in error as to the real nature of the transaction — as, where he has executed a deed which he was told, and believed, was a deed of another kind (h) — or that his consent (a) 4 Cruise, t. 32, c. 1, ss. 25, 26 ; Thompson v. Leach, 2 Vent. 198, 201 ; Townson v. Tichell, 3 B. & Aid. 31 ; Xenos v. Wichham, L. E. 2 H. L. 296 36 L. J. C. L. (C. P.) 313, 16 L. T. 800, 16 W. S.. 38. (6) Tlioromghgood's case, Kep. pt. 2,9a; Foster v. Machinnon, L. E. 4 C. P. 704 ; Paget v. Marshall, 28 Ch. D. 255 ; In re Oarnett, Bohinson ■,. Gandy, Digitized by Microsoft® ALIENATION GENERALLY. 309 was procured by means of fraudulent misrepresentation,(c) duress or coercion, or other undue influence, (t^) Moreover, an alienation that has been made without the Disclaimer, consent of the alienee, and has not been subsequently ratified by him, either expressly or impliedly, may be disclaimed by him.(e) This disclaimer makes the alienation void ah initio, as regards any interest intended to be thereby conferred on the party disclaiming ; but where a grant is to two or more, as joint tenants — as in the case of a conveyance to persons as trustees — the disclaimer of some or one of them only, will vest the whole estate or interest in the others. (/) A dis- claimer is usually (though perhaps not necessarily) made by deed.(^) Sect. II. — Title of the Alienor. Definition. — By the ' title ' of the alienor is meant the Meaning of fact or event, or series of facts or events, by virtue of which he is invested with a legal right to dispose of the subject of the alienation in the manner intended, (/i) Rights of Alienee as to Title. — On an alienation by way On sale or of gift, whether inter vivos or by will, the alienee is not, in ^°^ ^^^^' general, entitled to any evidence of the alienor's title, or to any indemnity, or other security, against defects in the title. But where the occasion of the alienation is a sale, or mort- gage,(i) the alienee may, unless it has been otherwise agreed, 31 Ch. D. 1, 648, 33 Ch. T>. 300, 55 L. J. Cli. 773, 65 L. T. 562 ; see Pollock, Contracts, c. 8. (c) See Kerr on Fraud, passim ; Pollock, Contracts, c. 9. {d) As to duress, see Pollock, Contracts, c. 11 ; and as to undue influence, see Ibid. ; Huquenin v. Baseley, 14Ves. 273 ; S.C. , and notes thereto, 2 Lead. Cas. Eq. 697 ; Wingrove v. Wingrove, 11 P. D. 81, 66 L. J. C. L. (P. D.) 7, 34 W. R. 260. (e) 4 Cruise, t. 32, c. 27, ss. 1-5 ; Townsmi v. Ticlcell, 3 B. & Aid. 31 ; Peacock V. Eastland, L, E. 10 Eq. 17, 39 L. J. Ch. 534, 22 L. T. 706, 18 W. R. 856. (/) 2 Prest. Abstr. 226. See as to disclaimer of a power, ante, p. 220. (fj) Shop. Touch. 285 ; 2 B\th. & J. Conv. 837 ; Lewin, 198, 199. (,h) See 2 Bl. Comm. 195 ; 2 Austin, 916, 1010. ' Titulus est justa causa possidendi quod nostrmn eU, and signifielh the means whereby a man cometh to land' ■ Co. Litt. 345 b. (i) Formerly also a lease for years ; but the lessee's right to proof of title has been taken away by recent enactments, except to a limited e.\tent in the case of an underlease : hee post, p. 313, and note (o), p. 314. Digitized by Microsoft® 310 THE LAW OF PROPERTY IN LAND. require tlie alienor to prove, before the alienation is com- pleted, that he has a good, or (as it is sometimes called) a ' marketable ' title to the subject of the alienation.(/(;) And, in general, the alienee is also entitled, in such case, to covenants on the part of the alienor or other persons in- terested, as to the validity of the title. Other securities, to which any alienee may be entitled, consist in the registration, in some cases, of the instrument of transfer, and in the delivery to him of the documents of title. The rights of the alienee in these respects are here separately considered. How title is to Proof of the Alienor's Title. — The alienor must show, and be proved. prove by legal evidence, all dealings with, or devohitions of, the subject of alienation, during a certain period preceding the intended alienation ; and it must appear thereby that he is able to make the intended transfer.(?) For this purpose, the alienor must furnish the alienee with an abstract in writing of all muniments of title and facts relating to such dealings and devolutions ; and must produce to him, for comparison with the abstract, the original documents and Expenses of other evidences of title. The expenses incurred by the proof of title, alienor in these proceedings are borne by himself, unless it has been otherwise agreed ; except that, under the Convey- ancing and Law of Property Act, 1881, in the case of a sale, the expenses of the production and inspection of, and of copies or abstracts of or extracts from, documents not in the vendor's possession, are borne by the purchaser. The same Act provides that, on a sale in lots, a purchaser of two or more lots, held under the same title, shall not have a right (which he previously had) to more than one abstract of the common title, except at his own expense. («i) Provisions of Recent enactments have, in some respects, facilitated the Purchaser Act proof of title, on sale of land. Thus, the Vendor and Pur- 1874, and Con- chaser Act, 1874, provides that, subject to any stipulation to veyancing Act, 1881, as to proof of title. {k) Sug. V. & P. 337, 387 ; Burton, §§ 1588, 1589. (L) See 1 Dart, V. & P., c. 8, s. 2 ; Sug. V. & P. 16. (ni) 44 & 45 Vict. c. 41, s. 3, sub-ss. 6-11 ; but see In re Johnson and Tustin, 28 Ch. D. 84, revd. on appeal, 30 Cli. U. 42, 54 L. .T. Ch. 43, 889, 53 L. T. 281, 33 W. B. 43, 737 ; 2n re Moodt/ and Yates' Contract, infra; In re Ebsworth and Tidy's Contract, 42 Ch. 1). 23, 58 L. J. Ch. 665, 60 L. T. 841, 37 "W. R. 657. Digitized by Microsoft® ALIENATION GENERALLY. ^1-^ the contrary, stateraents and descriptions of facts, matters, and parties, in deeds, &c., which, are twenty years old at the date of the contract, shall, unless proved to be inaccurate, be sufficient evidence of the truth of such facts, &c.(n) And, by the Conveyancing and Law of Property Act, 1881, subject to any agreement to the contrary, a purchaser of land held by lease or underlease, is to assume, unless the contrary appears, that the lease, or the underlease and every superior lease, were duly granted ; and, on production of the receipt for the rent last due thereunder before the completion of the purchase, that all covenants and provisions of the lease, or underlease, have been performed and ob- served up to the date of completion of the purchase ; and (where the land is held by underlease) that the rent due under every superior lease, and all its covenants and provi- sions, have been paid, performed, and observed, up to that date.(c>) Prior to this enactment, evidence of these matters might be required by a purchaser of an interest created by lease, in the absence of stipulation to the contrary.(p) It may here be observed that, inasmuch as the mere rp^yg ^^ possession of land gives rise to a presumption, in the ^^re posses- absence of evidence to the contrary, that the possessor has an estate in fee simple in the land, ( 2') proof of long ■ uninterrupted possession and enjoyment will be sufficient evidence of the alienor's title, although there be no docu- ments of title in existence showing dealings with the land. (r) The proof of title on alienation does not depend entirely Searches in on the evidence furnished by the alienor. By means of p»Wic searches in public registers,(s) it may be ascertained whether (;i) 37 & 38 Vict. c. 78, s. 2 ; Bolton v. London S. Board, 7 Ch. D. 766, 47 L. J. Ch. 461, 38 L. T. 277, 26 W. E. 649 ; lie Marsh and Earl Granville, 24 Ch. D. 11, 53 L. J. Ch. 81, 48 L. T. 947, 31 W. E. 845. (o) 44 & 45 Vict. c. 41, s. 3, sub-ss. 4, 5, 8-10 ; see Be Moody and Yates' Contract, 28 Ch. D. 661, 30 Gh. D. 344, 54 L. J. Oh. 886, 53 L. T. 845, 33 W. E. 785. (p) 1 Dart, V. & P., 193, 194. (2) 2 Bl. Comm. 196. (r) Oottrell t. Watkins, 1 Beav. 361; Sug. V. & 1>. 438 ; 1 Prest. Abstr. 23. (s) The Conveyancing Act, 1882, enables a person requiring a search to be made for judgments, deeds, &c,, in the Central Office of the tjupreme Court, to have the search made by an official of the Court, and the result thereof certified ; and such certificate is conclusive in favour of a purchaser : 45 & 46 Vict. c. 39, 8. 2. Digitized by Microsoft® 312 THE LAW OF PROPERTY IN LAND. lAtes pen- denies, law as to effect of. Registration of deeds of arraDgement under Land Charges, &c., Act, 1888. the title is affected by certain matters, namely, deeds barring estates tail,(<) judgment or Crown debts,(«) certain rent- cliarges,(a;) land charges,(y) certain conveyances by married women,(2) bankruptcies,(a) lites pendentes, i.e., pending actions concerning the subject of the alienation, or deeds of arrangement.(&) With regard to lites pendentes, it may be mentioned that, under a modern statute, a lis pendens does not affect a purchaser or mortgagee, who has not express notice thereof, unless certain particulars of the pending action have been entered in a public register, kept, formerly, in the office of the Court of Common Pleas, and now in the Central Office of the Supreme Court ;(c) and the registration, to be binding, must be repeated every five years. ((f) Except so far as he is protected by this enactment, the alienee acquires the land subject to the result of any action respecting it, that may be pending, although he have no notice of the pendency of the action. (e) A deed of arrangement is, under the Land Charges Regis- tration and Searches Act, 1888, void as against a purchaser after the commencement of the Act (1st January 1889), of any land comprised in the deed, unless and until the deed is registered in a register of deeds of arrangement affecting land, established by the Act, and kept at the Office of Land Registry ; though this provision does not affect a deed of arrangement made before the commencement of the Act if it has been registered within a year from that time.(/) Where the subject of alienation is land in Middlesex or (0 Ante, p. 59. (m) Ante, pp. 255-259, 260. {x) Ante, p. 277. (y) Ante, p. 288. (2) Post, p. 473. (a) Post, p. 457. (6) Post, p. 365. (c) Ord. Ixi. r. 9, Rules S. C. 1883. (ti) 2 & 3 Vict. 0. 11, 8. 7 ; and see 30 & 31 Vict. c. 47, ». 2. (e) 3 Prest. Abstr. 354 ; Price v. Price, 35 Ch. D. 297, 56 L. J. Ch. 530, 56 L. T. 842, 35 W. R. 386. (/) 51 & 52 Vict. 0. 51, ss. 7-9 ; and &^q post, p. 365. Digitized by Microsoft® ALIENATION GENERALLY. '^^^ Yorkshire, the public registers of deeds, wills, iudgments. Register of &c., relating to, or binding, land in those counties (of which ]^-'(}a}"sex and more is said hereafter),((7) show whether the title is affected Yorkshire, by any of such matters, of which the alienee has not otherwise had notice. (7i) The sale of land, that is subject to an incumbrance affect- Convey.inciug ing the title, is facihtated by a provision of the Conveyancing toVischarge^rf and Law of Property Act, 1881, under which the land may incumbrances, be freed from the incumbrance, by payment of money into court to meet it.(i) Formerly, where the alienee of an estate in land had a Former period • 1, n„, ,. , .11 .1,. J- J. -A. £ of investigation right to proof of the alienor s title, he might investigate it tor ^f t;tie. a period of sixty years immediately preceding the alienation, unless a diiferent period were stipulated fov.(Jc) Hence, a lessee, on selling, or on granting an underlease, was bound, if his lease had been granted within the then preceding sixty years, to produce the lessor's title from the commencement of the sixty years to the granting of his lease, as well as his own title under the lease. (^) The Vendor and Purchaser Act, 1874, has substituted forty Alteration by . f -ii 1 • 1 Vendor and years, as the period of commencement or title whicn a pur- purchaser Act, chaser of land may require, in the place of sixty years ; 1874. subject to any stipulation to the contrary in the contract of sale.(m) The same Act also provided that, under a contract to grant or assign a term of years, derived out of either a freehold or a leasehold estate, the intended lessee or assign should not be entitled (unless by express stipulation in the contract) to call for the title to the freehold ; (n) but it did not preclude inquiry, in the case of the grant or sale of an underlease, into the title to the leasehold estate out of which the underlease was derived. By the Conveyancing and Law of Property Act, 1881, however, in the case of a contract to (g) Post, p. 319 et seq.. {h) Heepost, p. 320, note {d). (i) 44 & 45 Vict. o. 41, s. 5 ; Milford Haven B. and E. Co. v. Mowatt, 28 Gh. D. 402, 54 L. J. Ch. 567, 33 W. E. 597. {h) Sug. V. & P. 365 ; Burton, § 1596. As to the reason for requiring this length of title, see Sug. V. & P. vJyi sup. ; 1 Prest. Abslr. 250. (I) Sug. V. & P. 367, 368 ; 1 Dart, 331. {m) 37 & 38 Vict. o. 78, s. 1. (») S. 2 Digitized by Microsoft® 314 THE LAW OF PEOPEETY IN LAND. Conveyancing Act, 1881, as to title to en- franchised copyholds. And as to evidence of matters prior to commence- ment of title. Cases in which title exceed- ing forty years may be re- quired. sell and assign a term of years derived out of a leasehold interest in land, or a contract to grant a lease for a term of years, to be derived out of a leasehold interest with a lease- hold reversion, the intended assignee or lessee is precluded (subject to any agreement to the contrary in the contract) from calling for the title to the leasehold reversion. (o) The Conveyancing and Law of Property Act, 1881, deprives a purchaser of enfranchised copyholds of the right (which he previously had) of requiring the title of the lord of the manor to the freehold, as well as the copyhold title ; unless such right be preserved by the contract of sale.(^) The last-mentioned Act also precludes a purchaser from requiring production of, or information respecting, the title prior to the time fixed by law, or by the contract of sale, for the commencement of the title ; unless such a right be stipu- lated for by the contract. (§') Prior to the last enactment, where the title commenced with an instrument which referred to an earlier document, the alienee might, in some cases, require the production of such document.(r) The provision of the Vendor and Purchaser Act, 1874, by which forty years is substituted for sixty years as the period of commencement of title,(s) does not apply to titles which, prior to that Act, might, unless the contrary were agreed, be investigated for a period exceeding sixty years.(^) The full period of title to an advowson is one hundred years.(w) A title of the full length to a lay interest in tithes commences with a grant from the Crown, after the dissolution of the monasteries ; but the subsequent title need not be shown. (ci) 44 & 45 Vict. c. 41, ss. 3, 13. That a I'reeholder granting a lease cannot now bo required (unless by express stipulation) to show his title, see Jones v. Watts, 43 Ch. D. 574, 62 L. T. 471, 38 W. E. 725. A lessee granting an underlease is still, however, liable to show his title under his lease, though not his lessor's title. (p) 44 & 45 Vict. c. 41, s. 8, aub-ss. 2, 9 ; Sug. V. & P. 372 ; Be Agg- Oardner, 25 Cli. D. 600, 53 L. J. Ch. 347, 49 L. T. 804, 32 W. E. 356. (j) S. 3, sub-ss. 3, 9. (»•) Sug. V. & P. 366 ; SeUick v. Trevor, 11 M. & AV. 722 ; PhiUips v. Caidcleuyh, L. E. 4 Q. B. 159, 38 L. J. U. L. (Q. B.) 68, 20 L. i. 80, 17 W. E, 575. (s) See supra, p. 313. («) 37 & 38 Vict. c. 78, c 1 ; Dart, V. & P., 293. («) Sug. V. & P. 367. Digitized by Microsoft® ALIENATION GENERALLY. 315 except for the forty years preceding the alienation. (a;) Simi- larly, on the sale of a term of years created more than forty years before the date of the sale, or on a grant of a lease derived out of such a term, the title should commence with the original lease; and the subsequent dealings with the term during the forty years preceding the contract should be shown ; but dealings with the term before that time may be omitted, (y) It may be here mentioned that, by the Land Transfer Act, Titles under 1875, provision has been made for an official examination oi '^^^^^^f^^^'' titles, and their registration in a public registry of land, thereby established. A title may be registered under the Act either as absolute, i.e., good as against the whole world, except registered incumbrancers and cestuis que tntst ; or as a qualified title, i.'e., a title subject to certain registered estates, or interests specified in the register ; or as a possessory title merely, i.e., a title subject to all estates, rights, and interests existing at the time of the registration. This registration, however, is completely optional, and comparatively few titles have been registered under the Act.(«) Covenants for Title.— li, after the completion of the aliena- Use of. tion, the title proves to be defective, the alienee has, in general, no remedy against the alienor, unless the latter has fraudulently concealed the existence of the defect,(a) or unless he has entered into a covenant or covenants for title, and has thereby assumed a personal liability for the defect in ques- tion. (J) ix) Sug. V. & P. 367. {y) Sug. V. & P. 370 ; Frend v. Buckley, L. K. 5 Q. B. 213, 39 L. J. C. L. (Q. B.) 90, 22 L. T. 170, 18 W. E. 680. (s) 38 & 39 Vict. c. 87. A somewliat similar system of registration was provided for by tlie Land Kegister Act, 1862, and the Declaration of Titles Act, 1862 (25 & 26 Viot. cc. 53, 67) ; but these are superseded by the Land Transfer Act, 1875. {a) Such fraud will entitle the alienee to a remedy in damages, and, generally, to rescind the contract. It may also he a criminal offence : 22 & 23 Vict. c. 35, s. 24. (6) Sug. V. & P. 11, 251, 549 ; Clare v. Lamb, L. R. 10 C. P. 334, 44 L. J. C. L. (C. P.) 177, 32 L. T. 196, 23 W. R. 389 ; BesUy v. BesUy, 9 Ch. D. 103, 38 L. T. 844, 27 W. R. 184 ; Joliffe v. Baker, 11 Q. B. D. 255, 52 L. J. C. L. 609, 48 L. T. 966, 32 W. K. 59 ; Hoper v. Arnold, 37 Ch. D. 96, 14 App. Cas. 429 ; distinguish Falmer v. Johnson, 12 Q. B. D. 32, 13 Q. B. i). 351, 63 L. J. C. L. 348, 51 L. T. 211, 33 W. R. 36. Digitized by Microsoft® 316 THE LAW OF PEOPEETY IN LAND. Defiaition of. Obligation to give such covenants. What cove- nants usually given. To whose acts or omissions they extend. Covenants for title are engagements by way of contract under seal, entered into by the alienor, whereby lie becomes liable to the alienee for loss or damage that may be sustained by the latter, through certain defects in the title.(c) A vendor or mortgagor of land is bound to give such covenants for title as are usual, unless it has been otherwise agreed ; (d) but, on alienation by way of gift, the alienor, of course, is not bound to give any covenants for title. The following are the usual covenants for title, on a sale or mortgage by an owner : — That he has good right to convey ; that the subject of alienation shall be quietly enjoyed by the alienee ; that it is free from incumbrances ; and that the alienor and his successors will make such further assurance of the premises as may reasonably be required. Where the subject of alienation is a lease for years, a further covenant is usually added, viz., that the lease is good, and that the rent has been paid, and the covenants in the lease have been performed, up to the time of the transfer, (e) Covenants for title may, however, be qualified, as circum- stances or the state of the title may require, e.g., where the sale is made subject to certain incumbrances ; and an alienor, who has only a limited or partial interest in the subject of alienation, may expressly limit his liability under the cove- nants to his own acts or interest.(/) And usually, in the case of a sale, the covenants are so expressed as to limit the liability of the vendor to defects of title created by the acts or omissions of himself, and persons claiming under him, and prior owners up to, and including, the last purchaser for value. For example, if the estate has been devised by will to the vendor, by a person to whom it had been devised by a purchaser for value, the covenants for title will extend to the acts and omissions of the vendor and persons claiming under him, and of his testator, and of that testator's testator, but (c) Covenants foi' title have taken the place of warranties in deeds of convey- ance : see Burton, §§ 586-593. AVarranties, having fallen into disuse, were, in effect, abolished by the stats. 3 & 4 Will. 4, o. 27, s. 39 ; c. 74, s. 14. (d) Sug. V. & P. 573. (e) As to the construction of, and remedies under, covenants for title, see Sug. V. & P. c. 15. (/) 1 Davidson, Oonv., 96, 97 ; Dart, V. & P., 619, 620 ; £!ari Poulettv. Hood, L. R. 5 Eq. 115, 37 L. J. Ob. 224, 17 L. T. 486, 16 W. R. 323. Digitized by Microsoft® ALIENATION GENEEALLY. 317 not further. For if, on the purchase by the first testator, the then vendor gave similar covenants for title, such covenants run with the land for the benefit of every subsequent owner.(^) But the covenants in mortgages and other securities for money are unrestricted, and amount to a warranty with respect to the acts and omissions of all persons. (A) A trustee, or other person not beneficially interested in the Covenants by subject of alienation, is only bound to covenant that he has ^"^"^ ^^^' himself done no act to incumber it. But where the proceeds of sale are to be paid to cestuis que trust, they may be bound to give the usual covenants for title, (i) On an alienation by way of gift, the alienor sometimes gives On voluntary a covenant for further assurance ; and frequently this is the alienation or ' -1 •' settlement. only covenant given by a settlor, even where the settlement is for valuable consideration, as a marriage settlement. A lease for years usually contains a covenant by the lessor For quiet for quiet enjoyment by the lessee, framed so as to make the enjoyment m lessor liable only for disturbance by himself, or persons claiming under him. The use of the word ' demise ' in a lease, as the operative word, creates, by implication of law, covenants by the lessor for title and for quiet enjoyment by the lessee ; and these implied covenants are absolute — that is, the lessor is liable under them in case of disturbance of the lessee by any person. But where the lease contains an express covenant by the lessor for quiet enjoyment, the im- plied covenants are thereby superseded — according to the rule expressed by the maxim expressum facit cessare taciturn. The express covenant is inserted, therefore, in the interest of the lessor.(^) Prior to the enactment next mentioned, every covenant for Covenants for title— except that implied by the word ' demise,' and formerly ^^jgr^on!'^ some others that were implied (/) — ^was necessarily an express veyanoing Act, 1881. (. 585. A conditional limitation over in the event of voluntary alienation by the settlor is valid : ibid. (c) See Lewin, 20. (d) 3 Steph. Comm. 82. See further, as to what constitutes a charity, notes to Corlijn V. French, Tudor L. E. C. P. 519. (e) In connection with gifts for charitable purposes, personal estate consisting of an interest in, or arising out of, land or money, &c., directed to be invested in land, is commonly called ' impure personal estate.' (/) 9 Geo. 2, c. 30. {g) See post, p. 498. (/») See per Arden, M.l!., C'orbyn v. French, 4 Ves. 418. The Act was entitled ' An Act to restrain the disposition of lands whereby the same become inalienable.' Digitized by Microsoft® 334 THE LAW OF PROPERTY IN" LAND. Act of 1888. Mortmain and been repealed (as from the 13tli August 1888) and re- Acts 1888 and enacted, witli amendments, by the Mortmain and Charitable 1891. Uses Act, 1888. (■i) As regards charitable gifts under wills of persons dying after the 5th August 1891, however, the re- strictions imposed by the previous statutes have been relaxed by the Mortmain and Charitable Uses Act, 1891. (A) But this Act does not affect the provisions of the Act of 1888 with respect to dispositions for charitable uses made other- wise than by will, or made by the will of a person who has died on or before the 5th August 1891. Provisions of The Mortmain and Charitable Uses Act, 1888, in effect, provides that (subject to the exceptions presently mentioned) every assurance of land, or of personal estate to be laid out in the purchase of land, to or for the benefit of any charitable uses, shall be void,(Z) unless the same be made in accordance with the following requirements : — (1) That it be made to take effect in possession for the charitable use immediately from the making thereof ; (2) that it be without any power of revocation, reservation, condition, or provision, for the benefit of the assuror or of any person claiming under him — except that nominal rents, mines, minerals, easements, or the benefit of stipulations as to buildings, &c., may be re- served ; (3) that — unless it be an assurance of copyhold or customary land, or of stock in the public funds — it be made by deed executed in the presence of at least two witnesses ; (4) that — unless it be an assurance in good faith for full and valuable consideration (which may consist wholly or partly of a rent, rent- charge, or other annual payment), or an assurance of stock in the public funds — it be made at least twelve months before the death of the assuror, in- cluding the days of the making of the assurance and of the death ; (5) that if it be an assurance of stock in the public funds, not made for full and valuable consideration in good faith, it be made by transfer of the stock at least six months before the death of the assuror, including the days of the transfer and of the death ; (6) that — unless it be an assurance of stock in the public funds — it be enrolled, (i') 51 & 52 Vict. c. 42. (7;) 54 & 55 Vict, c.73 ; see s. 9. {I) Doe. V. Wrighte, 2 B. & A. 721 ; C'hurcher v. Marlm, 42 Cli.D. 312. Digitized by Microsoft® ALIENATION GENERALLY. 335 within six months after its execution, in the Central Office of the Supreme Court of Judicature. (m) Assurances for certain charitable purposes are exempted by Exemptions, the Act from the foregoing requirements.(?z.) This exemption applies to an assurance by deed of land for, or for the purposes of, a public park, or a school-house for an elementary school, or a public museum ; except that if the assurance is made other- wise than for valuable consideration, it must be executed not less than twelve months before the death of the assuror, and be enrolled in the books of the Charity Commissioners within six months after execution. The exemption also applies to a gift by will of land, or personal estate to be applied in the purchase of land, for any of the last-mentioned purposes ; except that the will containing the gift must be made not less than twelve months before the testator's death, and must be enrolled in the books of the Charity Commissioners within six months after that event ; and that not more than twenty acres may be given by will for a public park, or two acres for a museum, or one acre for a school-house. (o) Assurances to, or in trust for, any of the following institutions are also within the exemption : — the Universities of Oxford, Cambridge, London, Durham, and the Victoria University, and any of the colleges of those universities ; the Colleges of Eton, Win- chester, and Westminster (where the assurance is for the support of their scholars), and Keble College. And an assur- ance inter vivos, for valuable consideration, to trustees for any society formed for religious purposes, or for the promotion of education, art, literature, science, or other like purpose, of land not exceeding two acres, whereon a building for such purpose is to be, or has been, erected, is also within the exemption. (^) The Mortmain and Charitable Uses Act, 1891, which, as Mortmain has been seen, applies only to the will of a testator dyino- ^^ *-'.''*,"h'i'? ' i r ■/ J & Uses Act, 1891 — ■ — as to land given by will ; {m) S. 4. Where the oliaritaljle uses are declared by a separate instru- ment, that instrument must be enrolled : s. 4 (9). Omission to enrol withiu the requisite time may be remedied in certain cases : see s. 5. (re) These exemptions are not affected by the provisions of the Mortmain and Charitable Uses Act, 1891 ; see s. 10 of the last Act. (o) S. 6. {p) S. 7. The Act (s. 8) saves any other existing exemptions from the provisions of the Act of George It. ; as to such exemptions, see Tyssen, co. 27, 28. Digitized by Microsoft® 586 THE LAW OF PEOPEETY IN LAND. as to person- alty given by will for purchase of land ; as to retention or acquisition of land, by order. after the 5tli August 1891, provides that land may be assured by will to, or for the benefit of, any charitable use ; but that (except as presently mentioned) such land shall, notwith- standing anything in the will to the contrary, be sold within one year from the death of the testator, or such extended period as may be determined by the High Court, or a judge thereof, or the Charity Commissioners. If the sale is not completed within the time limited for the sale, the land unsold is to vest forthwith in the oflBcial trustee of charity lands, and the Charity Commissioners are to take all necessary steps for the sale, or completion of the sale, of the land ; and for that purpose they may make orders as specified in the Act.(^) The Act also provides that any personal estate, by will directed to be laid out in the purchase of land to or for the benefit of any charitable uses, shall (except as presently mentioned) be held to or for the benefit of the charitable uses, as though there had been no such direction to lay it out in the purchase of land.(r) By another provision of the Act, however, the High Court, or a judge thereof, or the Charity Commissioners, if satisfied that land assured by will to or for the benefit of any chari- table use, or proposed to be purchased out of personal estate by will directed to be laid out in the purchase of land, is re- quired for actual occupation for the purposes of the charity, and not as an investment, may, by order, sanction the reten- tion or acquisition, as the case may be, of such land.(s) Meaning of ' land ' under the Act of George II. The provisions of the Act of George II. were held to apply to every interest that, in the legal phrase, ' savoured of the realty.' Thus, the following (as well as land, and money, stock, &c., to be applied in the purchase of land) were within the Act: — Money to arise from the sale of land;(i;) money secured by mortgage of, or charge upon, lanA,(u) or by mort- gage of rates or tolls, payable in respect of the ownership or (2) 54 & 65 Vict. c. 73, ss. 5, 6 ; and see ante, p. 335, note (0). (r) S. 7. (s) S. 8. (t) Page v. Leapiriqwell, 18 Vea. 463 ; Aslmorth v. Blunn, 15 Cli. D. 363, 47 L. J. Ch. 747, 28 W. R. 965. (m) Corhyn v. Freiich, 4 Ves. 418 ; S.C, and notes thereto, Tudor L. C. E. P. 519 ; Chester v. Chester, L. R. 12 Eq. 444; Sruok v. Badley, L. R. 3 Ch. 672, 16 W. E. 947 ; Me Bill's Trusts, 16 Ch. D. 173, 50 L. J. Ch. 134, 43 L. T. 623, 29 W. E. 211. Digitized by Microsoft® ALIEXATION GENERALLY. 337 use of land ; (x) money given to pay off a mortgage debt affecting land belonging to a charity. (2/) But shares in, and debentures or debenture stock of, a joint stock company which holds land, were not within the Act, since they are not interests in the land itself. (2) And a gift of money to a charity, for the purpose of building on certain land already held by the charity, was not affected by the Act, if that land were distinctly referred to in the gift ; but otherwise the gift was void, as impliedly directing the purchase of land for the erection thereon of the building.(a) Interests to which the Act of George II. applied were Alteration by equally within the Mortmain and Charitable Uses Act, p.*"^*™^^? ^""^ 1888. But as regards dispositions to which the Mortmain Uses Act, 1891. and Charitable Uses Act, 1891, applies, most of the pre- ceding distinctions are of no importance ; for that Act provides that the term ' land ' in the Acts shall not include money secured on land, or other personal estate arising from or connected with land.(&) Alienations of Advowsons. — If an advowson be alienated Where void, during a vacancy of the benefice, the next presentation will not pass to the alienee. And the alienation of a right of nest presentation, under the like circamstances, is void.(c) Under the statutes directed against simony, as will hereafter be seen, the alienation of an advowson or next presentation, for valuable consideration, under some circumstances creates a forfeiture to the Crown of the next presentation. ((^) (x) Notes to Corbyn v. French, supra; Chandler v. Howell, 4 Ch. D. 651, 46 L. J. Ch. 25, 35 L. T, 592, 25 W. R. 55 ; Cavendish v. Cavendish, 30 Ch. D. 227, 53 L. J. Ch. 191, 49 L. T. 626 ; In re David, Buckley v. Boyal National Life Boat Institution, 41 Ch. D. 168, 43 Ch. D. 27, 59 L. J. Ch;'87, 62 L. T. 141, 38 W. R. 162 ; cf. In re Thompson, Bedford v. Teal, 45 Ch. D. 161, 59 L. J. Ch. 689, 63 L. T. 471, 39 W. R. 50 ; In re Parker, Wigncdl v. Farh i:i891], 1 Ch. 682, 39 W. R. 346. {y) Corbyn v. French, supra. (z) Notes to Corhyn v. French, supra; Attree v. Hawe, 9 Ch. D. 337 ; Cavendish v. Cavendish, supra; Be Christmas, 30 Ch. D. 544, 33 Ch. D. 332 54 L. J. Ch. 1164, 53 L. T. 530, 34 W. R. 8. [a] Notes to Corbyn T. French, supra; Pratt v. Harvey, L. R. 12 Eq. 544. (5) 54 & 55 Vict. c. 73, a. 3 ; re,pealing the definition of land in the Act of 1888, s. 10 (iii.). (c) Bishop of Lincoln v. Wolferstan, 1 W. Bl. 490 ; see Walsh v. Bishop of Lincoln, L. R. 10 C. P. 518, 44 L. J. C. L. (C. P.) 244, 32 L. T. 471, 23 W. R. 829. (d) See post, p. 465. Y Digitized by Microsoft® 338 THE lAW OF PEOPERTV IN LAND. Where Yoid. Alienations of Pretended Bights or Titles. — By a statute of Heniy VIII., the sale and purchase of any pretended right or title to lands or hereditaments is made unlawful, and is void — unless the vendor has been in possession, or in receipt of the rents and profits, within a year before the sale, or the purchaser is in lawful possession of the rents and profits. ((') Voidable under Alienations in Fraud of Creditor!^. — A statute of Queen s a^. 12. ]<]jj2abeth ( /) enacts, in effect, that all alienations of lands, or of goods and chattels, made for the intent or purpose of delaying, hindering, or defrauding creditors and others of their actions, suits, debts, &c., shall, as against those persons, their heirs, &c., be deemed void; unless the aUenation be made upon good (which here means valuable) (cf) consi- deration, and honA fide, to any person or persons not having, at the time of the alienation, notice of such intent or purpose. Effect of the The effect of this statute is to enable creditors to set aside statute. j^^y. alienation (including an appointment under a general power of appointment) (Ji) of lands, goods, &c., which would otherwise be subject to their claims, made by the debtor with the intention of defeating such claims — other than an aliena- tion in favour of a purchaser for value, who is no party to the fraudulent design of the alienor. But the Act does not enable the parties to the transaction, or any person claiming through them, to dispute its validity, (i) The exception in favour of a purchaser who is not a party to the fraud applies as well to a purchaser from the person in whose favour the fraudulent alienation was made, as to a purchaser from the debtor himself.(A) Fraud may be The intention of the alienor to delay or defraud his inferred. (e) 32 Hen. 8, o. 9 ; Doe d. Williams v. Evans, 1 C. B. 717. As to what interests are within this statute, see 1 Dart, V. & P., ch. 6, s. G ; Kennedy v. Lyell, 15 Q. B. D. 491, 53 L. T. 466. (/) 13 Eliz. 0. 5. (17) Twyne's case. Kept. pt. 3, 80, 1 S. L. C. 1. (7*) Sug. Pow. 474. (i) BoUnson v. II'Donnell, 2 B. & Aid. 134 ; Bessey v. Windham, 6 Q. B. 166. (/s) Halifax Joint Stock Banking Co. v. Otedhill \_18n], 1 Ch. 31. Digitized by Microsoft® AIIENATION GENERALLY. 339 creditors may be either proved as a matter of fact, or inferred from the circumstances of the case. And it may be inferred Voluntary from the indebtedness of the alienor, together with insuffi- ^^g^g deemed ciency of consideration for the alienation. Hence, an aliena- fraudalent. tion which is voluntary, i.e., by way of gift, will be void as against creditors, if the donor was insolvent at the time of making the gift ; or if his remaining estate was insufficient for the payment of his debts ; or where the alienation consists of a settlement of the bulk of his estate, and has been made by him shortly before engaging in, or while engaged in, a business of a hazardous character, which has resulted in his insolvency. (^) And such an alienation will be invalid as against creditors, although the alienee was not a party to the fraud ; for a person taking by gift cannot, in this respect, stand in a better position than his donor. A post-nuptial settlement, made for the benefit of the settlor's wife, or of his wife and children, is, of course, a voluntary alienation within the Act. An alienation for valuable consideration, made in fraud of Alienation for creditors, may be set aside under the Act, if it can be shown ^^'^^ ^^^ that the alienee did not acquire in good faith, or, in other fraudulent, words, was a party to the alienor's fraud. (m) Hence, a settlement made prior to, and in consideration of, marriage, by a person in embarrassed circumstances, with the view of defeating or delaying his creditors, will be voidable under the Act, if it appear that the wife was aware of the purpose with which the settlement was made ; although (since marriage is a valuable consideration) she is technically a purchaser. (■») As will hereafter be seen, certain alienations are void as Alienations against creditors, under the bankruptcy law, in case of the ^aukruptCT alienor's bankruptcy, whether or not they be also voidable law. under the statute of Elizabeth.(o) (I) Crossley v. Elworthy, L. E. 12 Eq. 158, 40 L. ,J. Ch. 480, 24 L. T. OUT, 19 W. E. 842 ; Madcay v. Douglas, L. E. 14 Eq. 106, 41 L. J. Ch. 539, 26 L. T.721, 20 W. E. 652 ; Ex parte BusseU, 19 Ch. D. 588, 51 L. J. Ch. 521, 46 L. T. 113, 30 W. E. 584. (m) Twyne's Case, and notes, supra ; Acraman v. Coriett, 1 Johns. & Hem. 410 ; £ott V. /Smith, 21 Beav. 511, 517. (re) Colomhine v. Penhall, 1 Sm. & G. 228 ; Bulmer v. Hunter, L. E. 8 Eq. 46 ; cf. Kevan v. Crawford, 6 Ch. D. 29, 46 L. J. Ch. 729. (o) Seejjosf, p. 459. Digitized by Microsoft® 340 THE LAW OF PROPERTY IN LAND. Stat. 27 Eliz. Alienations invalid as against Subsequent Purchasers. — A statute of Queen Elizabeth (jp) enacts, in effect, that all alienations of land, made with, intent to defraud and deceive subsequent purchasers for valuable consideration of the same land, shall, as against such purchasers and persons claiming under them, be void ; unless the alienation be made for good (i.e., valuable) (q) consideration, and hond fide. The statute also makes void, as against the same persons, all con- veyances with any clause or condition of revocation, deter- mination, or alteration, at the grantor's will, of the whole or part of the interest granted ; except mortgages made hond fide upon good consideration. What aliena- It is established that any conveyance of land (including an in°thirs^taliite" ^Ppoi^ifiiient in exercise of a general power), that is not made on valuable consideration, (r) is invalid under this Act, as against a person to whom the grantor afterwards alienates the land for valuable consideration, even though the subse- quent alienee for value acquire the land with notice of the prior voluntary conveyance ; for, it is said, the very execution of a subsequent conveyance sufficiently evinces the fraudulent intention of the former one.(s) Hence, it is impossible to make an absolutely irrevocable gift of lands or tenements ; for the donor may afterwards revoke his gift, by merely sell- ing or mortgaging the land ; (f) and the donee will have no (p) 27 Eliz. c. 4, made perpetual by stat. 39 Eliz. u. 18. The Act does not apply to alienations of personal chattels ; but it applies to all interests in land. (q) Twyne's case, Eep. pt. 3, 80, 1 S. L. G. 1 ; Sug. Pow. 467. (r) As to what is a valuable consideration within the Act, see May, pt. 4 ; Townend v. Toler, L. R. 1 Ch. 446, 35 L. J. Ch. 608, 14 L. T. 531, 14 W. E. 806 ; Bayspoole v. Collins, L. E, 6 Ch. 228, 40 L. J. Ch. 289, 22 L. T. 650, 18 W. E. 730 ; In re Foster and Lister, 6 Gb. U. 87, 46 L. J. Ch. 480, 36 L. T. 582, 25 W. R. 553 ; Teasdale v. Braitlmaite, 4 Ch. D. 85, 5 Ch. D. 630, 46 L. J. Ch. 725, 36 L. T. 601, 25 W. E. 546; Rosher v. Williaim, L. K. 20 Eq. 210, 44 L. J. Ch. 419, 32 L. T. 387, 23 W. R. 561 ; Shurnmr v. Sedgu-ick, 24 Ch. D. 597, 53 L. J. Ch. 87, 49 L. T. 156, 31 W. E. 884 ; De Mestre v. West [1891], 2 A. C. 264. An assignment of leaseholds has been held not to be Toluntary under the Act, as the assignee incurs a liability in respect of the rent and the covenants in the lease : Price v. Jenkins, 4 Ch. D. 483, 5 Ch. D. 619, 46 L. J. Ch. 805, 37 L. T. 51 ; cf. Harris y. Tubb, 42 Ch. D. 79, 58 L, J. Ch. 424, 60 L. T. 699, 38 W. E. 75. («) May, pt. 4 ; notes to Twyne's case, 1 S. L. C. 1 ; notes to EUison v. Ellison, 1 Lead. Cas. Eq. 291 ; Sug. V. & P. ch. 22. (t) See Dolphin y. Aylward, L. E. 4 H. L. 486, 23 L. T. 636. The voluntary conveyance, however, will be defeated to the extent only that is necessary to give effect to the conveyance for value : ibid. Digitized by Microsoft® 341 ALIENATION GENERALLY. claim upon the purchase or mortgage m.onej.{u) But it is only by a subsequent alienation for actual value that the donor can defeat his previous voluntary conveyance. (a;) And he can thus defeat it, only as against the donee and persons entitled under him as volunteers ; and, therefore, not as against a person to whom the donee has alienated for valu- able consideration. (2/) For this reason — and also because a conveyance, that is apparently voluntary, may afterwards be shown to have been made for valuable consideration— a pur- chaser cannot be compelled to accept a title to land, which the vendor has previously alienated by voluntary convey- aTLce.{z) The power of revoking a gift of land, by sale or mortgage, does not pass to the heir or devisee of the donor.(a) Alienations in Fraud of Marital Rights. — Under the law Where void- prior to the commencement of the Married Women's Pro- perty Act, 1882,(&) a man became entitled, on marriage, to certain interests in his wife's real and personal estate, (c) And if a woman, after entering into a contract to marry, but before the marriage, made, without her intended husband's knowledge, a disposition of any of her real or personal estate, to the prejudice of his interest in her estate on marriage, such disposition was liable to be afterwards set aside at his instance, as a fraud upon his marital rights. (li) But, as will be seen, where the Married Women's Property Act, 1882, applies, marriage gives the husband no interest in his wife's estate ; and she may therefore dispose of it, either before or after the marriage, without his knowledge or consent, (f) {u) Daldng v. Whimper, 26 Beav. 568. (x) Dolphin v. Aykoard, supra. (y) Sug. V. & P. 719, 720, and cases there cited. (s) Sug. V. & P. 720 ; Clarhe v. Wilbtt, L. E. 7 Ex. 313 ; In re Briggs and Spicer [1891], 2 Ch. 127, 39 W. E. 377. (a) Sug. V. & P. 714; Lewis t. Bees, 3 K. & J. 132. (6) 45 & 46 Vict. i;. 75. (c) See^osf, ch. 7, s. 1. (d) Countess of Strathmore v. Bowes, 1 Ves. 22 ; S.C. and notes thereto, 1 Lead. Cas. Eq. 471. (e) See post, pp. 434, 435. Digitized by Microsoft® 342 THE LAW OF PROPERTY IN LAND. Voidable in Alienations whereby Forfeitures are incurred. — Certain certain cases, alienations are voidable, in that they render the estate alienated liable to forfeiture. The cases in which an aliena- tion may have this effect are noticed in other pages of this work ; ( f) and forfeiture generally is considered in a subse- quent chapter. ((/) (/) See ante, pp. 54, 74, 101, a.n(i. post, p. 498. {g) See post, ch. 10. Digitized by Microsoft® GHAPTEE III. ALIEJSTATIOjSr INTER VIVOS. The instruments by which estates and interests in land are Assurances, alienated inter vivos, are called, generally, ' assurances,' or, "'^ """^^^y- more commonly, ' conveyances.' These instruments are con- sidered in the present chapter with reference to (1st) their forms, and (2ndly) their construction, or interpretation. Sect. I. — Forms of CoNVEyANOES. Classification. — Various forms of conveyance are used in Three classes, alienation inter vivos ; the form or forms that may be adopted in any given case depending, chiefly, on the quality of the estate or interest intended to be conveyed, as being either legal or equitable ; and also (if it be a legal interest) on the tenure of the land, that is, whether it is freehold or copy- hold. The different forms of conveyance may be divided, according to these distinctions, into three classes : (1) Con- veyances of legal estates and interests in land of freehold tenure ; (2) Conveyances of legal estates and interests in land of copyhold tenure ; (3) Conveyances of equitable estates and interests in land of either tenure. Sub-sect. 1. — Conveyances of Legal Estates and Interests in Land of Freehold Tenure. Classification. — Conveyances under this head depend for Three classes their legal effect either on rules of the common law, or on the operation of the Statute of Uses, or on the provisions of modern statutes. Hence, they may be distinguished as con- veyances at common law ; conveyances under the Statute of Digitized by Microsoft® 344 THE LAW OF PEOPERTY IN LAND. Uses ; and modern statutory conveyances ; and they will b& liere considered as thus classified. Since these conveyances are, in most instances, necessarily made by deed, the nature and provisions of deeds of conveyance, generally, will also be considered. Principal Conveyances at Common Law. — The principal convey- conTejances at ances of this class are called, respectively, ' feoffments ' ; common law. , , . . , , i , i > ' grants ; ' leases ; ' assignments ; ' releases ; surrenders. Feoffment Feoffment .{cC} — The feoffment is the mode of conveyance defined. originally used for the transfer of the seisin, or feudal owner- ship in possession, of land. It consists in ' livery of seisin ' — that is, a delivery of possession of the land, made either on the land (livery in deed), or in sight of it (livery in law) — accompanied by words explanatory of the act of livery, and limiting the estate intended to be transferred. The transferror is called the ' feoffor ' ; and the transferree the ' feofree.'(6) Writing not The common law did not require writing in evidence of a aTcommon'^' feoffment; though, in fact, the transaction was usually law. evidenced by a ' charter of feoffment.' But, by the Statute ^iture!""' ''^ of Frauds, it was, in effect, provided, that all estates in land (except for certain terms not exceeding three years), created by livery of seisin only, and not put into writing signed by the parties so creating the same, or their agents authorized by writing, should have the effect of estates at will only.(c) And, by the Act to Amend the Law of Eeal Property, 1845, a feoffment executed after the 1st October 1845, other than a feoffment made, under a custom, by an infant,((i) is void at law, unless evidenced by a deed.(e) What interests The feoffment is available only for the transfer of estates ftofftnent ^ accompanied by seisin, i.e., estates of inheritance, or for life, in possession. But a feoffment that limits an estate in (a) From the verb ' to enfeof ' [feoffare or ivfeudare), to give one a feud : 2 Bl. Comm. 310. (i) 2 Bl. Comm. 310, 315. (c) 29 Car. 2, c. 3, ss. 1, 2. (d) Ab to which, see ante, p. 25, and post, p. 486. (e) 8 & 9 Vict. c. 106, s. 3. In cases to which this enactment applies, a writing not under seal will, if made for valuable consideration, have eti'ect in equity as a contract lor a conveyance of the kind intended. Digitized by Microsoft® ALIENATION INTER YIVOS. 345 possession may also limit a remainder, expectant tliereon. A freehold reversion or remainder, expectant on an estate for years, may be conveyed by feoffment ; for, in such case, the seisin is in the owner of the expectant estate. (/) Formerly, a feoffment — which differed in this respect from Former tor- other ordinary modes of conveyance — might have a ' tortious J™^ ^^ f^^^_ operation,' by passing a greater estate than the feoffor himself meat. Altera- had in the land.(^) Thus, a tenant for life or for years might, gj^t^j/ by feoffment, convey the fee simple. The estate thus con- veyed was, however, immediately forfeitable to the person having the next vested estate in remainder or reversion ; though it would defeat a contingent remainder expectant on the particular estate, unless prevented from having that effect, by means of a limitation to trustees to preserve con- tingent remainders. (A) But this peculiarity of a feoffment was abolished by the Eeal Property Law Amendment Act, 1845.(i) The feoffment has long since been superseded, as an Disuse of i'eoff- ordinary mode of conveyance, by other conveyances, that take effect without livery of seisin. It is now employed only for the conveyance of land by an infant, under the custom of gavelkind ■,{k) in which case it is the only mode of convey- ance applicable. (^) Grant, (m) — A grant, at common law, is a conveyance Grant defined, whereby an interest, other than an estate in possession in ^^^ requioi e land, may be transferred. It must be made by deed ; but no ceremony of transfer, beyond the execution of the deed, is required. This conveyance was applicable, at common law, only to What interests interests that are not accompanied by the seisin of land, as "eyedby^^ant. estates of freehold in expectancy, rights of common, rents, rent-charges, easements, advowsons, seignories, &c. Such (/) 2 Bl. Comm. 314; 4 Cruise, t. 32, c. 4, s. 21 ; Burton, § 22. ((/) Fines and recoveries had a similar operation in some cases. {h) 4 Cruise, t. 32, c. 4, ss. 30-32 ; Co. Litt. 327 b ; see ante, p. 13G. (i) 8 & 9 Vict. c. 106, s. 4. (k) Ante, p. 25, and post, p. 486. {I) See generally as to feoffments, 2 BI. Comm. 310-317 ; 4 Cruise, c. 4. (m) As to royal grants, or grants made by the Crown, by charter or letters patent, see 2 Bl. Comm. 346 ; 1 Staph. Comm. ch. 21. Digitized by Microsoft® 346 THE LAW OF PEOPEliTY IX LAND. interests were hence said to ' lie in grant,' and were thus distinguished from estates that ' lay in livery,' that is, estates transferable by livery of seisin. (»() But, as will be seen, the deed of grant has been, by statute, made available for the conveyance of freehold estates in pos.session.(o) How made. Lease defined. Lease. — A lease is a conveyance whereby an estate for years, or at will, is granted by a person who has a greater estate in the subject of the conveyance. As has been seen, a conveyance of a life estate in land is sometimes called a ' lease for life ' — at least where the estate is granted at a rent ; but as, in such case, the conveyance must be made in a form applicable to the transfer of freehold estates in land, a so- called lease for life is to be distinguished from a lease in the ordinary sense, that is, as meaning a conveyance of a chattel interest, (p) A lease of land for a term of years, or for an estate at will, is made, at common law, by a grant of the land for the term or estate intended to be created, followed by entry of the lessee upon the land. Until such entry, the lessee, as has been seen, has merely an interesse termini, whether the lease be intended to have effect immediately, or in futuro.(q) A lease of an interest lying in grant, however (as a right of common, rent- charge, advowson, &c.), takes effect by force of the grant merely. (■)') At common law, a deed was required in the creation of a term of years, only where the subject of demise was an Alterations by interest lying in grant, (s) A lease of land for any term of statute. years might be made by verbal demise. But, under a pro- vision of the Statute of Frauds, already mentioned, leases not put into writing, signed by the parties making the same or Writing not required at common law. (») 2 Bl. Comm. 317. See ante, p. 17. (o) JPost, p. 346. {p) See ante, p. 63, note (x). {q) See ante, p. 89. But where the lease takes effect bj' operation of the Statute of Uses, entry is not necessary : see ante, p. 89, and^osf, p. 353. (r) Co. Litt. 49 a. (.s) A deed of grant is the appropriate iustrument for the creation or transfer of any in terest in an object lying in grant : see Co. Litt. 49 a ; 2 Piatt, Leases, 1 ; Dulce of Somerset v. I'bgwell, 5 B. & C. 875, y^'J. Digitized by Microsoft® ALIENATION INTEE VIVOS. 347 their agents authorized by writing, were to liave the eiiect of estates at will only — an exception being made, however, of leases not exceeding three years from the making thereof, at a rent of at least two-thirds of the full improved value of the subject of the demise.(i;) And by the Eeal Property Law Amendment Act, 1845, a lease required by law to be in writing is (if made after the 1st October 1845) void at law, unless made by deed.(i6) Hence, the only leases that can be made otherwise than by deed are leases for terms not exceeding three years from the time of their creation, at rents of two- thirds, at least, of the improved value, and grants of estates at will ; and these may be made by parol. An instrument intended as a lease, but not made by deed. Where in- and for that reason void at law under the Act last mentioned, Ses effecras may nevertheless operate as an agreement to grant a lease, of an agreement which specific performance will be enforced, (a;) An agree- ^^^^ '^ '^^"'' ment for a lease is to be distinguished from a present lease to take effect in possession at a future time. Under the latter, the lessee has a right to enter on the arrival of the time named, and has, in the meantime, an interesse termini.{y) But under a mere contract for a lease, the intended lessee has no interest, at law, in the land, but merely a right, enforceable against the lessor, to a grant of the lease, (i) If, under an express agreement for a lease — or under a lease which, being in writing merely and not by deed (where a deed is required by the Real Property Law Amendment Act, 1845), takes effect merely as an agreement for a lease — the intended lessee Effect oe enters into possession with the consent of the lessor, his u°der such an position has been held, at law, to be that of a yearly tenant, (a) agreement. holding upon the terms of the agreement, as to rent, &c. But it has lately been held that, by the rules of equity, he holds possession under the agreement, upon the same terms as if the (<) 29 Car. 2, ^. 3, ss. 1, 2 ; see ante, p. 344. (w) 8 & 9 Vict. 0. 106, e. 3. [x] Parker v. Tasicell, 2 De G. & J. 559, 27 L. J. Ch. 812 ; and see ante, p. 344, note (c). (y) Ante, p. 89. (s) In cases where a deed is not requisite to the yalirlity of a lease, difficulty is sometimes experienced, owing to the form in which the instrument is ex- pressed, in determining whether it is intended as a lease, or merelj' as an agree- ment for a lease. On this subject, see 5 pt. 1 Davidson, Conv., 1-18, and cases there discussed; Woodfall, 137. (a) Boe d. Bigge v. Veil, 5 T. R. 471, 2 S. L. C. 110. Digitized by Microsoft® 348 THE LAW OF PROPEKTY IN LAND. lease had been granted ; (&) provided, at least, the right to claim specific performance of the agreement has not been lost.(c) Assignment Assignment. — Assignment, in a wide sense, means any con- ^ ''^' ■ veyance of an interest ; bnt, in practice, the term is commonly used to denote a conveyance of an estate for years, or other chattel interest (including an interesse termini), previously created. An assignment, in this sense, differs from a lease, in that the assignor does not reserve to himself a reversion, but parts with his whole estate or interest. (f?) A conveyance by a lessee of the whole term vested in him is, in effect, an assignment, though it be expressed to be an underlease ;(e) while, on the other hand, a conveyance of a part only of the original term, is, in law, an underlease, though expressed to be an assignment. (/) WritiEg Eot At common law, assignments of chattel interests in land, as necessary for, distinguished from interests in obiects lying in grant,(f/) might at common t-t -, ■, ^ --^i i o law. Altera- be made without deed or other writing. Isut, by the btatute tions by ^f Frauds, a deed or note in writing, signed by the assignor or his agent authorized m writing, was made essential to the assignment (otherwise than by operation of law) of a term of years, or other chattel interest, in land of freehold tenure. (A) And, by the Eeal Property Law Amendment Act, 1845, an assignment of a chattel interest, in land of freehold tenure, is void at law, unless made by deed.(i) Release defined. Ilelease. — A release is a conveyance of an estate or interest (h) See per Jessel, M.E., in Walsh v. Londsdale, 21 Cli. D. 9, 14, 15, 52 L. J. Gh. 2, 46 L. T. 858, 31 W. E. 109 ; Furness v. Bond, W. N. 1888, p. 78 ; Lmotlicr t. Heaver, 41 Ch. D. 248, 264, 58 L. J. Ch. 482, 60 L. T. 310, 37 W. E. 465. (c) Coatsworth v. Johnson, 55 L. J. C. L. 220 ; Swain v. Ayres, 20 Q. B. D. 585, 21 Q. B. D. 289, 57 L. J. C. L. 428, 36 W. E. 798. {d) 2 Bl. Comm. 326 ; 4 Cruise, t. 32, u. 7, =. 15. (e) Woodiall, 270 ; Beardman^. Wilson, L. E. 40. P. 57, 38 L. J. C. L. (C. P.) 91, 19 L. T. 282, 17 W. E. 54. And in such case the so-called underlessce has the rights and liabilities of an assignee, as to -which see ante, pp. 96, 118. (/) IlieJcs V. Downing, 1 Ld. Eaym. 99. And in such case there is no privity hetween the so-called assignee and the grantor of the original lease, ante, p. 100. ((/) See ante, p. 346. {h) 29 Ch. 2, u. 3, s. 3. (i) 8 & 9 Vict. c. 106, s. 3. See Bartshorne v. Watson, 5 Bing. N. C. 477. As to the etieot in equity ot a writing not under seal in such case, see ante, p. 344, note (e). Digitized by Microsoft® ALIENATION INTER VIVOS. 349 in. land to a person who already lias a vested estate in the same land ; the estate or interest conveyed being thereby ex- pressed to be released, or relinquished, by the releasor (the party making the conveyance) to the releasee (the party to whom, it is made).(/£) For this conveyance, a deed is re- Deed required quired by the common law -,(1) but the interest conveyed °^' passes to the releasee by force of the deed alone, without any further act or ceremony — even where the release transfers the seisin, as in the case of a release of the reversion in fee simple to a tenant for years. (7)1) A release being, in general, the appropriate mode of con- Cases in wh ch veyance to a person who already has an estate in the land, is ^'^i^^,^^.^^ applicable in various cases. Thus, the conveyance of an estate in expectancy in land to the owner of a particular estate in possession in the same land so as to effect a merger, is properly made by deed of release. (?i.) So, a conveyance of an undivided share in land by a joint tenant to his co-tenant should be made by release, since each is deemed to have pos- session of the whole land. A coparcener may also release her undivided share to her companion ; but a release cannot be made by one tenant in common to the other, since they a;re deemed to hold separate, though undivided, shares. (0) A release is also applicable to the extinguishment of any right in land inferior to ownership, for the benefit of the owner of the land. Thus, a power of alienation, right of common, rent, tithe rent-charge, or easement may be extinguished by its release to the owner of the land in which the right exists, (p) It seems that, in early times, a release was occasionally Lease and employed, in connection with a lease for years, for the pur- eommon'law. pose of transferring an estate of freehold in possession, without livery of seisin ; the land being first demised to the alienee for a term of years, and the freehold in reversion, expectant on the lease, being released to him, after he had entered on the (it) 2 Bl. Comm. 324 ; Burton, § 45. (J) Co. Litt. 264 b. (m) 2 Bl. Comm. 324. («) See 2 Bl. Comm. 824 ; Burton, §§ 50-54. As to merger, see ante, p. 129. (0) Co. Litt. 169 a ; 2 Prest. Abstr. 61 ; Burton, § 317. See ante, pt. 1, ch. 5. (p) See 4 Cruise, t. 32, c. 6, ». 39 ; Burton, §§ 1006, 1123, 1142. Digitized by Microsoft® 350 THE LAW OF PEOPEETY IN LAND. land by virtue of the lease ; whereby lie acquired the free- hold in possession. This mode of conveyance, as simplified by the operation of the Statute of Uses, became in later times, as will be seen, the ordinary mode of conveyance of estates of freehold. (^) Surrender. Implied surrender. Surrender. — A surrender is a conveyance of an estate for life or years in possession to a person who has an immediate estate in remainder or reversion, in which the estate conveyed is capable of being merged ;(r) the estate being thereby ex- pressed to be surrendered, or yielded up, by the surrenderor (the party making the conveyance) to the surrenderee (the person to whom it is made).(s) It takes effect by such re- linquishment merely; the estate conveyed merging thereupon in the remainder or reversion, without any actual delivery of possession. (<) And, at common law, a surrender might, in every case, be made without deed or other writing. But, by the Statute of Frauds, it was, in effect, enacted that an estate in land of freehold tenure should not be surrendered (unless by operation of law), otherwise than by deed or note in writing signed by the surrenderor, or his agent authorized in writing.(M) And, by the Eeal Property Law Amendment Act, 1845, a surrender in writing (made after the 1st October 1845), of an interest in land of freehold tenure — not being an interest which might by law have been created without writing — is void at law, unless made by deed.(a;) An estate for years may, however, be extinguished by an implied surrender, or ' surrender in law.' This occurs where a lessee accepts from his lessor a lease for a new term, to commence before the expiration of the previous term ; for in such case the previous term is deemed to be surrendered. It seems, also, that if, with the lessee's consent and before the expiration of his term, the lessor grants to a third person a (5) 2 Sand., Uses, 74. (r) As to merger, see ante, p. 129. (s) 2 Bl. Comm. 325 ; Burton, § 751. A disclaimer by a trustee in bankruptcy of an estate or interest of tbe bankrupt (as to which, see post, p. 461) is analo- gous to a suiTender. {t) 2 Bl. Comm. 326 ; 4 Cruise, t. 32, c. 7, s. 1. (m) 29 Car. 2, c. 3, s. 3. (k) 8 & 9 Vict. u. 106, s. 3. As to the efi'ect in equity of a writing not under seal in such case, see ante, p. 344, note (c). Digitized by Microsoft® ALIENATIOX IXTEK VIVOS. 351 lease, to commence immediately, a surrender of the previous term is to be implied. (//) Other Gonvcyancci at Common Law. — Conveyances at Exchange, common law include, also, the following ; which, however, are seldom used in modern practice : — An Exchange, which is a mutual conveyance of estates or interests similar in quantity, the one in consideration of the other. Entry by each party on the interest taken by him in exchange, is essential to the validity of this conveyance.(::) It is within the provision of the Statute of Frauds, requiring writing in the creation of estates ; (a) and by the Real Property Law Amendment Act, 1845, it must (unless it be an exchange of copyholds) be made by deed.(&) Exchanges are now usually effected by mutual deeds of grant. — ^A Partitio7i between coparceners, which, Partitiou. prior to the Statute of Frauds, might be made by parol agreement ; (c) but by the Real Property Law Amendment Act, 1845, a deed (except in the case of copyholds) is essential to its validity.(rf) It is now usually made by mutual deeds of grant. — A Bargain and Sale at common law (which is to be Bargain and distinguished from a bargain and sale under the Statute of Uses).((3) This is a conveyance made in exercise of a com- mon law power of alienation — usually in the case of a sale by executors, under a testamentary power to sell the testator's land for payment of debts or legacies (/) — and is available only for that purpose. It is commonly made by deed ; but a deed is not necessary, unless required by the terms of the power.(^) — A Confirmation, which is a deed whereby a void- Confirmation, able estate or interest is established, or made unavoidable.(yj) («/) Burton, § 904 ; Walker v. Richardson, 2 M. & W. 882 ; Lyon v. Seed, 13 M. & W. 285 ; Nicleells v. Atherstone, 10 Q. B. 944. An estate for life also may, it is said, be extinguished by a surrender in law, arising from the grant of a new estate: Burton, § 904 (n.) ; Shep. Touch. 301. (s) 2 Bl. Coram. 323. (a) 29 Car. 2, o. 3, ss. 1, 3. (6) 8 & 9 Vict. c. 106, s. 3 ; but see ante, p. 344, note (c). (c) 2 BI. Comm. 324. But for partition between joint-tenants or tenants in common, a deed was necessary, even at common law : ih'd. (d) 8 & 9 Vict. u. 106, s. 3 ; but see ante, p. 344, note (f). (e) As to which, see post, p. 357. (/) As to common law powers, see ante, p. 203, (g) 3 Brest. Abstr. 112, 113 ; 2 pt, 1 Davidson, Conv., 179 ; 2 Sand., Uses, 69. {h) 2 Bl. Comm. 325. Digitized by Microsoft® 352 THE lAW OF PEOPEETY IN LAND. Defeasance. — A Defeasance, whicli is a deed containing a condition of re-entry, whereby an estate conveyed by another instrument may be defeated. (i) The Statute affected operation and forms of con- veyances. Conveyances under the Statute of Uses. — The Statute of Uses had (in addition to its application to limitations of executory interests and equitable estates),(Z;) important effects as regards the operation of conveyances of estates and interests to which the Statute apiDlied, and the forms of such con- veyances. The effects of the Statute will be here considered with reference to (i.) the operation of such conveyances, and (ii.) their forms. Implied uses before the Statute. (i.) Operation of Conveyances under the Statv>te. — Although, before the Statute of Uses, a use was, in general, created by express declaration, (Z) it might, under some circumstances, arise by imiDlication. If a conveyance were made of the legal estate in land, without valuable consideration for the transfer, and without a declaration of use in favour of the alienee or a third person, the alienor was, in equity, presumed to have intended that the land should be held to his own use ; and a use was, accordingly, implied in his favour — or, in other words, the alienee held to the use of the alienor as equitable Resulting use. Owner. To rebut this presumption of a ' resulting use ' (as a use thus returning to the alienor was called), it was necessary that the conveyance should contain an express declaration of use, by its being made either ' unto and to the use of ' the alienee of the legal estate, or ' unto ' the alienee, ' to the use of a third person, or to some other use. If, however, the conveyance was made for valuable consideration, no presump- tion was made in the alienor's favour, and therefore no declara- tion of use was necessary, (m) Upon the passing of the Statute of Uses, these rules became applicable to uses as legal estates. Hence, since the Statute, it has been necessary, in the alienation inter vivos of the legal ownership in estates and interests within the Statute, that the conveyance — unless it be made for valuable consideration — (i) 2 Bl. Comm. 327. In modern practice, a condition of re-entry is usually contained in the conveyance 6f the estate to which the condition applies. (k) As to the effects of the Statute in these respects, see ante, pp. 146, 171. (I) See ante, p. 144. (m) 1 Sand., Uses, 60 ; Burton, § 126. Implied and resulting uses since the Statute. Digitized by Microsoft® ALIENATION INTER VH'OS. 353 be expressed to be made ' to the use of the alienee, or of a third person, or to some other specified use or uses ; even though the transfer be made by feoffment, or other common law conveyance. For otherwise, a resulting use will arise in favour of the alienor, as before the statute ; and (since the legal estate is annexed to the use) the conveyance will be a nullity.(w) Moreover, if a conveyance be made to one person, to hold to the use of another, and the estate of which the use is declared is of less extent than that limited to the first person — as where the fee simple is limited to A., to hold to the use of B. for his life — the legal ownership vests in the ceshd cfu,e use to the extent only of the estate defined by the declaration of use ; and, subject to that estate, the use (or legal ownership) results to the alienor. Hence, in the above example, the fee simple, subject to B.'s life estate, results to the alienor. And this rule applies wherever the uses declared are not commensurate with the estate expressed to be limited to the person who holds to the uses. That person does not himself acquire any estate or interest, unless a use is declared, or is to be implied (from his having given valuable considera- tion), in his favour. Subject to any uses arising by declara- tion or implication in favour of others, the use results in every case to the alienor, (o) Again, inasmuch as the Statute of Uses annexes the legal Transfer of ownership to the use, it follows that an estate or interest Jf='^^ ^^j?!'^ ^^ within the Statute may be alienated by means merely of a use. declaration or implication of a use in favour of the alienee. Hence, livery of seisin, or (in the case of an estate for years) entry by the alienee — which, at common law, as has been seen, was required for the conveyance of an estate in possession — is not needed for this purpose, where the conveyance takes effect under the Statute. Again, various limitations that would not be effectual in Certain liinit;i- conveyances at common law, are valid in conveyances under *'°''^ effectual odJv UDuGr the Statute of Uses. Thus, as has been seen, limitations Statute of inter vivos of the legal estate in freeholds, by way of execu- ^f^\ ,. , °. .... ... '' Limitatious tory interest — includmg limitations in joint tenancy, under inier ritos of which the co-tenants take their respective shares at difierent ps'^^to'T iQterests. [n) 1 Sand., Uses, 97 el seq. (o) Ibid. 101, 102, 103. Z Digitized by Microsoft® 354 THE LAW OF PROPERTY IN LAND. Limitation to alienor and another. Conveyancing Act, 1881, as to. Conveyances between hus- band and wife. times,(??) and limitations taking effect by the exercise of powers of appointment or powers of revocation {q) — are valid only by the operation of the Statute of Uses. So also, under the Statute of Uses, the alienor may limit to the use of himself and another person, jointly ; or to the use of himself for a particular estate, with remainder to the use of another (as where A. conveys to the use of himself for life, with remainder to the use of B. in fee simple); or to the use of another for a particular estate, with remainder to himself (as where A. conveys to the use of B. for life, with remainder to the use of A. in fee simple). Each of these limitations may be effected by means of a conveyance by the alienor to some other person, to hold to the use or uses intended to be created. And with respect to the first, viz., a limitation to the alienor jointly with another, the Conveyancing and Law of Property Act, 1881, provides that, after the 31st December 1881, freehold land may be conveyed by a person to himself jointly with another, by the like means by which it might be conveyed by him to another person (r) — that is, he may convey directly to the use of himself and the other person, jointly. At com- mon law, since a person could not convey to himself, none of the foregoing limitations could be effected by a single convey- ance. A limitation by A. to A. and B. vested the estate in B. solely ; a limitation by A. to himself for life, with remain- der to B., was absolutely void ; and under a limitation by A. to B. for life, with remainder to A., A. retained his former estate, as an estate in reversion expectant on B.'s life estate.(s) Two conveyances were therefore necessary in each case — the first, a conveyance by A. to a third person ; and the second, a conveyance by that person to A. and B., or to A. with re- mainder to B., or to B. with remainder to A. Moreover, under the Statute of Uses, a conveyance may be made to a person, to the use of the alienor's husband or wife ; (p) See ante, pp. 148, 155. ((/) See ante, pp. 151, 206. (r) 44 & 45 Vict. c. 41, o. 50. As to the limitation of chattels real to the alienor jointly with another, see^osi, p. 361. (s) 1 Sand., Uses, 134, 135. Under the law of descent on intestacy prior to the Inheritance Act, 1833 (3 & 4 Will. 4, c. 106), an estate retained by the alienor, as in the last of the above examples, was deemed a continuance of his former estate, even where the limitations were by way of use ; as was also a use resulting to the alienor. But the law on this point has been altered by the Inheritance Act: see^osJ, p. 419. Digitized by Microsoft® to. ALIENATION INTER VIVOS. 355 and, by the Conveyancing and Law of Property Act, 1881, Conveyancing since the 31st December 1881, it may be made by the f "'' ^^^^' ^^ husband directly to the use of the wife, or by the wife directly to the use of the husband, either alone or jointly with another person.(<) At common law (since husband and wife were regarded as being, in some respects, the same person), two conveyances were required for this transaction also ; a con- veyance by the alienor to a third person, and a conveyance by that person to the husband or \fiie.(u) It will be observed that, by the terms of the Statute of Effect of limi- Uses, its application is confined to cases in which a person is *^'^°°(, tUg use seised to the use of any other person or persons. («) Hence, of the alienee though a limitation to A. and his heirs, to the use of A. and his heirs, vests both the legal and the beneficial interest in A., he does not, under this limitation, acquire the estate by the operation of the Statute, but is deemed to take by the common law ; since the effect of the limitation woiild have been the same before the Statute. Nevertheless, a use so limited has, in general, the same characteristics as a use executed by the Statute. Thus, a limitation to A., to hold to the use of A., in trust for B., is a use upon a use, giving B. a merely equitable estate, (y) In modern practice, the legal estate is usually conveyed by a limitation ' unto and to the use of ' the alienee. Under a limitation to a person, to the use of another, the Estate of cestui cestui que use cannot take an estate of greater extent than that exceed limita^ limited to the person who holds to his u.se. Thus, if land be tion to grantee conveyed to A. for life, to the use of B. for Ufe, or to the use of B. and his heirs, B.'s estate must determine on A.'s death. («) As to what may be the subject of a limitation to uses, the What interests words of the Statute are, 'honors, castles, manors, lands, gt^tute. tenements, x'ents, sei'vices, reversions, remainders, or other hereditaments.' These words include every subject of the law of real property.(a) But as the Statute requires that (J) 44 & 45 Vict. u. 41, e. 50. (m) 1 Sand., Uses, 135. {x) S. 1. (■!/) See hereon 1 Sand., Uses, 43, 89 ; Webster \. Overseers of Ashton-under- lAine, L. R. 8 C. P. 281, 306', 42 L. J. G. L. (C. P.) 38, 21 \V. R. 171 ; Peacock V. Eastland, h. R. 10 Eq. 17, 39 L. J. Ch. 534, 22 L. T. 706, 18 W. R. 856. (s) 1 Sand., Uses, 107. (a) Ibid. 105, 106. Digitized by Microsoft® me THE LA\\^ 0? l^EOPERTV IN LAND. the person holding to the use be seised (either in possession or in expectancy), (J) a limitation of an existing term of years, or other chattel interest, to a person, to the use of another, is not executed by the Statute, but vests the legal estate in the grantee ; while the declaration of use creates an equitable estate merely. If, however, the fee simple be limited to A. to the use of B. for a term of years, the use be executed by the Statute ; for, in this case, A. is seised to the use of B.(c) Creation of By the Conveyancing and Law of Property Act, 1881, the easements, &c., operation of a limitation to uses, according to the Statute of by way oi use, '^ '^ under Con- Uses, has been extended to a conveyance (made after the veyancinsAct, g;^^^ December 1881) of freehold land, to the use that any person may have, for an estate or interest not exceeding in duration the estate conveyed in the land, any easement, right, liberty, or privilege in, or over, or with respect to, the land or any part thereof.(c^) Prior to this enactment, an easement, right of common, or other benefit or profit of land apart from its possession, could not be thus created ; though, if already created, it might be transferred by limitation of a use, as being a hereditament within the Statute.(e) A rent- charge, however, was an exception to the foregoing rule ; since the Statute expressly provided for the creation of a rent-charge by a limitation of land to the use that a person should receive a rent thereout.(/) Uses declared on common law limita- tions. (ii.) Forms of Conveyances under the Statute. — A limitation of an estate or interest in fee or for life, by a feoffment or other common law conveyance, may be accompanied by a declaration of use of the estate or interest so limited ; and the legal estate will pass according to the declaration. Such a limitation is said to operate ' by transmutation of posses- sion,' inasmuch as actual transfer of possession to a person, to hold to the use declared, is an essential part of the con- veyance. Thus, an estate in fee simple may be conveyed to A., by means of a feoffment to X. and his heirs to the use (i) 1 Sand., Uses, 106. (c) Ihid. 275 ; 4 Cruise, t. 32, l-. 9, s. 18 ; Fox's case, Eep. pt. 8, 93 b. {d) 44 & 45 Vict. u. 41, s. 62. (e) 2 Bl. Comm. 330. (/) 27 Hen. 8, c. 10, es. 4, 5. Digitized by Microsoft® ALIENATION INTER VIVOS. 357 of A., and his ]ieirs.(^) And where a power of appointing a use is created inter vivos, the instrument by which the power is created — that is, which limits the estate to the uses to be declared by the exercise of the power — is, in form, either a common law conveyance, or a conveyance in one of the modern statutory forms hereafter mentioned. The appointment, or declaration of the use, may be made, as has beesi seen, by an instrument in any form that is not excluded by the terms of the instrument which creates the power.(A) Besides conveyances to uses declared upon common law Conveyances limitations, there are two forms of conveyance that depend '"'"i'™* tvm^ for their effect wholly on the Statute of Uses ; and which possession, are said to operate ' without transmutation of posses- sion' — that is, without such actual transfer of posses- sion as was required by the common law. These are the ' bargain and sale,' and the ' covenant to stand seised.' A third form (which operates in the same way), called a ' lease and release,' consists of a limitation of a use under the Statute, with a common law limitation superadded. Bargain and Sale. — Prior to the Statute of Uses, a con- Bargain and tract for the sale of an estate gave rise, on payment of the ^*'^- purchase-money, to an implied use in favour of the purchaser ; that is, the vendor in such case was, in equity, seised to the use of the purchaser, until the seisin, or legal ownership, should be duly conveyed to the latter. By the Statute of Uses the use so implied was converted into a legal estate ; and thus the immediate effect of the Statute was, that a mere contract of sale (which might be' made by parol) became a means whereby the legal estate might be conveyed without livery of seisin, or other formal transfer of possession.(i) This effect of the Statute, which probably had not been foreseen by its framers, led to the enactment, in the same year, of a statute (called the Statute of Enrolment) which. Statute of in effect, provided that a bargain and sale of an estate of ^"'■o'^^"*- {(j) And, in consequence of the doctrine of resulting use, above explained (see ante, p. 353), a declaration of use in favour of the alienee under a common law conveyance is essentia], unless the conveyance be for valuable consideration. (7i) Ante, p. 212. (i) 2 Sand., Uses, 53, 54. Digitized by Microsoft® 358 THE LAW OF PROPEKTY IN LAND. inlieritance or freehold should not have any effect, unless it were made by deed indented, and enrolled in one of the courts of record at Westminster, or with the custos rotulm'um of the county, within six months next after its date.(/.;) Hence, a bargain and sale of an estate of inheritance or for life, to be valid as a conveyance under the Statute of Uses, must be made by deed duly enrolled. But since estates for years and other chattel interests are not within the jStatute of Enrolment, a bargain and sale of such an estate or interest may be made without enrolment ; but it must, of course, be made in accordance with the requirements of the Statute of Frauds as to writing, and of the Eeal Property Law Amend- ment Act as to a deed, in the ci-eation of an estate for years.(/) Consideration A conveyance by bargain and sale must be expressed to be sale^'''^''™ *" made for pecuniary consideration. A merely nominal sum, however, is sufficient ; and it is immaterial whether it be actually paid or not.(m) Except for the purpose of creating estates for years, with- out the necessity of entry by the lessee as required at common law,('rt) the bargain and sale has been but little used in practice. Its use in practice. Covenant to stand seised. Coccnant to Stand Seised. — This conveyance is, in form, a covenant (that is, a contract made by deed), by the owner of land, to stand seised thereof to the use of another, in consideration of marriage or consanguinity — the alienee being the wife, child, or kinsman of the alienor. A use declared upon such a consideration was effectual, in equity, before the Statute of Uses ; and, as the Statute executes the use, the legal estate passes, under the covenant, to the alienee. A covenant to stand seised cannot, however, be made upon any consideration other than that of marriage, or relationship by blood; for a contract made upon any other consideration did not (except in the case of a bargain and sale) give rise to a use in equity before the Statute. The conveyance by {k) 27 Hen. 8, c. l(i. (/) Ante, pp. 346, 347. ()?!) 2 Sand., Uses, .56, 57. (?i) See ante, pp. 89, 346. Digitized by Microsoft® ALIEXATION INTER MVOS. 359 covenant to stand seised is rarely, if ever, employed in modern practice, (o) Lease and Release. — This mode of conveyance is based on Le ise and the lease and release of the common law, which has been release, already mentioned ; (p) and it takes effect in the same way as that conveyance, except that entry under the lease is not necessary. It consists of two distinct instruments, the first (the so-called lease) being a bargain and sale to the alienee for a term of years (in practice, usually one year) — which, by the operation of the Statute of Uses, vests in the alienee a legal estate in possession for the term, without any entry by him. upon the land. (2') This is immediately followed by the second instrument, which is a common law release to the alienee of the alienor's reversion exiDectant on the term created by the preceding bargain and sale ; and the alienee thus acquires the whole estate of the alienor.(?') Prior to the introduction of the modern statutory modes of its use in conveyance, by which it has been wholly superseded, the P™t'''i<'e. conveyance by lease and release was commonly employed for the transfer of estates of freehold in possession, in preference to any of the other modes of conveyance. (s) Its chief advan- tages — which were considered to counterbalance the incon- venience of a conveyance by two distinct instruments — were, first, that the estate was thereby transferred without livery of seisin, or entry upon the land, as required at common law ; and, secondly, that as the bargain and sale, which formed part of the transaction, passed an estate for years merely, it did not require enrolment under the Statute of Enrol- ment. (<) (0) 2 Bl. Comm. 338 ; 2 Saud., Uses, 96. ip) Ante, p. 349. (2) Ante, p. 357. (r) 2 Sand., Uses, 74-76 ; Burton, §§ 148, 149. The release may be made to the use of any person ; and uses declared thereby take effect as in other con- veyances ; and in the absence of a valuable consideration or declaration of uso, the use results to tl»e releasor : 2 Sand., Uses, 75, 76 ; and see ante. p. 352. (s) It was also applicable to the transfer of estates in reversion or remainder though these were usually transferred by the common law deed of grant. {t) See supra. By the stat. 4 & 5 Vict. c. 21, where a release of a freehold estate, executed before the 15th May 1841, contains a statement, by recital or otherwise, to the effect that the lease or bargain and sale has been duly executed, such statement is conclusive evidence of the fact. Digitized by Microsoft® 360 THE LAW OF PBOPEKTY IN LAND. Statutory release. Modern Statutory Conveyances. — The principal forms of conveyance under this head are the ' statutory release,' and the ' statutory grant.' [it) Stahttory Beleasc. — By a statute of the year 1841, («) it was provided that every instrument, executed on or after the 15th May 1841, purporting to be a release of a freehold estate, and expressed to be made in pursuance of that Act, should take effect as if a bargain and sale, or lease for a year, for giving effect to the release, had been executed, although such bargain and sale or lease had not, in fact, been executed. This enactment merely simplified the conveyance by lease and release, by rendering the lease unnecessary. The statu- tory release has been superseded, in practice, by the statustory grant, next mentioned. Statutory grant. Application of Statute of I Uses to. Statutory Grant. — It has been seen that, at common law, a grant by deed was a mode of conveyance applicable only to interests that are not accompanied by the seisin of land.(2/) But by the Real Property Law Amendment Act, 1845, it was provided that, after the 1st October 1845, all corporeal hereditaments should, as regards the conveyance of the im- mediate freehold thereof, be deemed to lie in grant, as well as in livery.(2) This enactment has made the deed of grant available for the conveyance of estates of freehold in posses- sion (to which the phrase ' the immediate freehold ' refers) ; while it does not affect the feoffment, or any of the other forms of conveyance previously existing. Since this Act, however, the deed of grant has, in practice, superseded all the earlier modes of conveyance of estates of freehold. The statatory grant, like a conveyance at common law, may be made to a use or uses, which the Statute of Uses executes. (a) And it seems that this conveyance is subject, also, to the rule that, unless the conveyance be made for (it) A statute of the year 1844 (7 & 8 Viet. c. 76) authorized the conveyance of freeholds ' by any deed ' ; but this Act, after being in operation during niiie months only, was repealed by the stat. 8 & 9 Vict. c. 106, s. 1. (ic) 4 & 5 Vict. c. 21. {y) See ante, p. 345. (z) 8 & 9 Vict. c. 106, s. 2. (a) See ante, p. 356. Digitized by Microsoft® ALIENATION INTER VIVOS. 861 valuable consideration, a use or uses must be declared thereby, in order to prevent the use from resulting to the grantor. (6) Other Statutory Conveyances. — In addition to the statutory Assignment of release and statutory grant, the following conveyances (as well peisonalty to •^ o ' t3 J \ ^ alienor and as some others that fall under the head of extraordinary another, modes of alien ation),(c) depend for their effect on modern statutes. An assignment of chattels real, or other personal property, by the assignor to himself and another person, or other persons, jointly, may, by a statute of the year 1859, be made by the like means whereby the assignor might assign the same to another, (rf) Prior to this enactment, two instru- ments were required for this purpose (as for a similar convey- ance of freeholds prior to the Statute of Uses) ; (e) namely, an assignment by the assignor to a third person, and a re- assignment by the latter to the assignor and his intended co-owner. By the Conveyancing and Law of Property Act, 1881, as Deed vesting has been seen, any estate or interest in land subiect to a trust ^'^"f* '^!,''^'^ / Tinder Uouvtjy- (except land of copyhold tenure, or land held by way of ancing Act, mortgage), may be vested in the trustees thereof, under a ■'^'^^^• deed appointing a new trustee or discharging a retiring trustee, by means of a mere declaration for that purpose, contained in the deed.(/) By the same Act, as has been seen, the fee simple expect- Enlargement of ant on a Ions' term of years may, under certain conditions, be, *?''"""*<' f^^ ° •' •' ' . ' ' simple under m effect, transferred, so as to enlarge the term into a fee Conveyancing simple, by a mere declaration made by deed, by a person entitled to possession by virtue of the term, either beneficially, or as trustee or personal representative. ((7) Deeds of Conveyance Generally. — Under this head are Divisions of subject. (i) See ante, p. 352 ; Sand., Uses, 77-84; Wms. E. P. 217. (c) See ante, p. 307, and post, p. 410. (f^) 22 & 23 Vict. 0. 35, b. 21. And the Conveyancing and Law of Property Act, 1881, expressly makes choses in action so assignable : 44 & 45 Vict. c. 41, s 50. (e) See ante, p. 354. (/) 44 & 45 Vict. c. 41, b. 34; see ante, pp. 188, 190. ((/) Jhid. s. 65; ante, p. 102. Digitized by Microsoft® Act, 1881. 362 THE LAW OF PEOPERTY IN LAND. considered : (i.) the nature and requisites of deeds generally ; and (ii.) the ordinary parts or clauses of deeds of conveyance. Deed defined. (i.) Natun and Requisites of Deeds. — A deed is a writing upon paper or parchment, sealed and delivered by the person Signing. or persons whose act it is.(/i) In practice, it is always signed, as well as sealed and delivered ; and signature seems to be necessary where the transaction is within any of the provisions of the Statute of Frauds requiring a signed writing.(i) The . acts of sealing and delivery constitute the ' execution,' or making, of the deed. Sealing. A deed may be sealed with the seal of any person, or any kind of seal ; and the acknowledgment of a seal or wafer previously affixed to the insrument — as by placing the finger upon it at the time of delivery — is equivalent to actual sealing.(7v) Delivery. The delivery of a deed, which is the act whereby it is trans- ferred to the person in whose favour it is made, is usually performed by the party who delivers it uttering the words, ' I deliver this as my act and deed,' and, at the same time, holding or touching the deed. But a deed may be delivered without words, or by words without any act of delivery, and although (in the latter case) it be retained by the party executing \t.(l) A deed takes effect only from the time of delivery ; which is presumed to be the date (if any) of the deed, unless the contrary appears.(m) And if it be delivered to a person, to be held by him till some condition be performed (as the payment of a sum of money), it does not take effect (/i) 2 Bl. Comm. 295. It may be either written or printed, and may be in any language ; ibid. 297. [i) 29 Car. 2, >.. ?,, ss. 1, 3, 4, 7, 9 ; 2 Bl. Comm. 306 ; Ellis v. Smith, 1 Yes. 11. But see 1 Shep. Toucii. by Brest. 56 ; Cooch v. Goodman, 2 Q. B. 580, 597 ; Aveline v. Wliisson, 4 Man. & Gr. 801. (/c) 4 Cruise, t. 32, c. 2, s. 80 ; National Provincial Banh of England v. Jachson, 33 Ch. D. 1. [1) Co. Litt. 36 a ; 4 Cruise, t. 32, c. 2, ss. 82, 83 ; Xenos v. Wichham, L. E. 2 H. L. 296, 36 L. J. C. L. (C. P.) 313, 16 L. T. 800, 16 W. R. 38. The deed of a corporation aggregate does not need any delivery : 4 Cruise, t. 32, c. 2, s. 81. (m) 4 Cruise, t. 32, c. 2, s. 79; Burton, § 525. When two deeds relating to the same subject-matter are executed on the same day, the Court will inquire which was executed first ; but if anything appear therein to show the order in which they were intended to be executed, they will be presumed to have been executed in that order, in order to give effect to the manifest intention : Gartside V. Silkstone, &c., Co., 21 Ch. D. 762, 51 L. J. Ch. 828, 47 L. T. 76, 31 W. E. 36. Digitized by Microsoft® ALIENATION INTER VIVOS. 36£ as a deed till the condition is performed ; and in the mean- time it is an escrotr — i.e., a scroll or writing, merely ; though Escrow. on performance of the condition, it operates as a deed from the time of the sealing and delivery.(?i) A person is entitled to read a deed — or, if he be blind or Reading, illiterate, to have it read to him — if he so requires, before he executes it.(o) Attestation of a deed by witnesses, who subscribe their Attestation, names, as such, at the foot, or on the back, of the deed, is also usual ; though attestation is not essential to the validity of a deed, unless it be made in exercise of a power which expressly requires that the execution be witnessed.(p) A person executing a deed may appoint an agent to perform Execution by the ceremony of execution on his behalf; but the appoint- ^^'^^'"^y- ment must itself be made by deed.(g) The instrument by which such an appointment is made is called a 'power of attorney.' The donee of the power usually executes the deed in the name of the donor of the power ; but by the Convey- ancing and Law of Property Act, 1881, he may execute it in his own name, by the donor's authority. (7') At common law, the execution of a deed under a power of attorney is liable to be invalidated through the revocation of the power by the donor, or his death, or bankruptcy — and, perhaps, by his lunacy — ^before the execution of the deed, although such event be unknown to the agent, or the other parties to the deed ; and the marriage of a female donor, prior to the Married Women's Property Act, 1882, had the same effect.(s) To meet this difficulty, to some extent, it has been usual to pro- vide, in a power of attorney, that the donor and his successors shall ratify the agent's acts.(<) By the Conveyancing and (m) Co. Litt. 36 a ; Sliep. Touch. 59 ; 4 Cruise, t. 32, c. 2, ss. 86-93 ; Wathins V. Nash, L. E. 20 Eq. 262, 44 L. J. Ch. 505, 23 W. E. 647. (0) 2 Bl. Comm. 304 ; TluyrougligooW s case, Eep. pt. 2, 9 a. (p) 4 Cruise, t. 32, 0. 2, es. 95-98 ; Burton, §§ 445, 450. By the Convey- ancing and Law of Property Act, 1881, on a sale the purchaser cannot require that the conveyance be executed in his presence, or in that of his solicitor as such ; but he may appoint a person to attest the execution : 44 & 45 Vict. c. 41, s. 8. (2) Co. Litt! 48 b. ()•) 44 & 45 Vict. c. 41, h. 46. (s) See 4 Byth. & Jarm. Conv. 894 ei seq (4th ed.). {t) See 1 pt. 1 Davidson, Conv., 475 (4th ed.). Digitized by Microsoft® 364 THE LAW OF PROPEETY IN LAND. Alteration, &c. in deed. Stamps on deeds. Law of Property Act, 1881, however, the agent is protected from liability for acts done by him in ignorance of such revocation or termination of his authority ; (i^) and by the Conveyancing Act, 1882, validity is given, in favour of a purchaser, to acts done under a power of attorney expressed to be irrevocable, and given for valuable consideration, not- withstanding anything done by the donor of the power, or his or her death, marriage, lunacy, unsoundness of mind, or bankruptcy ; and a similar protection is given for the period of one year from the date of the power, where it is not created for valuable consideration.(a;) An alteration, erasure, obliteration, or interlineation, made after the execution of a deed, in a material part of it, or the breaking ofE of its seal (if done intentionally), makes the deed void, as regards the subsequent operation of any limitation or covenant therein, if such act be done by the grantee, or by a person holding the deed on his behalf .(y) But, of course, any estate, right, or interest, which has been transferred by, or has arisen under, the deed, previously to any such alteration, &c., is not affected thereby. And the validity of a deed is not affected by the filling in, after execution, of the date, or other particulars which merely complete the provisions of the deed.(«) An erasure or alteration in a deed is presumed, in the absence of proof to the contrary, to have been made before its execution, (a.) Unless a deed be stamped as prescribed by the Stamp Acts, it cannot be given in evidence in any court, otherwise than on payment of the proper stamp duty, together with a pecuniary penalty. A purchaser of land is therefore entitled torequirethat every material deed of title to the land be properly stamped. (&) (w) 44 & 45 Vict. ^. 41, s. 47 ; and see 22 & 23 Vict. c. 35, s. 26. {x) 45 & 46 Vict. t. 39, ss. 8, 9. ((/) Mathewson's case, Rep. pt. 6, 23 a; Pigot's case, Eep. pt. 1, 26 b; 2 Bl. Oomm. 308 ; 4 Cruise, t. 32, c. 27, ss. 12-22. (z) Hudson V. Eevett, 5 Bing. 368 ; Aldous v. Cornwell, L. K. 3 Q. B. 573, 37 L. J. C. L. (Q. B.) 201, 16 W. R, 1045. (a) Doe d. Tatham v. Cattamore, 20 L. J. C. L. (Q. B.) 364 ; 4 Cruise, t. 32, c. 27, ». 14. (6) See Whiting to Loomes, 14 Cb. D. 822, 17 Cli. D. 10, 50 L. J. Cli. 463, 44 L. T. 721, 29 W. B. 435; cf. Ex parte Birlcbeck Freehold Land Society, 24 Oil. D. 119, 52 L. J. Ch. 777, 31 W. R. 716. Digitized by Microsoft® ALIENATION INTER VIVOS. 365 But the want of a proper stamp does not prevent the legal operation of a deed.(c) In a few instances (referred to in other chapters) public Registration or registration or enrolment of a deed is essential to its g„j,|g ^^^^^^ validity. (rf) And by the Deeds of Arrangement Act, 1887, a deed of arrangement with creditors (which, under the Act, includes any conveyance of property by a debtor for the benefit of his creditors), made on or after the 1st Januaiy 1888, is void unless it be registered within seven days after its execution (or, if it be executed out of England, within such further time as is mentioned in the Act) in the Bills of Sale Department of the Central Office of the Supreme Court of Judicature. (e) A deed made between two or more parties is called an indenture. ' indenture.' It is so called, because it was formerly the practice to engross two copies of a deed on the same piece of parchment, with some words, or letters of the alphabet, be- tween them ; through which the parchment was cut — usually in an indented line like the teeth of a saw (instar dentium), so as to leave half the word on one part, and half on the other. Afterwards, indenting merely, in a waving line, without cutting through letters, came into use; and this practice is still followed.(/) Formerly, it was necessary, under some circumstances, that a deed should be actually indented ; ( i, 1881. of inheritance, in deeds executed after the dlst Uecember 1881 ; namely, the words ' in fee simple ' (without the word ' heirs '), in the limitation of an estate in fee simple, and the words ' in tail,' in ' tail male,' or ' in tail female,' as the case requires (without the words 'heirs of the body,' &c.), in the limitation of an estate tail.(2) The rale in The important rule of construction, known as the ' rule in Shelky's case. SJieUey's case,' applies to certain limitations of estates of inheritance. This rule may be stated as follows : — Where an estate of freehold is limited to a person, and, by the same instrument, an ulterior estate is limited (whether immediately after the former estate, or after another estate, or other estates, of freehold, intei-posed) to the heirs, or to the heirs of the body, of the same person, this ulterior estate vests in that person himself, in the same manner as if it had been expressly given to him and his heirs, or to him and the heirs of his body ; the words ' heirs,' or ' heirs of his body,' in such case, being merely words of limitation of an estate of in- heritance in the ancestor. (r) Examples of Thus, a limitation to A. for his life, and after his death to its applica- ^jjg heirs, or the heirs of his body, is the same, in effect, as a limitation simply to A. and his heirs, or the heirs of his body ; that is, it gives an immediate estate in fee simple, or fee tail ; the estate for life, first limited to A., merging in his immediate inheritance in remainder. — Again, a limitation to A. for life, with remainder to B. for life, or in tail, with remainder to the heirs, or heirs of the body, of A., gives A. both a life estate in possession, and an estate in fee simple, or fee tail, in remainder expectant on the estate of B. ; and the {p) llandeville's case, Co. Litt. 26 b ; of. Moore v. Simian, 31 Cli. D. 95. See 3 & 4 "VViJl. 4, u. 106, s. 4 ; ^wst, p. 419. , (2) 44 & 45 Vict. 0. 41, s. 51. (r) SheUey's case (23 Eliz.), Eep. pt. 1, 93 b, Tudor L. C. E. P. 589. Although lei-med the rule in Shelley's case, it is of much greater antiquity ; but the rule is stated in the arguments in this case in clear terms, and has thence received its appellation (Tudor, siq}.). As to the origin of the rule, see Fearne, C. E., 83 et seq.; Hargi'eavo, Law Tracts, 551. On the rale generally, see Fearne, C. B., passim; Tudor, L. C. E. P., supra; Prest. Est. c. 3. Digitized by Microsoft® . ALIENATION INTER VIVOS. 379 effect is the same, though more than one estate be inter- posed between the limitation to A. and the limitation to his heirs.(s) The rule applies equally, where the estate first limited is Whereparticu- an estate pur autre via, or a life estate subject to a conditional ^/a^f^c'iuV, limitation. Thus, under a limitation to A. during the life of &c. B., or during widowhood, with remainder to the heirs of A., A. will take the fee simple in possession, notwithstanding that, by the terms of the limitation, the particular ■ estate is liable to determine during A.'s life. And if, in such case, an estate be interposed between A.'s life estate, and the limita- tion to the heirs (as to A. during her widowhood, and on her marriage to B. during his life, with remainder to the heirs of A.), A. will take a life estate (determinable according to the limitation) in possession, with an estate in fee simple in remainder, (i!) The rule applies, also, where the particular estate is an Where parti- estate tail. Thus, where land is limited to A. and the heirs estate Ml!^ '' male of his body, with remainder to the heirs female of his body, A. takes an estate in tail male in possession, and an estate in tail female in remainder.(i() Again, the rule applies, although the remainder to the Where re- heirs, or heirs of the body, be a contingent remainder. Thus, ™Xngent if land be limited to A. for life, with remainder to B. for life, with remainder, if A. die before B., to the heirs of A., A. takes (besides his life interest in possession) a contingent remainder in fee simple. (») And similar in effect is a limita- tion to A. and B. for their joint lives, with remainder to the heirs of the survivor. (3/) If the interposed estate be con- tingent (as on a limitation to A. for life, with remainder to B. for life if he shall survive A., with remainder to the heirs of A.), the ancestor takes, in the first instance, the inheritance in possession ; subject to the admitting of the interposed estate, if and when it vests.(0) (s) Fearne, C. E., •_".). («) Ibid. 31, 32. (m) Co. Litt. 376 b, 377 a. (k) Fearne, C. E., 34. {y) lihd. 310. (s) Ihid. 37. Digitized by Microsoft® 380 THE LAW OF PROPERTY IX LAND. Eequisites for application of the rule. Limitation of estate for life. Limitation of estate for years. It is to be observed that, for the application of the rule to limitations of real estate, there are three requisites : — (1) That a particular estate be limited to the ancestor ; (a.) (2) that this estate be an estate of freehold — for if it be an estate for years, the limitation to the heirs is a limitation of a contingent remainder to the ancestor's first heir, as purchaser(J) — and (o) that both the limitation to the ancestor and the limitation to his heirs, or the heirs of his body, be contained in the same instrument. If land be limited to A. for life, and, by a subsequent instrument, it. be limited to A.'s heirs, his heir will take as purchaser, (c) An estate for life may be limited either by words express- ing the intended duration of the estate — as, ' to the use of A. during the term of his life ' ; ' to the use of A. (or ' to the use of A. and his heirs,' or ' heirs of his body ') during the life of B. ' ; or, without any such words^ — as, ' to the use of A.' simply. ((^) A grant to the use of A. simply, or to the use of A. for life, is an estate for the life of the grantee, if the grantor is able to convey such an estate ; (e) but if he be himself merely a tenant for life, or in tail, such a grant will convey an estate for the lifetime of the grantor. (/) A con- veyance in terms expressing an intention to pass an estate greater than for life, but not being the technical words required for the limitation of the inheritance, as ' to the use of A. absolutely,' ' to the use of A. and his descendants for ever,' passes a life estate Taerelj.(g) In the limitation of an estate for years, a certain period must be stated for the duration of the term ; either expressly, as, ' for twenty-one years,' or by reference to some means of (oj But in the case of a limitation to the use of the heirs of the body of the grantor, without any previous Kmitution of a life estate to himself, a life estate arises in the grantor by implication (either from the tbrm of the limitations, or by way of resulting use), and the rule accordingly applies in such case : see It'earne, C. E,, 41, &c. ; Sand., Uses, 137; Burton, §§ 342-344 ; Pi/bus v. Mitford, 1 Vent. 372. (6) 4 Cruise, t. 32, ch. 23, s. 9. (c) 4 Cruise, t. 32, ch. 23, s. lit. But an appointment under a power is to be considered, ior this purpose, as if it were inseited in the instrument liy wliich the power was created : Feariie, C. 1\. 74, {d) 2 Bl. Comm. 120, 121. (e) Md. 121. (/) Burton, § 729. ((/) Liii. s. 1. Digitized by Microsoft® ALIENATION INTER VIVOS. 381 ascertainment, as, ' for so many years as A. shall name,' or, ' during the minority of A.,' or ' for ninety -nine years, if the lessee shall so long live.' The time of the intended commence- ment of the term may also be stated ; and if it is not stated, the term commences from the making, or delivery, of the lease.(7i) It is usual, though not necessary, to limit an estate for years to the grantee, ' his executors and administrators.' And, by analogy to the rule in Shelley's case, where an estate for life is given to a person, with remainder to his executors, or personal representatives, for a term of years, the term vests in the tenant for life.('i) A tenancy from year to year may be created by the words Limitation of ' from year to vear,' or ' as yearlv tenant,' or other words of t^"^""? f''°™ •' .; ' J J J ygar to year. similar import, (i) A limitation ' for one year, and so on from year to year,' creates a lease for a certain term of one year, and a yearly tenancy commencing at the expiration of that year ; so that the term will be two years certain, at the least. (Z) A joint tenancy is created, in a conveyance, either by a Limitation in limitation to the alienees, or to them and their heirs, ex- J°^°''*^°*°''y- pressly ' as joint tenants,' or ' in joint tenancy ' ; or by a limitation to them, or to them and their heirs, without any words expressing an intention to create a tenancy in common, or from which such intention may be inferred — as, to the alienees ' and their heirs,' or to them, ' for their lives.' But a limitation to two or more persons ' for their joint lives ' is not a limitation in joint tenancy, but is confined to the life of him who dies first. (m) A tenancy in common is usually created, in a conveyance. Limitation of by a limitation to the alienees expressly as tenants in com- t«°ai'=y ^° ■ T 1 1 T • I. 1 common. mon ; but it may be created by other words expressive of the intention that the alienees are to have distinct interests ; as, to the alienees ' equally to be divided between them,' or ' as to one moiety to the one of them, and as to the other moiety, to the other.' Where, however, the limitation is to the grantees in unequal shares, or for different estates, they are (h) Co. Litt. 46 ; 2 Bl. Cpmm. 143. (i) Co. Lit. 54 b ; Burton, § 849. (7c) Woodfall, c. 6, s. 2. (I) Doe d. Chaclbm-n v. Green, 9 A. & E. 658. (m) Burton, §§ 724, 736 ; 4 Cruise, t. 32, c. 22, s=. 43-49. See ante, p. 151). Digitized by Microsoft® 382 Similar to limitations of freeholds. THE LAW OF PROPEKTY IN LAND. necessarily tenants in common, and the intention that they shall so hold need not be expressly stated. (%) ((3) Limitations of Legal Estates and Lnterests in Land of Copyhold Tenure. — Surrenders of copyhold land are subject to the same rules, as respects words of limitation and their construction, as conveyances of lands of freehold tenure; except so far as different words of limitation are authorized by special customs. By the customs of some manors, estates of inheritance may be limited, without the use of the word ' heirs.'(o) Tectnical terms not required. (y) Limitations of Ecjidtahle Estates. — In the alienation of equitable estates, the use of technical words of limitation is not necessary ; (p) but where (as is usual) the words of limitation applicable to legal estates are used, they are, in general, construed in the same way as in conveyances of legal estates. (§') Limitations creating executory trusts, (r) how- ever, may be construed more liberally, in order to effectuate the manifest intention of the settlor ; especially as regards the application of the rule in Shelley's case. Thus, where by an ante-nuptial agreement, it is stipulated that a settlement shall be made of land, upon trust for the husband ' and the heirs of his body,' the latter words will be construed to mean ' first and other sons successively, as tenants in tail,' and the settlement will accordingly be made in the ordinary form of strict settlement.(s) With this qualification, the rule in Shelley's case applies as well to equitable as to legal limita- tions, provided both the estate limited to the ancestor, and that limited to his heirs, are equitable estates. If one estate be legal, and the other equitable — as in a limitation of the legal estate to A. and his heirs, to the use of A. and his heirs during the life of B., in trust for B., and after B.'s (n) 2 Bl. Comm. 193 ; Litt. s. 298 ; 4 Cruise, t. 32, ch. 22, es. 50-58 ; Goodtitle d. Mood V. Stokes, 1 Wils. 341 ; see ante, p. 166. (o) Burton, § 1278 ; 1 Watk. Cop. 109. (p) Lewin, 108, 109 ; 1 Hayes, Conv., 96 et seq^. (q) Burton, § 1383 ; 1 Brest. Abstr. 144 ; Lewin, 109. (r) See ante, p. 178. («) Lewin, 113 ; see Glenorcliy v. Eosollle, Cas. temp. Talb. 3 ; S.C, and notes thereto, 1 Lead. Cas. Eq. 1. Digitized by Microsoft® ALIENATION INTEK VIVOS. 383 death to the use of B.'s heirs — the rule does not apply, and the first heir of the ancestor takes as grantee, (i) (iii.) Operative Words, and Other Terms — The 'operative Constraction words,' or words expressive of the act of conveyance, generally ^o^^g'^^g^^ used in conveyances of land, differ according to the form of conveyance. Thus, in a feoffment, the proper operative words are ' give and enfeoff ;' in a gi-ant, the word ' grant ;'(m) in a lease for years of land, the word ' demise ;' in an assign- ment of a chattel interest, the word ' assign ;' in a release at common law, the word ' release ;' in a bargain and sale, the words ' bargain and sell ;' in an appointment, the word ' ap- point.' But, as has been seen, if a conveyance cannot operate as intended, but is capable of operating as some other kind of assurance, it may be held so to operate.(a:) Various terms, of frequent occurrence in the parcels, or de- Words of scription of the subject of conveyance, have technical mean- parcels ^°" " ings. The legal meaning of the word ' land ' has already been considered. (y) Under a grant of the ' profits ' of certain land, the land itself passes. (0) Under the term ' manor,' the demesne lands of the manor, the seignory, and the advowson (if any) appendant to the manor, may pass. ' Messuage,' or ' house,' denotes a house with its adjacent buildings, and its courtyard, garden, or orchard, if any. (a) ' Farm ' includes the farmhouse, and all the land held therewith. ' Water ' does not include land on which it stands ; to have that effect, it must be described as a piece of land covered with water. (5) A strip (t) Lewin, 110 ; Collier v. HcBean, 34 Beav. 426 ; see Cooper v. Kynock, L. K. 7 Ch. App. 398, 41 L. J. Ch. 296, 26 L. T. 566, 20 W. K. 503 ; In re White and Eindle's Contract, 7 Ch. D. 201, 47 L. J. Ch. 85, 26 W. E. 124; Richardson v. Harrison, 16 Q. B. D. 85, 55 L. J. C. L. 58, 54 L. T. 456. (m) By the Conv. and L. P. Act, 1881, the use of the word ' grant ' is declared not to be necessary for the conveyance of tenements, &c., corporeal or incorporeal : 44 & 45 Vict. c. 41, a. 49. (x) Ante, p. 376. See generally as to operative words, 1 Davidson, Conv., ch. 3, s. 6 ; Burton, §§ 539-543. («/) Ante, p. 7. (2) Co. Litt. 4 b. (a) Bettisworth' s case, Eep. pt. 2, 32 a ; St. Thomas's Hospital v. Charing Cross By. Co., 1 J. & H. 400 ; Richards v. Swansea Improvement and Tram- ways Co., 9 Ch. D. 425, 438 ; cf. Wright v. WaUasey Local Board, 18 Q. B. D. 783, 56 L. J. C. L. 259. The word ' tenement ' is sometimes used as denoting a house, as well as in its legal sense : see ante, p. 16. (6) As to the above terms, and generally as to the parcels in conveyances, see Co. Litt. 5 a, 5 b ; 1 Davidson, Conv., ch, 3, a. 7; Burton, § 545 et sej. Digitized by Microsoft® THE LAW OF PEOPEETY IN LAND. of uninclosecl land, between land inclosed and the highway, and also the soil of the highway to the middle of the road, are presumed to belong, until the contrary is shown, to the owner of the inclosed land ; hence, a conveyance of land may carry with it the soil of the highway adjoining, as far as one half the road, and also any such adjoining strip of land.(c) And as the soil of one half of a non-tidal river, to the middle of the stream, presumably belongs to the owner of the adjoining land, the bed of the river, to that extent, may pass by a conveyance of the land.fr/) (c) Elphinstone, Interpretation of Deeds, 178 ; Simpson v. Dendy, 8 C. B. (N.S.) 433 ; Berridge v. Ward, 10 C. B. (N.S.) 400; Beckett v. Corporation of Leeds, L. R. 7 Cli. 421. The rule applies though the parcels refer to a plan which does not show the highway. [d) Flumstead Board of WorJcs v. British Land Co., L. B. 10 Q. B. 16, 203, 44 L. J. C. L. (Q. B.) 38, '23 W. B. 133, 634 ; MicMethwait v. Neiclay Bridge Co., 33 Ch. D. 133, 55 L. T. 386 ; cf. Dulce of Devonsldre v. Pattinson, 20 Q. B. D. 263, 57 L. J. 0. L. 189, 58 L. T. 392. ' Digitized by Microsoft® CHAPTER IV. ALIENATION BY WILL. The present subject maybe considered under the following DWisions of heads : — (i.) The definition of a will, and the sources of the ^"^J^<='- law of testamentary alienation ; (ii.) the formalities required in the making of wills ; (iii.) the modes of operation of wills ; (iv.) the different kinds of testamentary gifts ; (v.) the con- struction or interpretation of wills ; (vi.) the vesting, lapse, and ademption of testamentary gifts ; and (vii.) the revocation of wills. (i.) Deflnition. — Sources of Law. — A will, or ' testament ' Will defined, may be defined to be an instrument of alienation that takes effect on the death of the person by whom it is made ; and which (as distinguished from a conveyance mfer vivos), is wholly inoperative during that person's lifetime, and may, therefore, be altered, added to, revoked, or superseded, by a subsequent instrument of the same kind, at his pleasure. Alterations in, or additions to, a will already made are Codicil, frequently contained in an instrument called a ' codicil,' which is a kind of supplement to the will ; and any number of codicils may be made to the same will. Every codicil to a will is taken as forming part of the original instrument ; and the rules applicable to wills apply, in general, to codicils also. The word ' will ' is, therefore, used generally in this chapter as including codicil.(a) By the common law, personalty (including chattels real) Testamentarj was alienable by will ; (h) but the right of testamentary dis- f X'j,™^^^' position did not extend to estates in fee simple, in land of aud statutory extensions, (a) It is 80 used in the Wills Act, 1837 (1 Vict. c. 26) ; see s. 1. (h) 2 Bl. Comm. 491 et seq. 2 B Digitized by Microsoft® 386 THE LAW OF PKOPERTY IX LAND. freehold tenure — except where, as in the county of Kent,(c) it was sanctioned by special local custom. ((^) The inconveni- ence of the common law, in this respect, was mitigated, how- ever, by rules of equity, under which, as has been seen, the use, or equitable ownership, of an estate in fee simple was alienable by will.(e) The Statute of Uses, by converting uses into legal estates, put an end to this equitable power of testamentary disposition. But, by a later statute of Henry VIII., the right of testamentary disposition was extended to legal estates in fee simple ;(/) and by the Statute of Frauds, as has been seen, it was applied to estates ^itr autre vie.{g) Estates in land of copyhold tenure were not within the statute of Henry VIII. ; but, by general copyhold custom, such estates were devisable by will, provided the testator had, in his lifetime, surrendered them to the use of his will — the devisee under the will being entitled, in such case, to be admitted, as being the person in whose favour the surrender had been made.(A) And by a statute of George III., a devise of copyholds by the will of any person dying after the 12th July 1815, was made effectual without a previous surrender to the use of the will.(i) The Wills Act, As regards wills made since the 31st December 1837, the 1837. General j.;nfbt of testamentary disposition depends on a statute of that testamentary . power given year,(A;) commonly called the Wills Act. This statute enacts, tiiereby. with respect to every such will, that the testator may thereby dispose of all real and personal estate to which he shall be entitled, either at law or in equity, at the time of his death (notwithstanding that he may become entitled to the same (c) See ante, pp. 25, 26. {d) 2 Bl. Coram. 374. (e) See ante, p. 145. (/) 32 Hen. 8, c. 1 (the Statute of Wills), explained by stat. 34 & 35 Hen. 8, 0. 5. Under this statute, only two-thirds of lands held by knight- service were devisable ; but this restriction was removed through the conversion of that tenure into free socage by the etat. 12 Car. 2, c. 24. (j) See ante, p. 73. (7t) Burton, §§ 1287, 1288. (i) 55 Geo. 3, c. 192 ; repealed, as to wills made after 1837, by the stat. 1 Vict. i>. 26, s. 2 ; which, however, contains a provision (s. 3) to the same effect as the repealed Act. {li) 1 Vict. c. 26, which repeals (s. 2) the Statute of Wills of Hen. 8, and the above proviiion of the Statute of Frauds, except as to wills made before 1838. Digitized by Microsoft® ALIENATION BY WILL. 387 after the execution of the will), and which, if not so disposed of, would devolve upon the heir-at-law, or customary heir, of him, or (if he became entitled by descent) of his ancestor,(/) or upon his executor or administrator ; including copyholds to which he shall be entitled to be, but shall not have been, admitted, and contingent, executory, and other future interests, rights of entry, and estates pur autre vie, (whether or not there be a special occupant thereof) ; (lu) and, further, that every such will shall be construed, with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the testator's death, unless a contrary intention shall appear thereby.(«-) Under the previous law, a will could operate, as regards real estate of freehold tenure, only upon that which the testator had at the date of the will ; as to real estate acquired by him after that date, he necessarily died intestate, unless he disposed of it by a subsequent testamentary instrument. This rule, however, did not apply to copyholds, or to personalty. (o) (ii.) Formalities required in the making of "Wills. — Before Wills Wills made before the 1st January 1838, disposing of ' estates in fee simple, or j»!4r wutra we, in lands of freehold tenure, were required by the statute of Frauds to be in writ- ing, signed by the testator im the presence of three or four credible witnesses ;(^j) but for wills of copyholds, chattels real, or other personal estate, no formalities were prescribed by law.(g') With respect to wills made on or after the 1st under Wills January 1838, the Wills Act has rejDealed the above °'" provision of the Statute of Frauds, and has enacted, that no will, whether of real or personal estate, (7*) shall be valid. (i) See^osi, p. 418. (m) S. 3. (») S. 24. As to what is an expression of a contrary intention, as above, see I)oe d. York v. Walker, 12 M. & W. 591 ; Re Ord, Dickinson v. Dickinson, 12 Ch. D. 22, 41 L. T. 13 ; Be Portal and Lamb, 30 Ch. D. 50, 54 L. J. Ch. 1012 51 L. T. 392, 33 W. R. 71, 859; Be Wells' Trusts, Eardisty v. Wells, 42 Ch. D. 646, 58 L, J. Ch. 835, 61 L. T. 588. (0) Burton, §§ 933, 1290. ip) 29 Car. 2, 0. 3, b. 5. (2) Burton, §§ 935, 1287. (r) Except wills of personalty of soldiers and seamen on service (ss. 11, 12), which may be made without the ordinary formalities, and are the subjects of special statutory provisions. And see 24 & 25 Vict. c. 114, as to wills made by Digitized by Microsoft® 888 THE LAW OF J'ltOPERTY IX LAND. unless it be in writing, signed at tlie foot or end thereof by the testator, or by some other person in his presence and by his direction ; (s) and such signature be made or acknow- ledged by the testator in the presence of two or more witnesses, present at the same time ; and such witnesses attest and subscribe the will in the testator's presence — but that no form of attestation shall be necessar j.(t) Ke-execution of A will that has been revoked may afterwards be revived ; revival/ ^ ^^^i under the Wills Act, only by its re-execution, or by a duly executed codicil showing an intention to revive it.(u) Alterations or An alteration, or interlineation, appearing on the face of a '°''^' will, is presumed, in the absence of evidence to the contrary, to have been made after its execution. (a;) And, by the Wills Act, no obliteration, interlineation, or other alteration, made in a will after its execution, is to have any effect (except so far as the words or effect of the will, before such alteration, shall not be apjparent), unless such alteration be executed as a will is thereby required to be executed ; but the will, with such alteration as part thereof, is to be deemed duly executed, if the testator's signature and the subscription of the witnesses be made in the margin, or on some other part, of the will, opposite, or near to, such alteration, or at the foot or end of, or opposite to, a niemorandum referring to such alteration, and written at the end or some other part of the will.(y) How will is to Neither sealing nor delivery (as in the case of a deed) is be signed. requisite to the execution of a will; the only formalities required, under the present law, being those expressly pre- British subjects domiciled abroad, so far as the same relate to personal estate other than land. (.s) See In re James ChirJi, '2 Cur. 329, where signature in the name of the person who signed at the testator's request was held to be sufficient. (t) 1 Vict. c. 26, s. 9. A formal clause of attestation is usual, however, and facilitates the admission of the will to probate : see 1 Wms. Exors. 94. The ordinary clause is as follows : ' Signed and declared by the above-named A. B. as and ifor his last will and testament, in the presence of u,. Christian, 2 Rob. 110 ; In b. Blciritt, 5 P. D. 116, 49 L. .J. P. D. & A. 31, 4J L. T. 329, 28 W. R. 520. (a) In h. Warden, 2 Cur. 334 ; 1 Jarman, Wills, 108, 109. [h] 15 & 16 Vict. c. 24. See JJarrjary y. Eobinson, 12 P. D. 8 ; hi h. Benjamin Hughes, 12 P. D. 107. (c) 2 Bl. Comm. 377 ; Burton, § 265. [d) 25 Geo. 2, u. 6. (e) 1 Vict. c. 26, s. 14. (/) Ss. 15, 16. Digitized by Microsoft® 390 THE LAW OF PEOPERTY IN LAM). a gift by will to one of the witnesses thereto is void, although his attestation is unnecessary, by reason of there being two- other witnesses. (^) The Act also provides, that no person shall be incompetent as a witness to a will, on account of his being executor of the will. (A) Distinctions (iii.) Modes of Operation of Wills. — As has already been reaHiid p^-" ^6®^> o^® of ^^^ leading distinctions between the law of real sonal property and the law of personal property has reference to the opera- tion of testamentary dispositions, (i) The operation of wills has therefore to be considered — first, with respect to estates and interests governed by the law of real property : and secondly, with respect to such estates and interests in land as are regulated (whether in all respects, or merely as regards- transmission on death) by the law of personal property. What estates and interest are comprised in each of these divisions, has already been considered. (A") Operation With Besped to Heal Estate. — A will operates upon real generally as to , , . , , , j. j.i real estate estate given thereby, as a conveyance to the person or persons to whom it is given, taking effect upon the death of the testator. The title of the devisee accrues, therefore,, immediately upon the testator's death, and by force of the will alone.(/) Uses declared As already stated, the Statute of Uses does not, in strict- ^ ^' ■ ness, apply to uses declared by will.(ni) But since, as will be seen, a will takes effect according to the testator's inten- tion,(7i) as far as possible, limitations to uses in wills are con- strued in the same way, as regards the vesting of the legal (f/) Wigan v. Iloidand, 11 Hare 1.57. (h) S. 17. (i) Ante, p. 5. (A-) Jnte, pp. 10, 11. (Z) 6 Cruise, t. 38, oh. 1, s. 10 ; ante, p. 5. The proper evidence, therefore, of a gift of land by will, is the original will itself. But the Court of Probate Act, 1857, makes the probate, after proof in solemn form, conclusive eyidence of the validity and contents of the will with respect to real estate, as against persons interested in the real estate who have been cited to attend the proceed- ings. And the Act also allows the probate, or an office copy, of the will to be given in evidence, under certain conditions, in suits concerning real estate, except where the validity of the will is in issue ; 20 >& 21 Vict. c. 77, as. 62, 64. (m) See ante, p. 151. («) Reo poM, p. 397. Digitized by Microsoft® ALIENATION BY WILL. 391 estate, and the effect of a declaration of a use upon a use, as similar limitations in deeds, where they are apparently intended to have such effect. (o) On the other hand, in a will, the legal estate in freeholds may pass by direct gift to the donee, without any declaration of use in his favour; and a trust of freeholds may, therefore, be created by direct devise to the trustee, upon the trusts intended, without the limita- tion of a use upon a vise.(p) A person to whom copyholds are given by will is entitled Devises of to be admitted as tenant, on delivery to the lord of the ^"Pyliolds. manor, or his steward, of a copy of the will — which is to be entered on the court rolls — and on payment of the proper fine and iees.(q) Until his admittance, the estate remains in the testator's customary heir.(?') With Respect to Personal Estate. — The whole of the per- Devolution sonal estate of a deceased person passes, as from the time "P°° '^^^^ P^"^" _,. 1-11 sonal repre- 01 his death, to his legal personal representative, i.e., his sentatiTe. executor or administrator duly appointed, to be applied by him in discharge of the debts of the deceased, and, subject to their payment, in accordance with the terms of the will.(s) If any person, other than a duly appointed executor or admin- Executor istrator, intermeddles with the goods of the deceased, or does * ™" *"''*• other acts belonging to the office of executor, he is subject to the same liabilities as if he had been appointed executor ; and he may, of course, be superseded by the executor or adminis- trator duly appointed. A person so acting is called an executor dc son tort, i.e., of his own wrong. (i) An executor is a legal personal representative whom the Office of execu- deceased has, by his will, appointed to the office. Two or*""^' more persons may be appointed co-executors ; and, in such case, they may act either jointly or separately in the admin- istration of the estate — the act of any one of them being (o) 1 Sand., Uses, 250; Burton, § 281 ; Baker v. Wliite, L. R. 20 Eq. 166, 171. (p) Feame, C. E., 390 ; Burton, § 282 ; see ante, p. 150. [q) See 1 Vict. c. 26, s. 4 ; 4 & 5 Vict. c. 35, ss. 89, 90. (r) B. V. Garland, L. E. 5 Q. B. 269 ; Garland v. Mead, L. R. 6 Q. B. 441, 40 L. J. C. L. (Q. B.) 179, 24 L. T. 421, 19 W. E. 1156. («) 1 Wms. Exors. 636 et seq. (t) 1 Wms. Exors. 261 et seq.; 2 Bl. Comm. 507. Digitized by Microsoft® 392 THE LAW OF PROPERTY IN LAKD. Administrator, "vi here ap- pointed in case of will. deemed the act of all.(«) On the death of one of several executors, the ofSce remains in the survivors or survivor; and it passes to the executor (though not to the adminis- trator) of a sole, or sole surviving, executor. (s;) If there be no executor — as where npne is appointed by the will, or the executorship is renounced (as it may be) by the appointed executors or executor — the right of admin- istering the estate according to the will, or, as it is called, ' administration with the will annexed/ is granted to some person by the Probate Division of the High Court of Justice ; the estate, meanwhile, being vested in the judge of the Gourt.(y) Administration of the estate is also granted by the Court in other cases of vacancy in the office of legal personal representative ; as by the death of a sole executor, without having appointed an executor ; or by the death of an administrator ; or where, by reason of the infancy, absence, &c., of the appointed executor, he is incapable of acting — the administration, in the latter case, being limited to the period of the appointed executor's incapacity. The rights and duties of an administrator thus appointed, are, in general, the same as those of an executor appointed by the will, (a) Proof of will of In order that a will disposing of personal estate (as distin- guished from a will of real estate merely) may be effectual, it must be proved, by proper evidence, in the Probate Division of the High Court of Justice, by the executor or adminis- trator, (a) This proof may be either ' in common form ' — that is, merely by the oath of the personal representative as to his belief in the validity of the will, together with the oath of one of the witnesses to the will ; or by the oath of the personal representative alone, if it appear by an attestation clause, appended to the will, that all the requirements for execution have been complied with (5) — or ' in solemn form,' by the oaths of both witnesses, and any other evidence the case may require, after the persons who would be entitled to personal estate. In common form. In solemn form. (m) 2 Wms. Exors. 950 et seq. (x) Ibid. ; 2 Bl. Comm. 506. (!/) 21 & 22 Vict. u. 95, s. l',i. (rj) See Wms. Exors. pt. 1, bk. 5, oil. 3 ; 2 Bl. Comm. 505. («) 20 & 21 Vict. c. 77, ss. 46, 47, 59. Prior to this statute, wills were proved in the Ecclesiastical Courts : see 2 Bl. Comm. 508, 509. (&) 1 Wms. Exors. 329-337 ; see ante, p. 388, note (t). Digitized by Microsoft® ALIENATION BY WILL. 393 the estate of the deceased, in case of his intestacy, have been cited to be present at the proceedings. Proof of a will in solemn form may be required by a person having an interest in the estate, at any time within thirty years, notwithstanding its previous proof in common form ; and if it is not then established, the previous probate will be revoked. But after probate of a will in solemn form, further proof cannot be re- quired. Hence, a will is often proved in solemn form in the first instance, for the executor's greater security ; though even after it has been so proved, the probate may be revoked, if fraud can be shown, or a later will is discovered. (c) When the will is proved, the original is deposited in the Probate, registry of the Probate Division of the High Court ; and a copy of the will on parchment is made out under the seal of the Court, and is delivered to the executor or administrator, together with a certificate of its having been proved. Such copy and certificate are called the ' probate ' of the will, and constitute the proper evidence of the appointment of the executor or administrator, and of the validity of the will, so far as it extends to personal estate. A tax, called ' probate duty,' is payable on the net value of the personal estate of the deceased in the United Kingdom, where such estate is above the value of £100 ; and this duty must be iDaid on proving the win.(d) In order to provide for the payment of the testator's debts, powers of his executor or administrator has an absolute power to sell or executor over mortgage any part of the personal estate, including chattels estate, real, notwithstanding any disposition of the same by the will. And the purchaser or mortgagee is not affected by notice of any such disposition ; nor is he bound, or entitled, to inquire as to the propriety of the sale or mortgage. (e) Subject to (c) 1 Wms. Exors. jJ7-..ii7. {d) This duty was first imposed by the stat. 5 & 6 AV. & M. u. 21. It is at the rate of £1 per £50 where the estate does not exceed £500 ; £1 5s. per £50 where the estate does not exceed £1000 ; and £3 per cent, where it exceeds £1000 ; except that, where the estate does not exceed £300, there is a uniform duty of 30s. As to the duty generally, and the valuation of the estate, see the Customs and Inland Revenue Act, 1881 (44 Vict. c. 12), pt. 3. A lurther temporary duty of £1 per cent, upon estates exceeding £10,000 in value, of persons dying before the 1st June 1896, is imposed by the Customs and Inland Eevenue Act, 1889, ss. 5, 7. (e) See Elliott v. Men-yman, Barn. 78 ; S.C, and notes thereto, 1 Lead. Cas. Eq. 72 ; 2 Wms.' Exors. 932 et seij. ; lie Whistler, 35 Ch. D. 561, 56 L. J. Ch. 827, 57 L. T. 77, 85 W. R. 662. Digitized by Microsoft® 594 THE LAW OF PROPERTY IN LAND. How it passes any such disposition by the legal personal representative, personal estate given by will passes to the person or persons to whom it is so given, upon the mere assent of the executor or administrator to the gift. Such assent may be expressed in any way, or it may be implied ; for no formality is required for the transfer of the subject of the gift from the legal personal representative to the legatee (/) — even where it is an estate for years, or other chattel interest in land.(^) Devises and bequests, specific and general. Residuary devise or bequest. (iv.) The Different Kinds of Testamentary Gifts. — A gift by will of real estate is called a 'devise.' A testa- mentary gift of personal estate is called a ' bequest,' or ' legacy. '(/i) A devise or bequest is called ' specific ' when the subject of the gift is a certain thing belonging to the testator, and is described accordingly in the will ; as, the testator's land ' situate at,' &c., or his shares in a particular company.('i) A bequest of money, or any other object, in general terms, that is, not specifying any particular thing included in the teststor's estate, is called a ' general ' legacy or bequest, (/i;) A devise or bequest of all the real or personal estate of the testator, not otherwise disposed of by the will, is called a ' residuary ' devise or bequest. Under the law prior to the Wills Act, a residuary devise included (at least, as regards (/) Wms. Exors. pt. 3, bk. 3, ch. 4, b. 3 ; Burton, § 932. [gj See 2 Wms. Exors. 1376 ; Stevenson v. Mayor of Liverpool, L. E. 10 Q. a. 81, 44 L. J. C. L. (Q. B.) 34, 31 L. T. 673, 23 W. E. 346. (7t) A tax called legacy duty is payable under the stat. 36 Geo. 3, u. 52, and subsequent Acts, in respect of every bequest of personal estate, or any personal estate under an intestacy, upon the amount or value of such bequest or succes- sion ; except that, under the present law, no duty is payable where the whole personal estate is of less value that £100 (43 Vict. u. 14, s. 13) ; nor where the fixed probate duty of 30s. has been paid on an estate not exceeding £300 (44 Vict. c. 12, Bs. 33-85 ; see supra). The rates of duty are the same as those ot succession duty, and there are similar exemptions from the duty in favour of husbands and wives, and the Eoyal Family, and from the duty of £1 per cent, where probate duty has been paid : see ante, p. 261. The duty is paid by the executor or administrator, and is deducted by him from the amount of the legacy or succession, except where a legacy is bequeathed free of legacy duty, (i) 2 Wms. Exors. 1163 ; see Botliamley v. Sherson, L. B. 20 Eq. 304, 308, 311, 44 L. J. Ch. 589, 33 L. T. 160, 23 W. E. 848. (Ic) 2 Wms. Exors. 1163. A legacy of a sum of money, to be paid out of a particular fund belonging to the testator, is called a ' demonstrative ' legacy. It is similar to a specific legacy, except that it is not liable to ademption. Digitized by Microsoft® ALIENATION BY WILL. 395 land of freehold tenure) only that which constituted the residue of the testator's real estate at the date of his will, and was, in effect, a specific gift of such real estate. For, as has been seen, the operation of a will, with respect to real estate of freehold tenure, was confined to that which the testator had at the date of the will ; (/) and, as to such estate, the will was regarded as a present conveyance, coming into operation on the testator's death. As to land acquired by the testator after the making of the will, or land comprised in the will, the devise of which had failed or was void, the testator necessarily died intestate ; unless he made a subse- quent will or codicil, disposing of such land.(m) These rules, however, did not apply to copyholds or personalty — a residuary gift of which might comprise any estate acquired after the date of the will, as well as testamentary gifts that were void, or had failed. (?i) And as to wills made on or after the 1st January 1838, this is also the rule with respect to a residuary devise of freeholds. For, by the Wills Act, as has been seen, a will made on or after that date may take effect, as to both real and personal estate, as from the death of the testator, and may comprise real or personal estate to which the testator becomes entitled after the execution of the will.(o) Moreover, the Act expressly provides that, unless a contrary intention appears by the will, real estate comprised in any devise therein, which shall fail or be void, shall be included in the residuary devise, if any, contained in the will.(p) If the will contains no residuary devise of real estate, the Devolution of testator dies intestate as to any real estate not specifically no'^^^gtiduary devised. Formerly, if a will contained no residuary bequest gift, of personal estate, the executor, if any, appointed by the will, was entitled to the residue for his own benefit, unless a con- trary intention appeared from the will.(2') But this rule was altered by a statute of the year 1830, under which, unless (l) Ante, p. 387. (Mi) 2 Bl. Coram. 378, 379. (m) Ihld. (o) See ante, p. 387. (2)) 1 Vict. c. 26, 8. 25. As to failure of a gift of a share of residue, see pest, p. 405. (q) 2 WniP. Exors. 1480. Digitized by Microsoft® 396 THE LAW OF PROPERTY JX LAND. it appear by the will, or a codicil thereto, that the executor was intended to take the undisposed of residue of the personal estate for his own benefit, he holds it in trust for the person or persons who would be entitled to the personal estate of the deceased, in case of his intestacy.(r) Marshalling of As between the different persons who may have interests assets as be- i^ the estate of a deceased person, either as devisees or legatees tween parties j i • ■ r ' o _ entitled to under his will, or as successors under his intestacy, his estate of assets (s) are applicable in a certain order, in discharge of his debts. Consequently, if certain assets of the deceased have been applied for this purpose, while other assets, earlier in the order of liability, have not been so applied, any person having a beneficial interest in the assets that have been so applied will be entitled to have the various assets of the deceased ' marshalled '; that is, to have refunded to him out of the assets which stood earlier in the order of liability, the amount that has been taken out of the assets in which he had such interest, or a part of that amount sufficient for the satisfaction of his claim. The deceased may, of course, by his will, direct that a specified part of his estate shall be applicable in satisfaction of his debts, in exoneration of any other pa,rt.{t) But sub- ject to any such direction, the assets are applied (in accord- ance with the presumed intention of the deceased) as fol- lows : — Debts secured by mortgage of, or charge or lien upon, any lands or hereditaments of the deceased, are now payable, as has been seen, out of such lands or hereditaments, in exoneration of his other ' estate. (m) In discharge of debts not so secured, the assets are applicable in the following order : 1st, the residuary personal estate, i.e., the general personal estate, less any specific legacies aud the amount of any general legacies bequeathed by the deceased ; l^ndly, real estate devised by the deceased expressly on trust for payment of his debts ; ordly, real estate not passing by the will of the deceased, and therefore descending to the heir at law ; (,r) (»•) 11 Geo. 4 & 1 Will. 4, u. 40, o. 1. See WUliams v. ArJde, L. R. 7 H. L. 606, 45 L. J. Ch. 590. (s) As to the meaning of the word ' assets,' see ante, p. 268, note (f. 411 which vesting orders, having the effect of conveyances, may be made in various cases by the Chancery Division of the High Court of Justice, or by judges having jurisdiction in lunacy, or in certain cases by a County Court, have already been considered. And it has also been seen that, instead of a vesting order, an order may be made directing some person to execute a conveyance of the land.(c) Here it may be added, that these provisions apply as well to lands, &c., vested in persons by way of mortgage, as to lands, &c., vested in trustees ; and that a vesting order, having the effect of a conveyance, may be made with respect to mortgaged land, where the mortgage has been paid off and the land cannot otherwise be reconveyed.(/) Any order made under these Acts, which has the effect of a conveyance of land, is charge- able with the like amount of stamp duty as if it were a deed of convey ance.(f7) Writ of Elegit. — As has been mentioned, an estate in land Estate ae- (in the nature of a chattel real) is acquired by a judgment i"'"^^"! "y- creditor, through the operation of a writ of elegit, in lands of the debtor upon which the creditor enters by virtue of the writ. (A) Order Discharging Incumhrances on Zand. — By the Convey- Under aucing and Law of Property Act, 1881, as has been seen, the ^gt^igg"""^ Chancery Division of the High Court of Justice may- — on the payment into Court of money to meet the amount of an incum- brance affecting land sold, with interest, costs, &c. — declare the land to be free from the incumbrance, and may thereupon make any order for conveyance, or vesting order, proper for giving effect to the sale.(i) Charging Order for Improvements. — A charge on the inherit- Under Agri- ance of land, under the Agricultural Holdings Act, 1883, for ?ult"ral Hold- the cost of improvements effected by the landlord, is created by an order of the County Court, (/i:) Order for Exemotion of Conveyanee, &e. — By the Supreme Under Judica- Court of Judicature Act, 1884, where any person neglects or. *"'-'^ ■'^<='' l^^*- (e) Ante, p. 189 ; and see note (7i;), ihid. (/) 13 & 14 Vict. c. 60, ss. 3-8, 19. {g) 15 & 16 Vict. c. 55, s. 13. (h) 2 Cruise, t. 14, ss. 77, 80, 82, ante p. 254. (i) 44 & 45 Vict. c. 41 s. 5. See ante, p. 313. (Tc) 46 & 47 Vict. ^. 61, x. 29, see ante, p. 287. Digitized by Microsoft® 412 THE LAW OF PEOPEETY IN LAND. Transfer of functions of Land Commis- sioners to Board of Agriculture. Enfranchise- ment and extinguish- ment of manorial rights, by. Inclosures, exchanges, and partitions by. refuses to comply with a judgment or order, directing him to execute any conveyance, contract, or other document, the Court may nominate a person to execute the same, and the conveyance, &c., so executed will operate, and be for all purposes available, as if it had been executed by the person originally directed to execute it.(Z) (iii.) Awards, &e., of the Board of Agriculture. — The Settled Land Act, 1882, provided that the Commissioners, then bearing the three several styles of the Inclosure Commissioners for England and Wales, and the Copyhold Commissioners, and the Tithe Commissioners for England and Wales, should become and be styled the Land Commissioners for England, (wi) And by the Board of Agriculture Act, 1889, all the powers and duties of the Land Commissioners for England, under Acts of Parliament, have been vested in the Board of Agricul- ture established by that Act; and the Act provides that in the construction of Acts of Parliament, judgments, &c., deeds, contracts, and other documents, the name of the Board shall be substituted for the Land Commissioners for England. (?i) Awards, &c., under Coioyhold Ads. — The enfranchisement of copyholds under the Copyhold Acts is now efBected under the provisions of the Copyhold Act, 1887, by an award of en- franchisement framed and confirmed by the Board of Agricul- tiire, and entered on the court rolls of the manor.(o) And the extinguishment of manorial rights is effected, under that Act, in the same way as enfranchisement, (p) Atuards, &c., imder Inclosure Acts. — Under the General Inclosure Acts,((/) awards made according to the Acts, and confirmed by the Board of Agriculture, of inclosures, exchanges, or partitions of lands subject to inclosure under the Acts, are binding on all persons, as to all allot- (l) 47 & 48 Vict. ... 61, s. 14 ; Howarth v. Howarth, 11 P. D. 68. {m) 45 & 46 Vict, o 38, s. 48. {n) 52 & 53 Vict. c. 30, es. 2, 11. (o) 50 & 51 Vict. c. 73, s. 22. (p) 50 & 51 Vict. c. 73, s. 7. As to the mode of commutation of manorial rights under the Copyhold Act, 1841, see ante, p. 34. (g) 8 & 9 Vict. c. 118 (the Inclosure Act, 1846), and subsequent Acts amending the same. Digitized by Microsoft® EXTRAORDINAEY MODES OF ALIENATION. 413 ments, exchanges, partitions, and matters specified and set forth in such awards. (r) And the Board may make orders of exchange, (s) or partition, (i) of land not liable to inclosure under the Acts ; and such orders are effectual for all purposes. Certificate of Bcdemption of Tithe Bent-charge. — On the re- Under Tithe demption of tithe rent-charge, under the powers of redemption ° ^' given by modern statutes,(if) a certificate of redemption, under the hands and seal of the Board of Agriculture, is conclusive evidence of the redemption. («) Certificate of Bedemption of Quit-rents, &e. — On the redemp- Under Courey- tion of quit-rents, or other perpetual charges, under the 183"^ '^ ' Conveyancing and Law of Property Act, 1881, a certificate of redemption, under the seal of the Board of Agriculture, absolutely discharges the land from the rent or charge. (2/) Order Securing Aelvances for Improrcmeyits. — A rent-charge Under Im- for securing the repayment of money advanced under the L™nd1™ " Improvement of Land Act, 1864, is created by an order of 1864. the Board of Agriculture ; and a memorial of such order must be registered in the Office of Land Iiegistry.(«) (iv.) Charges and Transfers under the Land Transfer Registration of. Act, 1875. — When a title to land is registered under the Land Transfer Act, 1875, charges upon, and transfers of, the land, or transfers of registered charges thereon, may be made according to prescribed forms ; and the charge or transfer is completed by the registrar entering upon the register the person in whose favour it is made, as the proprietor of the charge or of the land transferred (as the case may be). The proprietor of a registered charge, or transfer of such a charge, (;■) 8 & 9 Vict. c. 118, s. 105. (s) 8 & 9 Vict. c. 118, s. 147. (t) 11 & 12 Vict. u. 99, s. 13 ; and see ante, p. 161. (m) See ante, p. 286. («) 9 & 10 Vict. c. 7.3, ss. 6, 12. (y) 44 & 45 Vict. c. 41, s. 45 (3) : see ante, p. 275. (z) 27 & 28 Vict. c. 114. ss, 55, 56. Kent-charges under the Public Money- Drainage Act were similarly secured (9 & 10 Vict. c. 101). Money advanced for drainage by owners, under the stat. 8 & 9 Vict. c. 56, was secured by an ■order of the Court. See ante, p. 70. For other statutory charges in re.spect of improvements of land, &c., see Elphinstone and Clark on Searches, ch. 9. Digitized by Microsoft® 414 THE LAW OF PROPEKTV IN LAND. is entitled to a certificate of the charge in a prescribed form ; and the transferree of freehold land is entitled to a land certificate in a prescribed form ; and the transferree of lease- hold land is entitled to an office copy of the registered lease. (a) (a) 38 & 39 Vict. u. 87, sa. 22, 29, 34, 40 ; see also the Eules and Forms under the Act. As to registration of title under this Act, see ante, p. 315. Digitized by Microsoft® . CHAPTER VI. SUCCESSION ON INTESTACY. As has already been mentioned, the transfer of rights of Law of real property, by reason of the death of a person intestate, is (as jj^'^^^f pg"™ in the case of transfer by testamentary disposition) the subject sonal pro- of one of the leading distinctions between the law of real and guccessfon L the law of personal property.(«) The law under this head is intestacy, therefore considered — first, with reference to estates and interests subject to the law of real property ; and secondly, with respect to such estates and interests in land as are subject, either entirely, or for purposes of transmission on death, to the law of personal property. What interests fall under the latter head has already been stated. (5) Sect. I.— Succession on Intestacy to Real Estate. Descent ; Leading Rule and Exceptions. — A title to real Descent estate by succession on intestacy is commonly called ' descent ' ; <^^'i°8'J- and an estate or interest acquired by this title is said to ' descend ' upon, or to be ' inherited ' by, the person entitled to it. An estate, as the subject of descent, is called an ' in- heritance.'(c) On the death of a person seised of, or entitled to, an estate Leading rule ; or other interest in land, in fee simple, or in tail, or for an ^^f^™' *<> estate pur autre vie transmissible to heirs as special occupants — whether such estate or interest be in possession, or in (o) See ante, p. 5. (6) See ante, pp. 10, 11. (c) 2 Bl. Comm. 201 ; 3 Cruise, t. 29, c. 2, p. 1. Digitized by Microsoft® 416 THE LAW OF PROPERTY IN LAND. Heir cannot disclaim. Kxceptions, Charge of widow under Intestates' Estates Act, 1890. Heir's estate subject to rights of expectancy, in severalty, or in community — which he has not disposed of by will, or cannot so dispose of, such estate or interest descends, except in the cases next mentioned, to the heir-at-law. And the heir-at-law cannot disclaim the estate or interest, as an alienee may.(f^) The excepted cases are — (1st) where the deceased was joint tenant with another or others ; in which case, as has been seen, his interest passes on his death to the surviving co-tenant, or co-tenants ;(e) (2ndly) where the estate was vested in him solely, as trustee or mortgagee ; in which case, as has been seen, under the Conveyancing and Law of Pro- perty Act, 1881, as amended by the Copyhold Act, 1887, tlie estate vests on his death (if it has occurred since the 31st December 1881) in his legal personal representative, as if it were a chattel real, unless it be an estate in land of copyhold or customary tenure ;(/) (3rdly) where net value of the real and personal estate of a man dying- intestate after the 1st September, 1890, and leaving a widow but no issue, does not exceed £ijOO : in which case, under the Intestates' Estates Act, 1890, such real and personal estate belong to the intestate's widow abso- l-atelj.(g) The last mentioned Act, it may be mentioned, also provides that where the net value of the real and personal estate of such an intestate as above mentioned exceeds £500, his wido^^- shall be entitled to £500, part thereof absolutely and ex- clusively, in addition to her interest in the residue of such real and personal estate, and shall have a charge upon the whole of such real and personal estate for that sum, with interest from the death of the intestate at the rate of £1 per cent, per annum until payment ; and, as between the real and personal representatives of the deceased, this chai'ge is to be borne and paid in proportion to the values of the real and personal estate respectively.(7«.) The estate of the heir under an intestacy may be subject to {d} Wms. E. P. 117, see ante, p. SW. (e) See ante, p. 156. (/) See ante, pp. 186, 233. (fj) 53 & 54 Vict. u. 29, s. 1. (/() Ss. 2-4. Digitized by Microsoft® SUCCESSION ON INTESTACY. i^7 the interest of a widow (independently of the above Act), or widow or widower of the deceased, in the lands of the latter. Under J^J^^H^ the law as altered by modem statutes, these interests are, in effect, rights of succession on intestacy. It is convenient, however, to consider them under the head of marriage, since the law prior to the modern statutory alterations regulates these rights in certain cases ; and, under the earlier law, the right of either husband or wife in the other's land was properly referable to the marriage. (*) Heir-at-law. — The heir-at-law is the person who, among Definition of the relations by blood (either lineal or collateral) of the person ^"'"^*" **" from whom the succession is traced, is, on the death of the intestate, the nearest in descent, according to the rules presently stated. The relationship must be the result of Relations of birth in lawful wedlock, according to the law of England, (/c) l"^lf '^lo<'. 517, 57 L. J. Gh. 797, 58 L. T. 722, 36 W. E. 548. Digitized by Microsoft® SUCCESSION ON INTESTACY. 425 If the intestate has, in his lifetime, made any settlement of Advancement, land on, or advancement of a portion to, any child other than his heir-at-law, such provision must be reckoned as part, or the whole (according to its value), of that child's share under the intestacy ; so as to equalize, as nearly as may be, the shares of all the children thereimder.(Z;) If the intestate leave no children, or remoter issue, his Rights of father takes the whole of the residue ; unless the intestate have left a widow — and in that case, one-half : (/) subj ect, how- ever, to the widow's rights, under the Intestates' Estates Act, 1890, where the intestate has died since the 1st September 1890.(7ft) If the intestate leave no children or remoter issue, or father, Rights of his mother and brothers and sisters take, in equal shares, the "j-otijers^and whole — or, if the deceased have left a widow, a moiety — of sisters, the residue, subject to the widow's rights (if any) under the Act last mentioned; the brothers and sisters taking (in equal shares), if there be no mother ; and the mother taking solely, if there be no brother or sister. (?i) The children (but not Children of remoter issue) of any brother or sister of the intestate, who ^l'^^^^ ^^ may have died in his lifetime leaving children, represent and sister, take the place of their parent, provided the mother, or any brother or sister, of the intestate be living — but not other- wise, (o) If the intestate leave no children, or remoter issue, or Next of kin. father, mother, brother, or sister, the residue is taken by the nearest in degree of his kindred, whether ancestors or col- lateral relations, in equal shares; subject, if the intestate leave a widow, to her right to a moiety of the residue, and to her rights, if any, under the Act above mentioned.(m) Be- tween ancestor and descendant, each generation represents one degree of kindred. Thus, grandfathers and grand- mothers are in the second degree. They therefore exclude an (/c) 22 & 23 Car. 2, c. 10, s. 5. A share so accoanted for is, in English law, said to be ' brought into hotchpot.' As to what is deemed an advancement of a portion under this statute, see Taylor v. Taylor, L. R. 20 Eq. 155, 23 W. K. 719 ; In re Blocldey, 29 Gh. D. 250, 54 L. J. Ch. 722, 33 W. R. 777. {I) Blackborough v. Davis, 1 P. Wms. 41 ; 2 Wms. Exors. pt. 3, hk. 4, cli. 1, 8. 4. (m) See supra, and ante, p. 416. (») Wms. Exors. supra; 1 Jac. 2, c. 17, s. 7 ; Keyloiay v. Keylway, 2 P. Wms. 344. (o) Wms. Exors. supra; 2 Bl. Comm. 515, 516 ; Burton, § 1403. Digitized by Microsoft® "l-^fj THE LAAV OF PEOPEETY IN LAND. uncle or aunt, who is in the third, or a cousin, who is in the fourth degree ; for, between collateral relations, the degrees are reckoned upwards and downwards through the common progenitor. (2) No preference In the succession to the residue of an intestate's personal efcTr^'^^'r estate, males have no preference over females ; nor an elder whole'blood. Over a younger ; nor paternal over maternal relations ; nor relations of the whole blood over those of the half blood ; but all in the same degree take equally, (r) [q) 22 & 23 Car. 2, u. 10, ss. 6, 7 ; Burton, §1408 (n.) ; Wms. Exors, supra. (r) Wms. Exors. supra; Moor t. Barham, cited 1 P. Wms. 53 ; Jessopp v. Watson, 1 M. & K. 665. Digitized by Microsoft® CHAPTER VII. ACQUISITION THROUGH MARRIAGE. By modern statutes, the rules of the common law and equity Law hereon respecting the acquisition of rights of property through ^'^^^^^''^ marriage have been materially altered. The rights of persons statutes. married prior to these alterations are still regulated, however, to some extent, by the earlier law. The subject is here con- sidered with reference to — (1st) the rights of the husband; and (2ndly) the rights of the wife. Sect. I. — Rights of the Husband. Restrictions on Common Law Rights. — At common law, a Common law- man acquired, through marriage, certain rights in his wife's "S'^*^- real and personal estate ; and, by the rules of equity, he had similar rights, through marriage, in her equitable interests, except such as were subject to trusts whereby his rights were expressly excluded. At the present time, the rules of the common law, and the analogous rules of equity, respecting the rights of the husband, are subject to the following re- strictions : — first, their application may be limited by the Restrictions, creation of a trust for the separate use of the wife, or by the existence of a right on her part to a settlement for her benefit ; secondly, their application is subject, also, to modifications by statutes prior to the Married Women's Property Act, 1882 ; thirdly, their application is excluded by the last mentioned Act, if the marriage has taken place since the 3 1st Decem- ber 1882, and also in the case of any estate or interest to which the wife (whenever married) has become entitled since that date. Under the present head will, therefore, be considered — Digitized by Microsoft® 428 THE LAW OF PEOPEIiTY IN LAND. Arrangement «f subject. (i.) the husband's rights at common law, and by analogous rules of equity ; (ii.) the effect upon those rights of the rules of equity respecting trusts for the separate use of a married woman, and her right to a settlement ; (iii.) their modification by modern statutes prior to the Married Women's Property Act, 1882 ; and (iv.) their exclusion by the Married Women's Property Act, 1882. Different rights. Estate during joint lives. Estate by tbe curtesy. (ii.) Husband's Eights at Common Law, and by ana- logous Eules of Equity. — Eeal estate, chattels real, and other personalty (such as money arising from, or charged on, land), are respectively the subjects of distinct rights of the husband. In Real Estate. — As regards real estate, the husband is entitled to an interest during the joint lives of himself and his wife in estates in fee simple, in tail, or for life, belonging to her at the time of the marriage, or acquired by her during its continuance. In legaL language, the husband and wife are said to be ' seised in right of the wife ; ' but the husband, during their joint lives, has the sole right to the rents and profits, and may alienate or charge the land to the extent of his interest, (a) This interest of the husband is enlarged into an estate for the full terhi of his life (i.e., though the wife should die before him), in land or other realty (&) of freehold tenure, of which the wife is seised, or to which she is equitably entitled, for an estate in possession (c) (or subject only to an estate for years), in fee simple or fee tail, and in severalty, tenancy in common, or coparcenary (but not in joint tenancy) ; (cT) pro- vided he has had by her a child, born alive, and who either does or might inherit the estate, (g) This estate of the {a) Go. Litt. 351 a ; 1 Bright, Husb. and Wife, 112 ; JRohertson v. Kvrris, 11 Q. B. 916. ih) Advowsons and some rights inferior 1o ownership, as cnrumons, rents, and tillie rent-charge, may be subjects of the estate by the curtesy : 1 Cruise, t. 5, oh. 2, a. 16. (c) See OihUns v. Eijden, L. R. 7 Eq. 371, 38 L. J. Ch. 377, 20 L. T. .516; Eager v. Furnivall, 17 Ch. D. 115, 50 L. J. Ch. 5.^7, 44 L. T. 464, 29 W. E. 649. (d) Co. Litt. 186a ; 2 Cruise, t. 18, ch. 1, s. 51. (c) The husband will not be entitled to curtesy where the child is incapable of inheriting ; as where, tbe estate being in tail male, the only child is a daughter : 2 Bh Comm. 128. Digitized by Microsoft® ACQUISITION THEOUGH MAERIAGE. 429 ]ausband is called an ' estate by the curtesy of England.'(/') It is said not be complete till the wife's death ; nevertheless, from the moment of the child's birth, the husband may convey the land for the term of his own life ; whereas, before that event, he can convey only for the joint lives of himself and his wife.(^) The estate by the curtesy does not extend to land of copy- Curtesy in hold tenure, unless by special custom of the manor. Where o°pyli°l. VA\. D. C20, 53 L, J. Cli. 174, 4!l ],. T. 7U8, 32 W. R. 358. ((/) DulerUy \. Doij, l(j Beav. 3:!, 5 H. L. Cas. 388; 2 pt. 1 Davidson, Conv. 219. (r) Cii. Litt. 351 li ; 2 Bl. Coram. 4.'!4, 435. As to what is a reduction into ]io3srssion, see notes to Ii'i/ull v. Itnidcs, 2 Lead. Cas. Eq. 7'.in; Jhininhi/ v. Li<; 2 Madd. 16; In re Biillcrs Trusts, Ihu/hes v. Anderson, 38 Ch. D. 2si;, 57 L. J. Ch. G43, 59 L. 'J\ 380, 30 W. R. 817. Digitized by Microsoft® ACQUISITION THROUGH MAEKIAGE. 431 a preceding limited interest in another person — the husband, so long as it remains reversionary, cannot alienate it, so as to defeat the wife's right by survivorship. And so, v?here land is subject to a trust for sale and payment of the proceeds to a married woman, though the husband is entitled to receive the purchase money after the sale, he cannot previously, by any act of his, bar the wife's possible interest in the money.(s) Where money is subject to a trust for its investment in Money subject land, for the benefit of a married woman absolutely, she may, jon™,^ion^ by electing to take the money as personalty,(i!) entitle her husband to receive it in his marital right. («) (ii.) Equitable Rules ; Trusts for Separate Use, and Equitable Equity to a Settlement.— The effect of the rules of equity i-<^s'"'="°»^- respecting trusts for the separate use of a married woman, and her right to a settlement, upon the foregoing rights of her husband, will be next considered. Trusts for Separate Use. — By the rules of equity, where a Effect of. trust is created of real or personal estate, for the benefit of a woman, with the addition of the words ' for her separate use,' or a similar expression, («) the effect of the trust — in any case where, since the Married Women's Property Act, 1882, it can be operative (i/) — is to exclude her husband's marital rights in the subject of the trust (whether she be married at the time of its creation, or subsequently), and to give her the same right of use and enjoyment, alienation, &c., in the equitable interest, as if she were unmarried.(2) But, inas- much as the purpose of these rules is merely to secure to a married woman the personal enjoyment and exercise of rights (s) Franks v. Bollans, L. E. 3 Ch. App. 717, 37 L. J. Ch. 664, 18 L. T. 623, lew. R. 1158. (<) See ante, p. 75. (it) Oldham v. Hufilies, 2 Atk. 452; Slandering v. Hall, 11 Ch. D. 052, 48 L. J. Ch. 382, 27 W. R. 749. (x) As to what words will suffice for this purpose, see Lewiu, 756 ; notes to Sidme V. Tenant, 1 Lead. Gas. Eq. 536. [y] As to which, see ante, p. 427, &nipost, p. 434. {z) See Hvlme v. Tenant, 1 Bro. C. 0. 16 ; S.C, and notes thereto, 1 Lead. Cas. Eq. 536; Tullett v. Armstrong, 1 Beav. 1 ; Fettiplace v. Gorges, 1 Ves. 46; Taylor v. Meads, 4 De G. J. & S. 597. Her rights may be subject, however, to. a restraint on alienation, as to which, Ke post, p. 477. Digitized by Microsoft® 432 THE LAW OF PEOPEliTY IX LAND. How created. Where it arises. of property, if she die without having disposed of lier equit- able interest in her lifetime or by will, her husband will be entitled, as from her death, to any interest therein which he might have, if the trust had not been for her separate use ; that is to say, an estate by the curtesy in realty,(a) and the absolute ownership of personalty according to the rules previously mentioned. (5) In any case where, since the Married Women's Property Act, 1882, a trust of this kind can be operative, it may be created either before or after the woman's marriage, and either as a provision on marriage, or otherwise ; and either by the woman herself, with respect to her own estate, or by gift or other disposition on the part of her husband, or of any other person. And it may be created either by actual declaration of trust, or simply by a gift to her for her separate use. In the latter case, the husband is constructively a trustee for the wife, to the extent of the estate that vests in him at common law.(c) JEquity to a SettUjnent. — By other rules of equity, a husband's common law rights in his wife's estate are subject, under some circumstances, to her ' equity to a settlement.' Where- a husband cannot recover, otherwise than by action, an interest to which he is entitled in his marital right, the Court, at the instance of the trustees (if any) in whom the subject of the claim is vested, or of the wife, or — if the subject of claim be money lodged in court — even without the request of any party, will grant the husband relief upon the terms only of his making a suitable provision, by settlement, for his wife and any issue of the marriage, out of the subject of his claim, or otherwise ; unless the wife and children are- already sufficiently provided for under a previous settlement ; or unless the right to a settlement is expressly waived by the wife, or is lost through some misconduct on her part. ((f) ■ (a) Apphton v. Bowley, L. E. 8 Eq. 1P>9 ; Cooper v. Jlacdonald, 7 Ch. D. 288, 47 L. J. Ch. 373, 38 L. T. 191, 20 AV. B. 377 ; contra, Moore v. Webster, h. 11. 3 Eq. 267, 86 L. J. Ch. 429, 15 L. T. 460, 15 W. K. 167 >- ante, p. 428. (6) Proudley v. Fielder, 2 M. & K. 57 ; Lewin, 774 ; ante, p. 430. (c) See Lewin, 754 et seq., and cases there cited ; notes to Huhne v. Tenant, 1 Lead. Cas. Eq. 536 ; Asliworth t. Outram, 5 Ch. U. 923, 46 L. J. Ch. 687, 37 L. T. 85, 25 W. R. 896; Er parte Whitehead, 14 Q. B. D. 419, 54 L. J. C. L. 88, 240, 52 L. T. 265, 597, 33 W. E. 230, 471 ; Be Whitlalcer, 21 Ch. D. 657. (d) Giacometti y. Frodgem, L. E. 14 Eq. 253, 8 Ch. App. 338, 28 L. T. . 432, 21 W. K. 375 ; Eoherts v. Cooixr [1891], 2 Ch. 335. Digitized by Microsoft® ACQUISITION THROUGH MARRIAGE. 433 This equitable limitation of the husband's rights is based on the principle that ' he who seeks equity must do equity.' It applies to real,(e) as well as personal, estate ; and it may be asserted, not only against the husband himself, but also, in general, against persons claiming under him — as a trustee under his bankruptcy, or a person to whom he has assigned the interest, even though for valuable consideration. (/) The portion to be settled is fixed by the Court in its discretion, What portion according to the particular circumstances of each case ; and, under special circumstances — as where the husband has aban- doned the wife, or is not in a position to maintain her, and the subject of the claim is not more than sufficient for her maintenance — the whole may be settled. (,9') (iii.) Statutory Modifleations, prior to the Married Protection Women's Property Act, 1882, of Husband's Rights.— The Divorce atd first of these statutory provisions was contained in the Divorce Matrimonial and Matrimonial Causes Act, 1857, by which, as subsequently ''"^^^ °*" amended, a wife deserted by her husband may obtain from a magistrate, or justices, or the High Court, an order whereby her earnings and property acquired (whether as her own, or as executrix, administratrix, or trustee) since the commence- ment of the desertion — including estates to which she was then, or is at the date of the order, entitled in remainder or reversion — are protected against her husband and his creditors, and other persons claiming under him, and belong to her, in all respects, as if she were a. feme sole.Qi) By the same Act, a wife judicially separated is, from the Property ot wife judicially , separated. (e) Sturgisy. Champneys, 5 M. &Cr. 97; Gleaves v. Paine, 1 De G. .J. &S. 87 ; Smith v. Mattheivs, 3 D. G. F. & J. 139 ; Foivke v. Braycott, 29 Ch. D 996, 54 L. J. Gh. 977, 52 L. T. 890, 33 W. R. 701 ; Sanson v. Keating, 4 Hare, 1 (leaseholds). {/) Lewin, 742. An exception has been made in favour of a purchaser for value of the wife's life interest, unless the husband has deserted the wife (Lewin, 742) ; but she is entitled to a settlement, even of a life interest, as against the husband's trustee in bankruptcy : Tauntony. Morris, 8 Ch. D.453, 11 Ch. D 779, 27 W. E. 718, 48 L. J. Ch. 408. ( -^^ Under its provisions, a woman married since the 1st January 1834, is not entitled to dower out of any lands which her husband has disposed of absolutely, in his lifetime or by will ; (?•) and all partial estates and interests, charges, debts,(s) incumbrances, &c., to which his land is subject, are effectual as against her rights. A declaration of the husband, made by deed or will, to the effect that his wife shall not be entitled to dower, will exclude her right thereto in any land to which such declaration extends. Her rights are subject to any terms imposed by the husband's will.(i;) And if he devise to her, or for her benefit, any estate or interest in land out of which she would otherwise be dowable, she is not entitled to dower out of any of his land, unless the con- trary be declared by his will.(it) In some respects, however, the widow's rights are extended Dower ex- by the Act ; for it gives her a right, in equity, to dower out tended to of land to which the husband was beneficially entitled for an estates &c. interest that would not entitle her to dower at law — such interest, whether wholly equitable, or partly legal and partly (?) Fearne, C. R. 347. (r) 3 & 4 Will. 4, 0. 105, s. 4 ; Lacey v. Hill, L. E. 19 Eq. 346, 44 L. J. Ch. 215. (s) But, notwithstanding this provision, and the statute 3 & 4 Will. 4, c. 104, the right to dower has siill priority over oidinaiy creditors of the deceased husband : Sjfytr v. Hyatt, 20 Beav. 621. This distinguishes it Irora the mere right of fcuccebsion on intestacy. (i) Ss. 6, 7, 8. (m) S. 9, and see s. 10 ; Rowland v. Cuthbertson, L. R. 8 Eq. 466, 20 L. T. 938, 17 W. R. 907 ; Lctcey v. Hill, L. R. 19 Eq. 346, 44 L. J. Cb. 215 ; In re 'lliomas, 34 Ch. D. 166. Digitized by Microsoft® 440 THE LAW OF PROPERTY IN LAND. Remedies for recoyery of dower. Leases by tenant in dower. equitable, being an estate of inheritance in possession, or equal to an estate of inheritance in possession, other than an estate in joint tenancy.(a;) The Act also gives her dower out of land in which the husband had a right of entry or action merely, without possession. It also provides that the hus- band may bind himself by agreement not to bar his wife's right to dower out of his lands ; and that the Act shall not interfere with any rule by which legacies bequeathed to widows, in satisfaction of dower, are entitled to priority over other legacies.(j') A widow has a remedy by action, to enforce assignment of her dower, or for an account of the profits of the land from her husband's death, and payment of the arrears of her dower. But the arrears recoverable by her are limited by statute to six years' arrears. («) The power of granting leases, given by the Settled Estates Act, 1877, is, by that Act, extended to a tenant in dower.(a) But a tenant in dower has not the powers of a tenant for life under the Settled Land Acts, 1882 to 1890. In copyholds. Freebench. — The right to dower is not incident, by general custom, to land of copyhold tenure. But, by a special custom existing in many manors, a right, analogous to dower, obtains under the name of ' freebench.' This right, which is not affected by the Dower Act, 1833, is, in general, a life estate, but sometimes an estate during widowhood, in a certain portion — usually one-half, or a third — of the land, or occasionally in the whole. In general, it does not attach till the husband's death, and extends only to lands of which he died possessed— being, therefore, defeated by his alien- ation, in his lifetime or by will (5) — and does not extend to equitable estates, (c) Like curtesy in copyholds, it is com- plete without admittance, (f?) {x) S. 2. (y) Ss. 11, 12. A legacy given to a wife in consideration of her relinquisb- ment of dower has priority over other legacies. [z] 1 Cruise, t. 6, ch. 3 ; 3 & 4 Will. 4, c. 27, s. 41 ; Burridge v. Bradijl, 1 P. Wms. 127 ; see Boinr v. Roper, 3 Ch. D. 714, 35 L. T. 155, 24 W. R. 1013. (a) 40 & 41 Vict. 0. 18, s. 46. (6) Lacey v. Hill, L. E. 19 Eq. 346, 44 L. J. Cb. 215. (c) 1 Cruise, 1. 10, ch. 3, s. 26. (d) See 1 Cruise, 1. 10, ch. 3, ss. 22-48 ; Burton, § 1311. Digitized by Microsoft® ACQUISITION THROUGH MARRIAGE. 44] Enfranchisement of copyhold land extinguishes the right Effect of of freebench, and the land becomes subject to the ordinary en^auchiE law of dower ; except as to persons married before an en- franchisement under the Copyhold Acts.(e) (e) 4 & 5 Vict. c. 35, =. 79 ; 15 & 16 Vict. u. 51, a. 34 ; 2 Watk. Cop. 69. Digitized by Microsoft® CHAPTER VIII. OPEKATION OF THE STATUTES OP LIMITATION, AND PRESCRIPTION. Operation of Under the Statutes of Limitation, an interest in land, or in an Limitation! and advowson, may be lost through the omission of the person Prescription, entitled thereto to enforce his rights, within a prescribed nguis e . pgriQ^ of i[j^Q^ against a person who is in actual possession of the land, or who is acting as owner of the advowson ; and the interest is thus, in effect, transferred by operation of law to the person last mentioned. An analogous mode of transfer, applicable only to rights of common, easements, and some franchises, is the acquisition by a person of such a right in another's land, by mere use and enjoyment for a certain length of time. This mode of acquisition is called ' prescription.'(a) Transfers of rights of property in land under the Statutes of Limitation, and by prescription, are considered in this chapter. Section I. — Statutes of Limitation. Old law of Early Law and Modern Statutes. — Prior to the year 1833, limitation. tj^g law as to the limitation of claims to land, through lapse of time, depended chiefly on statutes of Henry VIII. and James I. ; (5) and was in a very confused and unsatisfactory state. The period of limitation of a real action (one of the remedies for the enforcement of such claims) was different from that applicable to rights of entry, and to actions of ejectment whereby such rights were enforced; and a right (a) Co. Lift. 113 a-114 b ; 2 Bl. Comm. 263 et itq. {!)) 32 Hen. 8, c. 2 ; 21 Jao. 1, c. 16. Digitized by Microsoft® OPEEA.TION OF THE STATUTES OF LIMITATION, ETC. 1^43 of entry might he maintained beyond the prescribed period, by a mere claim made on the land, without further proceed- ings. But, by a statute of the year 1833, real actions, and the effect of a mere claim in keeping alive a right of entry, were abolished, and the law was otherwise altered and simplified.(c) On this Act, together with the Eeal Property Modern Limitation Act, 1874,((^) the present law of limitation appli- ^^."3^'^''°° cable to interests in land depends (except as to claims by the Crown) ; and the two Acts are together referred to in this chapter as the Statutes of Limitation. Application of the Statutes — Their Operation. — The interests Statutes of Limitation apply to land of whatever tenure — g^^w ^^^ including therein manors, messuages, and all other corporeal hereditaments, lay interests in tithe rent-charge, and all estates and interests in any of these objects.(e) They also apply to advowsons ; (/) to monies secured by mortgage of, or charge, lien, or judgment, upon, land ; (g) and to certain rents and other periodical sums, charged upon, or payable out of, land. (A) Where a person entitled to any such interest in land of Effect of the which another (i) has the actual possession, neglects to Statutes, exercise his rights, and (if necessary) to enforce them as against the person in possession, by action for recovery of possession of the land, or by distress, or otherwise (according to the nature of the right), within the time limited by the Acts for that purpose, his interest in the land is, at the expiration of that time, entirely extinguished — being, in effect, transferred to the person in possession of the (a) 3 & 4 Will. 4, c. 27. See Darby & Bosanquet, pf. 5, l-. 1. (d) 37 & 38 Vict. c. 67. (e) 3 & 4 Will. 4, c. 27, s. 1. (/) S. 30. {(j) 37 & 38 Vict. c. 57, s. 8. (/<) 3 & 4 Will. 4, c. 27, =. 1. (i) The possession of one coparcener, joint tenant, or tenant in common, is not, under the Statutes of i/imitation, the possession ot any other ; nor is the poses- sion of a relation of the heir deemed the heir's possession, 3 & 4 Will. 4, c. 27, 88. 12, 13. Jie Mobbs, Hobbs v. Wade, 36 Ch. D. 553, 57 U. J. Ch. 184, 58 L. T. 9, 36 W. E. 445. That the statutes do not apply vrhere the possessor is the claimant's agent, see Lyell v. Kennedy, 14 App. Ca. 437, reversing C. A. 18 Q. B. D. 796. Digitized by Microsoft® ^■^4 THE LAW OF PROPERTY IN LAND. land.(Z) The effect is similar as regards an advowson, where the right of presentation has not been claimed within the period allowed by the Statutes. (mi) Periods of Limitation. — The periods prescribed by the Statutes of Limitation for the enforcement of the various rights to which they apply, may be considered with reference to — (i.) estates in land; (ii.) advowsons; (iii.) monies secured upon land by mortgage, charge, lien, or judgment; (iv.) rents, and other periodical sums charged upon, or payable out of, land. Action for (i-) Estates in Zand. — An action cannot be brought by a recovery of. person claiming an estate in land, for recovery of possession of the land,(-?!) unless within twelve years next after the time when the right to bring the action first accrued to him, or to some other person through whom he claims ; (o) or, if the estate claimed by him was originally an estate in reversion or remainder, or other future estate, and the person last entitled to any particular estate, on which such future estate was expectant, was not in possession of the land at the time when his interest determined, then within twelve years next after the time when the right to recover the land first accrued to the person whose interest has so determined, or within six years next after the time when the estate of the claimant has become vested in possession — whichever of those two periods shall be the longer. (j>) 9 3 & 4 Will. 4, c. 27. s. 34 ; Scott v. Nixon, 3 Dru. & War. 388 ; Dawldns tord Penrhyn, 6 Ch. D. 318, 4 App. Cas. 51, 48 L. J. Ch. 304, 39 L. T. 583, 27 W. E. 173 ; Trustees' and A/jency Com^Jany v. Short, 13 App. Ca.s. 793, 58 L. J. P. C. 4, 59 L. T. 677, 37 AV. K. 433. The effect of the _ statutes as respects rights to land is different from the operation of Statutes of Limitation barring rights under contracts ; for, as respects the latter, the remedy only is barred. ()h) 3 & 4 Will. 4, c. 27, ss. 33, 34. (n) An action to compel admittance to copyholds, where the lord has seized and held cnwusque, is an action for recovery of laud within the statutes ; Walters V. Webb, L, R. 9 Eq. 83, 5 Ch. 531, 39 L. J. Ch. 677, 18 W. K. 587. And the lord's right of seizure is, it seems, an interest in land within the statutes : see lie Lidiard and Jackson's and Broadley's Contract, 42 Ch. D. 254, 58 L. J. Ch. 785, 61 L. T. 322, 37 W. E. 793. (o) 3 & 4 Will. 4, c. 27, B. 2 ; 37 & 38 Vict. i;. 67 (Eeal Property Limitation Act, 1874) s. 1. The general period of limitation for the recovery of land, under the former Act, was twenty years ; for which the period of twelve years has been substituted by the later Act. {p) 37 & 38 Vict. c. 57, s. 2. This provision does not apply where the owner of the particular estate conveys it away, and his estate thus determines Pedder v. Hunt, 18 Q. 15. D. 565. Digitized by Microsoft® OPEEATION OF THE STATUTES OF LIMITATION, ETC. 445 The preceding enactment is subject to a proviso, that if, at Extension in the time when the right of action accrued, the claimant, or ability, the person through whom he claims, was under disabilitj- of infancy, coverture,(2') idiotcy, lunacy, or unsoundness of mind, then, notwithstanding the expiration of the period of twelve or six years, as the case may be, the action may be brought within six years next after the party has ceased to be under disability, or has died, whichever first happens — provided the action be brought within thirty years after the time at which the right to bring it first accrued, (r) A special provision, however, applies to the case in which Provision as to the right to recover possession is that of a mortgagee of the ^„oJ.jLtree land ; namely, that the action may be brought within twelve years after the last payment of any part of the principal money or interest secured by the mortgage, although morn than twelve years may have elapsed since the right to recover the land first accrued, (s) Under a legal mortgage, as has been seen, the mortgagee is entitled to possession as from the execution of the mortgage, unless the contrary is agreed. And the right to bring an action for foreclosure of the mort- gage (which is an action ^^for recovery of land, within the Statutes of Limitation), first accrues on default in payment of the mortgage money. (^) Where a mortgage of land has been foreclosed, a right to After fore- recover the land accrues to the mortgagee on, and as from '=1"^"™ °^ ^ ° . mortgage. the date of, the judgment of foreclosure, by virtue of the ownership thereby vested in the mortgagee ; and the period prescribed by the Statutes of Limitation runs from that date.(is) Where the right of a tenant in tail to recover possession of {q) Seei)osf, pp. 477, 482. (r) 37 & 38 Vict. c. 57, ss. 3, 5. The periods of six and thirty years are sub- stituted, by this Act, for ten and forty years respectively, allowed by the earlier Act. The later Act also deprives a claimant of a similar extension of time, pre- viously allowed, on the ground of his absence beyond seas, s. 4. If the claimant die under disability, no further extension of time is allowed on the ground of the disability of any other person, 3 & 4 Will. 4, c. 27, s. 18. (s) 7 W. 4 & 1 Vict. u. 28. (t) Ante, pp. 224, 244; Earloch v. Ashhernj, 18 Uh. D 229, 19 Gh. D. 539 51 L. J. Ch. 394, 46 L. T. 356. (m) math V. Puc/h, 6 Q. B. D. 345, 7 App. Cas. 235. Digitized by Microsoft® 446 THE LAW OF PROPERTY IN LAND. Provisions as to base fees. Provisions as land IS extinffinsliecl by lapse of time, the rights of all persons to estates tail. , ., , , ^ ° ^ , • , , • , . , i ^ T _. • entitled to estates which, he might have barrea — as estates in remainder or reversion expectant on the estate tail — are also extinguished. And if a tenant in tail, entitled to recover possession of land, die before the expiration of the time within which his action for that purpose must be brought, no person entitled to an estate which he might have barred can recover the land, but within the period during which the tenant in tail might have done so, had he continued to live, (a;) Where a tenant in tail has made an assurance, which does not bar estates taking effect after, or in defeasance of, the estate tail (thereby creating a base fee),(y) and any person is in possession under such assurance for twelve years from the time at which, if the assurance had then been executed, it would, without the consent of any other person, have com- pletely barred the entail (that is, twelve years from the death of the protector of the settlement) — then, at the expiration of that period, the assurance is effectual as against an estate to take effect after, or in defeasance of, the estate tail ; (z) or, in other words, every such estate is extinguished, and the base fee thus becomes a fee simple absolute, (a) When the right As to the time at which the right to bring an action for recovery of the land first accrues (which, it will be observed, is the commencement of the period of limitation), the follow- ing rules apply : — General rule. (a) In general, the right accrues at the time when the claimant was dispossessed, if he was previously in possession ; and, otherwise, at the time when he became entitled to an estate in possession in the land.(&) Where pos- (jS) Where a person is in possession of land as tenant at sessor is tenant -y^]]}^ ^}ig right of the person entitled, subject to such tenancy, to recover the land, is deemed to have first accrued either at of action accrues- (rr) 3 & 4 Will. 4, c. 27, ss. 21, 22 ; Goodall v. Skerratt, 3 Drew. 216 ; Harl of Aberqavennyv. Brace, L. R. 7 E-tch. 145,'41 L. J. C. L. (Ex.) 121, 26 L. T. 514, 20 W. E. 462. (t/) See ante, p. 127. (2) 37 & 38 Vict. c. 57, s. 6. (a) Penny v. Allen, 7 I). M. & G. 409, 426 ; Morgan v. Morgan, L. E. 10 Eq. 99 ; Milh v. Capel, L. E. 20 Eq. 692, 44 L. J. Ch. 674, 33 L.T. 158. (6) 3 & 4 Will. 4, c. 27, ss. 3, 4, 6. As to the rights of a mortgagee under this rule, see supra, p. 445. Digitized by Microsoft® OPERATION OF THE STATUTES OF LIMITATION, ETC. 447 the determination of such tenancy, or at the expiration of one year next after its commencement, (c) (y) Where a person is in possession of land as tenant from where he is year to year, or other period, without lease in writing, the ^^j'''. ^ '^°*''' right of the person entitled, subject thereto, to recover the land, is deemed to have first accrued at the determination of the first of such years or other period, or at the last time when any rent payable in respect of such tenancy has been received. ((Z) (8) Where a person is in possession of land under a lease where he holds in writing, at a yearly rent of twenty shillings or upwards, ^^tiar-'" and such rent has been received by a person wrongfully claiming to be entitled to the reversion expectant on the lease, the right of the person entitled, subject to the lease, to recover the land, is deemed to have first accrued at the time at which the rent was first received by the person wrongfully claiming as aforesaid. (e) (e) Where an acknowledgment of the title of the person where acknow- entitled has been given to him or his agent, in writing signed '^.'^s™^'!' by the person in possession, the possession of the latter is deemed to have been the possession of the person to whom, or to whose agent, the acknowledgment has been given, and that person's right to recover the land is deemed to have first accrued at the time when such acknowledgment (or the last of such acknowledgments) was given. (/) (f) In case of concealed fraud, the right to recover land of where con- which the claimant, or any person through whom he claims, sealed fraud ; has been deprived by such fraud, is deemed to have first accrued at the time at which such fraud has been, or with reasonable diligence might have been, discovered ; except as (c) Ihid. s. 7. See Day v. Day, L. K. 3 P. C. 751. But no mortgagor or cestui gut trust is deemed to be a tenant at will, within the meaning of the above provision, to the mortgagee or trustee, b. 7. But after payment of the mortgage money, and before a reconveyance has been executed, the mortgagor holds as the mortgagee's tenant at will within the statutes ; Bands to Tlujmpson, 22 Ch. D. 614. (d) 3 & 4 Will. 4, 0. 27, s. 8. (e) Ibid. s. 9 ; Williams v. Pott, L. E. 12 Eq. 149. (/) 3 & 4 Will. 4, c. 27, o. 14. The acknowledgment must be given before the prescribed period has expired; inasmuch as the claimant's title ii then ex- tinguished (see ante, p. 443), and a subsequent acknowledgment could not revive it : Darby & Bosauquot, p. 289. Digitized by Microsoft® 448 THE LAW OF PROPEETY IN LAND. Where land is trust estate. Equitable claims. Trustee Act, 1888. against a hoiidfide purchaser for value, who had not notice of the fraud. (^) (rj) Where land vested in a trustee, upon an express trust, has been wrongfully conveyed by him to a purchaser for valuable consideration, the right of the cestui que trust to re- cover the land is deemed to have first accrued, as against such purchaser, at the time of the conveyance. (7i) This provision is applicable only where the purchaser has notice of the trust, or has not acquired the legal estate ; for it does not affect the rule that the right of the cestui que trust is lost as against a purchaser for value without notice, who has the legal estate, (t) The Statutes of Limitation aj)ply to equitable as well as legal claims to land.(A;) Prior to the year 1890, however, this rule did not apply to the claim of a cestui que trust against his trustee, or a volunteer entitled through him, under a trust actually declared ; except in the case (presently men- tioned) of money charged on land.(Z) With this exception, the application of the statutes was confined to equitable interests arising by operation of law.(m) But, by the Trustee Act, 1888, in any action or other pro- ceeding against a trustee or any person claiming through him, commenced after the 1st January 1890 — except where the claim is founded upon any fraud, or fraudulent breach of trust, to which the trustee was party or privy ; or is to recover trust property, or the proceeds thereof, still retained by the trustee, or previously received by him and converted to his own use — the defendant is to have the same benefit of any statute of limitation as if he had not been a trustee, or per- son claiming through a trustee. And if the action or pro- ceeding is for recovery of money or other property, and is {gj 8 & 4 Will. 4, c. 27, b. 26. As to what is a concealed fraud within this section, see I'etre v. JPetre, 1 Drew, 371, 397 ; Vane v. Vane, L. E. 8 Ch. 383, 42 L. J. Ch. 299, 28 L. T. 820, 21 W. E. 252 ; Ecclesiastical Commissioners v. N. E. Sailway Co., 4 Ch. D. 845, 36 L. T. 174. (A) 3 & 4 Will. 4, c. 27, s. 25. (i) Darby & Bosanquet, 342, 343 ; see ante, p. 184. (/c) Lewin, 876. (J) See infra, p. 450. (m) 36 & 37 Vict. c. 6G (Judicature Act, 1873), s. 25, sub-s. 2 ■ Banner v Berridge, 18 Ch. D. 254, 50 L. J. Ch. 630, 44 L. T. 680, 29 W. E. 844 ; Saiuls to Thompson, 22 Ch. D. 614, 52 L. J. Ch. 406, 48 L. T. 210, 31 W E 397 ■ Patrich v. Simpson, 24 Q. B. D. 128, 59 L. J. C. L.' 7, 61 L. T. 686. Digitized by Microsoft® OPEEATIOfr OF THE STATUTES OF LIMITATION, ETC. 449 one to which no existing statute of limitation applies, the trustee or person claiming through him is to be entitled to the benefit of, and to be at liberty to plead, the lapse of time as a bar to the action or proceeding, as if the claim had been against him in an action for money had and received. But time is not to begin to run against a beneficiary, unless and until his interest is an interest in possession.(TO) The Statutes of Limitation do not affect the application of Equitable rules rules of equity under which a ceshoi que trust may be refused g^\uteg°^* ^ relief against his trustee, on the ground of acquiescence or concurrence in the latter's breach of trust. (o) As has been already mentioned, a mortgagor's equity of Provision as to redemption, or estate in the mortgaged land, may be extin- redeinptkin guished (or, in effect, transferred to the mortgagee) by the operation of the Statutes of Limitation, where the mortgagee is in possession of the land ; for an action for redemption cannot be brought but within twelve years from the time when the mortgagee obtained possession ; or if, in the mean- time, a written acknowledgment of the right to redeem, signed by the mortgagee, has been given to the mortgagor or his agent, within twelve years from the time when such acknowledgment was given. (p) And no further time is allowed the mortgagor on the ground of disability ; for the savings in cases of disability do not apply as between mort- gagor and mortgagee. (g-) Statutes of limitation do not affect the rights of the Crown, Enactments as unless the Crown be expressly included therein ; a rule ex- ^ <=laims of pressed by the maxim nullum tempus occurrit reai.(r) The &c. above enactments do not extend to the Crown ; but, by other statutes, the right of the Crown to recover manors, lands, (re) 51 & 52 Vict. c. 59, s. 8 ; In re Bowden, Andrew v. Cooper, 45 Cli. D. 444, 59 L. J. Gh. 815. (o) 3 & 4 Will. 4, 0. 27, s. 27. As to these rales, see Lewin, i;. 30, b. 1 ; Thom- son V. Eastwood, 2 App. Cas. 215. (p) Ante, p. 224 ; 37 & 38 Vict. c. 57, s. 7 ; Kinsman v. Bouse, 17 Ch. D. 104 ; Richardson v. Younye, L. E.IO Eq. 275 ; 6 Ch.478, 40 L. J. Cli. 338, 19 W. 1!. 612. An acknowledgment given to one of several mortgagees is sufficient ; but an acknowledgment by one of several mortgagees is effectual only as regards liim, s 7. A mortgage by trust for sale is within this section : Ee Alison, 11 Ch. D. 284, 27 AV. E. 889. (q) Kinsman v. Rouse, supra; Forster v. Ratterson, 17 Ch. D. 132 50 L. J. Ch. 603, 44 L. T. 465, 29 AV. E. 463. {r) 3 Cruise, t. 31, ch. 2, s. 57 ; 5 Cruise, t. 35, ch. 13, s. 2. 2 F Digitized by Microsoft® 450 THE LAW OF PEOPEETY IN LAND. Action to enforce riglit to. tenements, rents, tithes, or hereditaments (except liberties or franchises), or the profits thereof, has been limited to sixty- years from the time when the same have been first held, or the rents taken, adversely to the Crown. (s) (ii.) Advovjsons. — An action to enforce a right of presenta- tion to an ecclesiastical benefice is limited to the period of three successive incumbencies, all under presentations adverse to the claimant's rights ; or to the period of one hundred years, if the incumbencies together exceed that period ; or to sixty years, if the incumbencies together do not amount to sixty years. (<) Recovery of. (iii.) Monies Secured ly Mortgage of, or Cliarge, Licn,{io) or Judgment (x) upon, Za-nd. — Money so secured cannot be re- covered but within twelve years next after the right to re- ceive the same has accrued ; or if, in the meantime, part of the principal monej^, or interest thereon, has been paid, or an acknowledgment of the right thereto has been given in writ- ing, signed by the person by whom the same is payable or his agent, to the person entitled thereto or his agent, then within twelve years next after such payment or acknowledg- ment.(2/) And, since the 1st July 1879, no money or legacy, charged upon, or payable out of, any land or rent, and secured by an express trust, is recoverable, except within the time within which the same would be recoverable, if there were not any such trust, (s) Statute The above period of limitation extends to the remedy extends to ^ against a mortgagor personally, on his covenant for payment mortgagor per- of the mortgage money, (a) as well as to any remedies sonally. (s) 9 Geo. 3, ^. 16 ; 23 & 24 Vict. ,,. 53 ; 24 & 25 Vicl. c. 62. (<) 3 & 4 "Will. 4, 0. 27, ss. 30, 33. (m) Toft V. Stephenson, 1 D. M. & G. 28, 5 D. M. & G. 735. {x) Watson v. Birch, 15 Sim. 523; & parte Tynte, 15 Ch. D. 125, 42 L.T. 598, 28 W. E. 767. {y) 37 & 38 Vict. c. 57, ts. 8; see NewhouU v. I'imith, 33 Ch. D. 127, 14 App. Gas. 423, 61 L. T. 814. (z) 37 & 38 Vict. c. 57, s. 10 ; Hughes v. Coles, 27 Ch 1). 231, 53 L. J. Ch. 1047, 51 L. T. 226, 33 W. E. 27 ; In re Blachford, 27 Ch. D. 676, 54 L. J. Cb. 215, 33AV.E. 11. [a] Sittton V. Sutton, 22 Ch. D. 511 ; Fearnsich v. Flint, 22 Ch. D. 579 52 L. .J. Ch. 479, 48 L. T. 154, 31 W. E. 318 ; Be Frishu, Allison v. Frishii, 43 Ch. D. 106, 59 L. J. Ch. 94, 61 L. T. 632, 38 AV. E. 65.' Digitized by Microsoft® OPERATION OF THE STATUTES OF LIMITATION, ETC. 451 against the land, which may be available for recovery of the money. (&) (iv.) Hents and other Periodical Sums Charged upon, or Kecovery of. PaycMe oiit of, Land. — The provisions that have been men- tioned of the Statutes of Limitation, as to the recovery of possession of land, apply equally to rents — including all periodical sums charged upon, or payable out of, land, and also heriots, services, and suits, for which a distress may be made.(c) These provisions limit the period within which proceedings may be taken by action or distress, for the en- forcement of the right to make the land available for satis- faction of the rent claimed ; but apparently they do not affect the right of action against the person by whom the rent is payable, where he is personally liable for its payment. They apply to rent-charges, (rf) and to lay interests in tithe rent- charge ; (e) but they do not apply to rent-service, reserved on a lease ; for the possession of a tenant under a lease is not adverse to his landlord's possession. (/) Other provisions of the Statutes limit the extent to which Provisions as arrears of rent, &c., are recoverable, where the riffht is not ^° "°°^^J^ ° t ' ' ... arrears of rent, extinguished under the preceding provisions. No arrears of &c. rent, or of interest on money charged upon, or payable oat of, any land, or any damages in respect of such arrears, can be recovered by distress or action, but within six years next after the same became due, or next after an acknowledgment in writing of the same ; save that arrears of interest, that have become due during the time that a prior mortgagee, or other incumbrancer, has been in possession, may be recovered, although exceeding six years. (,(/) This enactment applies to the remedies available as against the land ; including the (6) As to tlie remedy by foreclosure, wbich is a remedy to recover the land, and therefore not within the above provision, see supra, p. 445. (c) See 3 & 4 Will. 4, c. 27, ». 1. (d) Dean of Ely v. Bliss, 2 D. M. & G. 459, 472 ; Doe d. Angell v. Ancjell, 9 Q. B. 328, 355 ; Sug. V. and P. 476. (e) See the definition of land in [be Acts, ante, p. 443 ; Commissioners of Irish Church Temporalities v. Grant, 10 App. Gas. 14. ( f) Grant y. Ellis, 9 M. &W. 113 ; Saunders Y.LordAnnesley, 2 Sob. & Lef. 33, 95 ; Sag. V. & P. 477. ((/) 3 & 4 Will. 4, c. 27, s. 42. Digitized by Microsoft® 452 THE LAW OF PEOPEETY IN LAND. remedy by distress for the recovery of arrears of rent-service under a lease.(7i) But it does not apply to an action for recovery of arrears of rent-service as a personal liability of the lessee — this being limited by a different enactment, (i) rurtherlimitar The remedy by distress is, by the Agricultural Holdings cuTtol^Hold- (England) Act, 1883, further limited to one year's arrears of ings Act, 1883 ; the rent, in the case of an agricultural teuancy.(Z;) And, and ty Tithe under the Tithe Act, 1891, proceedings for the recovery of a Act, 1891. g^jj^ Qjj account of tithe rent-charge, must be commenced be- fore the expiration of two years from the date at which the sum became payable. (/) Sect. II. — PEESCEiPTioN.(m) Ecciuisites for. Prescription at Common Law. — The common law as to prescription has been, in some measure, superseded by a statute of the year 1832, but is still applicable in cases not within the provisions of that Act.(w) At common law, ac- quisition by prescription occurs only through enjoyment, actual or presumed, by an owner of land and preceding- owners thereof, as incident to the land, or by a person and his ancestors,(o) for a period extending as far back as that (7i) Woodfall, 454. (i) The statute 3 & 4 Will. 4, u. 42, o. 3, under which twenty years' arrears of rent are recoverable on a covenant for its paynaent, in a lease made by deed ; and six years' arrears if there be no such covenant. Quare, whether s. 42 of the statute 3 & 4 Will. 4, c. 27, limits the remedy by action for recovery of arrears of rent-charge, or interest under a mortgage, to six years. {k) 46&47 Vict. u. 61, b. 44. {I) 54 Vict. u. 8, a. 10 (2). (m) As to the nature of prescription, see ante, p. 442. It may be here added that prescription differs from custom, in that it is a personal right claimed by one or more individuals ; while custom is a local usage, 2 Bl. Comm. 263. (?») See Aynsletj v. Glover, L. E. 10 Ch. 283, 44 L, J. Cb. 523, 32 L. T. 345, 23 W. R. 457. And for instances of acquisition by prescription of franchises, which are not within the Act, see Mayor of Penryn v. Best, 3 Ex. D. 292, 4S L. J. C. L. 103, 38 L. T. 805 ; Att.-Gen. v. Horner, 14 Q. B. D. 245, 11 App. Gas. 66, 55 L. J. C. L. 193, 34 W. E. 641 ; (right to a market) ; Lmvreiice V. Hitch, L. E. 3 Q. B. 521, 37 L. J. C. L. (Q. B.) 209, 16 W. E. 813 ; (right to market tolls ;) Goodman v. Mayor of Saltash, 7 Q. B. D. 106, 7 App. Gas. 633, 52 L. J. G. L. 193 ; 48 L. T. 239 (oyster fishery in navigable rivers). (o) A claim of prescription by a person by virtue of an estate in land, is called a prescription in a que estate. It is applicable only to rights appen- dant or appurtenant to land, and at common law it must be laid in the person who has the fee simple, 3 Cruise, t. 31, ch. 1, ss. 8, 9. But a claim by prescription under the Prescription Act, 2 & 3 Will. 4, o. 71, need not be made in right of the owner of the fee, s. 5. Digitized by Microsoft® OPEKATION OP THE STATUTES OF LIMITATION, ETC. 453 of legal memory — that is, to the beginning of the reign of Eichard I. (a.d. 1189).(p) Positive evidence of the com- luencement of the right since that date defeats a claim by- prescription, at common law; but, in the absence of such evidence, if uninterrupted enjoyment for a period of twenty years can be shown, such enjoyment will be presumed to have existed from time immemorial, so as to sustain the pre- scription ; {q) or it may be presumed, for that purpose, that the right was created by an express grant, the evidence of which has been lost.(r) The Prescription Act, 1832. — This Act was passed ' f or Its appli- shortening the time of prescription in certain cases '(s) — '^^*'°°- namely, with respect to (i.) ' rights of common, or other profits or benefits from or upon land (except tithes, rent, and services)'; (ii.)'ways, or other easements, watercourses, or the use of any water'; (iii.) 'the access and use of light to and for any house, workshop, or other building.' And, in these cases, the Act excludes any presumption, upon proof, in .support of a claim, of enjoyment for any less period than such period as is mentioned in the Act as applicable to such claim, (i!) (i-) Rights of Comvion, &c. — As to rights of common, &c. Prescription by (as above mentioned), the Act provides,' that where such a ^i"^'? orsixty ' . . . , , years enjoy- matter has been enjoyed by a person claiming right thereto, ment. without interruption, for a period of thirty years next before the commencement of an action in which the matter has been brought into question,(M) the claim shall not be defeated merely by proof that it was first taken or enjoyed at some time prior to the commencement of that period — though it shall remain liable to be defeated in any other way in which it was defeasible before the Act.(a;) It also provides, that (p) Litt. s. 170 ; Co. Litt. 115 a. (2) a. V. Jolife, 2 B. & G. 64 ; see :Bryant v. Foote, L. K. 3 Q. B. 497, 16 W. B. 808. (r) 1 Rep. R. P. Comm. 51. (s) 2 &3 Will. 4,0. 71. (i) Ss. 1, 2, 3, 6. (tt) Ss. 1, 4 ; Farlcer v. Ilitchell, 11 A. & E. 788. (k) As by proof of a grant of the right for a limite 1 period ; or absence, or ignorance, of the person interested in opposing the claim, Bright v. ]lMlker, 1 Or. M. & E. 211. Digitized by Microsoft® 454 THE LAW OF PEOPEETY IN LAND. Prescription by twenty or forty years' en- joyment. 3?resoriptioD by twenty years' enjoy- ment. the time during whicli a person, otherwise capable of resist- ing the claim, shall have been an infant, idiot, non compos mentis, feme covert, or tenant for life ; or during which any action or suit as to the claim shall have been pending and diligently prosecuted, shalj be excluded in the computation of the above-mentioned period.(y) But it provides, also, that where the matter claimed has been enjoyed as aforesaid for sixty years, the right shall be deemed absolute and indefea- sible ; unless it appear that it was taken and enjoyed under some deed or writing, (s) (Li.) Ways, or other Easements, &c. — As to ways or other easements, &c. (as above mentioned), the Act contains pro- visions similar to those respecting rights of common ; except that twenty years and forty years are the requisite periods of enjoyment, in lieu of thirty and sixty years respectively (a) — and except also that, as to ways and watercourses,(6) it is provided that, when the laud or water, in respect of which the claim is made, has been held for a term of life or exceed- ing three years, such term shall be excluded from the compu- tation of the forty years, in the event of the person entitled in reversion resisting the claim within three years after the determination of the term.(c) (iii.) Access of Light. — As to the access and use of light (as above mentioned), the Act provides, that where the light has been enjoyed, without interruption, for twenty years next before the commencement of an action in which the claim thereto is brought into question, the right to it shall be deemed absolute and indefeasible ; unless it appear that the same was enjoyed under some deed or writing.((^) And in the computation of the period thus provided for the acquisi- tion of this right, there is no extension of time (as in the iv) S. 7. {z) S. 1. (a) S. 2.. (6) Qucere, other easements also ; see Sug. V. & P. 492, per Lord Selborne, in Ualton v. Angus, 6 App. Cas. at p. 798 ; ferry v. Eames [1891], 1 Ch. 658. The words of the section are, " any such way or other convenient watercourse or use of water." (c) S. 8. A remainderman is not a person entitled to a reversion under this section ; dijmons v. Leaker, 15 Q. B. 1). 629, 54 L. J. G. L. 480, 53 L. T. 227, 33 W. K. 875 ; ef. Laird v. Brigrjs, 19 Ch. D. 22, 45 L. T. 238. {d) Ss. 3, 4. The Crown, not being named in this part of the Act (as it is in the other parts), is not bound by it : I'errij v. Eames [1891], 1 Ch. 658. Digitized by Microsoft® OPERATION OF THE STATUTES OF LIMITATION, ETC. 455 other cases under the Act) on grounds of disability, tenancy for life, or pendency of an action. (e) The Act provides, that no act or matter shall be deemed an \^^hat is aa interruption, unless it be submitted to, or acquiesced in, for a interruption year after the party interrupted had notice thereof, and of the person making or authorizing the same.(/) Except in the case of a claim to the use of light,(^) the Eujoyment enjoyment during the period provided by the Act must have m"sthave been as of right, and not by stealth, or by permission. (A) right (except in case of light). (e) See s. 7. (/) As to what constitutes an interruption of the enjoyment under the Act, see Bailey v. Appleyard, 8 A. & E. 161 ; Flight v. Tliomas, 11 A. & E. 688 ; Glover v. Coleman, L. R. 10 C. P. 108, 44 L. J. C. L. (C. P.) 66, 31 L. T. 684, 23 W. R. 163 ; HolUns v. Verney, 11 Q. B. D. 715, 13 Q. B. D. 304, 53 L. J. C. L. 430, 33 W. E. 5. Unity of possession during any part of the period will suspend the running of time during that period ; Onley v. Gardiner, 4 M. & W. 496 ; Ladyman v. Grave, L. R. 6 Ch. 763. {g) Ilayor of London v. Feuoterers' Co., 2 Mood. & Rob. 409. (Ji) Onley v. Gardiner, 4 M. & W. 496 ; Dalton v. Angus, 6 App, Cas. 740 ; Earl De la Warr v. Miles, 17 Cb. D. 535, 50 L. J. Ch. 754, 44 L. T. 487, 29 W. R. 809 ; Chamber Colliery Co. v. Hojpwood, 32 Cb. D. 549, 55 L. J. Ch. 859, 55 L. T. 449. Digitized by Microsoft® CHAPTER IX. OPERATION OP THE LAW OF BANKRUPTCY. Present Acts, 1883 and 189C Former Acts. Bankruptcy Statutes. — The law of bankruptcy now in force • is contained in the Bankruptcy Acts, 1883 and 1890,(a) except as regards bankruptcy proceedings instituted before the 1st January 1883, the date of the commencement of the former Act. Prior to that Act, various statutes relating to bankruptcy had been passed at different times. (5) Respect- ing the latest of these, the Bankruptcy Act, 1869 (which was repealed by the Bankruptcy Act, 1883, as from the 31st December 1882, except as above),(c)itmay be mentioned that it provided for the administration of a debtor's estate, either by proceedings in bankruptcy, instituted by creditors, or by proceedings for liquidation by arrangement with creditors, instituted by the debtor himself. In either case, however, the debtor's estate vested in a trustee, by whom it was realized for the benefit of the creditors. (c^) Keceiving order. Course of Proceedings in Bankruptcy. — Under the Acts of 1883 and 1890, on the institution of bankruptcy proceed- ings by a creditor, or by the debtor, the Court (e) may make an order, called a ' receiving order,' (/) whereby the OflScial Receiver of the Court is constituted receiver of the debtor's (ffl) 46 & 47 Vict. 0. 52 ; 53 & 54 Vict. c. 71. (6) 34 & 35 Hen. 8, c. 4 ; 13 Eliz. c. 7 ; 4 & 5 Anne, o. 4 ; 6 Geo. 4, o. 16 ; 12 & 13 Vict. 0. 106 (the Bankruptcy Act, 1849) ; 24 & 25 Vict. c. 134 (the Bankruptcy Act, 1861) ; 32 & 33 Vict. c. 71 (the Bankruptcy Act, 1869), &c. (c) S. 169. {d) See 32 & 33 Viot. c. 71, ss. 6, 125. (e) I.e., the High Court of Justice, or the County Courts to which jurisdiction in bankruptcy are given by the Acts ; see Act of 1883, ss. 92-102. (/) Act tf 1883, 8.5. Digitized by Microsoft® OPERATION OF THE LAW OF BANKEUPTCY. 457 property; and, thereafter, no proceedings^can be taken agaiast the debtor, for a debt provable in bankruptcy, unless by leave of the Court ; though the power of any secured creditor to realize, or otherwise deal with, his security is not affected thereby. (^) After the making of a receiving order, the Court holds a public sitting for the examination of the debtor as to Examinatiou his conduct, dealings, and property. (A) If, after this has °"^'''°''- taken place, the creditors in general meeting adopt (by such majority as is required by the Acts) a proposal for a com- position of their claims, or a scheme of arrangement of the Scheme of debtor's affairs, and the same is approved of by the Court, it ^^TaDgement. will be binding on all the creditors whose debts are provable m bankruptcy (except as regards claims under certain judg- ments and orders) ; though in case of default or failure in payment of the composition, or in the carrying out of the scheme, the debtor may be adjudged a bankrupt. (z) But if the creditors in such meeting resolve that the debtor be adjudged bankrupt, or if a composition or scheme is not Adjudication accepted by them, or is not approved by the Court, the Court °^ i^ankruptey. adjudges the debtor a bankrupt. (Z;) Thereupon, the bankrupt's Trustee, ap- property becomes divisible among his creditors, and vests in Po^itn^ent of, a trustee, who may be appointed by the creditors, or whose appointment may be left by them to the ' committee of in- spection ' — a committee of from three to five persons, who may be appointed by the creditors for the purpose of superin- tending the administration of the property by the trustee. In either case, the trustee's appointment must be approved and certified by the Board of Trade. (Q In the meantime, the OflBcial Receiver is the trustee for the purposes of the Acts, and, as such, may deal with the bankrupt's property. The property vests in the trustee for the time being during his continuance in ofHce, without any conveyance or other transfer ; and the certificate of appointment of a trustee is, for all purposes of registration, enrolment, or recording, of conveyances or assignments of property, deemed to be a ((/) S. 9. As to who is a secured creditor under the Act, see^josJ, p. 462. (A) Act of 1883, s. 17 ; Act of 1890, s. 2. (j) Act of 1883, ss. 15, 18 ; Act of 1890, s. 3. ■(i) Act of 1883, s. 20; Q) Act of 1883, ts. 20, 21, 22 ; Act of 1890, s. 5. Digitized by Microsoft® 458 THE LAW OF PROPERTY IN LAND. conveyance or assignment, and may be registered, enrolled, or recorded accordingly, (m) The trustee may be removed from the office in certain events ; and a new trustee may be appointed by tbe creditors, or (upon their failure to do so) by the Board of Trade.(?i) Property Bankrupt's Estate. — Under the Acts, the bankrupt's pro- included in. perty divisible among his creditors includes all such property (except tools of trade, wearing apparel, &c.) as may belong to, or be vested in, him at the commencement of the bankruptcy, or may be acquired by, or devolve on, him before his discharge ; except property held by him on trust for any other person (which remains vested in him notwithstanding his bank- ruptcy. (o) It has been held, however, that untib the trustee in the bankruptcy intervenes, transactions of the bankrupt with persons dealing with him in good faith and for value, whether with or without knowledge of the bankruptcy, in respect of his property acquired after the bankruptcy, are valid against the trustee in the bankruptcy, (p) Effect of The property divisible among the bankrupt's creditors also to °owers°^ *^ includes the capacity to exercise all such powers, over or in respect of property, as might have been exercised by the bankrupt for his own benefit ; except the right of nomination to a vacant ecclesiastical benefice.(2) A power vested in the bankrupt, and not exercisable for his own benefit, continues exercisable by him, notwithstanding the bankruptcy. But if the exercise of the power might affect his interest in any property, it cannot be exercised without the consent of the trustee in the bankruptcy, (r) Commence- The title of the trustee to the bankrupt's property relates toe's titlf"^ back to the commencement of the bankruptcy — which is the (m) Act of 1883, s. 54. Turquand v. The Board of Trade, 15 Q. B. D. 196 ; 11 App. Cas. 286, 55 L. T. 30, 55 L. J. C. L. 417. (nj Act of 1883, ss. 84-87 ; Act of 1890, s. 19. Where the property of the debtor does not exceed in value £300, the above provisions are subject to certain modifications, under which the estate is admiiiistered in a summary manner ; ihe Official Eeceiver being the tmstee in the bankruptcy : see Act of 1883, a. 121. (o) Act of 1883, s. 44. {p) Cohen v. MitcheU, 25 Q. B. D. 262 ; 59 L. J. C. L. 409, 38 W. E. 551. (j) Act of 1883, s. 44. (j-) Be Jakeman's Trusts, 23 Ch. D. 344, 52 L. J. Ch. 363 ; Se Cooper, 27 Ch. D. 565, 51 L. T. 113, 32 W. K. 1015. Digitized by Microsoft® OPERATION OF THE LAW OF BANKRUPTCY. 459 time of the commission of the act of bankruptcy on which the receiving order is made, or (if there have been several of such acts) the time of the commission of the first of such acts committed by the bankrupt within the three months next preceding the presentation of the bankruptcy petition.(s) Alienations Void tender Bankruptcy Law. — Certain aliena- Alienations tions by a person, who afterwards becomes bankrupt, are f^^l^^^^^ deemed fraudulent as against the creditors under the bankruptcy, and may accordingly be set aside for their benefit. Such are, a transfer by a debtor of the whole of his estate (or of the whole, with an exception merely nominal) to a creditor, in consideration of a pre-existing debt ; (t) and a conveyance or assignment to trustees, for the benefit of the alienor's creditors generally.(w) And the Act of 1 883 makes similarly invalid, any transfer of, or charge on, property, by an insolvent debtor who becomes bankrupt within three months thereafter, in favour of any creditor, with a view of giving such creditor a preference over the other creditors ; {x) unless such transfer or charge were made under pressure on the part of the creditor. (2/) The Act of 1883 also provides, that any settlement — not Voluntary made before, and in consideration of, marriage ; nor in favour settlement, of a purchaser or incumbrancer in good faith and for valuable consideration ; nor on or for the settlor's wife or children, with respect to property which has accrued to him after marriage in right of his wife — shall if the settlor becomes bankrupt within two years after the date of the settlement, be void as against the trustee in the bankruptcy; and shall, if the settlor becomes bankrupt subsequently, and within ten years after the date of the settlement, be similarly void, unless the parties claiming under the settlement can prove that the settlor was, at the time of making it, able to pay all his debts («) Act of 1883, s. 43. Certain alienations &o., by the debtor are protected ; Bee a. 49. As to what are acts of bankruptcy, see a. 4, and Act of 1890, s. 1. (i) Jones t. Barber, L. R. 6 Q. B. 77, 40 L. J. C. L. 59, 19 W. E. 248, 23 L. T. 606 ; Mercer v. Peterson, L. E. 2 Exch. 304 ; L. K. 3 Exch. 104. (m) Act of 1883, s. 4 (1). {x) S. 48 (1). By sub-sect. 2, the rights of a person claiming for valuable consideration under the creditor are protected. (y) Eobson, Bankruptcy, 156 ; Ex parte Hall, Re Cooper, 19 Ch. D. 580, 46 L. T. 549, 51 L. J. Ch. 556, Ex parte Taylor, Me Ooklsmid, 18 Q. B. D. 295, 35 VV. K. 148. Digitized by Microsoft® 460 THE LAW OF PEOPERTY IN LAND. withoub the aid of the property comprised therein, and that his interest in such property had passed to the trustee of the settlement on the execution thereof. (2) Contract for The same Act also provides, that any contract, in considera- settlement on , . „ . n ■, c n i j, 1. > marriage, ''lon 01 marriage, tor the future settlement on the contractor s ■where. wife or children of money (a) or property wherein he had no estate or interest at the date of his marriage (not being money of, or in right of, his wife), shall, in the event of his bankruptcy before transfer or payment pursuant to the con- tract, be similarly void as against the trustee in the bani- ruptcy.(6) As to realiza-} Powers of Trustee in Bcmhritptcy . — Among the various bankrupt's"^ powers of the trustee under the Acts, the following may be estate. mentioned : — He may sell or transfer all or any part of the bankrupt's property. He may exercise any powers, the capacity to exercise which is vested in the trustee. He may deal with any property to which the bankrupt is beneficially entitled as tenant in tail, in the same manner as the bankrupt might have dealt with it.(c) Where any part of the bank- rupt's property is of copyhold or customary tenure, or passes by surrender and admittance, or in any similar manner, the trustee need not be admitted thereto, but may deal with it as if it had been capable of being, and had been, duly surrendered, or otherwise conveyed, to such uses as the trustee may appoint ; and his appointee is to be admitted to, or otherwise invested with, the property accordingly. With the permission of the committee of inspection, he may, among other things, mortgage or pledge any part of the bankrupt's property ; and may make compromises, &c., with creditors and others ; and {z) S. 47. That a purchaser cannot be compelled to accept a title depending on a settlement that may become invalid, under this enactment, in the event of the settlor's bankraptcy : see Ee Brujgs cO S;picer [1891], 2 Ch. 127. (a) This does not apply to a mere covenant for payment of money to the trustees of a marriage settlement, Exparte Bishop, Me Tonnies, L. E,. 8 Ch. App. 718, 21 W. R. 716, 28 L. T. 862. (6) S. 47 ; Me Lowndes 18 Q. B. D. 677, 56 L. J. C. L. 425, 56 L. T. 575 ; Exparte Todd, Me Ashcrofi, 19 Q. B. D. 186, 56 L. J. C. L. 431 ; 'Settle- mem' for the purposes of section 47 of the Act includes any conveyance or transfer of property, ibid. These enactments apply concurrently with the stat. 13 EHz, c. 5, as to which, see ante, p. 338. (c) Act of 1883, B. 56. See 3 & 4 Will. 4, c. 74, ss. 56-73, which, by the Act of 1883, are expressly made applicable to proceedings thereunder. Digitized by Microsoft® OPERATION OF THE LAW OF BANKEUPTCY. 461 may divide among the creditors any property which cannot be readily or advantageously sold.(c?) An important power, given by the Acts to the trustee, is As to dis- that of disclaimer (by writing signed by him) of land of any o,fe™„g p^o- tenure burdened with onerous covenants, or other property of perty- the bankrupt that is unsaleable, or not readily saleable, by reason of its binding the possessor thereof to the performance of any onerous act. This he may do within twelve months after his appointment, or such further time as is mentioned in the Acts. But he is not entitled to disclaim, where, for twenty- eight days after application in writing has been made to him by any person interested in the property, requiring him to decide whether he will disclaim or not — or such extended period as may be allowed by the Court — he has declined or neglected to say whether he disclaims or not.(e) The disclaimer detei-mines, as from its date, the rights and liabilities of the bankrupt and his property in, or in respect of, the property disclaimed, and also discharges the trustee from all personal liability in respect thereof, as from the date when it vested in him ; but it does not, except so far as is necessary for the purpose of such release, affect the rights or liabilities of any other person. (/) Leave of the Court, however, is required (except in certain cases) {g) to enable, the trustee to disclaim a lease ; and terms may be imposed, in such case, as to fixtures, tenant's improvements, &c. The Court may also, on the application of any party inter- Vesting order ested in disclaimed property, make an order vesting the same eia-^^a^pro. in any person entitled thereto. (7i) But leaseholds cannot be perty. so vested in favour of any person claiming under the bank- rupt, whether as underlessee or as mortgagee by demise, except on the terms of making such person subject to the same liabilities and obligations as those of the bankrupt ; {d) Act of 1883, ss. 50 (4), 57. (c) Act of 1883, s. 55 (1) (4), Act of 1890, s. 13. (/) Act of 1883, s. 55 (2). {g) As to which, see Bankruptcy Rules, 1890, r. 69. (7t) Re Parker & Parlcer, Ex parte Turquand, 14 Q. B. D. 405. That the application mav he made hy the lessor in the case of mortgaged leaseholds, see Me Cock, Bx parte SUUov, 20 Q. B. D. 348, 58 L. T. 586, 36 W. R, 187 ; ReFinhy, Ex parte Clotliworkers' Co., 21 Q. B. D. 57 L. J. C. L. 62i), 60 L. T. 134,' 37 W. E. 6 ; Be Smith, Ex parte Hepburn, 25 Q. B. D. 536, 69 L. J. C. L. 554, 88 W. R. 744, Digitized by Microsoft® 462 THE LAW OP PROPERTY IN LAND. unless the Court thinks fit to modify these terms in certain respects. (-i) And a mortgagee or underlessee declining to accept a vesting order upon such terms, will be excluded from all interest in, and security upon, the property. And if no person claiming under the bankrupt will accept an order upon such terms, the Court may vest the bankrupt's interest in the property in any person liable to perform the lessee's covenants in the lease, freed and discharged from all estates, incumbrances, and interests, created therein by the bankrupt, (/i;) Rights of per- Any person injured by the operation of a disclaimer is sons prejudiced deemed to be a creditor of the bankrupt, to the extent of the by disclaimer. '^ n i i i injury, and may prove the same as a debt under the bank- ruptcy. (/) If the bankrupt's property include a lease, which is not disclaimed by the trustee under the foregoing power, he is personally liable, as assignee of the lease by operation of law, for the rent and covenants thereof, unless and until he assign the lease to another person. (751) Eights of Creditors under Bankruptcy. — With a few exceptions, all debts provable in a bankruptcy (n) are payable jmri 23assu.(o) A secured creditor — that is, a person holding a mortgage, charge, or lien, on property of the debtor ( j>) — may realize his security, and prove for the balance of his claim ; or may surrender his security to the trustee, and prove for the whole of his claim ; or may have his security valued, and prove for the balance ; the trustee, in the last case, being entitled to redeem the security at its assessed value. (2") Trustee's liability as assignee of lease. Secured creditors. By order of Court. Discharge of Bankrupt. — The Court may, on the bank- (i) As to wbicli, see Act of 1890, s. 13. (k) Act of 1883, s. 55 (6). (l) Act of 1888, s, 55 (7). [in) Wilson y. Wallani, 5 Ex. D. 155 ; Titterton v. Co(rper, 9 Q. B. U. 473, 51 L, J. C. L. 472, 46 L. T. 870, 30 W. E. 866. As to the liability of an assignee of a lease, see ante, pp. 96, 97. {n) As to what debts are provable in the bankruptcy, see Act of 1883, s. 37. (0) Act of 1883, ss. 40, 42 ; Act of 1890, s. 28. ip) Act of 1883, s. 168. ((/) Act of 1883, schedule 2, rr. 9, 17. Digitized by Microsoft® OPERATION OF THE LAW OF BANKRUPTCY. 463 rupt's application, make an order for his discharge from the bankruptcy; or may refuse or suspend such discharge; or may grant it subject to any conditions with respect to his earnings, income, or after-acquired property.(r) The bank- Property ao- rupt is entitled to any property acquired by, or devolving discharge, on, him after his discharge ; subject to any conditions relating thereto, which may be annexed to the order of discharge. (s) (r) Act of 1883, s. 28 (2) ; Act of 1890, b. 8. (s) Bobson, Bankruptcy, 673 ; JSbhs v. BonUois, L. K. 10 Ch. App. 479, 32 L. T. 650, 23 W. E. 820 ; Ee Bennett's Trusts, L. R. 10 Cli. App. 490, 32 L. T. 652, 23 W. R. 822; Be Croom, England v. Provincial Assets Co. [1891], 1 Ch. 695, 39 W. E. 286 (property acquired after approval of scheme of arrangement). Digitized by Microsoft® CHAPTER X. FOEFEITUEE. Forfeiture defined. Definition. — Forfeiture is the loss by one person, and tlie acquisition by another, of real or personal estate, through some wrongful act or omission on the part of the former.(a) Breach of condition- Causes of Forfeiture. — Estates and interests in land may be forfeited in various ways ; most of which have been referred to in previous chapters. Thus, as has been seen, a forfeiture may be incurred through breach of a condition subsequent, or condition of re-entry, annexed to the grant of an estate in land ; though, under the present law, relief may be granted, in most cases, against the forfeiture of a lease through the breach of such a condition. (&) In modern law, a devise of an estate in fee simple, subject to a condition sub- sequent, will, in general, be construed as a devise upon a trust, enforceable in equity in favour of the person for whose benefit the condition is imposed. (c) And forfeitures for breaches of feudal duties (including wrongful alienation by feoffment, fine, or recovery) under the implied condition for that purpose, to which estates were subject at common law, have long been obsolete ; (d) for such feudal observances, except as to quit-rents, are practically extinct; and relief would, it seems, be given, in equity, against forfeitures through non-payment of quit-rents. (c) (a) 2 Bl. Comm. 267. (6) See ante, pp. 45, 105. (c) Sug. Poff. 106; I.ewin, 140; Att.-Oev. v. Wax Chandlers' Co.,Ij. iX. G, H. L. 1, 42 L. J. Ch. 425, 2S L. T. 681, 21 W. R. 361. {d) 2 Bl. Comm. 152 ; ante, p. 46 ; and see, as to wrongful alienation, ante, p. 345. (c) See Peacliy t. SomcrKet, 1 Stra. 447, 2 Lead. Gas. Eq. 1245. Digitized by Microsoft® FOEFEITUEE. 4G5 As has also been seen, estates in land of copyhold tenure Breaohes of are liable to forfeiture to the lord of the manor, for breaches ^opyii"^;} ^ of various customary duties ; as, waste by the tenant, refusal tenants, to pay fines, &c., refusal (in some cases) to be admitted, alienation otherwise than by surrender, &c.(/) It seems, however, that relief may be afforded to a copyhold tenant, on equitable grounds, against a forfeiture incurred through non- payment of fines, &c. ; and, perhaps, in some other cases of forfeiture — though, on this point, the law is not clear. (g) Under the statutes directed against simony, the purchase Simony, of the next presentation to an ecclesiastical benefice, with the intention of presenting a certain person, who, upon the vacancy occurring, is presented accordingly — or the pur- chase by a clerk of the next presentation (as distinguished from the entire advowson), with the intention of presenting himself — is a simoniacal transaction ; and, in such case, the next presentation is forfeited to the Crown. (A) As will hereafter be seen, the alienation of land to a cor- Alienation in poration (which is called alienation in mortmain), is a cause ^°'^ "'"''■ of forfeiture of the land to the Crown, or other chief lord of the fee ; unless the corporation be licensed by the Crown, or empowered by statute, to hold such land.(t) Former Causes of Forfeiture. — Alienation of land to an Aiienat lou to alien, for any estate exceeding a term of twenty-one years, ^'j^"^- . granted for purposes of business or occupation, (/.;) was for- Naturalization merly a cause of forfeiture of the estate to the Crown.(/) ^'^*' ^^''^• But, by the Naturalization Act, 1870, aliens were empowered to acquire, hold, and dispose of real and personal estate of every description, in the same manner in all respects as natural-born British subjects. (^a) (/) See ante, p. 33. ((/) Rcriv. Cop. 198 ; Elton, Cop. 201. Bee, Peachy v. Somerset, swp.; Sill v. Sarday, 18 Ves. 56 ; Lord Hefton v. Ltrrd Salishury, 7 W. E. 272 ; cf. Cox v. Higfm-d, 2 Vem. 664; Tliomas v. Porter, 1 Ch. Ca. 95. (A) 31 Eliz. 0. 6 ; 12 Anne, v^. 12. See Fox v. Bisliop of Chester, 6 Bing. 1, S.C. Tudor, L. C. E. P. 238. (i) Beepost, p. 498. (/c) 7 & 8 Vict. 0. 66, s. 5. {I) Co. Litt. 2 b, 42 b ; Burton, § 192. (ra) 33 Vict. c. 14, s. 2. 2 Q Digitized by Microsoft® 466 THE LAW OF PROPERTY IN LAND. Attainder for Attainder for high treason was formerly a cause of foi'fei- Alteration b ^^^'^ *° ^^^ Orown of estates of the traitor in lands of free- statute of hold tenure ; and attainder for treason or felony was a cause ^'^' of forfeiture of the ofBender's personal estate to the Orown. (m) Estates in land of copyhold tenure were not forfeitable to the Crown for treason of the tenant, but escheated, in such case, to the lord of the manor, of whom they were held.(o) But by a statute of the year 1870, all forfeitures and escheats for treason or felony were abolished.(p) («) 2 Bl. Comm. 267, 4 BI. Conim. 374 ; Burton, § LSii. (o) 1 Cruise, t. 10, ch. 5, o. 2. ip) 33 & 34 Vict. u. 23, s. 1. Digitized by Microsoft® CHAPTER XL ESCHEAT. Definition, &e.^ — Escheat is the acquisition of an estate in Escheat fee simple by the Crown, or other chief lord of whom the '^'^^'^ed. estate has been held, through the death of the tenant intes- tate, and failure of persons entitled to take it by descent ; or (formerly) through the tenant's attainder for felony. (a.) The right of the Crown to escheated land is ascertained by Escheat to a proceeding called an ' inquisition.' (5) The Crown has j™^J";yjjj, been empowered by statute to waive its rights by escheat, in Waiver, favour of certain persons, (c) The right of a mesne lord to acquire by escheat an estate Escheat to held of him, resembles a reversion, or a possibility of reverter. ™^™® '"'''^' Hence, land thus acquired by him will descend on his death intestate as the seignory (into the place of which it comes) would have descended, (rf) As has been seen, the lord of the manor is the person to Escheat of whom copyhold lands of the manor escheat. And on an <=''Pyl«'lJs. enfranchisement of copyholds since the passing of the Copy- hold Act, 1887, the lord of the manor retains the same right of escheat as if the land had not been enfranchised. (c) Escheat of Equitable and Incorporeal Interests. — For- Formerly na merly, an equitable estate in fee simple was not liable to *■ escheat, in case of the death of the equitable owner intestate and without heirs ; for the trustee in whom the legal estate (a) See ante, p. 23 ; '1 Bl. Comm. '-'44 et seq ; 3 Cruise, t. 30. (6) 3 Cruise t. 30, s. 45. See the Escheat (Procedure) Act, 1887 (50 & 51 Vict. c. 53). (c) 39 & 40 Qeo. :!, c. 88 ; 59 Geo. 3, c. 94 ; 47 & 48 Vict. c. 71. (iZ) 2 BI. Oomm. 244 ; see ante, pp.H4, 418. (e) Ante, p. 87 ; 50 & 51 Vict. o. 73, s. 4 , and see s. 5. Digitized by Microsoft® 468 THE LAW OF PROPEKTY IX LAXD. Alteration by Intestates' Estates Act, 1884. Money to be laid out in land does not escheat . was vested was, at law, the tenant of the land. Consequently the trustee, in such case, retained the estate for his own benefit.(/) On the same principle, a mortgagee of the legal estate in fee simple was entitled to retain the estate as owner, in case of the mortgagor's death intestate and without heirs. (^) And, at common law, rights of property that were not subjects of tenure — as rent-charges, rights of common, &c., — were not liable to escheat ; and, therefore, on failure of all persons en- titled thereto, such rights became extinct. (A) But by the Intestates' Estates Act, 1884, it is enacted that, after the passing of that Act, where a person dies without an heir, and intestate in respect of any real estate consisting of any estate or interest, whether legal or equitable, in any incorporeal hereditament, or any equitable estate or interest in any corporeal hereditament, whether devised or not devised to trustees by the will of such person, the law of escheat shall apply, in the same manner as if the estate or interest were a legal estate in corporeal hereditaments. (i) Money directed to be laid out in the purchase of an estate in fee simple, for the benefit of a person, is not subject to escheat, in case of the death of the ceshoi que trust intestate and without heirs ; since, until the land is actually purchased, it is uncertain who will fill the character of lord.(7i:) Trust and Former Causes of Escheat. — Formerly, a legal estate in estates^altera- ^^'^ simple, vested in a person as sole trustee, or as sole tion by modern mortgagee, escheated on the death of the trustee or mort- statutes. gagee intestate, and failure of his heirs ; though the lord would take the land subject to the trust or equity of redemp- tion. (/) But, as has been seen, by modern statutes the escheat of land held upon any trust, or by way of mortgage, is, in effect, prevented. (7?i.) ( f) Burgess v. JVJieate, 1 Eden, 176 ; In re Lasltmar, Jlooch/ v. PeiifoJd [1891], 1 Ch. 258 ; Lewin, 8'J2. {g) Beale v. Symonds, 16 Eeav. 406. (h) 3 Crnise, t. 30, s. 24. (j) 47 & 48 Viot. c. 71, s. 4 ; smd see s. 7. [1-) Lewin, 940 ; Wtdker v. Dcnrie, 2 Ves. 170. {I) Lewin, 221, 247. (m) 13 & 14 Vict. c. 60, ss, 15, 28, 46 [ante, p. 186) ; 44 & 45 Vict. c. 41, s. 30, as varied hy 50 & 51 Vict. c. 73, s. 45 {iinte, pp. 186, 233\ Digitized by Microsoft® ESCHEAT. 469 As above stated, escheat occurred, at common law, on the Escheat for tenant's attainder for felonyi?;,) But the operation of the ¥°°y' ^^°^'^' 1 , 1 • T • n ■ • 1 1 ■ , s ''Oil °I' common law on this subject was hmited by various statutes ; (o) and by the Trustee Act, 1850, escheat for felony was, in effect, prevented, in the case of land vested in a trustee. (^) And by a statute of the year 1870, as has been mentioned, escheat for criminal offences was entirely abolished, (j) Ultimate Right to Personalty. — On the death of a person, ig in Grown as intestate and without kindred, the Crown is entitled (subject «'*"««« '"'»"«'■ to the rights of the widow, if any, of the deceased, and his debts) to the whole of his personal estate, whether legal or equitable, as zdtimtos heres — not in a fiduciary character, but beneficially ; (r) and administration of the estate may be granted to the Solicitor of the Treasury, on behalf of the Crown, (s) (m) For the rules of the common law on this subject, see 2 Bl. Comm, 252 et seq. (o) See 54 Geo. 3, c. 145 ; 3 & 4 Will. 4, c. 106, s. 10. (p) 18 & 14 Vict. c. 60, s. 46. (q) 33 & 34 Vict. 0. 23, s. 1 ; antf, p. 466. (r) 1 Wms. Exors. 439 ; 2 Wms. Exors. 1520 ; Lewin, 285. (s) 15 Vict. u. 3 ; see 47 & 48 Vict. ^. 71, ss. 2, 3. Digitized by Microsoft® PART IV. LEGAL CAPACITY WITH KEFEEENCE TO RIGHTS OF PROPERTY IN LAND. CHAPTER I. PERSONS SUBJECT TO DISABILITIES. Legal capacity General Eule as to Capacity. — In the preceding parts, rights *enerali °^ property in land have been considered without reference to legal capacity for the exercise of such rights ; or, in other words, as enjoyed by persons who are not under any legal disabilities in this respect. All persons have full legal capacity for this purpose, with the exception of certain classes on whom the law has imposed particular disabilities. Aliens. Exceptions. — Under Former Law. — Prior to the Naturaliza- tion Act, 1870, aliens were subject to disabilities as regards the holding and transfer of land ; for, as has been seen, the transfer of any estate in land to an alien (other than a term not exceeding twenty-one years, for occupation or trade) was a cause of forfeiture to the Crown ; and no disposition by the alien, before the enforcement of the forfeiture, could defeat the Crown's right to the land. (a) But since the removal of this disability by the above Act (5), it seems that the capacity of an alien, with regard to rights of property in land, is the same, in all respects, as that of a natural-bom subject.(c) («) See ante, p. 465; Burton, § 192. (I) 33 Vict. c. 14, s. 2 ; ante, p. 465. (c) Except tbat ho cannot be appoiuled a protector of the settlement, under the Fines and EccovericB Abolition Act : see 3 & 4 Will. 4, w. 74, o. 32, and ante, p. 12G. Digitized by Microsoft® PERSONS SUBJECT TO DISABILITIES. 471 Roman Catholics were formerly subject, under various Roman statutes, to disabilities with respect to the ownership of ^ land(rf) ; but these disabilities have been removed (c), except as regards presentations to ecclesiastical benefices. (/) Under Present Law. — The extent of a bankrupt's power of Bankrupts, alienating property acquired by him during his bankruptcy has already been noticed ; and it has been seen that a few rights of property, as well as property held by him in trust, remain vested in him, notwithstanding his bankruptcy. Except in these cases, a bankrupt has no legal capacity with respect to rights of property ; since, with the exceptions mentioned, all rights of property vested in a bankrupt at the commencement of his bankruptcy, or devolving on him during its continuance, pass to the trustee for the creditors. ((/) The bankruptcy of a trustee, moreover, may be a ground for his removal from the office, (/i) Married women — except so far as their disabilities are Other cases of removed by the Married Women's Property Act, 1882— 'ii^ability. infants, persons of unsound mind, felons, and corporations, are also subject to disabilities in regard to rights of property in land. The disabilities of these persons are considered in the following chapters. {d) See Burton, § 209. (c) 10 Geo. 4, 0. 7. (/) 11 Geo. 2, c. 17. ((/) See ante, p. 458. (7*) Lewin, 658 ; Be. BarJcer's Trust, 1 Ch. D. 43 ; Se Adams' Trusts, 12 Ch. D. 634, 48 L. J. Ch. 613, 41 L. T. 667, 28 W. B. 163. As to the appointment of a receiver of the estate, in the case of bankruptcy of an executor, see 1 Wms. Exors. 240 ; Se Hopldns, 19 Ch. D. 61. Digitized by Microsoft® CHAPTBE II. MARRIED WOMEN. Division of The legal capacity of a married woman may be considered subject. ^^^j^ reference to — (i.) lier estates and interests not being separate estate ; (ii.) her equitable separate estate ; (iii.) her separate estate under modern statutes : (a) (iv.) her capacity as trustee, executrix, &c. Eeal estate (i.) Estates and Interests not being Separate Estate. — not alienable ^ married woman cannot dispose by will of her real estate, not being separate estate. (&) Alienation As regards conveyances inter vivos of such real estate, the inter mvos, of ^^^ £qj. ^^^q Abolition of Pines and Eecoveries(c) as amended by the Conveyancing Act, 1882, (rf) enables a married woman to dispose of, lease, surrender, or extinguish, any estate(e) which she alone, or she and her husband in her right, (/) may have in land of freehold tenure, or in any money settled to be invested in such land, and also to release or extinguish [a) As to these distinctions, see ante, pt. 3, ch. 7, s. 1. (6) 34 & 35 Hen. 8, c. 5, s. 14; 1 Vict. c. 26, s. 8. (c) 3 & 4 "Will. 4, c. 74. Prior to this enactment, a married woman's i-eal estate was conveyed by fine. (d) 45 & 46 Vict. e. 39, s. 7 (e) ' Estate ' here includes an estate at law or in equity ; and any interest, charge, lien or incumbrance, in, upon, or affecting lands; and any interest, charge, &o., in or affecting money subject to be invested in the purchase of land : 3 & 4 Will. 4, u. 74, s. 1. As to the meaning of 'land' in this Act, see ante, p. 59, note (t). (/) The husband's interest in his marital right, as well as the wife's estate, passes by her conveyance with his concurrence, according to the Act ; unless, at least, he has previously disposed of his interest ; and he may concur in the conveyance, notwithstanding his previous bankruptcy : see Se Batclidor, L. E. 16 Eq. 481, 485, 21 W. E. 901 ; Cooper v. Macdonald, 7 Ch. D. 288, 47 L. J. Ch. 373, 38 L. T. 191, 26 W. E. 377 ; Be JaJceman's Triists, 23 Ch. D. 344, 52 L. J. Ch. 363. Digitized by Microsoft® MAKRIED WOMEN. 473 any power vested in her in regard to any sucli land or money, as effectually as if she were a, feme sole; provided such dis- position be made by deed, in which her husband concurs, and that the deed be acknowledged by her as her act and deed, after she has been examined apart from her husband as to her knowledge of its contents, and as to her assent there- to.(^) Under the first of the above Acts, the acknowledg- ment was to be made before a judge of a superior court, or of a county court, or a master in Chancery, or two com- missioners ; and a memorandum of the acknowledgment was to be signed on the deed, and a duly verified certificate of the taking thereof was to be filed in the Court of Com- mon Pleas.(A) The Conveyancing Act, 1882, however, has rendered sufficient an acknowledgment of the deed before one commissioner ; and has provided that, where a memo- randum of the acknowledgment shall purport to be signed by a person authorised to take it, the deed shall, as regards its execution, take effect at the time of acknowledgment, and shall conclusively be deemed to have been duly acknow- ledged.('i) Except in the cases presently mentioned, any instrument executed by a married woman as a conveyance of her real estate, not being separate estate, is void, unless made in accordance with the foregoing statutory require- ments. (Z;) The preceding provisions do not apply to conveyances of Copyholds. a married woman's legal estates in copyhold lands. These, by general custom, are conveyed by surrender made by the husband and wife ; she being first examined by the steward ((/) 3 & 4 Will. 4, c. 74, ss. 77, 80; Tennent v. Welch, 37 CL. D. 622, 57 L. J. Ch. 481, 58 L. T. 368, 36 W. R. 389. The same formalities arc required (of. s. 40 of the Act) for the execution by a iDarried woman, tenant in tail, of a deed barring the entail ; and (by the Heal Property Law Amendment Act, 1845, 8 & 9 Vict. o. 106, s. 6) for her conveyance of contingent and future interests ; and (s. 7) for the disclaiaier by her of an estate or interest in land of any tenure. (h) Ss. 79-89. Perpetual commissioners for taking acknowledgments of married women under the Act, are appointed from time to time for every county, riding, division, &c. : see ss. 81, 82. The registry of certificates of such acknowledgments is now located in the Central Office of the Supreme Court of Judicature. (i) 45 & 46 Vict. v;. 39, s. 7. Hence, a certificate of acknowledgment of the deed is no longer necessary. (/c) Burton, § 206 ; see Franks v. Bollans, L. B. 3 Ch. 717, 37 li. J. Ch. C64, 18 L. T. 623, 16 W. E. 1158. Digitized by Microsoft® 471. THE LAW OF PKOPEETY IN LAND. Husband's concurrence, where dis- pensed Nvith. Contract for sale of land. Acts under Settled Estates Act, 1877 ; under Agri- cultural Hold- ings Act, 1883 as to her conseiit.(0 Her equitable estate in copyholds, other than separate estate, may, under the Fines and Eecoveries Abolition Act, be disposed of by surrender, in the same way as legal estates (m) ; or may, under the same Act, be disposed of by deed, in the mode applicable to freeholds.(n) By order of the Queen's Bench Division of the High Court, the husband's concurrence in his wife's conveyance may be dispensed with, in case he be of unsound mind, or from other cause incapable of concurring; or if his residence be not known ; or if he be in prison ; or if he be living apart from his wife from any cause.(o) But a conveyance made without the husband's concurrence, does not affect his marital rights in his wife's estate. (jp) A married woman may, by deed made in accordance with the above statutory requirements (though not otherwise), make a valid contract for the alienation of her real estate, not being separate estate. (§) By the Settled Estates Act, 1877, a married woman apply- ing, or consenting to an application, to the Court, under that Act, is to be first examined, apart from her husband, by the Court or a solicitor appointed by the Court, as to her know- ledge of the nature of the application, &c., and her consent thereto. (r) By the Agricultural Holdings (England) Act, 1883, where a married woman is desirous of doing any act under that statute, with respect to land not being her separate estate, her husband's concurrence is necessary ; and she must be (1) Burton, § 1275. (m) S. 90. (n) See s. 77. (o) See 3 & 4 Will. 4, c. 74, s. 91. Ex jjarte Eohinson, L. B. 4 C. P. 205 ; Ee Caine, 10 Q. B. D. 284, 52 L. J. C. L. 354, 48 L. T. 357, 31 W. E. 428. And, in such case, the deed need not he acknowledged by the wife ; see Good- child V. Doiigal, 3 Ch. D. 650. (p) Fowle V. Draijcott, 29 Ch. D. 996. («?) 1 Dait, V. & P. 10 ; Niclwll v. Jones, L. E. 3 Eq. 696, 15 L. T. 383, la W. E. 393; Barnes v. Wood, L. E. 8 Eq. 424, 17 W. B. 1080; Castle v. Wilkinson, L. E.. 5 Ch. 534, 18 W. E. 586; Caliill v. Cuhill, 8 App. Cas. 420, 31 AV. E. 861; Williams v. WaRer, 9 Q. Si. D. 576, 31 "W. E. 120. (»•) 40 & 41 Vict. c. 18, s. 50, &c. ; Ee Harris's Settled Estates, 28 Ch. D. 171, 54 L. J. Ch. 2UH, 51 L. T. 855, 33 W. B. 393. But this is not necessary in the case of a woman married since the commencement of the Married Women's Property Act, 1882 : Eiddell v. Errhujton, 26 Ch. D. 220, 50 L. T. 584, 32 W. E. 680. Digitized by Microsoft® MAEEIED WOMEX. 475 separately examined, as to her knowledge and consent, by the judge of a county court. (s) And by the Settled Land Act, 1882, where a married under Settled woman, who, if she had been unmarried, would have been a ^ggg to^iggo. tenant for life, or would have had the powers of a tenant for life, under the Settled Land Acts, 1882 to 1890, is entitled otherwise than for her separate use, or otherwise than for her separate property or as a feme sole under any statute, she and her husband together have the powers of a tenant for life under the Acts.((!) As has been seen, a husband is beneficially entitled to his Alienation of wife's chattels real, and general personal estate, not being °''^**f^ ^^ separate estate ; subject, under some circumstances, to her personalty, right by survivorship, or her equity to a settlement.(i6) By a modern statute, a married woman is enabled, by deed executed and acknowledged by her in the manner required by the Pines and Eecoveries Abolition Act, and in which her husband concurs — where his concurrence is necessary by that Act — to dispose of every future or reversionary interest (not being a reversionary interest which she is expressly restrained by any instrument from alienating), whether vested or contingent, of herself, or her husband in her right, in any personal estate to which she may be entitled under any instrument (except her marriage settlement) made since the 31st December 1857 ; and also to release or extinguish any power in regard to any such personal estate, or her equity to a settlement out of any personal estate to which she, or her husband in her right, may be entitled in possession under any such instrument as aforesaid, (a:) Except in cases to which this Act applies, and under its provisions, a married woman cannot, by any form of alienation, dispose of or extinguish any right of survivorship, or equity to a settle- ment, to which she may be entitled in personal estate, not being separate estate, (j/) (.5) 46 & 47 Vict. i;. 61. o. 26. (f) 45 & 46 Vict. c. 38, s. 61. ill) See ante, pp. 430, 432. {x) 20 & 21 Vict. 0. 57. (y) Whittle v. Henning, 2 Phil. 731 ; Prole v. Svmly, h. I^. 3 Cli. 220, 37 L J. Ch. 246, 16 W. E. 445; He Newton's Trusts, 23 Ch. D. 181. Clf'. Be i)urrant and Boner, 18 Cb. D. 106, 45 L. T. 363, 30 W. I!. 37. Digitized by Microsoft® 476 THE LAW OF PEOPEETY IN LAND. Will of iier- sonalty with husbanrl's consent. Exercise of powers of appointment. Appointment of attorney. Admittance to copyholds, and acts under Copyhold Acts. Purchase of land. A married woman may, however, with her husband's sanction, dispose by will of j)ersonal estate, to which the husband is entitled in his marital right; as the husband, by such consent, waives his right ; and the will is effectual as against him if, after his wife's death, he allows it to be proved. But he may revoke his consent to it at any time before the probate. And it is void if he dies in her lifetime,(,?) even as regards property which vests in her after his death ; though, as regards such property, it may be made effectual by re- publication after the husband's death.(a) The disabilities of a married woman, which have been described, do not extend to the exercise of powers of appointment. Both at common law and in equity, a married woman may exercise a power of appointment over real or personal estate, without her husband's concurrence, as effectually as if she were unmarried ; and for this purpose, therefore, she may make a will. (5) By the Conveyancing and Law of Property Act, 1881, a' married woman (whether an infant or not) may, by deed executed since the 31st December 1882, appoint an attorney on her behalf, to execute any deed, or do any act, which she might herself execute or do.(c) It has been provided by statute, that a married woman may be admitted to copyhold lands, either in person or by attorney ; and that she may appoint an attorney for the pur- ■pose.{d) By the Copyhold Act, 1887, a married woman, lady of a manor or tenant of copyhold land, is, for the purposes of the Copyhold Acts, to be deemed a. feme sole.(e) A purchase of land by a married woman, not by means of her separate estate, may be annulled by her husband, unless it were made with his authority ; or, after the (z) 1 Wms. E.xors. 54, .5.5. la b. CoojKi; 6 P. D. 34, 50 L. J. G. L. (P. 1). & A.) 41, 44 L. T. Ill, 211 W. E. 444. Of. Smart v. Tranter, 43 Ch. D. 0«7, 69 L. J. Ch. 363, 62 L. T. 356, 38 W. R. 530. (o) Wllloch Y. XoUc, L. E 7 H. L. 580, 44 L. J. Ch. 345, :!2 L. T. 410, 23 W. E. 809 ; Be Ciino, Mansfield v. 2[uusfi,hl, 43 Ch. D. 12, 62 I, T 15; Itc Sniilk, Billc V. Soper, 45 Ch. D. 632, OS L. T. 448, 39 W. K. 93. (h) Sug. Pow. 153 ei seq. ; 1 AVms. Exova. 56. (c) 44 & 45 Vict. u. 41, e. 40. (rf) 11 Geo. 4 & 1 Will. 4, c. 65. (e) 50 & 51 Vict. c. 73, a. 39. Digitized by Microsoft® MAREIED WOMEN. 'i77 husband's death, it may be annulled by herself, although he may have agreed to it.(/) The effect of coverture, as respects the operation of tlie Statutes of Statutes of Limitation and the law of prescription in their I'i'"it^*i°'i ^^'^ i _ J- prescription. application to estates and interests not being separate estate, has already been mentioned. ((/) (ii.) Equitable Separate Estate. — A married woman's Alienation of. powers of alienation, whether inter vivos or by will, over her equitable separate estate, and of binding it by her contract, are the same in extent, and are exercisable in the same manner, as if she were a feme sole ; (A) unless, indeed, her equitable interest be subject to an express restraint on aliena- tion, as presently mentioned. By the Settled Land Act, 1882, where a married woman Under Settled ■\\'ho, if she had been unmarried, would have been a tenant °'^' for life, or would have had the powers of a tenant for life, under the Settled Land Acts, 1882 to 1890, is entitled for her separate use, she has, without her husband, the powers of a tenant for life under the Acts.('i) Restraint on Anticipation. — A trust of real or personal Its effect, estate for the separate use of a married woman may be accompanied by an express prohibition of alienation or anti- cipation ; even though the trust, with such accompanying- restriction, may have been created by the woman herself. This restriction may be imposed by any words, accompanying a declaration of separate use, from which an intention to restrain anticipation can be clearly collected. (/b) Like the declaration of separate use, to which it is annexed, it is operative only during the coverture ; and, therefore, is no impediment to alienation, while the woman is unmarried.(Z) But during her coverture, it prevents her (except in certain cases presently mentioned) from depriving herself, during her (/) 1 Dart, V. & P. 32. ((•/V See ante, pp. 445, 454 ; as to the operation of tlie Statutes of Limitation ■B-itii respect to separate estate, see infra, p. 479, note [y). {],) See ante, p. 435 ; Lewin, 760 ; 1 Dart, V. & P. 11, 32. («) 45 & 46 Viot. c. 38, s. 61 (2). See, as to the powers of equitable owners generally to alienate under these Acts, ante, p. 181. (Ic) Lewin, 781. il) Lewin, 782 ; Tulhtt v.Armstronq, 1 Beav. 1 ; Bacjgett v. Meux, 1 Coll. 138; Stogdon V. Lee [1891], 1 Q. B. 661, 3i VV. R. 467 Digitized by Microsoft® 478 THE LAW OF PKOPERTY IN LAND. What aliena^ tions not pre^ vented by. coverture, of the enjoyment of tlie interest subject to the restraint, by alienating it, or subjecting it to any liability or charge, or electing between it and some other interest.(«i) Where annexed So also, where money is subject to a trust for a married to absolute gift. ^^^^g^^,g separate use absolutely, with a restraint on antici- pation, the interest only of the investments of the money, and not the capital, is payable to her during coverture, unless it be apparent that the settlor intended that she should receive the capital. (5;,) A restraint on anticipation does not, however, prevent a married woman from disposing by will of the interest subject to the restraint ; and apparently, she may also dispose of it by alienation inter vicos, if the disposition is not to take effect in possession till after her death ; for such dispositions do not deprive her of the personal enjoyment of the in- tei-est.(o) And the general rule, as to the effect of the restraint on anticipation, is subject to the five statutory qualifications following: (1) By the Conveyancing and Law of Property Act, 1881, the Court (p) may, with a married woman's con- sent, and where it appears to be for her benefit, by judgment or order, bind her interest in any property, notwithstanding a restraint on anticipation. (j) (2) By the same Act, the power, thereby given, of enlarging a long term of years into the fee simple, may be exercised by a married woman entitled for her separate use, notwithstanding a restraint on Statutory pro. visions, as to. [in] Lewin, 781 et seq. ; Rohinson v. Whi'dirrujld, 6 I)e G. ^1. »ls: G. oo5 ; ///, ri' Viinlun's TrnsU, 31 Cli. D. 275, 55 L. J.' Uli. 'IbS), 53 L. T. 895, 34 AV. It. 185 ; reversing S. (,'. 28 Ch. D. 124 ; In re Wheiitlei/, 27 Cli. D. 606, .'>4 U J. Ch. 201, 51 L. T. 681, 33 W. E. 275 ; ,S„iilh v. Luais, 18 Ch, D. 531, 45 ].. T. 460, 30 W. K. 451. 'J'hat the restraint on alienation renders inoperative a condition offorfeilure on alienation, or attempted alienation, see i?<' Wonitnhl^ J-'riiiik V. .l/«-7c», 43 Ch. D. 630, 59 L. J. Ch. 404, 62 L. T. 423, 38 W. K. 42.i. (//) Be Ellis' Trusts, L. E. 17 Eq. 409, 43 L. .1. Ch. 444, 22 W. K. 44s ; y,V Crouqhton's Trusts, 8 Ch. D. 460, 38 L. T. 447, 26 W. R. 574 ; He Clarh'S Trusts, 21 Ch. D. 748, 47 L. T. 43, 30 W. K. 778 ; Me JJowii, 27 Ch. D. 411, 50 L. T. 796; i?e 'V"''"', 30 Ch. D. 183 ; Jie C'„n-e(/, 32 Ch. D. 361, 55 L..T.Ch. 906, 54 L, T. 665 ; Jir (In-ifs Hettlemeiits, 34 Ch. D. 8o, 712 ; i,V Tippett's and Xi'irhouM's Contract, 37 C|,. D. 444. (o) Baggett v. Jleu.r, 1 Coll. 1,38 ; Cooper v. Jlacilonald, 7 Ch. 1). 2y8, 47 L. ,1. ( 'h. 373, 38 L. T. 191, 26 W. E, 377. {p) T.I'., the Chancery Division of the High Court. (7) 44 & 45 Vict. p. 41, s. 39; see Hodqes v. Hodqes, 20 Cli. D. 749, 51 I-. ,1. < 'h. 549, 46 L. T. 366, 30 W. E. 483 ; lie Utile, Harrisoit v. Earrisoii, 40 ( 'h. I), 418, ,58 L. ,1, Gil. 233, 60 L. T. 246, 37 W. R, 289. Digitized by Microsoft® MAJ?KIED WOMEN. 479 anticipation. (7') (o) By the Settled Land Act, 1882, a restraint on anticipation in tlie settlement under which a married woman's estate or interest arises, is not to prevent the exercise by her of any power under the Settled Land Acts, 1882 to 1890.(s) (4) Under the Married Women's Property Acts, 1870 and 1882, a married woman's separate estate is liable for her ante-nuptial debts, notwithstanding a restraint on anticipation. ((5) (5) Under the Trustee Act, 1888, her interest may, notwithstanding the restraint, be applicable as an indemnity for a breach of trust committed at her in- stigation or request, or with her consent in writing («.). Where a restraint on anticipation annexed to a declaration Where void as of separate use would, if effectual, create a perpetuity,(r) it "gj^'t"" ^^"' will be void, and the interest to which it is annexed will be acquired free from the intended restriction. (.r) It has been established that equitable separate estate of a Liability of married woman, not subject to a restraint on anticipation, is ^<^P^™*^ ^^^^^ liable for her debts, and obligations by contract generally ; (y) but that this liability is enforceable only against separate estate to which she was entitled at the time the obligation was incurred. («) Her equitable separate estate is also assets, after her decease, for the payment of her debts. («) (iii.) Separate Estate under Modern Statutes. — Statutes Divorce and Preceding Mrirrier] Wnmcvs Propertii Act, 1882.— The posi- Matrimonial vfiusss Acts. (»•) S. 65 (2) (i.) ; see nut,; p. 102. (.s) 45 & 46 Vict. c. 38, s. 61 (6). (t) See ^os?, pp. 47!l, 482 ; Sant/er v. Sanger, L. B. 11 Eq. 470, 40 L. J. Ch. 372, 24 L. T. 649, 19 W. li. 792 ; London nnd Prorincial Bauh v. Boqle, 7 Ch. D. 773, 47 L. .1. Cb. 301, 37 L. T. 780. 26 W. R. 573 ; Ee Iledgely, 34 Oh. D. 379 ; A.rford V. Beid, 22 Q. B. D. r,4s, 5s L. .J. 0. L. 230, 60 L. t. 726, 37 W. E. 291. («(.) 51 & 52 Vict. c. 59, s. 6. (c) See ante, p. 323. (x) Fry V. Capper, Kay, 163 ; Be Teague's Settlement, L. R. 10 Eq. 564, 22 L. T. 742, 18 W. 1!. 752 ; Be Cuvyngliame's Settlement, L. li 11 Eq 324 40 L. J. CI). 247, 24 L, T. 124, 19 W. E.'381 ; Be Bidley, 11 Ch. U. 645 ; Herbert V. Webster, 15 Ch. D. 610. (y) See Yanglian v. Vanderstrgpv, 2 Drpw. 165, 183 ; Wru/Jit v. Chard, 4 Drew. 673 ; C'hnhb ,. Stretch, L. K. 9 Eq. ,555, 39 L. J. Cli. 329, 22 L. T. 86, 18 W. R. 483 (debt contracted before mavringe) ; and other oases cited Lewin, 761-768. The claim of a creditor against the equitable separate estate may be barred by lapse of time, by anjilogy to the Statutes of Limitation : Be Lad;/ Hastings, Hcdlett v. Hastings, 35 Ch. D. 94. (s) Pile v. Fitzqibhon, 17 Ch. D. 454, 50 L. J. Ch. 391, 44 L. T 562 29 W. K. 551 ; reversing S. ( '. 14 rh.,D. 837. (a) •'^ee Lewin, 773. Digitized by Microsoft® 480 THE LAW OF PEOPEKTY IN LAND. Miirried Women's Property Act, 1870. Alienation under. Contracts under. tion of a married woman with respect to rights of property, by virtue of a protection order, or in case of judicial separa- tion, under the Divorce and Matrimonial Causes Acts, has already been mentioned. (6) It has also been seen that, under the Married Women's Pro- jDerty Act, 1870, a married woman may be entitled to certain estates and interests for her separate use.(c) It seems that her interests under the last Act are equitable interests, merely ; and, therefore, that the legal ownership of real estate, to which she is entitled under that Act, cannot be conveyed otherwise than by a deed acknowledged, and with her husband's concurrence.(fZ) Her separate estate under this Act is liable for her debts — including ante-nuptial debts, (c) Married Women s Property Ad, 1882. — Under this Act,(/) a married woman has the legal as well as the equitable interest in property thereby made her separate property ; and may, accordingly, dispose of it in the same manner, and to the same extent, as if she were &feme sole.(g) But the will of a woman, made during coverture, is not effectual, under the Act, to dispose of property acquired by her after the termina- tion of the coverture ; for the power of disposition given by the Act applies only to property to which a woman is entitled while married. (A) The Act further enables a married woman to contract, in respect and to the extent of her separate property ; and it provides that every contract of a married woman shall be deemed to be a contract with resp)ect to, and to bind, her sejDarate property, unless the contrary be shewn ; (i) and that her contract shall bind not only her present but also any (l) See ante, p. 433. (c) 33 & 34 Vict. c. 93 ; ante, p. 434. (d) Johnson v. Johnson, 35 Cli. D. 345, 5C L. T. 163, 35 W. E. 3-29, com- menting on In re Voss, 13 Ch. D. 504 ; see cmte, p. 434. (f ) S. 12 ; see supra, p. 479. {/) 45 & 46 Vict. o. 75 ; see ante, p. 434. (g) Sue .s. 1 (1). Hence slie may bar an estate tail, or enlarge a base fee, in land to which the Act applies, without acknowledgment of the deeds under the enactments mentioned, ante, p. 472 : i?e Drwnmond and Davies' Contract [1891], 1 Oh. 624. (h) h'f Price, Stafford v. Stafford, 28 Ch. D. 709 ; Me Ouno, Mansfield v. 3fansfield, 4H Ch. D. 12 ; see ante, p. 476, and cases there cited, note (a). (i) As where her interest is subject to a restraint upon anticipation, see Harrhoii v. Harrison, 13 P. D. 180, .58 L. J. C. L, (P. D. & A.) 28, 60 L. T. 39 36, W. K. 748. Digitized by Microsoft® MARRIED WOMEN. 481 future separate property.(Z) With respect to the last pro- vision, however, it has been held that a married woman can- not by her contract bind future separate property under the Act, unless she has some separate property at the time of contracting, (m) and may reasonably be presumed to have contracted with reference to that property, (w) The Act also, in effect, invests the legal personal represen- Liability of tative of a married woman, in respect of her separate estate, un'deT^on^''*'^ with the same rights and liabilities as she would have and be death, subject to, if she were living ; (o) and though it contains no express provision respecting the liability of her separate real estate for her debts, after her death, the clauses above men- tioned seem to have the effect of rendering the whole of her separate property under the Act so liable.(p) In the event of her death intestate, her husband is entitled, as has been seen, in his marital right, to her personal estate, and (pro- bably) to an interest by the curtesy in her real estate, (g') It has recently been held, however, that his rights, in that event in her personal estate, are subject to the claims of his wife's creditors, on the ground that he is, in such case, his wife's personal representative within the meaning of the Act, even as regards her personal estate in possession and chattels real, to which he is entitled without taking out administration ; (r) which is requisite as regards her choses in action.(s) But whether his estate by the curtesy (if any) in her real estate is liable for her debts, is not clear. The Act also renders a married woman carrying on a trade Provisions as separately from her husband subject, in respect of her sepa- ^^^^^ i ' J "' rate j)roperty,(^) to the bankruptcy laws.(?i) It also makes [1) S. 1 (2-4). Cf., as to equitable separate estate, sujira, p. 479. (m) Be Sliakspear, 30 Ch. D. 169, 55 L. J. Ch. 44, 53 L. T. 145, 33 W. R. 744 ; PuHiser v. Gurney, 19 Q. B. D. 519, 56 L. J. C. L. 546, 35 W. E. 760 ; Stogdon V. Lee [1891], 1 Q. B. 661, 39 W. R. 467. {n) Leak v. Driffield, 24 Q. B. D. 98, 38 W. R. 93. (o) S. 23. (p) See also s. 4. {q) See ante, p. 435. (r) Surman v. Wharton [1891], 1 Q. B. 491, 39 W. E. 416. (s) See ante, p. 430. (t) This does not include property over which the married woman haa~a general power of appointment which she has not exercised {Se Armstronq, Ex parte Gilchrist, 17 Q. B. D. 521, 34 W. E_. 709) ; except as regards aiiy beneficial interest to which she may be entitled in such property independently of the exercise of the power: Me Armstronq, Ex parte Boyd, 21 Q. B. D. 264, 67 L. J. C. L. 553, 59 L. T. 806, 36 W. E. 772. (u) S. 2. It had previously been held that a married woman could not be 2h Digitized by Microsoft® 482 THE LAW OF PROPERTY IN LAND. property appointed by a married woman, in the exercise of a general power to appoint by will, liable for her debts and liabilities. («) It also provides that a woman shall remain liable after marriage, in respect, and to the extent, of her separate property, for her ante-nuptial debts and torts.(2/) Provisions as The Act, however, as has been seen,(2) does not interfere to settlements, ^j^j^ ^^ ^^^^^ ^^^ settlement, or agreement for a settlement, made or to be made, whether before or after marriage, respecting the property of any married woman. Property which, by other clauses of the Act, is made separate pro- perty, is bound by such a settlement, or agreement for a settlement, to the same extent as it would have been bound thereby if the Act had not been enacted, (a) Provisions as The Act, moreover, does not interfere with, or render anricipatira'"' inoperative, any restriction against anticipation attached, or &o. to be attached, to the enjoyment of any property or income by a woman under any settlement, agreement for a settle- ment, will, or other instrument. (&) It provides, however, that no restriction against anticipation contained in a settle- ment, or agreement for a settlement, of a woman's own pro- perty, made or entered into by herself, shall have any validity against debts contracted by her before marriage ; and that no settlement, or agreement for a settlement, shall have any greater force or validity against creditors of such a woman than a like settlement, &c., made or entered into by a man, would have against his creditors, (c) S|atutes of As regards separate property under the Married Women's Property Act, 1882, coverture is not a disability under the made a bankrupt in respect of her equitable separate estate : Bx parte Jones, 12 Ch. D. 484, 48 L. J. G. L. 109, 40 L. T. 790, 28 W. R. 287. (x) Recent cases seem to have established, independently of the above enact- ment, that property so appointed is liable for a married woman's debts, as if it were her separate estate : see London Chartered Bank of Australia v. Lempriere, L. K. 4 P. C. 572, 29 L. T. 186, 21 W. R. 513 ; and later cases cited in Lewin, 920, 921; Me De Burgh Lawsou, 41 Ch. D. 568 ; bnt see Re Boper, Boper v. DoHcaster, 39 Ch. D. 483. (y) S. 13 ; see Jay v. Bobinson, 25 Q. B. D. 467, 59 L. J. C. L. 367. (2) Ante, p. 435. {a) Be Stonm-'s Trusts, 24 Ch. D. 195, 52 L. J. Ch. 776, 48 L. T. 963 32 W. R. 413 ; Be Whitalcer, 34 Ch. D. 227 ; Hancock v. Hancocl:, 38 Ch. D. 78, 57 L. J. Ch. 396, 58 L. T. 906. (6) As to the effect of a restraint on anticipation, see supra, p. 477. (c) S. 19. See Bursill v. Tanner, 13 Q. B. D. 691, 50 L. T. 589, 32 W. R. 827 ; Beckett v. Tasker, 19 Q. B. D. 7. Limitation. Digitized by Microsoft® MARRIED "WOMEN. 483 Statutes of Limitation. Time will, therefore, run against a married woman, as if she were a feme sole.{d) (iv.) Capacity of Married "Woman as Trustee, Executrix, Married woman a trustee ; &e. — Laiu Prior to Married Women's Property Act, 1882.- ^"'^^^ ''^ The disabilities of a married woman, at common law, rendered her an unsuitable person to be a trustee. She was not, how- ever, absolutely incapable of filling the office ; for though, at law, her husband acquired an interest, in his marital right, in the trust estate, his interest was bound, in equity, by the trust ; and he was, moreover, personally liable for any breaches of trust committed by his wife.(e) By the Vendor and Purchaser Act, 1874, any freehold or copyhold heredita- ments, vested in a married woman as a bare trustee, may be conveyed or surrendered by her, as if she were a feme sole.(f) Under the law prior to the Act above mentioned, a married as executrix, woman could not accept the office of executrix or adminis- tratrix without her husband's consent ; and the husband of an executrix or administratrix might deal with the estate of the deceased without his wife's concurrence ; though he was liable for any loss or misapplication of the assets.(^) A married woman executrix might by will appoint an executor to continue the administration of the estate after her death ; but a feme covert administratrix had not this right. (A-) Married Women's Property Act, 1882. — This Act pro- Married vides that the word ' contract ' in the Act shall include the ^°^^l ^j. acceptance of any trust, or of the office of executrix or executrix administratrix ; thus in effect enabling a married woman to ^^ ^'^' be a trustee, executrix, or administratrix, subject to the same conditions as apply to her capacity to contract under the Act. The Act also provides that the liabilities of a married woman thereunder shall extend to liability for any breach of trust or (d) See Weldon v. Need, 51 L. T. 289, 32 W. R. 828. (e) Lewin, 33 ; Wainford v. Heijl, L. R. 20 Eq. 321, 44 L. J. Ch. 567, 33 L. T. 155, 23 "VV. R. 849'. (f) 37 & 38 Vict. 0. 78, s. 6. A 'bare trustee,' it seems, is one who has no duty to pei'form beyond conveying tlie estate at the request of the cestui que trust : see Christie v. Ovinqton, 1 Ch. D. 279 ; Morgan v. Swansea Urban Sanitary Authority, 9 Ch. f). 582 ; Me Docwra, 29 Ch. D. 693, 33 W. R. 574 ; In re Cunninyham and Frayliny [1891], 2 Ch. 567. ((/) "Wms. Exors. 236, 969, 1844. ill) Ibid. 54. Digitized by Microsoft® 484 THE LAW OF PEOPEETY IN LAND. devastavit committed, by lier ; and that her husband shall not be subject to such liabilities, unless he has acted or inter- meddled in the trust or administration. (i) Power to The Act expressly enables a married woman as executrix, trusfestate" ' ^.dministratrix, or trustee, to transfer, or join in transferring, under the Act. stocks, funds, &c., as if she were a /ewie sole ; (Jc) but it con- tains no corresponding provision respecting land vested in her in any of the above capacities. It is doubtful, therefore, whether land vested in a married woman as trustee, since the Act, is held by her as separate property, so as to be capable of alienation as if she were unmarried — except where the provision above mentioned of the Vendor and Purchaser Act, 1874, is applicable ; for the provisions of the Married Women's Property Act, 1882, as to separate property gene- rally, seem to apply only to estates and interests to which a married woman is entitled beneficially. (Z) Where a married woman would, if single, be the protector woman pro- ' o J r tector of settle- of a Settlement under the Pines and Recoveries Abolition ment. ^j,^.^ gj^g ^^^ -j^q^ husband together are the protector ; unles,-- she is entitled for her separate use, in which case she alone is protector. And she may give her consent, as protector. in the same manner as if she were a. feme ,so/f.(m) (i) 45 & 46 Vict. c. 75, s. 24. {k) S. 18. (/) See Lewin, 366, note (b) ; Be Bociira, 29 Ch. D. 693, 33 W. E. 574. {m) 3 & 4 Will. 4, u, 74, ss. 24, 45 ; see ante, p. 12(3. Married Digitized by Microsoft® CHAPTBE III. INFANTS. Alienation by Infant. — An infant — that is, a person under Gfeneralrule. the age of twenty-one years — cannot, in general, make any efEectual alienation of real or personal estate, as owner. Under the Wills Act, the will of an infant, made since the will. 31st December 1837, is in every case void.(«) A conveyance inter vivos of an estate or interest in land by Alienation an infant, as owner, is not absolutely void — at any rate, if it "'''*"■ ''*""*■ may be for his benefit. But (except in a few cases presently mentioned) it is voidable on his part ; and it may therefore be repudiated by him, on attaining full age, or by his suc- cessors, if he die under age, or even of full age but without having confirmed the transaction. If, however, after attain- ing his full age, he ratify and confirm the conveyance, it will be binding on him, and persons claiming under him ; and the ratification need not be express, but may be shewn by acts — as by his acceptance of rent payable under a lease granted by him during infancy, or by any other act which recognises the title of the grantee. (&) An exception to the above rule has been established by a Exceptions, modern statute, under which a male infant not under the J^en^f &f *'^' age of twenty years, and a female infant not under the age of seventeen years, may, with the sanction of the Chancery Division of the High Court of Justice,(c) make a valid settle- ment, or contract for a settlement, of his or her property, or (a) 1 Vict. 0. 26, o. 7. Prior to this Act an infant might nialce a will of personal, though not of real, estate: 2 Bl. Comm. 497 ; 6 Cruise, t. 38, oh. 2, s. 5. (6) 2 El. Comm. 291 ; Burton, §§ 198, 199 ; 1 Prest. Abstr. 326 ; Zoiicli v. Parsons, 3 Burr. 1794 ; Madclon v. White, 2 T. R. 159. (c) An application for such sanction may now be made to a judge in chambers : Ord. Iv. r. 2 (10), Rules S.C. 1883. Digitized by Microsoft® 486 THE LAW OF PEOPEETY IN LAKD. Alienation under custom of gavelkind. Appointments under powers. Purchase. Contracts. property over wliicli he or she has any power of appointment (except a power which is expressly declared not to be exer- cisable by an infant), whether real or personal, and whether in possession or in expectancy. But any appointment, or disentailing assurance, executed under the Act, by an infant who afterwards dies under age, is thereupon to become void.(c^) By the custom of gavelkind, moreover, an infant owner of land subject to the custom, may alienate (but only by feoffment) at the age of fifteen.(e) Although an alienation by an infant, as owner, is, in general, voidable, he may nevertheless make, by instrument inter vivoSr a valid appointment in exercise of a power of appointment. As regards real estate, however, he can appoint only in exercise of a power simply collateral — that is, unaccompanied by any interest in himself ; (/) but this restriction does not extend to powers over personal estate. (^) Purchases by, and Contracts of, Infants. — A purchase by an infant, like his conveyance, may be either avoided or ratified by him, after full age. And if he die during infancy, or after full age but without having agreed to the purchase, it may be avoided by his successors. (A) The contract of an infant for a sale, or purchase, or other transfer, of land is, like his conveyance, voidable on his pai-t. And, under the Infants' Belief Act, 1874, no action is main- tainable against a person, upon any ratification, after full age, of any contract made by him during infancy, (i) And though he may recover damages in an action for breach of the contract, if he adopt it, he cannot enforce specific performance of it ; because the equitable remedy by specific performance is not allowed where the remedy is not mutual. (^■) (d) 18 _& 19 Vict, c. 43. Se Scott, Scott v. Sanhury [WSl'], 1 Ch. 298. Under this Act a settlenjent may he made after the marriage has taken place : Be Sampson and Wall, 25 Ch. D. 482, 53 L. J. Ch. 457 ; Buckmaster v. Buclc- master, 35 Ch. D. 21. Of. lie Leigh, Leigh v. Leigh, 40 Ch. D. 290. (e) 2 Bl. Coram. 84 ; ante, p. 25. (/) See ante, p. 219. (g) Sug. Pow. 177-8 ; Be Cardros. 327 ; Be D'Angibau, 15 Ch. D. 228, (7t) Sug. V. & P. 085, i-.Hll. ()•) 37 & 38 Vict. c. 62. (k) Pollock, Contracts, c. 2, pt. 1. !'.s Settlement, 7 Ch. D. 728, 47 L. J. Ch. 49 L. J. Ch. 75G. Digitized by Microsoft® INFANTS. 487 Where an infant, by means of a contract, becomes possessed Infant's of land to which certain oblisrations are incident — as where P"^'*'"" ^^ 1- 1-1 ^ -Ti-iT lessee, &o. he IS grantee oi a lease at a rent — he cannot avoid his obliga- tions on the ground that he was an infant at the time of making the contract, and, at the same time, retain the land. In order to discharge himself from such obligations, he must not only disaffirm the contract, but must also disclaim the estate. (Z) Special Powers of Trustees for Infants. — In limitations Under settle- of land for the benefit of infants, express powers of aliena- ™^"^^ °^ tion, management, &c., of the land, have commonly been given to trustees. Various powers for such purposes have, however, been created by modern statutes. Thus, the Conveyancing and Law of Property Act, I881,(rii) Management, gives to certain trustees various powers over land to which ,*"•' of 1°^^°"^ ° . ,^ ... . land under an infant (who, if a woman, is unmarried) is beneficially Conveyancing entitled in possession,(?i) under an instrument coming into ■*■"*'' ^^^^' operation since the 31st December 1881 ; so far as a con- trary intention is not expressed in the instrument. The persons having these powers are the trustees appointed for the purpose by the settlement ; or, if none are so appointed, then the persons who, under the settlement, are trustees with power of selling the settled land, or of consenting to the exercise of such a power ; or, if there are no such persons, then trustees appointed for this purpose by the Court, on the application of the infant's guardian or nest friend. The trustees may enter into, and continue in, possession of the land ; and, in such case, they are to manage the land, and are empowered to cut timber or underwood for sale, repairs, &c. ; to erect, pull down, or repair buildings ; to continue the work- ing of mines ; and to exercise other powers of management — so that they do not commit waste, where the infant is im- peachable for waste, and cut timber only where he could do so if of full age. They are also empowered to apply, at discretion, any income of the land for the infant's main- tenance, education, or benefit ; and are to invest the residue (l) Leake on Contracts, 546, 547 ; Lempriire y. Lange, 12 Ch. D. 675. (jii) 44 & 45 Vict. c. 41. ()s) See s. 2 (iii.). Digitized by Microsoft® -i.«8 THE LAW OF PEOPEKTY IN LAND. Provisions of the Act as to income of infants' pro- perty. of sucli income in securities authorized by the settlement, or by law;(o) and are to accumulate the income of the invest- ments, and to hold the fund on trust for the infant, if he or she attain the age of twenty-one years, or, being a woman, marries, and, in the latter case, in trust for her separate use — or, in case of the infant's death under age (and if a woman, without having been married), then in trust for the infant's personal representatives, as personal estate of the infant ; except where the infant's interest in the land is limited, as mentioned in the Act, and trusts are declared of the accumn- lated fund, and then upon such trusts. (jj) The same Act also provides, more generally, that where any property is held by trustees ((/) in trust for an infant, either for life, or for any greater interest, and whether abso- lutely, or contingently on his attaining twenty-one years or on the occurrence of any event before his attaining that age, the trustees may (subject to any expression of a contrary (r) intention in the instrument under which the infant's interest arises), at their sole discretion, pay or apply, for or towards the infant's maintenance, education, or benefit, the whole or part of the income of such property, whether there is any other fund applicable to the same purpose, or any person bound by law to provide for the infant's maintenance or education, or not ; and that the trustees shall accumulate the residue of the income, and hold the accumulations for the benefit of the person who ultimately becomes entitled (s) to the property from which the same arise — subject to a power to apply the accumulations as income.(i!) It has been held that the income of property to which an infant is (o) As to these, see ante, p. 192. {p) S. 42. (q) An executor may he a ti-uttee within the meaning of this enactment, He t^mith, Henderson-Roe v. Hitchins, 42 Ch. D. 302, 58 L. J. Ch. SIJO, 61 L. T. 363, 37 \Y. R. 705. (r) III re Thatcher's Trusts, 26 Ch. D. 426, 58 L. J. Ch. 1050. (s) But this provision, it seems, does not apply where property is vested in trustees in trust for an infant, with a, gift over in case of his death under twenty-one, and the infant dies under twenty-one ; for in such case the income up to the time of the death helongs to the infant : In re Bucldey's Estate, 22 Ch. D. 583, 52 L. J. Ch. 439. (<) S. 43. A similar provision was contained in the stat. 23 & 24 Vict. 0. 145 (Lord Cranworth's Act), s. 26, repealed by the Conveyancing and Law of Property Act, 1881, s. 71. See Be Cotton, 1 Ch. D. 232, 45 L. J. Ch. 201, 38 L. T. 720, 24 W. R. 243. Digitized by Microsoft® INFANTS. 489 entitled contingently on liis attaining twenty-one, cannot be applied for his maintenance under this enactment, unless, apart from the Act, the infant, on the vesting of the pro- perty, would be entitled to the accumulations of intermediate income. (m) For the purposes of the Settled Estates Act, 1877, the Infants' lands guardian of an infant may act on his behalf.(a;) The provi- Esfates^'*'^"^ sions of this Act are, by the Conveyancing and Law of Act, 1887. Property Act, 1881, in effect, extended to estates in fee simple, and leaseholds at rents, belonging to infants.(2/) But these enactments are, to a great extent, superseded by the following provisions of the Settled Land Act, 1882. (s) The Act last mentioned provides that where a person seised Infants' lands of, or entitled in possession to, land, in his own right, is an in- ^^^^ ^®jg_^ fant, the land is, for the purposes of the Act, settled land, and the infant is to be deemed tenant for life thereof (a) Hence, as regards lands of infants, the Settled Land Acts, 1882 to 1890, apply not only to estates for life, but also to any other estates (whether the fee simple or less), to which infants may be entitled in possession. The powers of a tenant for life, under the Acts, are exercisable on behalf of an infant by the trustees of the settlement, and if there are none, then by a person, and in manner, directed by order of the Court, on the application of the infant's guardian or next friend. (5) It seems, however, that, since an infant's land is, in every case, settled land within the Acts, the Court, imder its power to ajjpoint trustees of the settlement for the purposes of the Acts,(c) may appoint such trustees of the infant's land, whether it be actually settled or not ; and that the trustees so appointed can, as trustees of the settlement under the foregoing provision, exercise on behalf of the infant any of (m) See Be Judkin's Trusts, 25 Ch. D. 743, 53 L. J. Ch. 496, 50 L. T. 200, 32 W. E. 407 ; Be Dickson, 29 Ob. D. 331, 54 L. J. Ch. 510, 52 L. T. 707, 33 W, R. 511 ; Be Jejfery, Burt v. Arnold\\sn\ 1 Ch. 671, 39 W. E. 234. To tlie same effect was the provision of Lord Cranwortli's Act, referred to in the preceding note : Be George, 5 Ch. D. 837, 37 L. T. 204. [x) 40 & 41 Vict. c. 18, s. 49. hj) 44 & 45 Vict. c. 41, s. 41. (z) 45 & 46 Vict. c. 38. (a) S. 59. (&) S. 60. (c) See s. 38, and ante, p. 84. Digitized by Microsoft® 490 THE LAW OF PKOPEETY IN LAND. the powers given by the Acts, and give discharges for monies arising by the exercise of such powers.((^) Infants' land Acts required to be done under the Partition Acts, 1868 and titfon Act and 1^76, may be done on behalf of an infant by his next friend Copyhold Acts, or guardian.(e) And provision has been made, by statute, for the admittance of infants to copyhold estates, by their guardians or attorneys.(/) And by the Copyhold Act, 1887, the guardian of an infant lord of a manor, or tenant or owner of land, may act on behalf of such infant, in matters required or authorized to be done by the Copyhold Acts.(^) Infants' land In the absence of an express authority by deed, will, or altnabfe''.'^''^ Statute, neither the trustee of an infant's land, nor his guardian, has any power of alienation of the land ; except that the guardian may make leases to continue in force during the infant's minority, (/i) And the Court has no jurisdiction to authorize any such alienation, on the mere ground that it would be beneficial to the infant ; (i) except that, under special circumstances, the Court may authorize a mortgage of an infant's estate, to raise money for the costs of necessary repairs. (/c) No conversion In equity, as a general rule, a sale of an infant's real estate of infants' pro- ^j^gg ^q^ effect a conversion, as between his heir-at-law and his personal representatives ; but the money retains the character of real estate. (Z) It seems, however, that this is {d) He Countess of Dudley's Contract, 35 Ch. D. 338, 56 L. J. Cli. 478, 35 W. E. 492. (e) 39 & 40 Vict. u. 17, s. 6. (/) 1 ^Vill. 4, c. 65, as. 3-8. By this Act, if tie fines on admittance of an infant are not paid, the lord may fake the rents and profits to satisfy the same ; but no forfeiture is to le incurred by an infant for not claiming admittance, or non-payment of fines : ss. 6, 9. {cj) 50 & 51 Vict. u. 73, s. 39. (/i) Burton, § 202 ; Bacon, Abr., Leases, 1-9. (i) Marquis Camden v. Murriii/, 16 Cb. D. 161, 50 L. J. Ch. 282, 43 L. r. 661, 29 W. R. 190 ; Be Hamilton, 31 Ch. D. 291, 55 L. J. Ch. 282, 53 L. T. 840, 34 W. E. 203. (k) In re Jackson, 21 Ch. D. 786 ; In re Household, 27 Ch. D. 553, 54 L. J. Ch. 157 ; Conway v. Fenton, 40 Ch. D. 612. (?) Lewin, 151, 152, 967-969; Ware v Polldll, 11 Yes. 257, 278; notes to Fletcher v. Ashburiier, 1 Bro. C. C. 497, S.C. and notes, 1 Lead. Cas. Eq. 968 ; Foster V. Foster, 1 Cb. D. 588, 45 L. J. Ch. 301, 24 \V. E. 185 (sale under Partition Act, 1868) ; Kelland v, Fnlford, 6 Ch. U. 491, 47 L. J. Ch. 94 (sale under Lands Clauses Consolidation Act, 184.5); see MordauntY. Benwell, 19 Ch. D. 302, 51 L. J. Ch. 247, 30 W. R. 227. Digitized by Microsoft® INFANTS. 491 not the case, where the sale is made by order of the Court for the infant's benefit. (wi) Infant as Trustee, &o. — An infant is deemed, on account Trustee or of his disabihties, an unsuitable person to fill the office of ®^^="'"'^- trustee ; and, if appointed, the Court will remove him from the trusteeship.(?i) Under the Trustee Act, 1850,(o) the Court may, by order, vest in any person land held by an infant upon trast, or by way of mortgage, or discharge or release land from any contingent right to which an infant is so entitled. If an infant be appointed executor, administra- tion of the estate is granted to some person on his behalf, during his minority, (p) Under the Act abolishing fines and recoveries, where the Infant pro- person entitled to be protector of a settlement under the ^^^""^ °^ ^^"'^' Act, and not being the owner of a prior estate under the settlement, is an infant, the Chancery Division of the High Court of Justice is protector in his place, (g') Effect of Infancy in Other Cases. — An infant cannot infant cannot be a bankrupt ; nor can an adjudication of bankruptcy be ^^ bankrupt, made in respect of a debt contracted during the debtor's infancy.(7') The effect of infancy, as regards the operation of the statutes of Statutes of Limitation and the law of prescription, Jias ^™).*^^^™^^°'^ already been mentioned. (s) (to) Steed v. Preece, L. E. 18 Eq. 192, 43 L. J. Ch. 687 ; Arnold v. Dixon, L. R. 19 Eq. 113, 23 W. E. 314. (») Lewin, 37-39, 1027. (o) 13 & 14 Vict. 0. 60, ss. 7, 8, 20. See ante, pp. 189, 411. ip) 1 Wms. Exors. 235. {q) 3 & 4 Will. 4, 0. 74, s. 33. See ante, p. 126. (r) See Ex parte Jones, 18 Ch. D. 109, 50 L. J. Ch. 673, 44 L. T. 588, 2 W. E. 747, ovemiliug Ex parte Lynch, 2 Ch. D. 227 ; Exparte Kihhle, L. R. 10 Ch. 373, 23 AV. E. 433. (s) See ante, pp. 445, 454. Digitized by Microsoft® CHAPTBE IV. PEESONS OF UNSOUND MIND. Presumed till Presumption of Sanity. — A person is presumed to be of shewn'^ souncl mind, until the contrary appears ; and the burden of proving bis insanity rests on any person wbo seeks to im- peach, on that ground, a transaction to which he was a party. Alienatlonsand Insanity as Affecting Alienations, &e. — The will of a ToidTr^*'^^ person of unsound mind is void, unless it be made in a lucid voidable. interval, (a) His conveyance inter vivos is also void, if it be made in favour of a volunteer, or of a purchaser with notice of his insanity. (&) If it be made in favour of a purchaser for valuable consideration, without notice of the insanity, it is not, it seems, void ; but if the parties can be restored to their original positions, it is voidable at the option of the insane person or his representatives. (c) But it seems that a con- tract, whether of sale or purchase, that is wholly executory, cannot be enforced against a person of unsound mind.(rf) Powers of committee or other author- ized person. Alienations, &o., on Lunatic's Behalf. — By the Lunacy Act, 1890, (e) which consoUdates the principal statutes re- specting lunatics, various powers, exercisable by order of the Judge in Lunacy, are given to the committee of the estate of a lunatic so found by inquisition, and to such person as the (a) 2 Bl. Comm. 497 ; 1 "Wms. Exors. 17, 19-21. (6) 1 Dart, V. & P. 6. Conveyances by fine and reooveiy, or by feoffment prior to the stat. 8 & 9 Vict. c. 106, were exceptions to this rule : Burton, §§ 195, 196. (c) Motion V. Gamroux, 2 Exch. 487, 4 Excli. 17 ; Elliott v. Ince, 7 De Gr. M & G. 475, 488, 1 Dart, V. & P. 6, 32. {d) See Sug. V. & P. 208. (e) 53 Vict. u. 5. Digitized by Microsoft® PERSONS OF UNSOUND MIND. i'93 judge may appoint for the purpose, in the case of a lunatic not so found by inquisition.(/) These include the following- powers : to sell, or make exchange or partition of, any of the lunatic's property; to grant leases of any property of the lunatic for building, agricultural, or other purposes, includ- ing leases of minerals, whether previously worked or aiot, and with or without the surface ; to surrender any lease and accept a new lease ; to accept a surrender of any lease and grant a new lease — leases granted or accepted under these powers being for such lives or such terms of years, and at such rent, etc., as the judge approves; to execute any leasing power, where the lunatic has a limited estate only in the property over which the power extends ; to perform any contract relating to the property of the lunatic, entered into by him before his lunacy ; to surrender, assign, or otherwise dispose of, with or without consideration, any onerous property belonging to the lunatic ; and to exercise any power vested in the lunatic for his own benefit, or in the character of a trustee or guardian((/). The Act also provides for the admittance of the lunatic to copyholds, by his committee, or by an attorney appointed by the lord of the manor, (/i) The committee of a lunatic may act on his behalf for the Other statu purposes of the Settled Estates Act, ^877, (i) and (if so f^X';' "'' authorized by order in lunacy) for the purposes of the Partition Acts, 1868 and 1876.(^") And, by the Settled Land Act, 1882, the committee of a lunatic tenant for life or person having the powers of a tenant for life, under the Act, may, in his name and on his behalf, under an order in lunacy made on the petition of any person interested in the settled land or of the committee, exercise the powers of a tenant for life under the Settled Land Acts, 1882 to 1890.(^) As a general rule, the conversion of a lunatic's real or Lunatic';? personal estate does not deprive his heir-alt-law, or personal ^^^^^'^^ not deemed tu be converted. (/■) S. 116. As to the judges by whom the jurisdiction of the judge in Lunacy is exercisable, see s. 108. Special powers of dealing with cbtates of lunatics under £200 in value are given to County Court Judges : see s. 132. {(/) Ss. 120, 121, 124, 128, 129. (h) S. 125. As to the lord's power to enter on the land for recovery of the fine on admittance, see s. 126. (i) 40 & 41 Vict. u. 18, s. 49. (/c) 39 & 40 Vict. c. 17, s. 6. {I) 45 & 46 Vict. c. 38, s. 62. Digitized by Microsoft® 494 THE LAW OF PROPERTY IN LAND. representatives, of any interest to wliicli lie or they would have been entitled if tlie conversion had not been made.(m) J'?P»°? ^°^' J^iiy a corporation aggregate, see ante, p. 362, note (l). (g) Pollock, Contracts, c. 3 ; 1 Lindley on Companies, bk. 2, ch. 4, s. 2. As to contracts of companies fi)rmed under the Companies Act, 1862, see the Companies Act, 1867 (30 & 31 Vict. c. 131), s. 37. (/i) 2 Bl. Comm. 268. As to the use of the term 'mortmain,' in connection with gifts to charitable usee, see ante, p. 333. (See Deed. DEMESNE, land of lord of manor, 26 effect of alienation of, 27, 28 copyhold land is, 29, 30 seisin in, 44 DEMISE, covenant implied by use of the word, 317 DESCENT. See Intestacy, Succession ox. DEVISE. See AVill. DISABILITY. See Capacity. Digitized by Microsoft® INDEX. 515 DISCLAIMEK, of estate or interest, how made, and effect of, 309 of trust, 187 of power, Conv. Act, 1882, as to, 211, 220 none by heir-at-law, 416 by trustee in bankruptcy, 461 by married woman, 473, note {g) DISENTAILING DEED, meaning of, 59 execution of, by married woman, 473, note {g), 480, note {g) DISTRESS, remedy by, for recovery of rent service, 273 extensions of, to other rents, by statute, 274, 277 for recovery of tithe rent-charge, 284, 285 provisions of statutes of limitations as to recovery of rents by, 451 further limitation by Agricultural Holdings Act, 1883 : 452 DOWER DOWER ACT. See Maekied Woman. DURESS, may invalidate alienation, 308, 309 EASEMENTS, definition of, 297 distinguished from rights of common, 297 instances of ; are limited in number, 297, 298 distinguished from easements in gross or rights under licences, 298 and from rights under restrictive covenants, 298 and from incidents of ownership, 299 and from public rights, 299 the terms dominant tenement and servient tenement applied to sub- jects of, 299 are affirmative or negative, continuous or discontinuous, apparent or non-apparent, 300 creation of, by express grant or reservation, 300 and note (s) by limitation of use under Conv. Act, 188 1 : 356 by implied grant on severance of a tenement, 300, 301 by implied grant or reservation in case of easement of necessity, 302 and note (d) by prescription, 302 ; and see Pbbsceiption. use and enjoyment of, extent of, 303 repairs necessary for, by whom to be done, 303 alienation of ; pass with dominant tenement ; how far on alienation of part thereof, &c. , 303 cannot be alienated separately, 303 general words in conveyances pass rights in nature of ; statutory provision as to, 303, 304 determination of, modes of, 304, 305 ELECTION. See Conveesion. ELEGIT — see Judgment Debt ; Writ, estate by, 254, 411 alteration as to remedy under, by Bankruptcy Act, 1883 : 254 Digitized by Microsoft® 516 INDEX. EMBLEMENTS, meaning of the term, 8 and note (Q, 71, note (t) in some cases do not pass with laud, 8 right to, on intestacy of owner of inheritance, 8 on determination of estate for life, 7 1 for years, 93 at will, 109 tenant at sufferance not entitled to, no ENCROACHMENT, on wastes of manor, 295 ENFRANCHISEMENT, of copyholds, what it is, 35 at common law, modes of, 35 under Copyhold Acts, extension of rights of, by, 36 compensation for, 36 charges for, 287 notice of right of, 37 general, 37 powers of trustees, 194 rights not aflfected by, 37, 53, 467 effect of, upon estate tail, 63 loss of rights of common by, 294 effect of, as to descent on intestacy, 422 right to curtesy, 429 freebench, 441 under Settled Land Acts, 81 ENLARGEMENT, of long term into fee simple under Conv. Act, 1881 : 102, 108, 361 of base fee into fee simple absolute, 127 and note (g) ENROLMENT, of deed barring entail, 59, 127 of consent by protector to barring of entail, 127 Statute of, its provisions ; what bargains and sales within, 357, 358 where essential to validity of deed, 365 and note {d) ENTIRETIES, TENANCY BY, definition, and characteristics of, 167 in case of limitation to husband and wife and third person, 168 not created where grantees subsequently intermarry, 168 how effected by Married Women's Property Act, 1S82 : 168 ENTRY, necessity for, in creation of estate for years, 89, 346 except where estate created by way of use, 89, 353 for breach of condition, law as to, 45, 46, 104; and see Condition Subsequent ; Foefeitueb. right of, formerly preserved by claim ; statutory alteration, 442 EQUITABLE CHARGES AND LIENS, definition of equitable charge, 250 of equitable lien, 250 equitable lien distinguished from legal, 250 Digitized by Microsoft® INDEX. 517 EQUITABLE CHAEGES AND LXEl!iS— continued. effect of charge or lien; how enforced, 250 and note (m) interests under, are personalty, 1 1 instances of charges, 250 ; and see Crown Debts ; Judgment Debt. examples of liens, 251 vendor's lien for unpaid purchase-money, rules as to, 251 applioation of Locke King's Acts to, 251 purchaser's lien for purchase-money or deposit, 252 assignment of equitable charges and liens, 252 provisions of statutes of limitation applicable to, 450 EQUITABLE ESTATE, definition of, 170 its nature, as opposed to legal estate, 144, 170 merger of, in legal estate, 184 origin of ; declarations of uses, 170 effect of Statute of Uses upon, 171 revival of, limitation of use upon a use, 171 active uses, 172 uses or trusts of copyholds and estates for years, 172 may arise by operation of law, 173 in general analogous to legal estate ; exceptions, 173 and note (s) under trust for conversion. See Conveesion. created by declaration of trust, 177 ; and see Trust. words of limitation of, 382 rights of cestui que trust as to use and enjoyment, 179 to possession, &c. , of land as against trustee, i8o to custody and inspection of title-deeds, 180 having limited interest in leaseholds not bound to repair, 180 note (e) as to alienation, 181 as to control over legal estate, i8i as to powers under Settled Land Acts, 77 note (6), 182, 183 conveyances of ; declaration of trust ; Statute of Frauds as to, 373 forms of, 181, 373, 374, 474 in cases of equitable estates previously created ; Statute of Frauds as to, 375 determination or failure of, modes of, 184 created by operation of law, 195 arising through resulting trusts ; instances of, 196, 197 arising through constructive trusts ; instances of, 198, 200, 201 how far liable for debts, 255, 260, 266 escheat of. See Escheat. EQUITABLE EXECUTION. See Judgment Debt. EQUITABLE JURISDICTION, courts having, 176 EQUITABLE MORTGAGE. See Mortgage. EQUITABLE OWNERSHIP. See Ownership. Digitized by Microsoft® 518 INDEX. EQUITABLE WASTE. See Waste. EQUITY OF KEDEMPTION. &e Mobtgage. EQUITY TO A SETTLEMENT. See Married Woman. ESCHEAT, definition of, 467 ; and see 23 to Crown ; inquisition ; waiver, 467 to mesne lord, 467 of copyholds, 30, 467 of enfranchised copyholds, 37, 467 none formerly of equitable estates or incorporeal interests, &c alterations by Intestates' Estates Act, 1884 : 467, 468 money to be laid out in land not liable to, 468 for felony, abolition of, by statute, 469 of trust and mortgage estates formerly ; statutory alterations, 468 ESCROW. See Deed. ESCUA6E, meaning of, 20, 21 ESTATE— and see ESTATES, definition of, 39 quantity of, 39 quality of, 39, note {d) ESTATE CLAUSE, in deeds, and statutory alterations as to, 368 ESTATES, of whom held, 21, 23 classifications of, 39 the several with reference to quantity, 21, 39 of freehold and less than freehold, 44 of inheritance, 44 absolute and conditional, 45 division of, with reference to modes of holding 49 ESTOPPEL. See Deed. ESTOVEKS, meaning of, 67 common of, 289 EXCEPTION, in deed, place of, 367 EXCHANGE under Settled Land Acts, 81 conveyance by, at common law, 35 1 under luclosure Acts, 412 EXECUTED TRUST. See Trust. EXECUTION — see Deed, Power of Attorney, of conveyance, &c., by nominee of Court, under Judicature Act, 1884: 411 Digitized by Microsoft® INDEX, 519 EXECUTOR — see also Legal Personal Repbesentative, sale of land by, under common law power, 203 ; and see POWBES. statutory power, 205 ; and see Powers. definition of, 391 de son tort, meaning of, 391 co-executors may act jointly or severally ; survivorship and devolu- tion of office of, 391, 392 power given to, jointly ; statutory provision as to, 211 grant of administration where none appointed, 392 in other cases of vacancy of office, 392 powers of, over personal estate, 393 assent of, to legacies, 394 former rights of, to undisposed-of residue of personalty, and statutory alteration, 395 appointment of receiver on bankruptcy of, 471, note (It) married woman may be, 483 infant, appointment of administrator in case of, 491 insane, administration in case of, 494 felon may be, 495 EXECUTORY DEVISE. See Executory Interests. EXECUTORY INTERESTS, conditional limitations having effect as, 49 definition of, 143 distinguished from remainders, 143 origin of, 144. See aUo USBS, eitect of Statute of Uses upon limitations of, 146, 353 creation of, by will, after Statute of Uses, 146 in land of copyhold tenure, 147 estates for years can be limited as, in equity only, 147 except in cases of limitation by will, 147 created inter vivos by way of use, 148 springing and shifting uses, 149 doctrine of scm*iZZa jtwis applicable to ; alteration by statute, 149, 150 created by will are executory devises ; how these differ from spring- ing and shifting uses, 150, 151 application of rule against perpetuities to, 324 powers of appointment and revocation created by limitations of, 151 ; and see Powers. rights of owner of, as to use and enjoyment, 152. See also Waste. alienation of, 152, 387 failure or determination of, 153 Conveyancing Act, 1882, as to, 153 liability of, for debts. See Expectancy. limited conditionally; effect of invalidity of condition, 330 what conditions are void. See Alienation ; Condition ;. Creditors, Rights op ; Marriage. EXECUTORY TRUST— and see Trust, rule in Shelley's case applies to, how far, 382 EXPECTANCY, ownership in, nature of, 2 Digitized by Microsoft® o20 INDEX. ^XFECTANCY— continued. estate In, definition of, 112 classification of estates in, 112 effect of sale, &o., under Settled Land Acts upon estate in, 113 extent of liability of estate in, for debts, 254, 266 EXPRESS TBUST. 6'ee Teust. EXTRAORDINARY MODES OF ALIENATION. See Alienation ; and, in Table' of Contents, pt. 3, ch. 5 FAIR. See Maeket. FALDAGE, common of, 289 FARM, as word of description in conveyance, 383 FEALTY, meaning of, and where due, 23, 33 FEE, meanings of, ancient and modern, 21 and note {!) FEE FARM RENT. See Rent-seevicb FEE SIMPLE, ESTATE IN, definition of, 40 conditional, 40. See Conditional Fee. determinable or qualified, none since statute Quia emptores, 48 and note (c) creation or acquisition of, 5 1 words of limitation of, and Conv. 1881, as to, 376, 377 limitation of, by will, before and since Wills Act, 403, 404 rights of tenant of, as to use and enjoyment, 52 restrictive covenants affecting, 52 where subject to liability for waste, 53 an note (m) as to alienation, 54 conditions, &c., in restraint of, how far vaUd, 54 under Settled Land Acts, where executory limi- tation over, 54, 77, note (6) remainder cannot be limited upon, 121, 122 liability of, for debts of deceased owner. See Debts. determination of, 55 FELON— see also Escheat, forfeiture and escheat of property of, formerly ; alteration by Act of 1870 : 466, 469 disability of, prior to Act of 1870, and under that Act, 495 may alienate by will, 495 trustee, vesting order in case of, 495 may be executor or protector of settlement, 495, 496 administrator of property of ; appointment, powers, &c., of, 496 re-vesting of property of, 496 execution of judgments, &o., against property of, 496 curator of propertj' of ; appointment, powers, &c., of, 496 Digitized by Microsoft® INDEX. 521 FEOFFMENT, definition of, 344 writing not required for, at common law ; statutory alterations, 344 to uses, 356 what interests may pass by, 344 former tortious operation of j statutory alteration, 345 disuse of, 345 FERRY, franchise of, 15 FEUD, meaning of, 21, note (i) FEUDAL, system, fundamental rules of, 19 terms, 19, 20 FIEF, meaning of, 21, note (i) FINE, estate tail barred by, 57 proceedings in, and parties to, 57 and notes base fee created by, 58 deed to lead or declare uses of, 58 abolition of, 59 married woman's land formerly conveyed by, 472, note (c) PINES, on transfer of copyholds, fixed or arbitrary, 33, 370, 371 FIXTURES, meaning of the term, 9 and note (g) common law as to, and relaxation of, 9 right to, on intestacy of owner of inheritance, 9 on determination of Hfe estate, 71 of estate for years, 92 under Agricultural Holdings Act, 1883 : 71, 72 FORECLOSURE OF MORTGAGES. See Mortgage. FOREST, franchise of, 15 FORFEITURE, definition of, 464 for breach of condition of re-entry, 464 ; and see Condition Sub- sequent. waiver of; express, implied; statutory restriction on effect of , 104 relief against, in case of lease, prior to, and under, Conv. Act, 1881 : 105, 106 for breaches of feudal duties, obsolete, 23, 464 relief against, for non-payment of quit-rents, 464 for breaches of copyhold customs, 33, 53, 465 how far relieved against, 465 of next presentation, for simony, 465 on alienation in mortmain, 465 formerly by alienation to alien ; alteration of law, 465 byattainder for treason or felony ; alteration of law, 466 Digitized by Microsoft® 522 INDEX. TRANCHISES, meaning, and instances of, 15 law of land applies to, 7 FnANKALMOIGN, tenure of, 26 how affected by statute Quia emptores, 26, note (o) FRANKMARRIAGE, estate in, 41, note (m) FRAUD, may invalidate alienation, 308, 309 on power. See Power. on creditors. See Ckeditobs, Rights of. on marital rights, 341 on purchaser, under 27 Eliz. c. 4 : 340 concealed, prevents operation of statutes of limitation, 447 FRAUDS, STATUTE OF— sec also, in Table of Statutes, 29 Car. 2, c. 3 fraud or part performance, taking case out of, 374 FREEBENCH. See Maeeied Woman. FREE COPYHOLD, customary freehold also called, 38. See Customary Freehold. FREE FISHERY, franchise of, 15 and note (/) FREEHOLD, tenure, 20, 21 ; and see Tenure. estates of, meaning of, 44 estates less than, 44 quasi, merely, of copyholds, 44 FREE SOCAGE. See Tenure. FREE TENURE. See TENURE. FREE WARREN, franchise of, 15 GAME, right of taking, as a right of common, 289 as a franchise, 15 and note {(/) GAVELKIND, nature and incidents of custom of, 25 interests of husband and wife under custom of, 64, 429, 437 coparcenary by custom of, 164 conveyance by infant under custom of, 25, 344, 345, 486 GENERAL OCCUPANCY. See Pur autre vie. Estate. GENERAL WORDS, in conveyances, what are, and use of, 293, 303 statutory provision as to, 293, 303 GRAND SERGEANTY, tenure of, 24 Digitized by Microsoft® INDEX. 523 GRANT, at common law, definition of, 345 deed when required for, 345 when applicable ; interests lying in, 345, 346 ; a)id see 17. statutory, what it is, and to what interests applicable, 360 application of Statute of Uses to, 360 of copyholds. See Copyhold. use of word, in conveyances ; Con v. Act, 1881, as to, 383, note («) GROUND-RENT. See Rbnt-seevicb. HABENDUM, in deed, meaning, form, and place of, 368 appointment of use does not contain, 368, note («/) HALF-BLOOD. See Intestacy, Succession on. HEIR-AT-LAW. See Intestacy, Succession on. HEIRLOOMS, original meaning of the term, 13 meaning of, in modern law, 14 general rules as to, 6, 14 chattels, as to sale of, under Settled Land Act, 1882 : 81, 85 HEREDITAMENTS, meaning of the word, 16 corporal and incorporeal, how usually distinguished, and true dis- tinction, 16, 17 HERIOT, what it is, and when incident to copyhold tenure, 34 may be payable by freeholder, 24, note {q) extinguishment of, under Copyhold Act, 1886: 28 HIGHWAY, soil of, presumption as to ownership of, 384 and note (c) HOMAGE, the, in copyholds, 29, 31 HONOUR, or seignory over several manors, 26, note (6) HOTCHPOT, bringing into, on intestacy, 425, note {Ic) HOUSE, what passes by the term in a conveyance, 383 HUSBAND — arid see Maheied Womax, modern restrictions on common law rights of, in wife's estate, 427 rights of, at common law, in wife's real estate, 428 ; and see 64 curtesy, estate by the ; what is, and requisites for, 428 and notes (6), (e) in copyholds only by special custom, 429 extinguished by enfranchisement, 35 of gavelkind land, 429 Digitized by Microsoft® 524 INDEX. nVSBA'NT)— continued. rights of, at common law — continued. alienation of, extent of power of ; Settled Estates Act, 1877, and Settled Land Act, 1882 : 78, 429 mortgage by husband and wife, of, 429 in wife's chattels real, 430 in wife's personalty, other than chattels real, 430 survivorship of, to wife, where not reduced into possession, 430 reversionary interests of wife, 430 fraud on marital rights of, what, and effect of, 341 equitable restrictions on rights of, in wife's estates, 431 by trust for wife's separate use. See Maeeibd Woman. his rights in undisposed-of equitable separate estate, 431, 432 by equity to a settlement. See Maeeibd Woman. statutory modifications of rights of, prior to, and under. Married Women's Property Act, 1870, 433, 434 ; and see Maeeied Woman. exclusion of rights of, by Married Women's Property Act, 1882 : 43S whether common law rights of, excluded by, on death of wife intes- tate, 435, 436 concurrence of, in wife's conveyance, where necessary, and effect of, 472, note (/), 473 where dispensed with, 474 in exercise of powers under Agricultural Holdings Act and Settled Land Acts, 474,475 in wife's will of personal estate, effect of, 476 former liabilities of, for wife's breaches of trust, &c., and altera- tion by Married Women's Property Act, 1882 : 483 where protector of settlement with wife, 484 IMPLIED TRUST. See Teust. IMPLIED USE. See Uses. IMPROVEMENTS, by tenant for life, 69 under Improvement of Land Act, 1864, &c., 70 and notes under Agricultural Holdings Act, 1883 : 70 under Settled Land Acts, 86 and note (0) rent-charge for, 70, 287, 413 redemption of, under Settled Land, &c., Act, 1887 86, note (0) by tenant for years, 90 compensation for, under Agricultural Holdings Act, 1883 : 91 charges on land for, under that Act, 287, 411 compensation for, under Allotments and Cottage Gardens, &c., Act 1887 : 92 by joint tenant, 158 IMPURE PERSONAL ESTATE, meaning of the term, 333, note (e) JNCLOSURE. See Common, Rights of. INCORPOREAL HEREDITAMENTS. See Heebditaments. escheat of. See Escheat. Digitized by Microsoft® INDEX. 525 INCUMBRANCES, discharge of, by order, on payment into Court under Conv. Act, 1881 : 243 note (?), 313,411 transfer of, under Settled Land Acts, 82 INDENTURE. 8ee Deed. INFANT, will of, void ; former law as to will of personalty, 485 and note (a) alienation inter vivos by, general effect of, 485 exception by statute, in case of marriage settlement with sanction of Court, 485 and note (d) as to gavelkind land, 25, 344, 345, 486 may exercise power of appointment inter vivos, 486 but as to real estate, only power collateral, 486 purchase by, effect of, 486 contracts of, as to land, effect of, 486 his position as lessee, &c., 487 management, &o., of lands of, powers given by Conv. Act, 1881 : 487 maintenance, &c., of, application of income by trustees, in, under Conv. Act, 1881 : 488 and notes (}) (s) guardian may act for, under Settled Estates Act, 1877 : 489 provisions of Settled Land Acts, as to lands of, 489 acts on behalf of, under Partition Acts and Copyhold Acts, by whom done, 490 land of, not alienable by trustee or guardian except by express autho- rity, 490 whether by order of Court for repairs, &o., 490 no conversion of property of, in general, 490 cannot be bankrupt, 491 appointed trustee, removal of ; vesting order, &c. , 49 1 executor, appointment of, administrator in case of, 491 where protector of settlement, Chancery Division acts for, 491 INHERITANCE. See Estates ; Intestacy, Succession on. INSURANCE, statutory right of mortgagee as to, 236 INTERESSE TERMINI, what it is, 89, 346 created by limitation of estate for years in remainder, 120 not liable to merger, 130 assignment of, 348 INTESTACY, SUCCESSION ON, to real estate; meanings of "descent," " inheritance," 415 inheritance descends to heir-at-law, 5, 415 exceptions, 416 heir cannot disclaim, 416 widow's rights under Intestates' Estates Act, 1890 : 416 heir's estate subject to rights of widow or widower of deceased, 416, 417 definition of heir-at-law, 417 title of heir does not arise till intestate's death ; heir apparent ; heir presumptive; posthumous heir, 417, 418 Digitized by Microsoft® 526 INDEX INTESTACY, SUCCESSION ON— conJmued. to real estate — continued. amendment of law by Inheritance Act, 418 from whom descent traced, under present and former law, 418 and note (s) purchaser, meaning of ; examples, 418, 419 limitations creating title by purchase under the Act, 419 ; and see. 354 breaking the descent, meaning of, 419 note, (6) failure of purchaser's heirs, descent on, 419, 420 rules for ascertainment of the heir, 420 as to descent to the issue, 420, 42 1 in case of coparcenary, 421 and note (g) ; am! see 163 paternal ancestors, and their issue, 421, 422 maternal ancestors, and their issue, 422 ancestors, exclusion of, under old law, 420, note (e) relations of half-blood, succession of ; exclusion of, under old law, 417, 421, 422 and note (l) copyholds, descent of ; title of heir before admittance, 422 enfranchised copyholds, descent of, 422 gavelkind and borough English inheritances, descent of, 422 to personal estate — and see Administbatoe, statutes of distribution, 423, 424 former customs of London and York, 424 note (/) estate of married woman, 424 share of widow ; her rights under Intestates' Estates Act, 1890 ; 424. 42s rights of children or remoter issue, 424 advancement to child to be brought into hotchpot, 425 rights of father, 425 rights of mother ; brothers and sisters ; children of deceased brother or sister, 425 next of kin ; degrees of kindred, 425 no preference of males, elders, or whole blood, 426 Crown, where entitled as idtimus Jieres, 469 INVESTMENTS, of capital-money under Settled Land Acts, 85 powers of trustee as to, 192 JOINT ACCOUNT CLAUSE, in mortgages, what is, and provisions of Conv. Act, 1881, as to, 229 and note {t) JOINT STOCK COMPANIES, contracts of, 49 acquisition of land by, 499, 500 shares in, where subject to law of land, 7, note (y) JOINT TENANCY, definition of, 154 characteristics oE ; unity of interest, title, possession, 154, 155 survivorship, 155, 416 creation of, 156 words of limitation of, 156, 3S1 Digitized by Microsoft® INDEX. 527 JOINT TENANCY— coniJKMCfZ. implied limitation of, by will, 404 at law, where tenancy in common in equity, 156, 157 resulting trust in such case, 196 rights of owner in, as to use and enjoyment, 157 against co-tenant, for account, as to waste, and outlay for improvements, 158 as to alienation, rules as to, 159 determination or dissolution of, modes of, 160; and see Pakti- TION. sale in lieu of partition, 162 of trust estate by co-trustees, 185, 191 of mortgage estate by co-mortgagees, 233, 234 how far liable for debts of co-tenant, 254, 266 disclaimer of, by one tenant, effect of, 282 in copyholds, admittance to, 37 1 created by will, rule as to lapse does not apply to, 405, 406 no curtesy or dower of, 428, 436 JOINTURE, what it is, and kinds of, 437 and note {I) ; and see Makried Woman, rent-charge, 438 JUDGMENT DEBT— an(i see Eegistration, definition of, 252, 253, notes {d) (e) where enforceable against land, 253 modes of enforcement of, 253 by execution under elegit; statutory alterations as to, 253, 254, 255 statutory protection of purchasers and mortgagees against, 255. 256, 257, 258 in case of estate for years, also by execution under fieri facias. 257 and note (<;) as an equitable charge ; statutory provisions as to, 257, 25S by equitable execution ; meaning of, and where applicable, 258 by order for sale under Judgments Act, 1864, 259 liability for, of estate of deceased debtor, 263 provisions of statutes of limitations applicable to, 450 KNIGHT-SERVICE. See Tbnueb. LAND, subjects of law of property in, 6 meaning and extent of the term, and exceptions, 7, 9 tilings detached from, or excepted from conveyance of, 10 in general, realty ; where personalty, 10, 11 feudal principles applicable to, 19 uninclosed adjoining highway, presumption as to ownership of, 384 what is under Mortmain Acts. See Charity. LAND CHARGES. See Puechasbe ; Registration. Digitized by Microsoft® 528 INDEX, LAND COMMISSIONEHS FOB ENGLAND, constitution of, by Settled Land Act, 1882 : 412 powers and duties of, now vested in Board of Agriculture, 412 LAND TAX REDEEMED, rent-charge on land for, 288 LAND TEANSFER ACT, 1875, registration of titles under, 315 land registered under, not within County Registration Acts, 319, note (a) registration of charges, and transfers under, 413 LAPSE. See Will. LAW, of property, meanings of the term, i public and private distinguished, i, note (a) LAY IMPROPRIATOR. See Tithes. LEASE — and see Entbt ; Inteebssb Termini ; Ybaks, Estate fok, definition of, 346 how made, 346 for life, 63, note (x) deed or writing not requisite for, at common law ; .statutory altera- tions, 346 parol, where valid, 347 void at law may operate as agreement for, 347 and note {z) eifect of possession under agreement for, 347 by estoppel, 366 of copyholds, and licence for, 369 under Settled Land Act, 78-80 building, occupation, mining, 94, 95 by mortgagor, 227, 228 by mortgagee, 235 what, not within the Middlesex Registry Act, 320 mortgagee may not renew, for his own benefit, 235 proof of title on sale of, and statutory provisions as to, 309, note (t), 313.314,31s covenants in. See Covenants. LEASE AND RELEASE, at common law, 349 under Statute of Uses, its form and operation, 359 and notes advantages of, 359 LEASEHOLDS. See Years, Estate fob. LEGACY. See Will. LEGACY DUTY, what is, rates of, exemptions, &c., 394, note (7i), 423, note (6) LEGAL ESTATE, meaning of, as opposed to equitable estate, 1 70 merger of equitable estate in, 184 conveyance of, by direction of cestui que trust, 181 by cestui que trv^t under Settled Land Acts, 182 by trustee to purchaser without notice, 184 right to tack depends on, 237 Digitized by Microsoft® INDEX. 529 LEGAL PERSONAL REPRESENTATIVE— see also Administeator ; Executor, meaning of the term, 5, 391 liability of, on rent and covenants in lease, and statutory protection of, 96 as to rent-charges, and statutory protection of, 279 statutory power of, to convey land on death of vendor, 199 LESSEE, meaning of, 43 for life, 42 LESSOR, meaning of, 43 LETTERS OF ADMINISTRATION, grant of, what it is, 423 LICENCE or easement in gross distinguished from easement, 298 for lease of copyholds, generally, 369 and note (/) Settled Land Act, 1882, as to, 80 to corporation to hold land, where, and what, requisite, 498, 499 LIEN. jSee Equitable Charges and Liens. LIFE, ESTATE FOR. See also Pub Autre Vie, Estate. definition and.instances of, 42 creation of, by act of party, 63 by operation of law, 64 words of limitation of, 380 rights of tenant as to use and enjoyment, 65 restrictions on, through liability for waste, 65 and note (d). See Waste. whether in case of permissive waste, 66 power to cut timber under Settled Land Act, 1882 : 66 timber may be cut by, where, 67 right to estovers or botes, and loppings, 67 rights as to buildings and mines, 68 where grant without impeachment of waste, 69 as to improvements ; original rule and statutory provisions as to, 69, 70 as to emblements, 71 statutory right of under-tenant at rack-rent, in lieu of, 71 as to fixtures, 71 as to alienation, 72 at common law, 72 powers of, usually given by settlements, 75 various statutory powers of, 73, 74 under Settled Estates Act, 1877 : 76 under Settled Land Acts, 1882 to 1890 : 77 debts of deceased owner of, land not liable for, 266 determination of, modes of, 88 LIMITATION, STATUTES OF. See Statutes op Limitation. 2 L Digitized by Microsoft® 530 INDEX. LIMITATION, WORDS OF. See Shelley's Case ; Will ; Woeds of Limitation. LIMITED OWNEESHIP. See Owneeship. LIS PENDENS, registration of, and effect of, generally, 312 order as, under Settled Land Acts, 183 LIVERY of seisin) 344 interests lying in, 17, 344 not requisite in conveyance under Statute of Uses, 353 LOCKE KING'S ACTS. See Equitable Chaeges and Liens ; Moet- GAGB. LORD, meaning of, in feudal system, 19 paramount ; mesne, 20 of manor, 26 LORDSHIP, or seignory, 26 and note (5) LUNATIC. See Unsound Mind, Pbeson of. MAINTENANCE. See Infant. MANOR— (Did see Copyhold, what it is, 26, 27, and notes not created since statute Quia emptores, 27 by reputation, or reputed, 28 extinguishment of, 27 rights of lord of, extinguishment of, 28 what passes by the term in conveyances, 383 MARKET, franchise of, 15 MARKETABLE TITLE, meaning of, 310 MARRIAGE, conditions in restraint of, how far valid, 330, 331 limitation until, with gift over, is valid, 331 acquisition through. See Husband ; Maeeied Woman. MARRIED WOMAN, dower of, right to, prior to Dower Act, 436 and note (d) ; and see 64 requisites for, 436 did not extend to equitable estates, 437 not affected by husband's alienation or debts, 437 limitations to bar, forms of, 438 under present law ; alterations by Dower Act, 439 and note (s) by custom of gavelkind, 437 jointure in bar of, what is ; legal jointure, equitable jointure, jointure rent-charge, 437 and note (Q, '438 Digitized by Microsoft® INDEX. 531 MARRIED WO'M.A'N—eontimied, dower of — continued. remedies for recovery of, 440 legacy in lieu of, 440 and note (?/) leases by tenant in, 440 freebenoh of, in copyholds, nature of, 440 extinguished by enfranchisement, 35, 441 interest of, in husband's personalty on his intestacy, 424, 436 in husband's estate, under Intestates' Estates Act, 1S90: 416, 424 in personalty, by survivorship, 430 alienation by, of real estate, other than separate estate ; cannot make will of, 472 conveyances of freeholds ; alteration by Conv. Act, 1882, as to, 472, 473, and notes deed barring entail ; disclaimer, 473, note (y) conveyances of copyholds, 375, 473 husband's concurrence, when dispensed with, 474 contract for, how made, 474 of reversionary personal estate other than separate estate ; statutory alterations as to, 475 will, of personalty, with husband's concurrence, 476 acts of, under Settled Estates Act and Agricultural Holdings Act, 474 powers of, under Settled Land Act, 1882, where land not held for separate use, 475 powers of appointment exercisable by, without husband's concur- rence, 476 release of, by, 473, 475 appointment of attorney by, under Conv. Act, 1881 : 476 acts of, under Copyhold Acts, 476 admittance of, to copyholds by attorney, 476 purchase of land by, not by means of separate estate, effect of, 476 equitable separate estate of ; trust for separate use, effect of, 431 how created, 432 powers of alienation of, 477 Settled Land Acts as to, 477 restraint on anticipation of, how created, eilect of, 477, 478 removal of, &c., under Conv. Act, 1881 : 478 powers under Settled Land Acts exercisable notwith- standing, 479 does not prevent liability of separate estate for debts or indemnity in certain cases ; statutory provisions hereon, 479 where void under rule against perpetuities, 479 liability of, for debts, 479 and note (y) equity of, to a settlement ; nature of, and whore it exists, 432, 433 and note (/) to what interests it applies, 433 amount to be settled, 433 waiver or loss of, 432 release of, 475 Digitized by Microsoft® •J'^^i INDEX. MARRIED WOMAi^—continved. protection order ; here entitled to, and effect of, 433 judicially separated; rights of, as to property, 433, 434 and note (i) Married Women's Property Act, 1870, separate property of, under, 434 and note (0) powers over, and liability of, for debts, 480 Married Women's Property Act, 1882, general capacity as to property, under, 434, 435 separate property under, what is, 435 and note (r) exclusion of marital rights by, extent of, 435, 436, 481 powers of alienation and contracting under, 480, 481 liability for debts, &c., and to bankrupt law under, 481, 482 property appointed, or subject to appointment, how far liable, 481, note (t), 482 and note {x) provisions of, as to settlements, and effect of, 482 as to restraint on anticipation, 482 trustee, extent of capacity as, under former law, 483 conveyance by, under Vendor and Purchaser Act, 1874, where bare trustee, 483 and note (/) provisions of Married Women's Property Act, 1882, as to, 483, 484 conveyance by, of land, under the Act, 484 executrix ; former law as to, 483 will of, as, appointing executor to continue administration, 485 provisions of Married Women's Property Act, 1882, as to, 483, 484 protector of settlement, 484 statutes of limitation and prescription, application of, to rights of. See Statutes op Limitation ; Pebsceiption. MARRIED WOMEN'S PROPERTY ACT, 1882. See Maebied Womau ; and, in Table of Statutes, 45 & 46 Vict. c. 75 MARSHALLING OF ASSETS. See Assets ; Will. MAXIMS, sic utere tno ut dlienum non hedas, 2 quidquid plantatur solo, solo cedit, 7 ciijiis est solum, ejus est usque ad ccelum et ad inferos, 7 jus accrescendi inter mercatores locum non halet, 157 jus accrescendi ultimm voluntati prcefertur, 159, note (c) equity follows the law, 173 equity regards that as done which ought to be done, 175 once a mortgage always a mortgage, 224 modus et conventio vincunt legem, 224, note (m) where the equities are equal the law shall prevail, 237 he who seeks equity must do equity, 238, 433 'jii^ accrescendi praifertur oneribus, 266 ntilli res sua servit, 301, Eote («) expressum fadt cessare taciturn^ 317 nemo est Jieres rireniis, 417 sesinafacit stipitem, 418, note (s) nullum tempus occurrit regi, 449 Digitized by Microsoft® INDEX. 533 MERGER, definition and operation of, 129 estate tail an exception to general rule as to, 129 interesse termini and contingent and executory interests not sjubjeot to, 130 does not aSect estate derived ont of merged estate, 130 formerly extinguished rent reserved on under-lease ; statutory alter- ation, 130 rules as to, where estates in different rights ; statutory alteration, 130, 131 effect of intervening contingent interest with regard to, 135 of equitable in legal estate, 184 of tithe rent-charge inland occurs only wheremerged by deed, 2S4, 286 by unity of ownership in case of rent-charge, 380 right of common, 294 easement, 304 not a mode of transfer of rights, 306 and note (6) MESNE lord, meaning of, 20 lordships, effect of statute Quia emptores as to, 23 MESSUAGE, meaning of, 383 MIDDLESEX REGISTRY. See Registration. MILITARY TENURE. See Tenure. MINERALS, where they do not pass with land, 7 in copyholds belong to lord of manor, 8, 30 in enfranchised copyholds, statutory provisions as to, 35 and note, 53 liability for waste as to. See Waste. sale of, separately from surface, by trustees, 194 under Settled Land Acts, 82 right of taking, as a right of common, 289 MINES — see Mixbeals, Royal, what are, and rights of Crown in, 7 what comprised in exception of, 9, note (s) MISTAKE may invalidate alienation, 308 MODUS. See Tithes. MONEY. See CoNVEKSlON. MORTGAGE— an<^ see Mobtgagbe ; Mortgagor, powers of, under Settled Laud Acts, 81, 82 definition of, 221 and note (6) legal and equitable, distinguished, 221, 222, note [d] at common law, nature of, in general, and varieties of, 222 equity of redemption of, its origin, 223 an essential incident of mortgage, 223 distinguished from proviso for re-purchase, 223, note (I) how it may be lost, 224 is an equitable estate ; alienation and devolution of, 224 Digitized by Microsoft® 534 INDEX. MORTGAGE— continued. equity of redemption of, escheat of, none formerly ; statutory altera- tion, 468 who may redeem, 225 incidence of debt on mortgagor's death ; original rule as to, and alterations by Locke King's Acts, 225 and note (y), 226 creation of; legal mortgages of freeholds ; ordinary form and pro- visions of, 229 by demise for long term, 99, 230 legal, of leaseholds for years, forms and provisions of, 230 statutory, under Conv. Act, 1881: 231 legal, of copyholds, 231 equitable mortgages, formal, 23 1 by way of trust for sale, nature of security under, 232 informal, by writing, or by deposit of title-deeds, 232 priority and tacking of ; general rules as to priority, 236 and note (i) rules as to tacking, 237 and note (/c), 238 consolidation of; restriction of right of, by Conv. Act, 1881 : 239 what it is, and extent of right of, where no statutory restric- tion, 238, 239 modes of enforcing security ; possession and receipt of rents and profits, 240 and note {y) appointment of receiver ; statutory provisions as to, 240, 241, note (c) sale of mortgaged estate, 241 under power in mortgage, or statutory power, 241 rules as to exercise of power ; conveyance of estate, sur- plus, &c., 241 and notes, 242, 243, 244 and note (t) by order of Court, statutory provisions as to, 243 and note {q by order, on bankruptcy of mortgagor, 244 foreclosure of mortgage ; general right of, and proceedings in, 244 and notes («), (.<■), 245 opening foreclosure, 245, 246, note [d] mortgagee may pursue remedies concurrently, 245 alienation of ; by transfer, forms of, 246 by statutory transfer, 247 not by parol, where mortgage by deposit, 247 inquiry and notice on, 246 transferree entitled to fuU amount secured, 247 and note (i) by sub-mortgage ; form and efi'ect of, 247 determination of; by redemption, 247 right of mortgagee to notice on, 248 proceedings to enforce right of, 248 and note (x) Court may order sale on, 248 ; and see 243 effect of dismissal of action for, 248 and note (a) reconveyance on, 249 none in case of equitable mortgage, or mortgage by demise for term, 249 Digitized by Microsoft® INDEX, 535 MORTGAGE— coHimaerf. determination of— continued. reconveyance on, by memorandum of satisfaction in case of copyholds, 249 by statutory reconveyance, 249 by vesting order, 411 transfer of mortgage in lieu of ; statutory provisions as to, 249 by husband and wife, of wife's realty, effect of, 429 MORTGAGEE— and see Mortgage, meaning of term, 221 and note (c) of leaseholds by assignment, liability of, 230 by deposit of deeds not so liable, nor compellable to take legal mortgage, 232 devolution of estate on death of, and statutory provisions as to, 233, 416 right to benefit of security on death of, 233 ; and see 11, 174 whether joint tenant, or tenant in common, with co-mortgagee, 157, 233 muniments of title, right to custody of, 234 limits of rights of ; liability of, as to accounting, waste, &c., 234 right of, to cut timber, statutory provisions as to, 235 to grant leases ; former law and statutory provisions as to, 23s to insure buildings, statutory provisions as to, 236 liability of estate of, for judgment debts, &c., 255, 260, note (y) protection of, against judgments, &c., 255, 256, 257, 258, 260 against charge for succession duty, 263 bar of rights of, under statutes of limitation, 445, 447, note (c) MORTGAGOR— arec? see Moetgage, meaning of the term, 221 and note (c) in possession, position of, at law and in equity, 227 actions by, under Judicature Act, 1873 ; 227 leases by, former law ; Tenants' Compensation Act, 1890, as to, 227, 228 leasing power of, under Conv. Act, 1881 : 228 inspection by, of title-deeds in mortgagee's custody ; former law, and Conv. Act, 1881, as to, 234 bar of rights of, under statutes of limitation, 224, 449 and note (p) MORTMAIN, alienation in, meaning of, 498 statutes restraining, and relaxations of. See Coepoea- TIONS. forfeiture for, 465 term improperly applied to charitable dispositions, 333 MORTUUM VADIUM, meaning of, 222 and note ((/) MUNIMENTS OF TITLE, meaning of, 12 interests in, generally, 6, 12, 13 and notes Digitized by Microsoft® 536 INDEX. MUNIMENTS OF lUhE— continued. rights of cestui que truat as to, 180 mortgagee as to, 234 mortgagor to inspect, &c., under Conv. Act, 1881 : 234 alienee of land, to delivery of, and statutory exception, 321 importance of possession of, by alienee, 322 mortgage by deposit of, 232 production of, in proof of title, 310 where title may be good in absence of, 311 covenants for production of, 321 statutory acknowledgment for production and safe custody of, 322 place of, in deeds of conveyance, 369 NECESSITY, easement of, 302 NEXT PBESENTATION, what it is, 15 forfeiture of, to Crown, for simony, 337, 465 NOTICE — and see Puechaseb, as to enfranchisement under Copyhold Act, 1887 : 37 under Settled Land Acts, 83 to determine yearly tenancy, 103 and note (7i) prior to forfeiture of lease, under Conv. Act, 1881 : 106 purchaser without, conveyance by trustee to, effect of, 184 purchaser with, of prior claim, takes subject thereto, 200 of unregistered rent-charge, takes subject thereto, 277 is either actual or constructive ; what is constructive, 200 Conv. Act, 1882, as to, 200 right to tack, how affected by, 238 of transfer of mortgage, importance of giving to mortgagor, 246 mortgagee's right to, on redemption of mortgage, 248 effect of, under County Eegistration Acts, 320 OFFICES, meaning of, 7, note {y) OPERATIVE PART in deed, clauses contained in, 367 OPERATIVE WORDS in conveyances, 383 and note (u) in wills, 398 OWNERSHIP, nature of, in general, i distinguished as absolute or limited, in possession or in expectancy, in severalty or in community, legal or equitable, 2, 3 estate for years a right of, 45, note (i) absolute, theoretically not applicable to land, 19 rights inferior to. See Rights. PARCELS in deeds, meaning and place of, 367 meanings of various terms in, 383 Digitized by Microsoft® INDEX. 537 PARK, franchise of, 15 PARTICULAR ESTATE, meaning of, 114, 120 PARTITION, definition of, 160 by joint tenants, 160 by coparceners, 165 and note (a), 351 by tenants in common, 167 voluntary, 161 by action, 161 by award or order of Board of Agriculture, 161, 162 under Settled Land Acts, 81, 82 sale in lieu of, under Partition Acts, 162 and note (6) PARTNERS, land held by, where personalty, 11, 174 deemed tenants in common, 157 PASTURE, common of, 289 PEPPERCORN RENT. Ste, Rbnt-seevice. PERMISSIVE WASTE. See Waste. PERPETUITIES, definition of perpetuity, 323 period fixed by law for vesting of future estates, 323, 324 restriction created by rules applicable to remainders, 324 cases to which these rules do not apply, 324 the rule against perpetuities, and instances of its application, 324 and note {y), 325 application of, to limitation to class, 325 to restraint on anticipation, 479 when the period fixed by the rule commences, 326 in case of appointment in exercise of special power, 326 of general power, 326 further period allowed in case of gestation, 326 what lives may be the measure of the period, 327 limitations, &c., to which the rule does not apply, 327 trusts for accumulation within the rule ; exceptions, 329 and note (fi). Ste Accumulation. PERSONAL, THINGS. Sec Thikgs. PERSONAL REPRESENTATIVE. Sea Legal Peksonal RBrEESBNTA- TIVE. PETIT SERJEANTY, tenure of, 24 PISCARY, common of, 289 distinguished from free fishery and several fishery, 289, note (c) PLEDGE distinguished from mortgage, 221, note (&) Digitized by Microsoft® 5^8 INDEX. rOSSESSION, ownership in, nature of, 2 estate in, definition of, 51 and seisin, what distinction between, 44, 45 and note (i) mortgagor in, position of. See M0KT6AGOE. mortgagee in, rights and liabilities of. See Moetgagee. transmutation of, in conveyances, 356, 357 what is, under statutes of limitation, 443 and note (i) I'OSSIBILITY OF ISSUE EXTINCT, estate tail after, nature of, 62, 64 liability of owner of, for waste. See Waste. powers of owner of, under Settled Land Acts, 7S POSSIBILITY OF REVEETER, meaning of, as distinguished from reversion, 114 alienation of, 119 POSTHUMOUS CHILD, rights of, 135 and note'(«), 418 POWER OF ATTORNEY, nature of, 363 ; and see 203, note (/) to execute deed, must be made by deed, 363 execution under, mode of, 363 determination of, through death, &c. ; statutory alterations as to, 363- 364 by married woman under Couv. Act, 1881, &c., 476 POWERS, or powers of alienation, defined, 202 ; and see 151 distinguished from rights of alienation incident to ownership, 203 classification of, 203 at common law, for sale of land by executors, 203 distinguished from devise in trust for sale, 204 executors may have, by implication, 204 statutory, instances of, 204, 205 for sale of land by executors, 205 under law relating to executory interests, nature and examples of, 206, 207 creation of, by declaration of use, 206 by will, 206 appointment under, to one to use of another, 207 of revocation merely, 207 ; and see 151 over copyhold land, 207 equitable, nature of, 208 powers over chattel interests are, 208 powers of sale, &c., of trustees and mortgagees are, 268 of appointment and of revocation, what so called ; terms ap- plicable to, 2og are either general or special, 209 creation of, modes of, 210 forms of instruments creating, 357 transfer and devolution of, 211 joint, by whom exercisable ; statutory provision as to executors or trustees, 211 Digitized by Microsoft® INDEX. 539 FOWEnS—conthmed. of appointment — continued. execution of, discretion as to, 212 distinction in case of power imperative, or in nature of a trust, 212 modes of, observance of formalities, 212, 213 by general devise or bequest, where, and distinction as to special power, 398, 399 defective, where aided in equity, 213 statutory provisions as to, 213, 214 partial, 214 reservation of power of revocation, 214 appointment under, invalid, if appointee not object of power, 215 in excess of power, instances and effect of, 215, 216, 218 under non-exclusive power, former law as to ; statutory altera- tions, 216,217 in fraud of power, meaning and effect of, 217 determination of, modes of, 218, 219, 220 appendant or appurtenant, what are, and effect of alienation of estate on, 219 collateral, or in gross, what are ; and distinction as to, 219 and note {p) release or disclaimer of, and statutory provisions as to, 220 liability of estate subject to, for judgment debts, 255 for succession duty, 262 general, where land appointed under, is liable for appointor's debts, 338> 482 general, appointment under, to volunteer^ is subject to stat. 27 Eliz. c.4: 340 by will to child or issue, as to lapse in case of, 406 application of rule against perpetuities to, 324, note (y), 326, 327. And see Pbepetuitibs. married woman may exercise, &c. See Mabeibd Woman. bankrupt, what he may exercise, and what exercisable by trustee, 458, 460 what exercisable by infant, 486 PKECATOEY TRUST, meaning of, 178 PRE-EMPTION, right of, where void for remoteness, 324, note {y) PRESCRIPTION, distinguished from transfer under statutes of limitation, 442 and from custom, 442, note (m) to what rights applicable, 442 at common law, length of enjoyment required for, 452, 453 in r/we estate, meaning of, 452, note (0) under Prescription Act, 453, 454 and notes extension of time where infancy, lunacy, oovertare, tenancy for life, or action, 454 what is an interruption under, 454 enjoyment must have been as of right under, except in case of light, 455 and note (/) Digitized by Microsoft® 640 INDEX. PRETENDED TITLE, sale of, where void, 338 PRIVATE ACT OF PARLIAMENT as a mode of alienation, 410 PRIVATE LAW, meaning of, i, note (a) PROBATE of will. See Will. duty, 6, 393 and note {d), 423, note (a) PROFIT A PRENDRE, meaning of, 289. And see Common, Rights op. PROFITS of land, grant of, may include the land, 383 who entitled to, until contingent interest vests, 138 birth of posthumous child, 135, note (re), 418 PROPERTY— anf? see LAVS'; Rights, various meanings of the term, 3 PROPERTY TAX payable by landlord, 95 and note (1^) PROTECTION ORDER. See Mahbied Woman. PROTECTOR OF SETTLEMENT, office of, and how created or arising, 125, 126 consent of, for barring estate tail in expectancy, rules as to, 126, 127 base fee may be created without, 127. See Base Feb. none where estates created by different instruments, 128 when married woman, 484 infant, 491 of unsound mind, 494 felon, 495, 496 PROVISO in deed, place of, 368 for cesser of term, a form of conditional limitation, 107 for redemption of mortgage, 229. See Mobtgage. PUBLIC law, meaning of, i, note (a) rights distinguished from easements, 299 PURCHASE, acquisition by, technical meaning of, 307 and note (e) in name of another, resulting trust under, 196 PURCHASER, whether joint tenant or tenant in common with co-purchaser, 157 without notice, rights of, 184. See Notice. with notice, liability of, 200. See Notice. of equitable interest takes subject to prior equities, 201 lien of, for purchase-money or deposit. See Equitable Charges and Liens. Digitized by Microsoft® INDEX. 541 PURCHASER— cojrfmMerf. protection of, against judgments, &o., 255, 256, 257 and note {g), 258, 260 liability of, for succession duty unpaid, 262 and notes (/;), (m) protection of, against charge for succession duty, 263 whether bound by charge of debts, &o., 265 protection of, against unregistered land charges by Land Charges, &c., Act, 1888: 288 alienations void as against, under stat. 27 Eliz. c. 4 : 340 what are, within the Act, 340 title depending on, effect of, 341 right of, as to execution of conveyance ; alteration as to, by Conv. Act, 1881 : 363, note {p) from executor, not affected by notice of will, &c., 393 meaning of, in Inheritance Act, 418 from trustee, on wrongful sale, statutes of limitation as to, 448 PUR AUTRE VIE, ESTATE, definition of, 42 limitation of, to special occupants, 42 as quasi-entail, 42 less than estate for tenant's life, 43 alienation of, extent of power of, at common law, 72, 73 general or common occupancy of, and its abolition, 73 ; and see 306 note (c) none in case of rent-charge, 280 statutory provisions as to alienation and devolution of, 73, 280, 387 powers of owner of, under Settled Land Acts, 77, 78 order for production of cestui que vie on supposed expiration of, 89 continuance of tenant in possession after determination of, no liability of, for deceased owner's debts, 73, 266, 267 PUR CAUSE DE VICINAGE. See Common, Rights of. QUASI-ENTAIL, meaning of, 42 alienation of, 72, 73 QUIA EMPTORES, STATUTE, provisions and operation of, 22, 23, 271 prevented creation of manors, 27 determinable fee simple, 48 QUIT-RENT, meaning of, 23, 271 may be payable by copyhold tenant, 33 relief against forfeiture for non-payment of, 464 QUOUSQUE seizure of copyhold land, 33 ; and see 444, note (k) RACK-RENT, meaning of, 94 Digitized by Microsoft® 542 INDEX. KEAL, things, 4. See Chattels Real ; Things. action, and abolition of, 442, 443 EECEIPTS, statutory powers to trustees to give, 193 and note {e) in, or indorsed on, deeds, and provisions of Conv. Act, 1881, as to, 367, 369 and note [d) for rent as evidence of validity of lease, Conv. Act, 1881, as to, 311 EECEIVEE, appointment of, by mortgagee, 240 on equitable execution, 258 RECEIVING ORDER, in bankruptcy, 456 RECITALS in deeds, use of, 367 may control operative part, 367, note {t) where evidence of facts recited, 310, 311 RECONVEYANCE OP MORTGAGE. See Mobtgaoe. REDEMPTION of mortgages. See Mortgage. of rents under Conv. Act, 1881 : 275, 281 of tithe rent-charge, 286 of charge under Improvement of Land Act, 86, note (0) under Copyhold Act, 1887 : 287 RE-ENTRY, CONDITION OF. See Condition Subsequest. REGISTRATION of judgment debts and writs of execution, 256, 257, 258, 320 and note (6) of Crown debts, 260 of rent-charges, 277 of land charges, under Land Charges, &c.. Act, 1888 : 28S of lites pendentes, 312 of deeds of arrangement, 312 of titles, &c. See Land Teanspbe Act, 1875. under Middlesex and Yorkshire Registry Acts, 312, 313, 319, 320 and notes where essential to validity of deed, 365, note (d) of rent-charge under Improvement of Land Act, 1864 : 413 RELEASE at common law, definition of, &o. , 348, 349 deed requisite for, 349 where applicable, 349 by joint tenant or coparcener to co-tenant, 1 59, 349 statutory, 360 of powers, 220 of rents, 275,.^28o of rights of common, 294 Digitized by Microsoft® INDEX. 04d RELIEF, meaning of, and where due, 23, 33 EEMAINDER is vested or contingent, 119 definition and creation of, 119, 120 must be created by same instrument as preceding estate, 120 as to tenure of, 120 limitations by way of, rules as to, 1 20 in term of years, how limited, 121, 173 distinguished from executory interest, 121 ; and see 143 no remainder on fee simple, 122 must be limited to take effect on expiration of preceding estate, 122 cannot be limited in defeasance of preceding estate, 122 may be limited by declaration of vise, 148 vested. See Vested Ebmaindee. contingent. . 8ee Contingent Remainder. cross. See Cross Remainders. liability for debts. See Expectancy. REMOTENESS. See Perpetuities. RENT, definition of, general, 270 estates in land the only subjects of, 270 and notes (6), {d) different kinds of, 270 and note (e) -seek at common law, and statutory alterations as to, 274, 276, 277 curtesy and dower of, 428, note (5), 436, note [d) provisions of statutes of limitations as to, and as to arrears of, 451, 452, note (i) RENT-CHARGE, definition of, 276 interests in, 276 ; and see 271, note ih) creation of, 276 provision of Statute of Uses applicable to, 356 express power of distress necessary at common law ; statutory alteration, 276, 277 reservation of rent on grant of fee simple, when construed as, 277 registration of, 277 payment and apportionment of, 277 recovery of, how usually secured ; provisions of Conv. Act, 1881, hereon, 277, 278 sale or mortgage by order of Court, 278, 279 action at law ; liability of subsequent owners of the land, 279 statutory protection of personal representatives against, 279 alienation of, 279 determination of, 279, 280, 281 release of part of land from ; statutory alteration as to, 280 reservation of, on sale under Settled Land Acts, 82 liability of, to execution under judgment, 255 for debts on decease, 263, note (r) EENT-SECK. See Rent. Digitized by Microsoft® 544 INDEX. RENT-SERVICE, definition of, 270 varieties of ; ground-rent, rack-rent, 94 dead rent, 95 quit-rent, rent of assize, ohief-rent, fee-farm-rent, 271 and note {Jc) peppercorn rent, 271 creation of, 271 due from copyholders by special custom, 271 where no reversion, eifect of reservation of, 272 payment and apportionment of ; Apportionment Act, 1870 : 272, 273 demand of, where necessary at common law ; statutory alterations, 104 recovery of ; distress, action at law, 273, 274 right to, not extinguished by statute of limitations ; but arrears barred by, 451 alienation of, 116, 274 grant of, separately, 274 apportionment of, on alienation of part of reversion, 274 determination of, modes of, 275 formerly by merger of reversion ; statutory alteration, 130 and note (a;), 276 RESERVATION, or reddendum, in deed, meaning and place of, 368 of rent, &c., in lease, 95 RESTRICTIVE COVENANTS. See Covenants. RESULTING. See Tkust ; Uses. REVERSION, definition of, 113 creation of, 114 tenure of, 114 rights of owner of, as to use and enjoyment, 115 in case of waste by particular tenant. See Waste. as to alienation, 115. /See Attornmext. efEect of grant by reversioner, of smaller estate, 116 right to rent passes on grant of, 116. And see Rent. condition of re-entry and covenants did not pass with, at common law; alterations by statute, and provisions of Con v. Act, 1881, as to, 116, 117, 118 determination of, 119 liability of, for debts. See EXPECTANCY. REVERSIONER, meaning of, 1 14 REVOCATION, POWER OF— see Executory Interests ; Powers, under 27 Bliz. c. 4 ; by whom exercisable, 340, 341 RIGHTS of property, meaning and classes of, i and note (6) of ownership, i inferior to ownership, what comprised in class of, 3, 202 and note (I) Digitized by Microsoft® INDEX. 5 15 EIGHTS OF COMMON. See Common, Rights op RIVER, bed of, presumption as to ownership of, 384 ROMAN CATHOLICS, former disabilities of, and statutory alterations, 471 ROYALTY, meaning of, 95 SALE OF LAND under Settled Land Acts, 80, 81 contract for, trusts arising under, 198 power of personal representative to convey under, by Conv. Act, i88i : 199 SANS NOMBEE, common, 292 SATISFIED TERM. See Tbkm. SCINTILLA JURIS. See Executory Interests. SEALING of deed, what is, 362 SEARCHES, what, to be made on investigation of title, 311, 312 official, statutory provision as to, 311, note (s) SECRET TRUST. See Trust. SEIGNOEY, what it is, 27 effect of alienation of, 27, 28 in gross, 28 SEISIN, meaning of, 22 of copyholds is in lord of manor, 30 quasi-, of copyhold tenant, 30 of customary freeholds, 38 of estates of freehold, 44 technically different from possession of tenant for years, 45 and note (i) per my et per tout, meaning of, 155 livery of, 344 SEPARATE USE. See Married Woman. SETTLED ESTATES ACT, 1877, provisions of, as to leases and sales, 76 by whom powers under, are exercisable in various oases, 429, 440, 474> 489< 493 SERVITUDE, meaning of, 297 SETTLED LAND ACTS, 1882 to 1890. See also Table of Statutes, cutting and sale of timber under, 66 settlement under, meaning of, 77, 182 tenant for life and persons having powers of, under, 77 and note (6), 78 2 M Digitized by Microsoft® 546 INDEX. SETTLED LAND A.GTB— continued. powers of alienation, &c., under, 78 and note (e) leases authorized by ; restriction as to mansion-house, &c., 78 and note (/) requisites of leases generally ; building and mining leases, So other leasing powers, and variations by leave of Court, 80 sale, powers of, under ; restrictions as to mansion-house, &c. ; heir- looms, 80, 81 enfranchisement, exchange, partition, mortgage, powers of, 81 ancillary powers, 82 conveyances, &o., under, 82 sanction of Court or trustees, where requisite under, 83 notice to trustees, provisions as to, 83 trustees of settlement, who are, 84 duties of tenant for life in exercising powers, 84 capital mouRy, payment and investment, &c., of, 85 devolution of, 87 improvements under, 86 settlement of land purchased under, 87 powers under, cannot be assigned or restricted, 87, 88 effect of, on settlement powers, 88 estates in expectancy, how affected by sale, &c., under, 113 powers not incident to, 115, 125 application of, to estates in community, 159 equitable estates, 181 provisions of, as to trusts for sale, 182, 183 appointment, &c., of trustees under, 190, 489 protection and reimbursement of trustees under, 194 decision by Court of questions under, 195 tithe rent-charge, lay interest in, is within, 284, note [q] common, rights of, &c. , are within, 293, note [d) copyholds, conveyance of, by deed under, 370 married woman, tenant for life, exercise of powers in case of, 429, 475 where entitled for separate use, 477, 479 lands of infant subject to provisions of, 489 infant, exercise of powers on behalf of, 489 lunatic, exercise of powers on behalf of, 493 SETTLEMENT, strict, ordinary provisions and operation of a, 74, 75 meaning of, in Settled Land Acts, 77 long terms of years created by, 99 contingent remainders in, and trustees to preserve, 134, 135, 136 restrictions on limitations of contingent remainders in, 140 power of sale in, not void for remoteness, 327 voluntary, where void as against creditors or purchasers. See VOLUN- TAET. of infant upon marriage, 485 SEVERAL FISHERY, meaning of, 289, note (c) SEVERALTY, ownership in, nature of, 3, 154 Digitized by Microsoft® INDEX. 547 SHACK. See Common, Rights op. SHARES in certain companies subject to land law, 7, note iij) SHELLEY'S CASE, RULE IN, statement of, 378 and note (r) examples of its application in conveyances, 378, 379, 380 application of, to wills, 403 requisites to its application, 380 and notes (a), (c) analogy to, in limitation of estate for years, 381 application of, to equitable estates ; distinction where trust execa tory, or limitations legal and equitable, 382 SIMONY. See Foefbiture. SPECIAL OCCUPANT, meaning of, and who may be, 42 liability of, for debts, 73 SPRINGING AND SHIFTING USES. See Uses. STAMP on deed, effect of Want of, 364, 365 rights of purchaser as to, 364 duties generally, 365, note (c) on copies of court roll, 372 STATUTES merchant, and staple, and recognizances in nature of, 253, note [d) STATUTES OF LIMITATION, operation of, distinguished from prescription, 442 early and modern, relating to laud, 442, 443 what interests in land, &;c., within, 443 effect of, in ex;tinguishing claim, 443 and note (i) period prescribed by, for recovery of possession of land, 444 and notes (ji), (0) in case of future estate, 444 and note (^j) extension in cases of infancy, coverture, non compos mentis, 445 and note (?•) ; and see 449 not as regards separate estate of married woman, 482 ; and see 479, note (2/) provision as to claims by mortgagee ; application of, to foreclosure, 445 provisions as to estates tail and base fees, 445, 446 when right of action accrues under, in various cases, 446, 447 effect of acknowledgment in writing, as to, 447 and note (c), 449 and note (j)) and of concealed fraud, 447 in case of wrongful conveyance by trustee, 448 equitable claims, application of, to, 448, 449 claims of cestui que trust against trustee not within, formerly ; altera- tions by Trustee Act, 1888 : 448, 449 equity of redemption where barred under, 224, 449 and note {p) Crown not barred by general provisions of ; special provision as to, 449 Digitized by Microsoft® 548 INDEX. STATUTES OF LIMITATION -continueil. provisions of, as to advowsons, 450 as to moneys secured by mortgage, charge, lien, or judgment, 450 as to recovery of rents, &o., by remedy against land,45i as to arrears of rent, interest, &c., 451, 452 STEICT ENTAIL under statute de donis, 56 STRICT SETTLEMENT. See Settlement. SUBINFEUDATION, meaning and abolition of, 22 SUB-MORTGAGE. See M0ETGA6E. SUCCESSION BUTY, what it is, rates of, and exemptions from, 261 and notes {d), (e) successions, what are, under the Act, 261, 262 a charge upon the land ; exceptions, 262 liability of purchaser of land for, 262 and notes (k), (m) purchasers and mortgagees now protected against, where, 263 proceeds of sale of land, sometimes liable for, 263 legacies charged upon real estate now liable for, 263 SUFFERANCE, ESTATE AT, definition of, 44 how it arises, and position of tenant, 1 10 liability of tenant, no not alienable, in determination of, in SUIT OF COURT, meaning of, and where due, 24, 31, 33 SUPPLEMENTAL DEED. See Deed. SURRENDER, definition and operation of, 350 deed or writing not required for, at common law ; statutory altera tions, 350 implied, or surrender in law, where, 350 of copyholds, &c. See Copyhold. SURVIVORSHIP. See Joint Tenancy. TACKING OF MORTGAGES. See Mortgage ; Notice. TAIL, ESTATE, origin of, 40 definition of, 41 general or special ; male or female, 41 after possibility of issue extinct, 62, 64 ex provisione viri, 62, note (p) none in copyholds, unless custom to entail, 41 creation of, 55 words of limitation of, inter vivos; alteration by Conv. Act, iSSi : 377, 378 by will, 404 Digitized by Microsoft® INDEX. 549 TAIL, 'ESTAT'E— continued. rights of tenant, as to use and enjoyment, 55 alienation ; effect of the statute de donis, Si common recoveries and fines, 56, 57, 58 barring entail of copyholds under old law, 58 alterations by Act abolishing Fines and Re- coveries ; present mode of barring- entails, 58, 59 virhere estate is equitable, 181, 375 where estate is in expectancy, 125 ; And see Base Fee ; Pbotectoh or Settlement. no bar by will or contract, 60 effect of conveyance not enrolled, 60 right of alienation a necessary incident of the estate ; exceptions, 61, 62 and note (p) invalidity of condition against alienation of, 61 powers of tenant under Settled Land Acts, 62, 77, note (6) mortgage in fee by owner of, effect of, 225 extent of liability of land for debts of deceased tenant, 266 created by wiU, exception to lapse, in case of, 406 provisions of statutes of limitation as to, 445, 446 powers over, of trustee in bankruptcy of tenant, 460 determination of, 63 not liable to merger, 129 TALTARUM'S CASE. See Db Donis Conditionalibds. TENANCY IN COMMON, definition of, 165 characteristics of, 165 creation of, modes of, 166 words of limitation of, 381 in equity, where joint tenancy at law. See Joint Tenancy. cross remainders in, 166, 401. See Ckoss Remainders. rights of tenant, as to use and enjoyment, 167 as to alienation, 167 determination 'or dissolution of, modes of, 167 ; And see Pakti- TION. created by will, how affected by rule as to lapse, 405 TENANT, meaning and application of term, 19, 43 in cajpite, 20 paravail, or terre-, 20 by copy of court roll, 29, 3 1 in fee simple, 40 in tail, 41 for life, 42 Digitized by Microsoft® 550 INDEX. TENANT— coni!i«?!f (7. jjuir autre vie, 42 at will, 44 TENEMENT, meanings of the word, 16 TENUEE, origin of, and meaning of the word, 19 early division of, into free and base, 20 later distinguished as freehold or copyhold, 20 original divisions of freehold, 20 knight-service, or military tenure, or tenure in chivalry ; its nature, and abolition of, 20, 21 free socage, its nature ; now called freehold tenure, 21 estates in land of freehold, 21 perfect and imperfect, 23 incidents of modern freehold, 23 varieties of freehold, 24 frankalmoign, 26 copyhold, &c. See Copyhold ; Customaby Freehold. TERM, meaning of, 43 long, purposes for which usually created, 98 restrictions on alienation of, 100 enlargement of long, into fee simple under Conv. Act, 1881 : 102 satisfied, what is a, 107 attendant on inheritance, advantages of, formerly, 107 alteration of law as to, 108 and note (Z) THELLUSSON ACT. See ACCUMULATION or Income. THINGS, as subjects of law of property, divisions of, 4 real and personal, 4, 5 terms used to denote, 5 chief existing distinctions between, 5 land and things not subject to law of land, division of, into, 6 TIMBER, what is, 67 in copyholds belongs to lord of manor, 8, 30 rights and liabilities of tenant for life as to. See Life, Estate FOE. statutory right of mortgagee to out, 235 TITHE RENT-CHARGE. See Tithes. definition of, 282 statutory commutation of tithes for, 283 extraordinary ; act for redemption of, 284 lay interest in, resembles estate in land, 284 does not merge in ownership of land unless expressly merged, 284 origin of, 283 creation and transfer of, 284 is land within Settled Land Acts, 284, note {q) Digitized by Microsoft® INDEX. 551 TITHE RENT-CHARGE— confiftMetZ. payment and apportionment of, 284 recovery of, prior to Tithe Act, 1891 : 284, 285 under tliat Act, 285 liability for, as between landlord and tenant, 285 determination of lay interest in, modes of, 285, 286 remission of, under Tithe Act, 1891 : 286 redemption of, 286 liability of, for debts, 255, 263, note (r) curtesy and dower of, 428, note (i), 436, note (See Rbgisteation. PRINTED BY BALLANTVNE, HANSON AND C(X LONDON AND EDINBURGH Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® A CATALOGUE LAW WORKS PUBLISHED AND SOLD BY Stevens & Haynes, 1 3, BELL YARD, TEMPLE BAR, LONDON. BOOKS BOUND IN THE BEST BINDINGS. Works in all Classes of Literature supplied to Order, FOREIGN BOOKS IMPORTED. LIBRARIES VALUED FOR PROBATE, PARTNERSHIP, AND OTHER PURPOSES. LIBRARIES OR SMALL COLLECTIONS OF BOOKS PURCHASED. A large Stock of Reports of the various Courts of England, Ireland, and Scotland, always on hand. Catalogues and Estimates Furnished, and Orders Promptly Executed. KoTE. — r^ avoid confusing our firm with any of a similar name, we bez to notify that we have no connexion whatever with any other house of business, and we respectfully request that Corre- spondents will take special care to direct all communications to the above names and a ddress. — Digitized by Microsoft® STEVENS 6- HAYNES, BELL YARD, TEMPLE BAR. INDEX OF SUBJECTS. ABSTRACT DRAWING— Scott ........ 32 ADMINISTRATION ACTIONS— Walker and Elgood 18 ADMINISTRATORS— Walker 6 ADMIRALTY LAW— Kay 17 Smith 23 ARBITRATION— Slater 7 ARTIZANS AND LABOURERS' DWELLINGS— Lloyd .... 13 BANKRUPTCY— Baldwin 15 Hazlitt 29 Indermaur (Question & Answer) 28 Ringwood ^ . , 15, 29 BAR EXAMINATION JOURNAL 39 BIBLIOGRAPHY 40 BILLS OF LADING— Campbell . 9 Kay 17 BILLS OF SALE— Baldwin 15 Indermaur 28 Ringwood ■ 'S BUILDING LEASES AND CON- TRACTS— Emden 8 Hudson 12 CAPITAL PUNISHMENT— Copinger 42 CARRIERS— .Jefi RAILWAY LAW. „ SHIPMASTERS. CHANCERY DIVISION, Practice of— Brown's EjJition of Snell ... 22 Indermaur 25 Williams 7 And w EQUITY. CHARITABLE TRUSTS— Cooke 10 Whiteford 20 CHURCH AND CLERGY— Brice g CIVIL 'LAVf—See ROMAN LAW. CLUB LAW— Wertheimer 32 CODES— Argles 32 COLLISIONS AT SEA— Kay . , 17 COLONIAL LAW— Cape Colony 38 Forsyth 14 Tarring 41 COMMERCIAL AGENCY— Campbell 9 COMMERCIAL LAW— Hurst and Cecil II COMMON LAW— Indermaur 24 COMPANIES LAW— Brice 16 Buckley 17 Reilly's Reports 29 Smith 39 Watts 47 COMPENSATION— Browne 19 Lloyd 13 COMPULSORY PURCHASE— Browne 19 CONSTABLES— .?«« POLICE GUIDE. CONSTITUTIONAL LAW AND HISTORY— I^orsyth 14 Taswell-Langmead 21 Thomas 28 CONSULAR JURISDICTION— Tarring 42 CONVEYANCING— Copinger, Title Deeds .... 45 Copinger, Precedents in ... 40 Deane, Principles of 23 COPYRIGHT— Copinger 45 CORPORATIONS— Brice 16 Browne 19 COSTS, Crown Office- Short 41 COVENANTS FOR TITLE— Copinger , . 45 CREW OF A SHIP— Kay 17 CRIMINAL LAW— Copinger 42 Harris 27 CROWN LAW— Forsyth 14 Hall 30 Kelyng 35 Taswell-Langmead . . , . . 21 Thomas 28 CROWN OFFICE RULES— Short 10 CROWN PRACTICE— Corner 10 Short and Mellor ' . 10 CUSTOM AND' USAGE— Browne 19 Mayne ....,..., 38 DAMAGES— Mayne 31 DICTIONARIES— Brown 26 Digitized by Microsoft® STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. INDEX OF SUBJECTS-«»'«»««'^. DIGESTS— PAGE Law Magazine Quarterly Digest . 37 Menzies' Digest of Cape Reports. 38 DISCOVERY— Peile 7 DIVORCE— Harrison 23 DOMESTIC RELATIONS— Eversley g DOMICIL— j-ee PRIVATE INTER- NATIONAL LAW. DUTCH LAW 38 ECCLESIASTICAL LAW— Brice 9 Smith 23 EDUCATION ACTS— See MAGISTERIAL LAW. ELECTION LAW and PETITIONS— Hardcastle 33 O'Malley ani Hardcastle ... 33 Seager 47 EQUITY— Blyth 22 Choyce Cases • • 35 Pemberton .... ... 32 Snell 22 Story 43 Williams 7 EVIDENCE— Phipson 20 EXAMINATION OF STUDENTS— Bar Examination Journal ... 39 Indermaur 24 and 25 Intermediate LL.B 21 EXECUTORS— Walker and Elgood 6 EXTRADITION- Clarke 45 , See MAGISTERIAL LAW. FACTORIES— ,. See MAGISTERIAL LAW. FISHERIES— See MAGISTERIAL LAW. FIXTURES— Brown 33 FOREIGN LAW— Argles 32 Dutch Law .38 Foote 35 Pavitt 32 FORESHORE— Moore 30 FORGERY— ^■^s MAGISTERIAL LAW. FRAUDULENT CONVEYANCES— May 29 GAIUS INSTITUTES— -r Harris. 2C GAME LAWS— : See MAGISTERIAL LAW. GUARDIAN AND WARD— £ Eversley ........ 9 HACKNEY CARRIAGES— , See MAGISTERIAL l^^gjtized b^ HINDU LAW— Coghlan 28 Cunningham 38 and 42 Mayne 38 HISTORY— Taswell-Langmead 21 HUSBAND AND WIFE— Eversley 9 INDEX TO PRECEDENTS— Copinger 40 INFANTS— Eversley 9 Simpson 43 INJUNCTIONS— Joyce -.44 INSTITUTE OF THE LAW— Brown's Law Dictionary ... 26 INSURANCE— Porter 6 INTERNATIONAL LAW— Clarke 45 Cobbett 43 Foote 36 Law Magazine 37 INTERROGATORIES— Peile 7 INTOXICATING LIQUORS— See MAGISTERIAL LAW. JOINT STOCK COMPANIES— See COMPANIES. JUDGMENTS AND ORDERS— Pemberton 18 JUDICATURE ACTS— Cunningham and Mattinson . . 7 Indermaur 25 Kelke 6 JURISPRUDENCE— Forsyth 14 Salmond 13 JUSTINIAN'S INSTITUTES— Campbell 47 Harris 20 LANDLORD AND TENANT— Foa ir LANDS CLAUSES CONSOLIDA- TION ACT— Lloyd 13 LAND, IMPROVEMENT OF, by Buildings — Emden 8 LATIN MAXIMS 28 LAW DICTIONARY— Brown 26 LAW MAGAZINE and REVIEW. 37 LEADING CASES— Common Law 25 Constitutional Law . ... 28 Equity and Conveyancing ... 25 Hindu Law 2S STEVENS &> BAYNES, BELL YARD, TEMPLE BAR. I N D EX O F 8 U B J ECTS-««''«'«'/- / . PAGE LEADING STATUTES— : ' Thomas 28 LEASES— Emden 8 Copinger. -45 LEGACY AND SUCGESSION— ' Hanson 10 LEGITIMACY AND MARRIAGE— ' See PRIVATE INTERNA- TIONAL LAW. LICENSES— fe MAGISTERIAL LAW. L'IFE ASSURANCE— Buckley . . 17 Reilly , . 29 LIMITATION OF ACTIONS— Bannins; 42 LUNACY— Williams 7 MAGISTERIAL LAW— Greenwood and Martin .... 46 MAINTENANCE AND DESERTION. Mai-tirt 7 MARRIAGE and LEGITIMACY— Foote . . . 36 MARRIED WOMEN'S PRO- PERTY ACTS— Brown's Edition of Griffith . . 40 MASTER AND SERVANT- Eversley 9 See MAGISTERIAL LAW. „ SHIPMASTERS & SEAMEN. MERCANTILE LAW ..... 32 Campbell .■ 9 Duncan 33 Hurst and Cecil 11 Slater 7 See SHIPMASTERS. „ STOPPAGE IN TRANSITU. MERCHANDISE MARKS - Daniel 42 MINES— Plarris 47 See MAGISTERIAL LAW. MORTMAIN— See CHARITABLE TRUSTS. NATIONALITY— 5cc PRIVATE IN- TERNATIONAL LAAV, NEGLIGENCE— Beven 14 Campbell . 40 NEWSPAPER LIBEL— Elliott 14 OBLIGATIONS— Brown's Savigny 20 PARENT AND, CHILD— Eversley ....,.,. 9 PARLIAMENT— Taswell-Langmead 21 Thomas 28 Digitiz e d by PARTITION— , Walker 43 PASSENGERS— See MAGISTERIAL LAW. „ RAILWAY LAW. PASSENGERS AT SEA— kay 17 PATENTS— Daniel , . . 42 Frost . . ; . . . .' . . 12 PAWNBROKERS— See MAGISTERIAL LAW. PETITIONS IN CHANCERY AND LUNACY— Williams 7 PILOTS— Kay . 17 POLICE GUIDE— Greenwood and Martin . . . 46 POLLUTION OF RIVERS— Higgins 30 PRACTICE BOOKS— Bankruptcy 15 Companies Law .... 29 and 39 Compensation . . . _ . . . . 13 Compulsory Purchase . . . . 19 Conveyancing 45 Damages 31 Ecclesiastical Law 9 Election Petitions 33 Equity 7, 22 and 32 Injunctions 44 Magisterial 46 Pleading, Precedents of . . . 7 Railways 14 Railway Commission . . . . 19 Rating 19 Supreme Court of Judicature . . 25 PRACTICE STATUTES, ORDERS AND RULES— Emden . .11 PRECEDENTS OF PLEADING— Cunningham and Mattinson . . 7 Mattinson and Macaskie ... 7 PRIMOGENITURE— Lloyd 13 PRINCIPLES— Brice (Cotporations) ... , , . 16 ■ Browne (Rating) .19 Deane (Conveyancing) .... 23 Harris (Criminal Law) .... 27 Houston (Mercantile) 32 Indermaur (Common Law) . . 24 Joyce (Injunctions) 44 Ringwood (Bankruptcy) ... 15 Snell (Equity) . .... 22 PRIVATE INTERNATIONAL LAW— Foote ......... 36 MieFoseft® STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. INDEX OF ^KJi^i^OT^-continued. PAGE TROBATE— Hanson ro Harrison 23 PROMPTERS— ' Watts . . ' 47 PUBLIC WORSHIP— Brice 9 QUARTER SESSIONS— Smith(F. J.) 6 QUEEN'S BENCH DIVISION, Practice of— Indermaur . _ 25 QUESTIONS FOR STUDENTS— Aldred 21 Bar Examination Journal ... 39 Indermaur 25 Waite 22 RAILWAYS— Browne 19 Godefroi and Shortt 47 Sei MAGISTERIAL LAW. RATING— Browne 19 REAL PROPERTY— -Deane . 23 Edwards 16 Tarring 26 REGISTRATION— Elliott (Newspaper) .... 14 Seager (Parliamentary) .... 47 REPORTS— Bellewe 34 Brooke 35 Choyce Cases 35 Cooke 35 Cunningham 34 Election Petitions 33 Finlason 32 Gibbs, Seymour Will Case . . 10 Kelyng, John 35 ICelynge, William 35 Reilly , ... 29 Shower (Cases in Parliament) . 34 ROMAN DUTCH LAW— Van Leeuwen 3S ROMAN LAW— Brown's Analysis of Savigny . . 20 . Campbell 47 Harris 20 Salkowski 14 Whitfield 14 SALVAGE— Jones 47- Kay 17 SANITARY ACTS— i-ec MAGISTERIAL LAW. SAVINGS BANKS— ■Forbes . .18 SCINTILLAE JURIS - Darling (C. J.) 18 Digitized by SEA SHORE— PACJE Hall. 30 Moore 30 SHIPMASTERS AND SEAMEN— Kay 17 SOCIETIES— See CORPORATIONS. STAGE CARRIAGES— See MAGISTERIAL LAW. STAMP DtfTIES— Copinger 40 and 45 STATUTE OF LIMITATIONS— Banning ........ 42 STATUTES— Craies 9 Hardcastle . 9 Marcy 26 Thomas 28 STOPPAGE IN TRANSITU— Campbell 9 Houston 32 Kay 17 STUDENTS' BOOKS . 20—28, 39, 47 SUCCESSION DUTIES— Hanson 10 SUCCESSION LAWS- Lloyd .13 SUPREME COURT OF JUDICA- TURE, Practice of— Cunningham and Mattinson . -. 7 Indermaur 25 TELEGRAPHS— See MAGISTERIAL LAW. TITLE DEEDS— Copinger 45 TORTS— Ringwood 13 TOWNS IMPROVEMENTS— Sie MAGISTERIAL LAW. TRADE MARKS— Daniel 42 '< TREASON— Kelyng .35 Taswell-Langmead . . . . -,"21 TRIALS— Bartlett, A. (Murder) . . 32 Queen v. Gurney 32 ULTRA VIRES— Brice , , . 16 USAGES AND CUSTOMS— Browne 19 Mayne 38 VOLUNTARY CONVEYANCES— May 29 WATER COURSES.— Higgins 30 WILLS, CONSTRUCTION OF— Gibbs, Report of Wallace zi. Attorney-Geiieral,. .... 10 IVIicrosoft®. ^ __ 6 STEVENS (5r» HAYNES, BELL YARD, TEMPLE BAR. Second Edition, in 8vo. Price 2ls., cloth, THE LAWS OF INSURANCE: dFire, ILtfe, accident, anir ffiuarantee. EMBODYING ■ CASES IN THE ENGLISH, SCOTCH, IRISH, AMERICAN, AND CANADIAN COURTS. By JAMES BIGGS PORTER, OF THE INNER TEMPLE AND SOUTH EASTERN CIRCUIT, BARRISTER- AT -LAW. ASSISTED BY W. FEILDEN CRAIES, M.A., OF THE INNER TEMPLE AND WESTERN CIRCUIT, BARRISTER -AT-L AW. ' In reviewing the first edition of this book we expressed an opinion that it was a painstaking and useful work. Its utility has been shown by the speedy appearance of the present edition, and the labour of its authors is still ^.pparent to anyone who will glance through its pages." — Solicitors Journal. " The success of the first 'edition proves its value. It is clearly and concisely compiled, and upwards of 1,500 cases are quoted." — Laiu Times. 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"The notes are very pertinent and satisfactory : the introductory chapters on the present system of pleading are excellent, and the precedents will be found very nsziuV— Irish Law Times. _ . , "A work which, in the compass of a single portable volume, contains a brief Treatise on the Principles and Rules, of Pleading, and a carefully annotated body of Forms which have to a great extent gone through the entirely separate sifting processes of Chambers, Court, and Judges' Chambers, cannot fail to be a most useful companion in the Practiticaer's daily routine."— £aiu Maga^ie andKeviemi. STEVENS &- HAYNES, BELL Y4RI), TEMPLE BAR. Second. Edition, in. 8vD, price 25.?., cloth, REMODELLED, MUCH ENLARGED, WITH SEVERAL NJETV CHARTERS ON ".LIGHT," "SUPPORT," ETt. EMDEN'S LAAV IIELA.TING TO BUILDING, BUILDING LEASES,- AND BUILDING CONTRACTS. WITH A FULL COLLECTION ;0F PRECEDENTS, TOGETHER WITH THE STATUTE LAW RELATING TO BUILDING, WITH NOTES AND THE LATEST CASES UNDER THE VARIOUS SECTIONS. 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It can only be said, therefore, that the book is deserving of success upon the merits ; and that the attempt to combine the treatment of three branches of the law which have hitherto been unnaturally divided shows, in itself, a comprehensive grasp of principle." — Laiv -Ti7nes. "The author may be congratulated upon having produced an excellent treatise- on this branch of the law, well arranged, clearly written, and complete. A word of praise, too, must be accorded to the laborious care with' which he has accumulated references to the various Reports, and constructed his very full index," — Solicitors' Journal. Second Edition, in one volume, royal Svo, price 32^., cloth, THE LAW RELATING TO THE SALE OF GOODS AND COMMERCIAL AGENCY. SECOND EDITION. By ROBERT CAMPBELL, M.A., OF Lincoln's inn, barrister- at-law ; advocate of the scotch bar, AUTHOR OF THE " LAW OF NEGLIGENCE, ' ETC. "An accurate, careful, and exhaustive handbook on the subiect with which it deals. The excellent index deserves a special word of commendation." — Law Quarterly Review. " We can, therefore, repeat what we said when reviewing the first edition— that the book is a contribu- tion of value to the subject treated of, and tl^t the' writer deals with his subject carefully and fully." — Law Jourtial. Second Edition, in one volumej 8vo, price 28^., cloth, A TREATISE ON THE CONSTRUCTION AND EFFECT OF STATUTE LAW. WITH APPENDICES CONTAINING WORDS AND EXPRESSIONS USED IN STATUTES WHICH HAVE BEEN JUDICIALLY OR STATUTABLY CONSTRUED, AND THE POPULAR AND SHORT TITLES OF CERTAIN STATUTES. By HENRY HARDCASTLE, Barrister-at-law. SECOND EDITION, REVISED AND ENLARGED, by W. F. CRAIES, BARRISTER-AT-LAW. " The result of Mr. Craies' industry is a sound and good piece of work, the new light thrown on tlje, subject since 1879 having been blended wiih the old in a thoroughly workmanhke manlier^ Though less a student's manual than a practitioner's text-book, it is the sort of voltlme an intelligent perusal of which , would educate a student better than the reading of much substantial law. "^i'atorifo)' A'rozero. In one volume, 8vo, price 2&S., cloth, THE LAW RELATING TO PUBLIC WORSHIP ; With special reference to Matters of Ritual and Ornamentation, and the Means of Securing: the Due Observance thereof, and containing in extenso, with Notes and ^ References, The Public Worship Regulation Act, 1874; The Church Discipline I Act ; the various- Acts of Uniformity; the Liturgies of 1549, 1552, and 1559, compared with the Present Rubric ; the Canons ; the Articles ; and the Injunc- tions, Advertisements;/M»d,^ 12 STEVENS dr= HAVNES, BELL YARD, TEMPLE BAR. Just published, in royal 8vo, cloth, 28^., A TREATISE ON THE LAW AND PRACTICE RELATING TO LETTERS PATENT FOR INVENTIONS. WITH AN APPENDIX OF STATUTES, INTERNATIONAL CONVENTION, RULES, FORMS AND PRECEDENTS, ORDERS, &c. By ROBERT FROST, B.Sc. (Lond,), FELLOW OF THE CHEMICAL SOCIETY ; OF LINCOLN'S INN, ESQUIRE, BARRISTER-AT-LAW. " In our view a good piece of work may create a demand,' and without disparaging existing literature upon the subject of patents, we think the care and skill with which the volume by Mr. Frost has been compiled entitles it to recognition at the hands of the profession. . . . Judging Mr. Frost on this ground, we find him completely satisfactory. A careful examination of the entire volume satisfies us that great care and much labour have been devoted to the production of this treatise, and we think that patent agents, solicitors, the bar and the bench, may confidently. turn for guidance and instruction to the pages of Mr. Frost." — Law Times, "Few practice books contain so much in so reasonable a space, and we repeat that it will be found generally useful by practitiotiers in this important branch of the law. ... A capital index concludes the book." — Law Journal. "The book is, as it professes to be, a treatise on patent law and practice, the several topics being con- veniently arranged and discussed in the thirteen chapters which foi'm the body of the work, to which are appended statutes, rules, and forms. The statements of the law, so far as we have been able to test them, appear to be clear and accurate, and the author's style is pleasant and good. . . . The book is & good one, and will make its way. The index is better than usual. Both paper and'.type are also excellent."— iS'iJ/z«V(>rj' yournal. In royal 8vo, price 36^., cloth, A PRACTICAL TREATISE ON THE LAW OF BUILDING AND ENGINEERING CONTRACTS, And of the DUTIES and LIABILITIES of ENGINEERS, ARCHITECTS, SURVEYORS AND VALUERS, WITH AN APPENDIX OF PRECEDENTS, ANNOTATED BY MEANS OF REFERENCE TO THE TEXT AND TO CONTRACTS IN USE. AND AN APPENDIX OF UNREPORTED CASES ON BUILDING AND ENGINEERING CONTRACTS. By ALFRED A. HUDSON, ; OF THE INNER TEMfLE, BARRISTER-AT-LAW. " A very full index completes the book. Mr. ;Hudson has struck out^a ne^v line for himself, and pro- duced a work of considerable merit, and one which will probably be found indispensable by practitioners, iriasmuch as it contains a great deal that is not to be found elsewhgre. The Table of Cases refers to all the reports." — Law ypurnal. " Mr. Hudson, having abandoned his profession of an architect to become a barrister, hit upon the idea of writing this work, and he has done it with a thoroughness which every houseowner would like to see bestowed upon modern houses The Index and Table of Cases reveal a vast amount of industry expended upon detail, and we shall be much surprised if Mr. Hudson does not reap the reward of his labours by obtaining a large and appreciative public." — Law Times. *' The author of this somewhat bulky volume has, within the, compass of some 900 pages, dealt ,in a practical and exhaustive manner with the Law of Building and Engineering Contracts. . . . Aji Index of Precedents and a good General Index will be found at the end, of the yfOvW^^Solzcitors* yournal. "... has enabled him to produce a work which, regarded both from the lawyer's and from the ai-chitect's and builder's point of view, must be pronounced excellent. It is good from the lawyer's standpoint as being logical m arrangement, clear in statement, and generally accurate in the law laid down. The archi- tect or engineer will also give it praise for answering the questions precisely which arise in his dealings w ith his e„.plcyers."-i-.....»...„.g .^.^^^ ^^ MrrO.^OffCR) STEVENS &-HAYNES, BELL YARD, TEMPLE BAR. J3 Second Edition. In 8vo, price loj. dd., cloth, OUTLINES OF THE LAW OF TORTS. By RICHARD RINGWOOD, M.A., OF THE MIDDLE TEMPLE, BARRISTER- AT-LAW ; AUTHOR OF "PRII^CIPLES OF BANKRUPTCY," &C., AND LECTURER ON COMMON LAW TO THE INCORPORATED LAW SOCIETY. "This is a work by the well-known author of a student's book on Bankruptcy. Its groundwork is a series of lectures delivered in 1887 by Mr. Ringwood, as lecturer appointed by the Incorporated Law Society. It is clear, concise, well and intelligently written and one rises from its perusal with feelings of pleasure. . . . After perusing the entire work, we can conscientiously recommend it to students." — Laiv Students' journal. " The work is one we well recommend to law students, and the able way in which it is written reflects much credit upon the author." — Law Times, "Mr. Ringwood's book is a plain and straightforward introduction to this branch of the law." — Law yournal. Sixth Edition, in 8vo, nearly ready. THE LAW OF COMPENSATION FOR LANDS, HOUSES, &c. UNDER THE LANDS CLAUSES, RAILWAYS CLAUSES CONSOLIDATION AND METROPOLITAN ACTS, THE ARTIZANS AND LABOURERS' DWELLINGS IMPROVEMENT ACT, 1873, WITH A FULL COLLECTION OF FORMS AND PRECEDENTS. By eyre LLOYD, OF THE INNER TEMPLE, BARRISTER- AT- LAW. SIXTH EDITION. By W. J. BROOKS, OF THE. INNER TEMPLE, BARRISTER-AT-LAW. " In providing the le^al profession with, a book 'which contains the decisions of the Courts of Law a?id Equity upon the various statutes relating to the Law of Compensation, Mr. Eyre Lloyd lias long since left all competitors in the distance, and his book may how be considered the standard work upon tlie sub- ject. The plan of Mr. Lloyds book is generally known, arid its lucidity is appreciated ; the present quite fulfils all the promises of the preceding editions^ a7ui contains in addition to other matter a complete set of forms under t/ie Artizans and Labourers Act, 1875, and specimens of Bills of Costs, which will be found a novel feattfrej extremely useful to legal practitioners." — Justice of the Peace. . ■ In 8vo, price 7j., cloth, THE SUCCESSION LAIS OF CHRISTIAN COUNTRIES, WITH SPECIAL REFERENCE TO THE LAW OF PRIMOGENITURE AS IT EXISTS IN ENGLAND. By eyre LLOYD, B.A., Barrister-at-Law. In crown 8vo, price 6j. , cloth, ESSAYS IN JURISPRUDENCE AND LEGAL HISTORY, By JOHN W. SALMOND, M.A., LL.B. (Lond.), A BARRISTER OF THE SUPREME COURT OF NEW ZEALAND. In crown 8vo, pride 6j-., cloth. THE FIRST PRINCIPLES OF JURISPRUDENCE. By JOHN W. SALMOND, M.A., LL.B., barkiste'k-at-law ; '^^f^ffgfti^'(f'f5y'f\/lKiKfSf^t®'"^^ '^'"' •'-^''''^ history." 14 STEVENS 6- HAYNES, BELL YARD, TEMPLE BAR. Second Edition, in two volumes, royal 8vo, nearly ready. PRINCIPLES OF THE LAW OF NEGLIGENCE. By THOMAS BEVEN, OF THE INNER TEMPLE, BAERISTER-AT-LAW ; AUTHOR OF " THE LAW OF EMPLOVERS'^ LIABILITY FOR THE NEGLIGENCE OF SERVANTS CAUSING INJURY TO FELLOW-SERVANTS." SECOND EDITION revised aftd considerably enlarged. ' ' He has treated the well-known subject of Negligence in a scientific way, and has not been content with merely collecting, in more or less relevant positions, a number of cases which anyone could find for himself in any Digest of Law Reports, but has endeavoured to reduce from the chaos of decided^ cases a systematic study of the subject, with clear enunciations of the principles he finds governing the various decisions. In the arrangement of the book the author has been very happy in his method, a by no means easy task in the treatment of a subject in which each branch of it in reality overlaps another. ... A good index and clear type increase the value of a book which will without doubt receive the hearty commendation of the profession as a successful completion of the author's ambitious task." — Law Times. '* The reader who takes these as samples of the work, will find how careful and exhaustive Mr. Beven has been, and how valuable a contribution he has made to the important branch of the law with which he has undertaken to d&^V —Solicitor's Journai. " In respect of the style of treatment of the subject, the book must be highly commended. It will be of service to every lawyer who wishes rather to get an intelligent understanding of the Law of Negligence, than merely to find correct and reliable legal propositions for practical use, and that whether he be a student or a practitioner. To the student the work is valuable for the searching and well-sustained discussion of the cases ; and to the practitioner there are presented all the cases that bear on most points for which he may be in search of authority. One of the chief merits of the work is, that all the available authority on each point is collected and so arranged that it can be easily found." — Juridical Review. " Contains evidence of much serious work, and ought to receive a fair trial at the hands of the profes- sion." — Law Quarterly Review. " This is the most elaborate work on the Law of Negligence which has yet appeared in England.^ . . . His treatment is original, and has evidently not been adopted without great research, care, and revision." — Law Journal. In one large voL, 8vo, price 32J., cloth, INSTITUTES AND HISTORY OF ROMAN PRIVATE LAW, WITH CATENA OF TEXTS. By Dr. CARL SALKOWSKI, Professor of Laws, Konigsberg. Translated and Edited by E. E. Whitfield, M.A. (Oxon.). In 8vo, price 4^. dd. , cloth, THE NEWSPAPER LIBEL AND REGISTRATION ACT, 1881. With a statement of the Law of Libel as affecting Proprietors, Publishers, and Editors of Newspapers. By G. Elliott, Barrister-at-Law, of the Inner Temple. In one volume, royal 8vo, CASES AND OPINIONS ON CONSTITUTIONAL LAW, AND VARIOUS POINTS OF ENGLISH JURISPRUDENCE. Collected and Digested from Official Documents and other Sources; with Notes. By William Forsyth, M.A., M.P., Q.C., Standing Counsel to the Secretary of State in Council of India, Author of " Hortensius,"." History of Trial by Jury," "Life of Cicero," etc., late Fellow of Trinity College, Cambridge. _, Digitized by Microsoft® STEVENS &-- HAYNES, BELL YARD, TEMPLE BAR. 15 Fifth Edition, iij 8vo, price \os. 6d., cloth, THE PRINCIPLES OF BANKRUPTCY. WITH AN APPENDIX, CONTAINING THE CONSOLIDATED RULES OF 1886 & 1890, SCALE OF COSTS, 1886, AND THE BILLS OF SALE ACTS, 1878, 1882 & 1890, Etc. Etc. By RICHARD RINGWOOD, M.A., OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW J LATE SCHOLAR OF TRINITY COLLEGE, DUBLIN. "This edition is a considerable improvement on the first, and although chiefly written for the use of Students, the work will be found useful to the practitioner."— Z-flW/ Times, ] *' Those who have to deal with the subject in any of its practical legal aspects will do well to consult Mr. Ringwood's unpretending but useful volume." — I^a-w Magazine. "His book does not profess to be an exhaustive treatise on bankruptcy law, yet in a neat and compact volume we have a vast amount of welL-digested matter. The reader is not distracted and puzzled by having a long list of cases flung at him at the end of each page, as the general effect of the law is stated in a few well-selected sentences, and a reference given to the leading decisions only on the subject. . . . An excellent index, and a table of cases where references to four sets of contemporary reports may be seen at a glancBj show the industry and care with which the work has been done." — Daily Paper. Sixth EditioHj 1890, in royal l2mo, price 20.r., cloth, With Supplement, \%<^\, containing the Act and Rules ^ 1890, A TREATISE UPON THE LAW OF BANKRUPTCY AND BILLS OF SALE. WITH AN APPENDIX CONTAINING THE BANKRUPTCY ACT, 1883 ; GENERAL RULES and FORMS OF 1886; SCALE OF COSTS AND FEES OF 1886; RULES UNDER S. 122 of 1888; BANKRUPTCY (COUNTY COURT APPEALS) ACT, 1884; BANKRUPTCY DISCHARGE ACT, 1887; RULES AND FORMS; BANKRUPTCY (PREFERENTIAL PAYMENTS) ACT, 1888; DEEDS OF ARRANGEMENT ACT, 1887; RULES AND FORMS; BOARD OF TRADE AND COURT ORDERS; DEBTORS ACTS, 1869, 1878, and RULES, 1889; BILLS OF SALE ACTS, 1878, 1882, and RULES, 1883. By EDWARD T. BALDWIN, M.A., OF THE INNER TEMPLE, BAHRISTER-AT-LAW. *,* The Supplement may be had separately, price 3X. cloth. " His new edition is in every respect satisfactory."— iuK) Times. .'"It is a tlioroughly good and reliable work. . . . We tliink— as practitioners— that we would rather have tliis book than any other on the same subject in our library."- Xost_ compendibuSy and as far' as we have beeh able to' examine it, as accurate as any law book can be expected to be."— ?Zfli«/7'«K£,s. ".We are of opinion that Mr. Phipson has pro*; duced a book whichwill be found very serviceable, not only for practitioners, but also for students. ' We have tried it. in a. good many places, and we find' 'that it is well broiight down to date."— Z-aw In 8vo, 1878, price 6j., cloth,- /■ TI-IE , , . \ LAW RELATING TO CHARITIES, ESPECIALLY WITH R&FERENCE TO THE VALIDITY AND CONSTRUCTION OF :' CHARITABLE BEQUESTS AND CONVEYANCES. By FERDINAND M. WHITEFORD, ofLincoln's Inn, Barrister-at-Law. In 8vo, 187.2, price 7^. 6d., cloth, AN EPITOME' AND, ANALYSIS OF. SAYIGNY'S TREATISE ON OBLIGATIONS IN ROMAN LAW. By ARCHIBALD BROWN, M.A. , EDIN. AND OXON., AND B.C.L. OXON., OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW, " Mr. Archibald Brown deserves the thanks | the_ French translation consisting of two volumes, of all interested in the science of Law, whether ; with some five hundred pages apiece, as compared as a study or a practice, for his edition of I with Mr. Brown's thin volume of a hundred and Herr von Savigny's great work on 'Obligations.' ] fifty pages. At the same, time the. pith of Von Mr. Brown has^ undertaken a double task — the ,; Savigny's matter seems to, be very successfully pre- translation of his author, and the analysis of his y served, nothing which iilight be- 'useful to the author's matter. That he has succeeded in reducing : English reader being apparently omitted." — Law the bulk of the original will be seen at a glance ; . Journal. THE ELEMENTS OF ROMAN LAW, Second Edition, in crown 8vo, price 6^., cloth, A CONCISE DIGEST OF THE INSTITUTES OF GAIUS AND JUSTINIAN. With copious References arranged in Parallel Columns, also Chronological and Analytical Tables, LJsts of Laws, Sfc. Sr^c, Primarily designed for the Use of Students preparing for Examination at Oxford, Cambridge, and the Inns of Court. By SEYMOUR F. HARRIS, B.C.L., M.A., WORCESTER COLLEGE, OXFORD, AND THE INNER TEMPLE, BARRISTER-AT-LAW ; AUTHOR OF " UNIVERSITIES AND LEGAL EDUCATION." " Mr. Hams's digest ought to have very great success among law students both in the Inns of Court and the Universities. His book gives evidence of praiseworthy accuracy a7td laborious condensation,"— "LiAV^ Journal. " This book contains a summary in English of the elements of Roman Law as contained in the works of Gaius and Justinian, and is so arranged that the reader can at once see what are the opinions of either of these two writers on each point. From the very exact and accurate references to titles and sections given he can at once refer to the original writers. The concise manner in which Mr. Harris has arranged his digest will render it most usefiil, not only to the sttidentsfor whom it was originally Written, but also to those persons who, though they have not the time to wade through the larger treatises of Paste, Sanders, Ortolan, and others, yet desire to obtain some knowledge of Roman Law." Oxford and Cambridge Undergraduates' Journal. '^Mr. Harris deserves the credit of having produced an epitome which will be of service to those numerous students who have no time or sufficient ability to analyse the Institutes for themselves," — Law Times, :. ~ — , Digitized by Microsoft® , WORKS' ^FOR LAW students:' i\ Fourth Edition, :in 8vo, price 2ij., cloth, ENGLISH CONSTITUTIONAL HISTORY: FROM THE TEUTONIC INVASION TO THE PRESENT TIME. '§zex^)i ■&& a^fxt-iirplt:(Dr-,§t«li«-n.ta anb. othcfB, By T. p.. TASWELL-LANGMEAD, B.C.L., OF Lincoln's inn, BAKRiSTEE-A;r-LAw,, eormerly v^nerjan scholar in the university, AND LATE PROFESSOR OF CONSTITUTIONAL LAW AND HISTORY, UNIVERSITY COLLEGE, LONDON. , '■ Fourth Edition, Revised' throughout,' with Notes and Appendices.- ^ '■ By C. H. E. Carmichael, M.A. Oxon. ,, "Mr. Carmichael has performed his allotted task with credit to himself, and the high standard of excellence attained by Tas well- Lang mead's treatise is worthily maintained. This, the third edition, will be found as useful as its predecessors to the large class of readers and students who seek in its pages ■accurate knowledge of the history of the constitution." — Laiv Thnes. . , ■ - ■ "To the student of constitutional law this work will be invaluable The book is remarkable for the raciness and vigour of its style. The editorial contributions of Mr. Carmichael are judicious, and add much to the value of the work." — Scottish Law Review. *' The work will continue to hold the field as the best class-book on thesubject." — Contemporary Review. '* The book is well known as an admirable introduction to the study of constitutional law for students at law Mr. Carmichael appears to have done the work of editing, made necessary by the death of Mr. Tas well- Langmead, with care and judgment." — Law JouT-nai. " The work before us it would be hardly possible to praise too highly. In style, arrangement, clearness, and size, it would be difficult to find anything better on the real history of England, the history of its constitutional growth as a complete story, than this volume." — Boston {l/.S.) Literary World. "As it now stands, we should find it hard to name a better text-book on English Constitutional History." — Solicitors' younial, '* Mr. Taswell-Langmead's compendium of the rise and development of the English Constitution has evidently supplied a want The present Edition is greatly improved. . . . We have ho hesitation in saying that it is a thoroughly good and useful work." — Spectator. " It is a safe, careful, praiseworthy digest and manual of all constitutional history and law." — Glohe, "The volume on English Constitutional History, by Mr. Taswell-Lahgrnead, is exactly what such a history should be." — Standard. - . — __.__.. " Mr. Taswell-Langmead has th,oroughly grasped the bearings of his subject. It is, however, in dealing with that' chief subject of constitutional history — parliamentary government^— that the work exhibits its great superiority over its rivals." — Acadeiny. Second Edition, in 8vo, price 6j., cloth, HANDBOOK TO THE INTERMEDIATE AND FINAL LL.B. OF LONDON UNIVERSITY"; , <- * (PASS AND HONOURS), iNCLtJDiNG A COMPLETE SUMMARY' OF ''AUSTIN'S JURISPRUDENCE," AND THE EXAMINATION PAPERS of. LATE YEARS IN ALL'BRANCHES. By a B.A., LL.B. (Lond.). " Increased in size and usefulness. . . . The book will undoubtedly be of hel^ to those students who prepare tliemselves for examination. . . . The Appendix contains a good selection of papers set at the different examinations." — Law Times. _ _ . "A very good handboolc to the Intermediate and Final LL.B. by a B.A., LL.B." — Law Notes. In crowa 8vo, price y. ; , or Interleaved for Notes, price 4i. , • ,. CONTRACT LAW. QUESTIONS ON THE LAW OF CONTRACTS. With Notes to the Answers. Fotmded on " Anson "'" Chitty," and "■Pollock." By Philip Foster Ald red, D.C.L.,. Hertford College . andi Gray's Inn ; late Examiner for the University of Oxford. " This appears to us a very ^JmiraUe selection of. questionSj^mparing faypurably with the average run of these set in examinatioris.U/gllSZiff OrJaJ^ jfUflfiCOSOM® progress. '—Lam Journal. 22 WORKS FOR LAW STUDENTS. Eleventh Edition, in 8vo, price 2ij., cloth, THE PRINCIPLES OF EQUITY. INTENDED FOR THE USE OF STUDENTS AND THE PROFESSION. By EDMUND H. T. SNELL, OF THK MIDDLE TEMPLE, BARRISTER-AT-LAW. ELEVENTH EDITION. By ARCHIBALD BROWN, M.A. Edin. & Oxon., & B.C.L. Oxon., OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW ; AUTHOR OF " A NEW LAW DICTIONARY," "an ANALYSIS OF SAVIGNY ON OBLIGATIONS," AND THE " LAW OF FIXTURES." REVIEWS. " Mr. Brown's long experience (he has edited seven editions of this book) has enabled him so to treat the subject as to be invaluable to students." — Law Journal. "This work on the ' Principles of Equity' has, since the publication of the First Edition, been recognised as the best elementary treatise on the subject, and it would not be necessary to say more of, this Edition, than to mention the fact of its publication, were it not for the fact that the author, Mr. Snell, is dead, and the late Editions have been brought out under the care of Mr. Brown. It seldom happens that a new editor is able to improve on the work of his predecessor in its plan or its details. But in the case of the present work we find that each edition is a manifest improvement on the former ones, and well as Mr. Snell did his work we discover that Mr. Brown has done it better."— /rzVi Lauu Times. " This is the Ninth Edition of certainly one of the best, and probably the most widely read, text-books, which deals with any part of the English law." — Oxford Magazi?ie. " It is ample proof of the popularity of ' Snell's Principles of Equity ' that it has now reached its Ninth Edition in the hands of Mr. Archibald Brown." — Law Times. " This is now unquestionably the standard book on Equity for st\xAQnis."—Saiitrday Review. " On the whole, we are convinced that the Sixth Edition of Snell's Equity is destined to be as highly thought of as its predecessors, as it is, in our opinion, out and out the best work on the subject with which it deals." — Gibson's Law Notes. " We know of no better introduction to the Principles of Equity.^* — Canada Law Journal "Within the ten years which have elapsed since the appearance of the first edition of this work, its reputation has steadily increased, and it has long since been recognised by students, tutors, and practitioners as the best elementary treatise on the important and difficult branch of the law which forms its subject." — Law Magazine and Review. Fifth Edition, in 8vo, in the Press. AN ANALYSIS OF SNELL'S PRINCIPLES OF EQUITY. Founded on the Eleventh Edition. With Notes thereon. By E. E. Blyth, LL.D., Solicitor. " Mr. Blyth's book will undoubtedly be very useful to readers of Snell." — Law Tifnes. "This is an admirable analysis of a good treatise ; read with Snell, this little book will be found verj' profitable to the student," — Law Journal. In 8vo, price 2j.j sewed, QUESTIONS ON EQUITY. FOR STUDENTS PREPARING FOR EXAMINATION. FOUNDED ON THE NINTH EDITION OF SNELL'S "PRINCIPLES OF EQUITY." By W. T. WAITE, BARRISTER-AT-LAW, HOLT SCHOLAR OF THE HONOURABLE SOCIETY OF GRAY's INN. Digitiz e d by Microsoft© — -. WORKS FOR LAW STUDENTS. 23 , Second Edition, in one volume, 8vo, price i8j., cloth, PRINCIPLES OF CONVEYANCING. AN ELEMENTARY WORK FOR THE USE OF STUDENTS. By henry C. DEANE, OF LlNCOLtj's INN, ,BARRISTER-AT-LAW, SOMETIME LECTURER TO THE INCORPORATED LAW SOCIETY OF THE UNITED KINGDOM. "?^fi hope to see this book, like SneWs Equity, a standard class-book in all Law Schools where English law is taught.'''' — Canada Law Journal. " We like the work, it is well written and is an excellent student's book, and being only just pub- lished, it has the great advantage of having in it all the recent important enactments relating to convey- ancing. It possesses also an excellent index." — L.a'w Students' your^ial, ** Will be found of great use to students entering upon the difficulties of Real Property Law. It has an unusually exhaustive index covering some fifty pages." — Law Times. '* In the parts which have been rewritten, Mr. Deape has preserved the same pleasant style marked by simplicity and lucidity which distinguished his first edition. After ' Williams on Real Property,' there is no book which we should so strongly recommend to the student entering upon Real Pro- perty Law as Mr. Deane's ' Principles of Convey- ancing,' and the high character which the first edition attained has been fully kept up in this second." — La-w yournal. Fourth Edition, in 8vo, price ioj., cloth, A SUMMARY OF THE LAW & PRACTICE IN ADMIRALTY. FOR THE USE OF STUDENTS. By EUSTACE SMITH, OF THE INNER TEMPLE; AUTHOR OF *'A SUMMARY OF COMPANY LAW." "The book is well arranged, and forms a good introduction to the subject." — Solicitors' younial. " It is, however, in our opinion, a well and carefully written little work, and should be in the'_^hands of every student who is taking up Admiralty Law at the Final." — Law Students' yoztrjial. " Mr. Smith has a happy knack of compressing a large amount of useful matter in a small compass. The present work will doubtless be received with satisfaction equal to that with which his previous ' Summary' has been met." — Oxford and Cambridge Undergraduates' yourfial. Third Edition, in 8vo, price Js. dd,, cloth, A SUMMARY OF THE LAI AND PRACTICE IN THE ECCLESIASTICAL COURTS. FOR THE USE OF STUDENTS. By EUSTACE SMITH, OF THE INNER TEMPLE; AUTHOR OF "a SUMMARY OF COMPANY LAW " AND "a SUMMARY OF THE LAW AND PRACTICE IN ADMIRALTY." " His object has been, as he tells us in his preface, togiye the student and general reader a fair outline of the scope and extent of ecclesiastical law, of the principles on which it is founded of the Courts by which it is enforced, and the procedure by which these Courts are regulated. We think the book well fulfils its object. Its value is much enhanced by a profuse citation of authorities for the propositions contained in it." — Bar Examination Journal. Fourth Edition, in 8vo, price 7^. ^d., cloth, AN EPITOME OF THE LAWS OF PROBATE AND DIVORCE, FOR THE USE OF STUDENTS FOR HONOURS EXAMINATION. By J. CARTER HARRISON, Solicitor. *' The work is considerably enlarged, and we think iinproved, and will be found of great assistance to students." — Law Students' youriLal. - Di gitized by Microsoft® WOR:KS FOR :LAW' STUDENTS. .,, fi^th-. Edition) , I-n one volunje, §vo, price 20j. , clo.th, r, r/; PRINCIPLES OF THE COMMON LAW. intended for the use of students and the profession. sixth edition. ■ By JOHN^INDERMAUR, Solicitor, AUTHOR OF "A MANUAL OF THE PRACTICE OF THE SUPREME COURT," " EPITOMES OF LEADING CASES," AND OTHER WORKS. . " The student will find in . Mr. Indermaur's book- a safe and clear guide to the Prin- ciples of Common Law." — Law you>-}tal, ,1892. ' ' The present edition of this elementary treatise has been in general edited with praise- worthy care. The provisions of the statutes affecting the subjects discussed, which have been p'asse'd since the .publica,tion of the last edition, are clearly-summarised, and, the effect of the le'aditig cases is generally very well given. In the difficult task of selecting and distinguishing principle from detail, Mr. Indermaur has been very successful ; the leading principles are clearly brought out, and very judiciously illustrated."— Solicitors' yournal. "The work is acknowledged to be one of the best written and most useful elementary works for Law Students that has been published. "^Zaro Times. " The praise which we were enabled to bestow upon Mr. Indermaur's very useful com- pilation on its first appearance has been justified by a demand for a second edition."- — Law Magazine, " We were able, four years ago, to praise the first edition of Mr. Indermaur's book as likely to be of use to students in acquiring the elements of the law of torts and contracts. The second edition maintains the character of the book." — Law Journal. . "Mr., Indermaur renders even law^ light reading. He not only 'possesses the faculty of judicious selection, but of lucid exposition and felicitous illustration. And while his works are all thus characterised, his ' Principles of the Common Law ' especially displays those features. That it has already reached a second edition, testifies that our estimate of the work on its first appearance was not unduly favourable, highly as we then signified approval ; nor needs it that we should add anything to that estimate in reference to the general scope and execution of the work. It only remains to say, that the present edition evinces that every care has been taken to insure thorough accuracy, while including all ' the modifications in the law that have taken place since the original publication ; and that the references to the Irish decisions which have been now introduced are calculated to ' render the work of greater utiUty to practitioners and students, both EngUsh and Irish." — Irish Law Times. " This work, the author tells us in his Preface, is written mainly with a view to (he examinations of the Hrtcorporated Law Sotiety ; but We think it is likely to attain a wider usefulness. It seems, sofar aswe can. judge frQm thefaiis we have excunined, to be a careful and clear outline of the principles of the common law. It is very readable ; and not only students, int -many p^-actitioners arid tJie public, miglit benefit by a perusal of its pages." — Solicitors' Journal. ; ■ , . Digitized by Microsoft® WORKS- FOR \LAW STUDENTS. 25 Sixth Edition, in Svp, price 14J., cloth,, A MMUAL OF THE PRACTICE OF THE SUPREME COURT OF JUDICATURE, IN THE" ^UEEN'S . BENCH /AND CHANCERY DIVISIONS. Sixth Edition, adapted to the new Rules of Court of November, 1893. : ■■' ^Intended for the' use^ of ^'tttdents, and the. Profession. By John Indermaur, SoUcitor. "Mr. Indermaur has brought out a sixth edition of his excellent ' Manual of Practice' at a very opportune .time,-ibr he has been able to incorporate^the. effect ol_Lhe.new Rules of Court which came jnto force last November, the Trustee Act, 1893, and Rules, and the Supreme Court Fund Rules, 1893, as well as that of other Acts of earlier date. A very complete revision of the work has, of course, been necessary, and Mr. Indermaur', Assisted by Mr. Thwaiteb, haS'' effected this with his usual thoroughness and careful attention, to details. The book is well known. and valued by students^ but practitioners also find It handy iri man,^ cases, where reference to the bulkier ' White Book ' is unnecessary." — luanu Tini^^ *' This well-known students' book may'very well be consulted by practitioners, as it contains a consideralDle amount of reliable information on the practice of the Court. It is written so as to include the new Rules, and a supplemental note deals with the alterations made in Riile XI. by the Judges in January last. The praise w hich we gave to previous editions is quite due to the present issue." — Laiu Journal^ February^ 1894. Seventh Edition, in Svo, price 6j., cloth, ' AN EPITOME OF LEADING COMMON LAW CASES ; ^ WITH SOME SHORT NOTES THEREON. Chiefly intended as a Guide to " Smith's Leading Cases." By John Indermaur, SoUcitor (Clifford's Inn Prizerrian, Michaelmas Term, 1872). " We have received the third edition of the ' Epitome of Leading Common Law Cases,' by Mr. Inder- maur, Solicitor. The first edition of this work was published in February, 1873, the second in April, 1874; and now we have a third edition dated September, 1875. -No better proof of the value of this book can be furnished than the fact that in less than three years it has reached a third edition." — Law Journal, Seventh Edition, in Svo, price 6j., cloth, AN EPITOME OF LEADING CONVEYANCING AND EQUITY CASES; WITH SOME SHORT NOTES THEREON, FOR THE USE OF STUDENTS. By John Indermaur, Solicitor, Author of "An Epitome of Leading Common Law Cases. " - " We have received the second edition of Mr. Indermaur's very useful Epitome of Leading Convey- ancing and Equity Cases. The work is very well done." — Laiv Times. ,"The Epitome well deserves the continued patronage of the class — Students — for whom it is especially intended. Mr. Indermaur will soon be known as the ' Students' Friend.' " — Caitada. Law Joui^tal, Sixth Edition, Svo, price 6j. , cloth, THE ARTICLED CLERK'S GUIDE TO AND SELF-PREPARATION FOR THE FINAL EXAMINATION. I Containing a Complete Course of Study, with Books to Read, List of Statutes, Cases, Test Questions, &c., and intended for the use of those Articled Clerks who read by themselves. By John Indermaur, Solicitor. "In this edition Mr, -Indermaur extends his counsels to the whole period from the Intermediate examination to the Fioal. ; His advice, is practical and sensible : and 'if the course of study he recommends is intelligently followed, the articled clerk will have laid in a store of legal knowledge more than sufficient to carry him through the Final Examination." — Solicitors' JouT^ial. Now ready, Fifth Edition, in Svo, price lo^., cloth, vTHE ARTICLED CLERK'S GUIDE TO AND SELF- PREPARATION FOR THE INTERMEDIATE EXAMINATION, ■ As it now exists on Stephen's Commentaries. Containing a complete course of Study, with Statutes, Questions, and Advice. Also a complete Selected Digest of the whole of the Questions and. Answers set at the Examinations on those parts of " Stephen " now examined on, embracing a period of fourteen and a half years ; (58 Examinations), inclusive of the Examination in April, 1894, &c. &c. , and intended for the use of all Articled Clerks who have not yet passed the Inter- mediate Examination. By John Indermaur, Author of " Principles of Com- mon Law," and other Avorks. In Svo, 1875, price 6^., cloth, THE STUDENTS' GUIDE TO THE JUDICATURE ACTS, AND THE RULES THEREUNDER: Being a book of Questions and Answers intended for the use of Law Students.' 26 WORKS FOR LAW STUDENTS. Fifth Edition, in crown 8vo, price \2,s. 6d., cloth, AN EPITOME OF CONVEYANCING STATUTES, Extending from 13 Edw. I. to the End of 55 & 56 Victoria. Fifth Edition, with Short Notes. By George Nichols Marcy, of Lincoln's Inn, Barrister-at-Law, Second Edition, In 8vo, price 2(>s, , cloth, A NEW LAW DICTIONARY, AND INSTITUTE OF THE WHOLE LAW; EMBRACING FRENCH AND LATIN TERMS AND REFERENCES TO THE AUTHORITIES, CASES, AND STATUTES. * SECOND EDITION, revised throughout, and considerably enlarged. By ARCHIBALD BROWN, . M.A. EDIN. AND OXON., AND B.C.L. OXON., OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW J AUTHOR OF THE "law of fixtures," "ANALYSIS OF SAVIGNY'S OBLIGATIONS IN ROMAN LAW," ETC. Reviews of the Second Edition. ^^ So far as ive have been able to examine the work, it seems to have been most carefully and accurately executed, the present Edition, besides containing much mw matter, having been thoroughly revised in consequence of the recent changes in the law ; and we have no doubt whatever that it will be found extremely useful, not only to students and practitioners, but to public men, and men of letters." — IRISH Law Times. "Mr. Brown has revised his Dictionary, and adapted it to the changes effected by the fudicature Acts, and it now constitutes a very useful work to put into the hands of any student or articled clerk, and a work which 'the practitioner will find of value for reference. " — Solicitors' Journal. "It will prove a reliable guide to law students, and a handy book of reference for practitioners. " — Law Times. In royal 8vo, price 5^., cloth, ANALYTICAL TABLES OF THE LAW OF REAL PROPERTY; Drawn up chiefly from STEPHEN'S BLACKSTONE, with Notes. By C. J. TARRING, of the Inner Temple, Barrister-at-Law. CONTENTS, Table I. Tenut-es. ,, II. Estates, according to quantity of Tenants' Interest. ,, III. Estates, according to the time at which the Interest is to be enjoyed. „ IV. Estates, according to the number and connection of the Tenants. Table V. Uses. ,, VI. Acquisition of Estates in land of freehold tenure. ,, VII. Incorporeal Hereditaments. ,, VIII. Incorporeal Hereditaments. *' Great care and considera;ble skill have been shown in the compilation of these tables, which, will be found of much service to students of the Law of Real Property." — Law Times. — Digitized by Microsoft© — -—^ — WORKS FOR LAW STUDENTS. 27 Sixth Edition, in 8vo, price 20j., cloth, PRINCIPLES OF THE CRIMINAL LAI. INTENDED AS A LUCID EXPOSITION OF THE SUBJECT FOR THE USE OF STUDENTS AND THE PROFESSION. By SEYMOUR F. HARRIS, B.C.L., M.A. (Oxon.), AUTHOR OF ''a CONCISE DIGEST OF THE INSTITUTES OF GAIUS AND JUSTINIAN." SIXTH EDITION. By C. L. ATTENBOROUGH, of the Inner Temple, Barrister- at-Law. REVIEWS. "The characteristic of the present Edition is the restoration to the book of the character of * a concise exiJOsition ' proclaimed by the title-page. Mr. Attenborough has carefully pruned away the excrescences which had arisen in successive editions, and has improved the work both as regards terseness and clearness of exposition. In both respects it is now an excellent student's book. The text is very well broken up into headings and paragraphs, with short marginal notes — the importance of which, for the convenience of the student, is too often overlooked." — Solicitors' yozirnal. " We think the book — always a favourite with students — has got a new lease of life, and will now prove the only text-book which most men will care to study until they get beyond the examination stage of their existence. . . . On the whole our verdict is that the new Edition is distinctly a success, and we have no I hesitation in commending it to the student as the best text-book that exists for his purposes."— Z.<2;7y Students' Journal. *' The favourable opinion we. expressed of the first edition of this work appears to have been justified by the reception it has met with. Looking through this new Edition^ we see no reason to modify the praise we bestowed on the former Edition. The recent cases have been added and the provisions of the Summary Jttrisdiction Act are noticed in the chapter relating to Summary Convictions. The book is one of the best manuals of Criminal Law for the student,^'' — Solicitors' Journal. " There is no lack of PTorks on Criminal Law, but there was room for such a useful handbook of Principles as Mr. Sey??iour Harris has supplied. Accustomed^ by his p?-evious labours, to the task of ajtalysing the law, Mr. Hai'7'is has brought to bear upon his pi-esent work qualifications well adapted to secure the successful accomplishment of the object which he had set before hUn, That object is not an ambitious one, for it does not pi'etend to soar above utility to the young practitioner and the student. For both these classes, aiid for the yet wider class who may require a book of reference on the subject, Mr. Harris has produced a clear and conve^tient Epitome of the Law. A noticeable feature of Mr. Harris'^s work, which is likely to prove of assistance both to the p7-actitioner and the student, consists of a Table of Offences, with their legal chai'acter, their punish7?zent, a7id the statute under which it is inflicted, together with a reference to the pages where a Statement of the Law will be found."— l^h-v^ Magazine and Review. "This work purports to contain 'a concise exposition of the nature of crime, the various offences punish- ■ able by the English law, the law of criminal procedure, and the law of summary convictions,' with tables of offences, punishments, and statutes. The work is divided into four books. Book I. treats of crime, its divisions and essentials ; of persons capable of committing crimes ; and of principals and accessories. Book II. deals with offences of a public nature ; offences against private persons ; and offences against the property of individuals. Each crime is discussed in its turn, with as much brevity as could well be used consistently with a proper explanation of the legal characteristics of the several offences. Book III. explains criminal procedure, including the jurisdiction of Courts, and the various steps in the apprehension and trial of criminals from arrest to punishment. This part of the work is extremely well done, the description of the trial being excellent, and thoroughly calculated to impress the mind of the uninitiated. Book IV. contains a short sketch of ' summary convictions before magistrates out of quarter sessions.' The table of offences at the end of the volume is most useful, and there is a very full index. Altogether we must congratulate Mr. Harris on his adventure." — Law JoiimaL ^^ Mr. Harris has undertaken a work, in our opinion, so much needed that he inight diminish its bulk in the next edition by obliterating the apologetic preface. The appearance of his volume is as well timed as its execution is satisfactory. The author has shown an ability of omission which is a good test of skill, and fro7n the ove7'whelming mass of the criminal law he has discreetly selected just so much onlyi as a lea^'ner needs to know, and has presented it in ter77ts which render it capable of bei7ig easily taken into the mind. — Solicitors' Journal. Digitized by Microsoft© 28* H^O/^irS FOR LAW STUDENTS. Second tedition, 'in'crOwnS'vOj price 5:^' 6rf., cloth, THE STUDENTS'. GUIDE TO BANKRUPTCY; Being a Comprefe Digest of the 'Law of Banlftuptcy in the'shspe of^'Qu'estions and Answers, and comprising all Questions asked at the Solicitors' Final Examinations in Bankruptcy sinde the Bankruptcy Act, i8S3,'ahd "all important Decisions since that Act. By John InderMauji, Solij;itor,j Autlip;: of " Principles- of Common Law," &c. &c. '.■>-:■,' ' . • , ' ' * , - In l2mo, price Sj. 6a'., cloth, A CONCISE TREATISE ON THE LAW OF BILLS OF SALE, FOR THE USE OF LA.WYE,RS, X^AW STUDENiTS,, AND THE PUBLIC. Embracing the Acts of 1S78 and 1882. ' Part I.— 'Of Bills of Sale generally. ^ Part II.— Of the Execution, Attestation, and Registration of Bills of Sale and satisfaction thereof Part III.— Of the Effecjs of3ills of Sale as against Creditors. Part IV. — Of Seizing under, and Enforcing Bills of 'Sale. Appendix, Forms, Acts, &c. By John INDEEMAUR, Solicitor. ■ ." The object of the book is thoroughly practical. Tho.<;e who. want to he told exactly what to do and where to go when thpy,arc registering a bill of sale will find the necessary information in this little book." — l^a.w yourtial. , , . Second Edition, in 8vo, price 45., cloth, A COLLECTION OF LATIN MAXIMS & PHRASES. LITERALLY TRANSLATED. INTENDED FOR THE USE OF STUDENTS FOR ALL LEGAL EXAMINATIONS. Second Edition, by J. N. CQTTERELL, Solicitor. " The book seems admirably adapted as a bopk,of reference for s.tudents who come across a Latin maxiin in their reading." — Law Joiimal, In one volume, 8vo, price 9^., cloth, . LEADING STATUTES SUMMARISED, F0:R THE USE OF STUDENTS. By ERNEST C. THOMAS, BACON SCHOLAR OF THE HON; SOCIETY OF* GRAY's INN, LATE SCHOLAR OF TRIl^ITY COLLEGE, OXFORD J AUTHOR OF " LEADING CASES IN COl^STlTUTIONAL LAW BRIEFLY STATED." ' Second Edition, in 8vo, enlarged, price 6^., cloth, LEADING CASES IN CONSTITUTIONAL LAW Briefly Stated, with iNXKODUcTfoN and Notes. , ,, By ERNEST C. THOMAS, , BACON SCHOLAR OF THE HON. SOCIETY OF GRAV's INN, LATE SCHOLAR OF TRINITY COLLEGE, OXFORD. " Mr. E. C. Thomas has put together in a slim'octavo a digest of the principal cases illustrating Con- stitutional Law, that is to say, all questions as to the rights or authority of the Crown or persons under it, as regards not merely the constitution and structure given to the governing body, but also the mode ip, which the sovereign power is to be exercised. In an introductory essay Mr. Thomas gives a verycle^r and . intelligent surveyor the general functions of the Executive, and the principles by which they are regulated"; ■ and then follows a summary of leading cases." — Sdiitrday Review. ** Mr, Thomas gives a sensible introduction and a brief epitome of the familiar leading cases." — Law Tivies. " ' ■ In Svo, price Sj"., cloth, AN EPITOME OF HINDU LAW CASES. Witb Short Notes thereon. And Introductory Chapters on Sources of Law, Marriage; Adoption, Partition, and Succession. By Wii.liAm M. P. Coghlan, Bombay' Civil Service, late Judge and Sessions Judge of Tanna. — ' -' " Digitized tyy^Microsoft© -^— — STEVENS ^ &=, HAYNES, BELL .yARD,.TEMPI„E BAR. 29 Second Edition, in crown 8vo, price \2s. 6d., cloth, THE BANKRUPTCY ACT, 1883, ' With ' Notes of all the Cases decIded ONbfiR the Act ; The consolidated RULES and FORMS, 1886 ; The Debtors Act, 1869, so far as applicable to bankruptcy matters, with rules and forms thereunder; the 'Bills of Sale Acts, 1878 and 1884; Board of Trade Circulars and Forms, and List of Official Receivers ; Scale of Costs, Fees, and Percentages.,,, 1 886 ; Orders of the Bankruptcy . Judge of the High Court-; and a'GopiousTndex^i ' >'-- ■ By WILLIAM' HAZLITT, Esq., and RICHARD- RINGWOOD, M.A., SENIOR REGISTRAR IN BANKRUPTCY, OF THE MIDDLE TEMPLE, ESQ., BARRISTER-AT-LAW. Second Edition, by R. RINGWOOD, M.A., Barrister-at-Law. "This is a very handy edition, of the Act and Rwlesi ..... The cross references and marginal references to corresponding provisions of the Act of 1869 are exceedingly useful. . . . There is a very -Tfiill index, and the book is admirably printed." — Solicitors' Journal. Part I., price 7J. dd.^ sewed, LORD WESTBURY'S DECISIONS IN THE EUROPEAN ARBITRATION. Reported by Francis S. Reilly, of Lincoln's Inn, Barrister-at-Law. Parts I., II., and III., price 25^., sewed, LORD CAIRNS'S DECISIONS IN THE ALBERT ARBITRATION. Reported by Feancis S. Reilly, of Lincoln's Inn, Barrister-at-Law. Second Edition, in royal 8vo, price 30^. , cloth, A TREATISE ON THE STATUTES OF ELIZABETH AGAINST FRAUDULENT CONVEYANCES. The Bills of Sale Acts 1S78 and 1882 and the LAW OF VOLUNTARY DISPOSITIONS OF PROPERTY. By the late H. W. MAY, B.A. (Ch. Ch. Oxford). Second Edition, thoroughly revised and enlarged, by S. Worthington Worthington, of the Inner Temple, Barrister-at-La\v ; Editor of the "Married Women's Property Acts," 5th edition, by the late J. R. Griffith. " Mr. Worthington's work appears to have been conscientious and exhaustive." — Saturday Revzsiv, "Examining Mr. May's book, we find it con- structed with an intelligence and precision which L - *' In conclusion, we can heartily recommend this book to our readers, not only to those who are in large practice, and who merely want a classified list of cases, but to those who have both the desire and the leisure to enter upon a systematic study of Qur\3.-^:*—Soliciiors' JournaL "As Mr. Worthington points out, smce Mr. May wrote, the 'Bills of Sale Acts' of 1878 and 1882 have been passed ; the ' Married Women's Property Act, 1882 '(mailing settlements by married wonien void as against creditors in cases in which similar settlements by a man would be void), and the * Bankruptcy Act, 1883.' These Acts and the deci- sions upon them have been handled by Mr. Worth- ington in a manner which shows that he is rnaster of his subject, and not a slavish copyist of sections and head-notes, which i< a vicious propensity of many modem compilers of text-books. His Table of Cases (with reference to all the reports), is admirable, and his Index most exhaustive."— Zaw Times. , . . ■> "The results of the authorities appear to be given well and tersely, and the treatise will, we think, be found a convenient ancUfUStsjorgi;^ hook of reference."— irtw JournaL UiyiLlZUU U render it entirely worthy of being accepted as a guide in this confessedly difficult subject. The subject is an involved one, but with clean and clear handling it is here presented as clearly as it could be. . . . On the whole, he has produced a very useful book of an exceptionally scientific character." — Solicitors' yournal, ■ " The subject and the work are both very good, The former is well chosen, new, and interesting ; the latter has the quality which always distin- guishes original research from borrowed labours." — American Law Review. "We are happy to welcome his (Mr. May's) work as an addition to the, we regret to say, brief cata- logue of law books conscientiously executed. We can corroborate his own description of his labours, ' that no pains have been spared to make the book as concise and practical as possible, without doing /un. . _.so at the^icDense of perspicuity or by the omission •y /v7/S/aiag©ff®ant points.' "—La-iv Times. 30 STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. In one volume, medium 8vo, price 38^., cloth ; or in half-roxburgh, 42^., A HISTORY OF THE FORESHORE AND THE LAW RELATING THERETO. With a Hitherto Unpublished Treatise by Lord Hale, Lord Hale's " De Jure Maris," and the Third Edition of Hall's Essay on the RIGHTS OF THE CROWN IN THE SEA-SHORE. With Notes, and an Appendix relating to Fisheries. By STUART A. MOORE, F.S.A., OF THE INNER TEMPLE, BAERISTER-AT-LAW. "This work is nominally a third edition of the late Mr. Hall's essay on the rights of the Crown in the Sea-shore, but in reality is an absolutely new production, for out of some 900 odd pages Hall's essay takes up but ■aay. Mr. Moore has written a book of great importance, which should mark an epoch in the history of the rights of the Crown and the subject in the litus maris, or foreshore of the kingdom. Hall's treatise (with Loveland's notes) is set out with fresh notes by the present editor, who is anything but kindly disposed towards his author, for his notes are nothing but a series of exposures of what he deems to be Hall's errors and misrepre- sentations. Mr. Moore admits his book to be a brief for the opposite side of the contention sup- ported by Hall, and a more vigorous and argu- mentive treatise we have scarcely ever seen. Its arguments are clearly and broadly disclosed, and supported by a wealth of facts and cases which show the research of the learned author to have been most full and elaborate. . . . There is.no doubt that this is an important work, which must have a considerable influence on that branch of the law with which it deals. That law is contained in ancient and most inaccessible records ; these have now been brought to light, and it may well be that important results to the subject may flow therefrom. The Profession, not to say the general public, owe the learned author a deep debt of gratitude for providing ready to hand such a wealth of materials for founding and building up arguments. Mr. Stuart Moore has written a work which must, unless his contentions are utterly un- founded, at once become the standard text- book on the law of the Sea-shore." — Law Tiines, Dec. ist. "Mr. Stuart Moore in his valuable work on the Foreshore." — The Times. " Mr. Stuart Mooie's work on the title of the Crown to the land around the coast of England lying between the high and low water mark Is something more than an ordinary law book. It is a history, and a very interesting one, of such land and the rights exercised over it from the earliest times to the present day ; and a careful study of the facts contained in the book and of the argu- ments brought forward can scarcely fail to convince the reader of the inaccuracy of the theory,, now so constantly put forward by the Crown, tl^t without the existence of special evidence to the contrary, the land which adjoins riparian property, and which -is covered at high tide, belongs to the Crown and not to the owner of the adjoining manor. The list which Mr. Moore gives of places where the question of foreshore has been already raised, and of those as to which evidence on the subject exists amongst the public records, is valu- able, though by no means exhaustive ; and the book should certainly find a place in the library of the lord of every riparian manor." — Momiti^ Post. In one volume, Svo, price I2j., cloth, A TREATISE ON THE LAW RELATING TO THE POLLUTION AND OBSTRUCTION OF WATER COURSES Together with a Brief Summary of the Various Sources of Rivers Pollution. By CLEMENT HIGGINS, M.A., F.C.S., OF THE INNER TEMPLE, BARRISTER- AT- LAW. "As a compendium of the law upon a special and rather intricate subject, this treatise cannot but prove of great practical value^ and more especially to those who have to advise upon the institution of proceedings under the Rivers Pollu- tion Prevention Act, 1876, or to adjudicate upon those proceedings when brought." — Irish Law Times. "We can recommend Mr. Higgins' Manual as the best guide we possess." — Public Health. "County Court Judges, Sanitary Authorities, and Riparian Owners will find in Mr. Higgins' Treatise a valuable aid in obtaining a clear notion cf the Law on the Subject. Mr. Higgins has accomplished a work for which he will readily be recognised as having special ^^^fJj(^]ff2^H^Hf^ his practical acquaintance both with the scientific and the legal aspects of his subject." — Law Maga- zine and Revzewt "The volume is very carefully arranged through- out, and will prove of great utility both to miners and to owners of land on the banks of rivers." — The Mining JotimaL "Mr. Higgins writes tersely and clearly, while his facts are so well arranged that it is a pleasure to refer to his book for information ; and altogether the work is one which will be found very useful by all interested in the subject to which it relates." — Mngineer. A compact and convenient manual of the law on the subject to which it relates." — Solicitors' STEVENS 6- HAYNES, BELL YARD, TEMPLE BAR. 31 In 8vo, Fifth Edition, price .28r., cloth. MAYNE'S TREATISE ON THE LAW OF DAMAGES. FIFTH EDITION. REVISED AND PARTLY REWRITTEN. BY JOHN D. MAYNE, OF THE INNER TEMPLE, BAERISTER-AT-LAW ; AND His Honor Judge LUMLEY SMITH, O.C. " ' Mayne on Damages ' has now become almost a classic, and it is one of the books which we cannot afford to hare up to date. We are therefore pleased to have a new Edition, and one so well written as that before us. With the authors we regret the increasing size of the volume, but bulk in such a case is better than incompleteness. Every lawyer in practice should have this book, full as it is of practical learning on all branches of the Common Law, The work is unique, and this Edition, like its predecessors, is indispensable." — Law Journal ^ April, 1894. ** Few books have been better kept up to the current law than this treatise. The earlier part of the book was remodelled in the last edition, and in the present edition the chapter on Penalties and Liquidated Damages has been rewritten, no doubt in consequence Of, or with regard to, the elaborate and exhaustive judgment of the late Master of the Rolls in WalUs v. Smith (3 1 W. R. 214 ;'^ L. R. 21 Ch. D. 243). The treatment of the subject by the authors is admirably clear and concise. Upon the point involved in Wallis v. SmWi they say : ' The result is that an agreement with various covenants of different importance is not to be governed by any inflexible rule peculiar to itself, but is to be dealt with as coming under the general rule, that the intention -of . the parties themselves is to be considered. If they have said that in the case of any breach.a fixed sum is to be paid, then they will be kept to their- agreement, -unless it would lead to such an absurdity or injustice that it must be assumed that they did not mean what they said.' This is a very fair summary of the judgments in Wallis v. Smith, especially of that of Lord Justice Cotton ; and it supplies the nearest approach which can be given at present to a rule for practical guidance. We can heartily commend this as a carefully edited edition of a thoroughly good book." — Solicitors Jourfial. *' During the twcfity-two years which have elapsed since the publicatiofi of this well-known work, its reputation has been steadily growing.^ and it has long since become the recognised authoHty on the important subject of which it treats,''^ — Law Magazine and Review. "This edition of what has become a standard work -has the -aidvatitage of appearing under the supervision of the original author as well as of Mr. Lumley Smith, the editor of the second edition. The - result is most satisfactory. _ Mr. Lumley Smith's edition was ably and conscientiously pre- pared, and we are glad to find that the reader still enjoys the benefit of his accuracy and learning. : At the same time the book has doubtless been improved by the reappearance of its author as co- editor. The earlier part, indeed^ has been to a considerable extent entirely rewritten. _ "Mr. Mayne's remarks on damages in actions of tort are brief. We agree with him that in such actions the courts are governed by far looser prin- ciples than in contracts ; indeed, sometimes it is impossible to say they are governed by any prin- oiples at all. In actions for injuries to the person or reputation, for example, a judge cannot do more than give a general direction to the jury to give what the facts proved in their judgment required. And, according to the better opinion, they may give damages 'for example's sake,' gind mulct a rich man more heavily than a poor one. In actions for injuries to property, however, * vindictive ' or 'exemplary' damages cannot, except in very rare cases, be awarded, but must be. limited, as in con- tract, to the actual harm sustained. " It is needless to comment upon the arrangement of the subjects in this edition, in which no alteration has been made. The editors modestly express a hope that all the English as well as the principal Irish decisions up to the date have been included, and we believe from our own examination that the hope is well founded. We may regret that, warned by the growing bulk of the book, the editors have not included any fresh American cases, but we feel that the omission was unavoidable. We should add that the whole work has been thoroughly revised," — Solicitors' youmal. *' This, text-book is so well known, not only as the highest autho?'ity on the subject treated of but as one of the best text-books ever written, that it would be idle for vs to speak of it in the words of commendation that it deserves. It is a work thai no practising lawyer can do without."— Ca:^ ADA j.pBigHm&(Lby Microsoft© 32 STEVENS ■A'. ffAYNES, BELL Y4JiD, TEMPLE BAR. ■ Incrpwn 8vo, price'4;. 6rf.j|Clothj ABSTRACT DRAWING. Containing Instructions on the Drawing of Abstracts of Title, and an Illustrative Appendix. By C. E. ScOTT, Solicitor. .-' .- .^ - ., ... "This little book is intended for the assistance of those who 'fi^ve the framing of abstracts of. title entrusted, fo their care. ,It contains a number of usefulrules, and an" illustrativ.* appendix/'— X/i'zw Times. " A handy book for all articled clerks." — La^ Students' Jo%fnial. " Solicitors who have articled clerks would savfe tHemselves miich trouble if they furnished their clerks with a copy of this little book before putting them on to draft an abstract of a heap of title deeds." — Lam • Notes. ■.■■■-'..■■ ■ ' " The book ought to be perused by all law students and articled clerks." — Red Tape. Second Edition, in crown 8vo, price "js., cloth, THE LAW RELATING TO CLUBS. By the late JOHN WERTHEIMER, Barrister- AT- Law. Second Edition, by A.' W.' CHASTER, Barrister-at-Law. "A convenient handbook, drawn up witii, great judgment and perspicuity." — Morning- Post. " Both useful and interesting to those interested in club management. " — Laiv Times. "Mr. Wertheimer's history of the cases is com- plete and well arranged." — Saturday Review. *' This is a very neat little book on an interesting subject. The law is accurately and well expressed." — Laiv Journal. "This is a very handy and complete little work. This excellent little treatise should li^'on the table of every club." — Pump Court. In 8vo, price 2J-., sewed, TABLE of the FOEEIGN MERCANTILE LAWS and CODES in Force in the Principal States of EUROPE and AMERICA. By Charles Lyon-Caen, Professeur agrege a la Faculte de Droit de Paris ; Professeur a I'Ecole libre des Sciences politiques. Translated by Napoleon Argles, Solicitor, Paris. In 8vo, price l^., sewed, « A GUIDE TO THE FRENCH LAWS OF 1889, ON NATION- ALITY AND MILITARY SERVICE, as aSecting British Subjects. By A. Pavitt, Solicitor, Paris. In one volume, demy 8vo, price \os, 6d. , cloth, PRINCIPLES OF THE LAW OF STOPPAGE IN TRANSITU, RETENTION, and DELIVERY. By John Houston, of the Middle Temple, Barrister-at-Law. In 8vo, price los., cloth, THE TRIAL OF ADELAIDE BARTLETT FOR MURDER ; Complete and Revised Report. Edited by Edward Beal, B.A., of the Middle Temple, Barrister-at-Law. With a Preface by Edward Clarke, Q.C., M.P. In 8vo, price loj. (>d., cloth, A REPORT OF THE CASE OF THE QUEEN v. GURNEY AND OTHERS, In the Court of Queen's Bench before the Lord Chief Justice CoCKBURN. With Intro- duction, containing History of the Case, and Examination of the Cases at Law and Equity applicable to it. By W. F. FrNLASON, Barrister-at-Law. In royal Svo, price loj. 6d., cloth, THE PRACTICE OF EQUITY BY WAY OF REVIVOR AND SUPPLEMENT. With Forms of Orders and Appendix of Bills. By LOFTUS Leigh Pemberton, of the Chancery Registrar's Office. Digitized by Microsoft® STEVENS &= MAYNES, BELL YARD, TEMPLE BAR, 33 In 8vo, price 6j. dd., cloth, THE ANNUAL DIGEST OF MERCANTILE CASES FOR THE YEAR 1886. Being a Digest of the Decisions of the English, Scotch and Irish Courts ON Matters relating to Commerce. By JAMES A.. DUNCAN, M.A., LL.B., Trin. Coll., Camb., AND OF THE INNER TEMPLE, BARRI5TEE-AT-LAW. " We hope the present issue may be the first of a series which will naturally increase in value with the progress of time." — Saturday. Repie^v. "Therp can only be one opinion, and that a very decided one indeed, in favour of the value of this book to' men. of business and to members of the legal profession." — Liverpool MerciiTy. " A work of such handy reference, well indexed, and containing the essence of a year's decisions, will be found a valuable addition to, office libraries." — Liverpool Daily Post. *^* The Annual Digest of MercaniiU Cases^for 1885, can also be had, price 6^.3 cloth, THE LAW AND PKAOTIOE OF ELECTION PETITIONS, With an Appendix containing the Parliamentary Elections Acts,, the Corrupt and Illegal. Practices Prevention Acts, the General Rules of Procedure made by the Election Judges in England, Scotland, and Ireland, Forms of Petitions, &c. Third Edition. By Henry Hardcastle, of the Inner Temple, Barrister-at-Law. "Mr. Hardcastle gives us an original treatise I guide. We can thoroughly recommend Mr. with foot-notes, and he has evidently taken very Hardcastle's book as a concise manual on the law considerable pains to make his. work a reliable 1 and practice of election petitions." — Law Tivies. . Vols. I., II., III., and IV., price 4/. 17^. REPORTS OF THE DECISIONS OF THE JUDGES FOR THE TRIAL OF ELECTION PETITIONS IN ENGLAND AND IRELAND. PURSUANT TO THE PARLIAMENTARY ELECTIONS ACT, 1868. By EDWARD LOUGHLIlSr O'MALLEY and HENRY HARDCASTLE, *»* Vol. IV. Parts III., IV. and V. Edited by].' '&. Sandars, Barrisier-at-Law. ■ In 8vo, price 12s., cloth, THE LAW OF FIXTURES, -IN THE PRINCIPAL RELATION OF LANDLORD. AND TENANT, AND IN ALL OTHER OR GENERAL RELATIONS. FOURTH ED in ON. By ARCHIBALD BROWN, M.A. Edin. and Oxoiir, and B.C.L. Oxon. OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW, achieved. — Law Titnet. "The treatise is commendable as well for origi- nality as for laboriousness," — Law youmat. " A new chapter has been added with reference to the Law of Ecclesiastical Fixtures and Dilapida- tions. The book is worthy of th!e, success it has DigiL^-ii ^y Microsoft© 34 STEVENS &= HAYNES, BELL YARD, TEMPLE BAR. ,Stcb«n» attb |gagiw«' §ttita tst %t))vmXe at Vm ffiarls ^«p«rter«. SIR BARTHOLOMEW SHOWER'S PARLIAMENTARY CASES. In 8vo, 1876, price 4/. 4^., best calf binding, SHOWER'S CASES IN PARLIAMENT RESOLVED AND ADJUDGED UPON PETITIONS Sf WRITS OF ERROR. FOURTH EDITION. CONTAINING ADDITIONAL CASES NOT HITHERTO REPORTED. REVISED AND EDITED BY RICHARD LOVELAND LOVELAND, OF THE INNER TEMPLE, BARRISTER-AT-LAW ; EDITOR OF *' KELTNG'S CROWN CASES," AND " hall's essay on the RIGHTS OF THE CROWN IN THE SEASHORE." " Messrs. Stevens & Haynes, the successful publishers of the Reprints of Bellewe, Cooke, Cunningham, Brookes's New Cases, Choyce Cases in Chancery, William Kelynge and ICelyng's Crown Cases, determined to issue a new or fourth Edition of Shower's Cases in Parliament. " The volume, although beautifully printed on old-fashioned Paper, in old-fashioned type, instead of being in the quarto, is in the more convenient octavo form, and contains several additional cases not to be found in any of the previous editions of the work. " These are all cases of importance, worthy of being ushered into the Jight of the world by enterprising pubhshers. " Shower's Cases are models for reporters, even in our day. The statements of the case, the argumentsof counsel, andthe opinions of the Judges, are all clearly and ably given. "This new edition with an old face of these valuable reports, under the able editorship of R. L. Loveland, Esq., should, in the language of the advertisement, 'be welcomed by the profession, as well as enable the custodians of public libraries to complete or add to their series of English Law Reports.'" — Canada Law yournal. BELLEWE'S CASES, T. RICHARD II. In 8vo, 1869, price 3/. 3^., bound in calf antique, LES ANS DU ROY RICHARD LE SECOND. Collect' ensembr hors les abridgments de; fitatham, Fitzherbert et Brooke. Per Richard Bellewe, de Lincolns Inne. 1585. Reprinted from the Original Edition. "No public library in the "world, where English, law finds a place, should be without a copy of this editiop of Bellewe." — Canada Law JoumaL " We have here a./ac-si7nile edition of Bellewe, and it is really the most beautiful and admirable reprint that has appeared at any time. It is a perfect gem of antique printing, and forms a most interesting monument of our early legal history. It belongs to the same class of works as the Year Book of Edward I. and other similar works which have been printed in our own time under the auspices of the Master of the Rolls ; but is far superior to any of them, and is in this respect highly creditable to the spirit and enterprise of private publishers. The work is an important link in our legal history ; there are no year books of the reign of Richard II., and Bellewe supplied the only substitute by carefully extracting and collecting all the cases he could find, and he did it in the most convenient form — that of alphabetical arrangement in the order of subjects, so uiat the work is a digest as well as a book of law reports. It is in fact a collection of cases of the reign of Richard II., arranged according to their subjects in alphabetical order. It is therefore one of the most intelli^ble and interesting legal memorials of the Middle Ages." — Law Titnes. CUNNINGHAM'S REPORTS. In 8vo, 1 87 1, price 3/. 3^., calf antique, Cunningham's (T.) Reports in K. B., 7 to 10 Geo. 11.; to which is prefixed a Proposal for rendering the Laws of England clear and certain, humbly offered to the Consideration of both Houses of Parliament. Third edition, with numerous Corrections. By Thomas Townsend Bucknill, Barrister- at -Law. "The instructive chapter which precedes the cases, entitled * A proposal for rendering the Laws of England clear and certain/ gives the volume a degree of peculiar interest, independent of the value of many of the reported cases. That chapter begins with words which ought, for the information of every people, to be printed in letters of gold. They are as follows : ' N othing conduces more to the f)eace and prosperity of every .nation than good aws and the due execution of them.' ' The history of the civil law is then rapidly traced. Next a history is given of English Reporters, beginning with the reporters of the Year Books from i Edw. III. to 12 Hen. VIIJ.' — being near 200 years — and afterwards to the time of the author." — Cajtada Laiv Journal. Digitiz e d by Microsoft® STEVENS 6- HAYNES, BELL YARD, TEMPLE BAR. 35 CHOYCE CASES IN CHANCERY. In 8vo, 1870, price 2/. zs., calf antique, THE PRACTICE OF THE HIGH COURT OF CHANCERY. With the Nature of the several Offices -belonging to that Court. And the Reports of many Cases wherein Relief hath been there had, and where denyed. "This volume, in paper, type, and binding (like ' Bellewe's Cases ') is a fac-simile of the antique edition. All who buy the one should buy the oikxx."— Canada Law jfournal. In 8vo, 1872, price 3/. 3j., calf antique, SIR G. COOKE'S COMMON PLEAS REPORTS IN THE REIGNS OF QUEEN ANNE, AND KINGS GEORGE I. and II. The Third Edition, with Additional Cases and References contained in the Notes taken from^ L. C. J. Eyre's MSS. by Mr. Justice Nares, edited by THOMAS TowNSEND BuCKNiLL, of the Inner Temple, Barrister-at-Law. an old volume of Reports may be produced by these modern publishers, whose good taste is onlyequalled " Law books never can die or remain long dead so long as Stevens and Haynes are willing to con- tinue them or revive them when dead. It is cer- tainly surprising to see with what facial accuracy by their enterprise." — Catiada Law Journal. BROOKE'S NEW CASES WITH MARCH'S TRANSLATION. In 8vo, 1873, price 4/. 4J., calf antique, Brooke's (Sir Robert) New Cases in the time of Henry VIII.,- Edward VI., and Queen. Mary, collected out of Brooke's Abridgement, and arranged under years, with a table, together with March's (John) Translation (?/ Brooke's New Cases in. the time of Henry VIII., Edward VI., and Queen Mary, collected out of Brooke's Abridgement, and reduced alphabetically under their proper heads and titles, with a table of the principal matters. In one handsome volume. 8vo. 1873- " Both the original and the translation having long been very scarce, and the mispaging and other errors in March's translation making a new and corrected edition peculiarly desirable, Messrs. Stevens and Haynes have reprinted the two books in one volume, uniform with the preceding volumes of the series of Early Reports." — Canada Law jfournal. KELYNGE'S (W.) REPORTS. In 8vo, 1873, price 4/. /[s., calf antique,. Kelyn.Ge's (William) Reports of Cases in Chancery, the King's Bench, &c., from the 3rd to the 9th year of his late Majesty King George II., during which time Lord King was Chancellor, and the Lords Raymond and Hardwicke were Chief Justipes of England. To which are added, seventy New Cases not in the First Edition. Third Edition. In one handsome volume. 8vo. 1873. KELYNG'S (SIR JOHN) CROWN CASES. In Svo, 1S73, price 4/. 4^., calf antique^ Kelyno's (Sir J.) Reports of Divers Cases in Pleas of the Crown in the Reign of King Charles 11., with Directions to Justices of the Peace, and others; to which are added, Three Modern Cases, viz. , Armstrong and Lisle, the King and Plummer, .the Queen and Mawgridge. Third Edition, containing several additional Cases never before printed^ together with a Treatise upon the Law and Proceed- ings IN Cases of High Treason, first published in 1793. The whole carefully revised and edited by RiCHAKD Loveland Loveland, of the Inner Temple, Barrister-at-Law. ** We look upon this volume as one of the most important and valuable of the unique reprints of Messrs. Stevens and Haynes. Little do we know of the mines of legal wealth that lie buried in the old law books. But a careful examination, either of the reports or of the treatise embodied in the volume now before us, will give the readf^r sotic :d,c>?. if rh^ MlCrOSOft® goodservicerendered by Messrs. Stevens andHaynes to the profession. . . . Should occasion arise, the Crown prosecutor, as well as counsel for the prisoner, will find 'in this volume a complete vade Tftecuju^ of the law of high treason and proceedings in relation thereto." — Canada Law Journal.. 86 STjEVENS .&' HAYNES, BELL YARD, TEMPLE BAK, ■' Second Edition, in 8vo, price -aej., cloth; A CONCISE TREATISE ON PRIVATE INTERNATIONAL JURISPRUDENCE, BASED ON THE DECISIONS IN THE ENGLISH COURTS. By JOHN ALDERSON FOOTE, OF Lincoln's inn, baerister-at-law ; chancellor's legal medallist and senior whewell scholar OF international law, CAMBRIDGE UNIVERSITY, 1873 ; SENIOR STUDENT IN JURISPRUDENCE '' AND ROMAN LAW, INNS OF COURT EXAMINATION, HILARY TERM, 1874. This work seems to us Ukely,to prove of considerable, use to all English lawyers who have to deal with questions of private international law. Since the publication of Mr. Westlake's valuable treatise/ twenty years ago", the judicial decisions of English courts bearing upon different parts of this subject have greatly increased in number, and it is full time that these decisions should be examined, and that the conclusions to be deduced from them should be systematically set forth in a treatise. Moreover, Mr. Foote has done this well." — Solicitors' yournaL " Mr. Foote has done his work very well, and the book will be useful to all who have;to deal with.the class of cases in which English law alone is not sufficient to settle the question." — Saturday Review, March' 8, 1879. " The author's object has been to reduce into order the mass of materials already accumulated in the shape of explanation and actual decision on the interesting matter of which he treats ; and to construct a framework of private international law,- not from the dicta of jurists so much as from judicial decisions in English Courts which have superseded them. And it is here, in compilihg and arranging in a concise form this valuable material, that Mr. Foote's wide range of knowledge and legal acumen bear such good fruit. As a guide and assistant to the student of international law, the whole treatise will be invaluable : while a table of cases and a general index will enable him to find what he wants without trouble." — Standard, , . ■ , ' * The recent decisions on points of international law (and there have been a large number since Westlake's publication) have been well stated. So far as we have observed, no case of any importance has been omitted, and the leading cases have been fully analysed. The author does not hesitate to criticise the grounds of a decision when these appear to him to conflict with the proper rule of law. Most of his criticisms seem to us very just. On the whole, we can recommend Mr. Foote's treatise as a useful addition to our text-books, and we expect it will rapidly find its way into the hands of practising lawyers." — Tke Journal of Jurisprudence and Scottish Lanv Magazine. "Mr. Foote has evidently borne closely in mind the needs' of Students of Jurisprudence as well as those of the Practitioners. For both, the fact that his work is almost entirely one of CaSe-law will commend it as one useful alike in Chambers and in Court." — Law Magazine and Review. " Mr. Foote's book will be useful to the student One of the best points of Mr. Foote's book is the * Continuous Summary,' which occupies about thirty pages, and is divided into four parts — Persons, Property, Acts, and Procedure. Mr. Foote remarks that these summaries are not in anyway intended as an attempt at codification. However that may be, they are a digest which reflects high credit on the author's assiduity and capacity. They are ' meant merely to guide the student ; ' but they will do much more than guide him. They will enable him to get such a grasp of the subject as will render the reading of the text easy and fruitful." — Law Journal. "This book is well adapted to be used both as a text-book for students and a book of reference for practising barristers." — Bar Examination Journal. "This is a book which supplies the want which has long been felt for a really good modern treatise on Private International Law adapted to the every-day requirements of the English Practitioner. The whole volume, although designed for the use of the practitioner, is so moderate in size — an octavo of 500 pages only — and the arrangement and development of the subject so well conceived and executed, that it will amply repay perusal by those whose immediate object may be not the actual decisions of a knotty point but the satisfactory disposal of an examination paper." — Oxford and Cambridge Undergraduates Journal. "Since the publication, some twenty years ago, of Mr. Westlake's Treatise, Mr. Foote's book is, in our opinion, the best work on private international law which has appeared in the English language. . , The work is executed with much ability, and will doubtless be found of great value by all persons who have to consider questions on private international law." — AtkeneeuTU, Digilized by Miausufl® ■ STEVENS SfffAYNES, BELL YARD, TEMPLE BAR. 37 THE Eato :^aBa?ine anb 3S.ebieto, AND QUARTERLY DIGEST OF ALL REPORTED CASES. Price FIVE SHIIiLiIlTaS each Number. No. CCXVIII. (Vol. I, No. I. of the New Quarterly Series.) November, 1875. No. CCXIX. (Vol. I, 4th Series No. II.) February, 1876. N.B. — These two Numbers are out of print. No. CCXX. (Vol. I, 4th Series No. III.) For May, 1876, No. CCXXI. (Vol. I, 4th Series No. IV.) For August, 1876. Nos. CCXXII. to CCXLV. (Vol. 2, 4th Series, to Vol. 7, 4th Series, Nos. V. to XXVIII.), November, 1876, to August, 1882. Nos. CCXLVI. to CCXLIX. (Vol. 8, 4th Series Nos. XXIX. to XXXII.), Nbvember, 1882, to August, 1883. Nos. CCL. to CCLIII. (Vol. 9, 4th Series, Nos. XXXIII. to XXXVI.), November, 1883, to August, 1884, Nos. CCLIV. to CCLVII. (Vol. 9, 4th Series, Nos. XXXVII. to XL.), Noveinber, 1884, to August, 1885. Nos. CCLVIII. to CCLXI. (Vol. X., 4th Series, Nos. XLI. to XLIV.),- November, 1885, to August, 1886. Nos. CCLXII. to CCLXV. (Vol. XL, 4th Series, Nos. XLV. to XLVIIL), November, 1886, to August, 1887. Nes. CCLXVI. to CCLXIX. (Vol. XII., 4th Series, Nos. XLIX. to LIL), November, 1887, to August, 1888. Nos. CCLXX. to CCLXXIIL (Vol. XIII., 4th Series, Nos. LIII. to LVL), November, 1888, to August, 1889. Nos CCLXXIV. to CCLXXVII. (Vol. XIV., 4th Series, Nos. LVII. toLX.), ■ November, 1889, to August, 1890. Nos CCLXXVIII. to CCLXXXI. (Vol. XV., 4th Series, Nos. LXL.to LXIV.), November, 1890, to August, 1891. Nos CCLXXXII. to CCLXXXV. (Vol. XVL, 4* Series, Nos. LXV. to LXVIIL), November, 189 1, to August, 1892. Nos CCLXXXVL to CCLXXXIX. (Vol. XVII., 4th Series, Nos. LXIX. to LXXIL), November, 1892, to August, 1893. Nos. CCXC. to CCXCIII. (Vol. XVIII., 4th Series, Nos. LXXIII. to LXXVL). Novefiiber, 1893, to August, JS94. An Annual Subscription of 20s., paid in advance to the Publishers, will secure the receipt of the LAW MAGAZINE, free by pbst, within the United Kingdom, or foOp?feeti^*)^'rt^d., net, VOET'S TITLES ON VINDICATIONES AND INTERDICTA, Or the Roman Dutch Law of Actions to Assert Rights of Property, including Injunc- tions and Possessory Actions, translated into EngUsh with side-notes ; viz. , Book VI. Titles I. to III., Book VII. Title VI., Book VIII. Title V., Book XX. Title IV., and Book XLIII. Titles I., XVI. to XXXIII., of Voet's Commentary on the Pandects, with a Scientific and General Introduction, Notes Explanatory of the Roman CiviLand Roman Dutch, and English Law, Notes of Ceylon Enactments and Practice, and Decisions of the Supreme Court, Ceylon, etc. By John J. Casie Chitty, Barrister-at-Law, Advocate, High Court, Madras, and Supreme Court, Ceylon. Ill 8vo, price 42^., cloth. THE JUDICIAL PRACTICE OF THE COLONY OF THE CAPE OF GOOD HOPE. AND OF SOUTH AFRICA GENEEALLT. With suitable and copious Practical Forms, subjoined to, and illustrating the Practice of the several Subjects treated of By C. H. Van Zyl, Attorney-at-Law, Notary- Public, and Conveyancer, etc. etc. In Crown 8vo, price 31J. 6d., boards, THE INTRODUCTION TO DUTCH JURISPRUDENCE OF HUGO GKOTIUS, with Notes by Simon van Groenwegen van der Made, and References to Van der Keesel's Theses and Schorer's Notes. Translated by A. F. S. Maasdorp, B.A., of the Inner Temple, Barrister-at-Law. In l2mo, price 15^. net, boards, SELECT THESES ON THE LAWS OF HOLLAND & ZEELAND. Being a Commentary of Hugo Grotius' Introduction to Dutch Jurisprudence, and intended to supply certain defects therein, aiM to determine some of the more celebrated Controversies on tha Law of Holland. By D. G. van der Kessel, Advocate. Translated by C. A. Loeenz, Barrister-at-Law. Second Edition With a Biographical^oti^^of^l^e A^^gr.^^j'^ssor J. De Wal, of Leyden . ' STEVENS &■ HAYNES, BELL YARD, TEMPLE BAR. 39 THE 3Sar €)camtttation 9lnnual FOR 1894. (In Continuation of the Bar Examination Journal.) Price 3j. EXAMINATION PAPERS, 1893. FOR Pass, Honors, and Barstow Scholarship, RESULT OF EXAMINATIONS. NAMES OF SUCCESSFUL CANDIDATES. EXAMINATION REGULATIONS FOR 1894. A GUIDE TO THE BAR. LEADING DECISIONS AND STATUTES OF 1894. NEW BOOKS AND NEW EDITIONS. W. D. EDWARDS, LL.B., OF Lincoln's inn, barrister- at- law. Now published, in 8vo, price \%s. each, cloth, THE BAR EXAMINATION JOURNAL, VOLS. IV, v., VI., VII., Vni., IX. & X. Containing the Examination Questions and Answers from Easter Term, 1878, to Hilary Term, 1892, with List of Successfiil Candidates at each examination, Notes on the Law of Property, and a Synopsis of Recent Legis- lation of importance to Students, and other information. By A. D. TYSSEN and W. D. EDWARDS, Barristers-at-Law. Fifth Edition. In 8vo, price 9s. cloth, A SUMMARY OF JOINT STOCK COMPANIES' LAW. By T. EUSTACE SMITH, OF THE INNER TEMPLE, BARRISTER- AT- LAW, " The author of this handbook tells us that, when an articled student reading for the final examina- tion, he felt the want of such a work as that before us, wherein could be found the main principles- of law relating to joint-stock companies . . . Law students may well read it ; for Mr. Smith has very wisely been at the pains of giving his authority for all his statements of the law or of practice, as applied to joint-stock company business usually transacted in solicitors' chambers. In fact, Mr. Smith has by his little book offered a fresh inducement to students to make themselves — at all events, to some extent'— acquainted with company law as a seoa rate branch of study." — Lnw TimesJ- -~^----' ~ -j - " These pages give, in the words of the Preface, ' as briefly and concisely as possible, a general view both of the principles and practice of the law affecting companies.' The work is excellently printed, and authorities are cited ; but in no case is the very language of the statutes copied. The plan is good, and shows both grasp and neatness, and, both amongst students and laymen, Mr. Smith's book ought to meet a ready sale." — Laiv Journal. "The book is one from which we have derived a large amoimt of valuable information, and we can heartily and conscientiously recommend it to our readers." — Oxford and Cambridge Undergra- 40 STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. In 8vo, Sixth Edition, price gj., doth, THE MARRIED WOMEN'S PROPERTY ACTS ; 1870, 1874, 1882 and 1884, With Copious and Explanatoky Notes, and an Appendix of the Acts RELAi'iNG to Married Women. By ARCHIBALD Brown, M.A., Edinburgh and Oxon., and the Middle Temple, Barrister-at-Law. Being the Sixth Edition of The Married Women's Property Acts. By the late J. R. Griffiths, B.A. Oxon., of Lincoln's Inn, Barrister- at-Law, " Upon the whole, we are of opinion that this is the best work upon the subject which has been issued since the passing of the recent Act. Its position as a well-established manual of acknowledged worth gives it at starting a considerable advantage over new books ; and this advantage has been well maintained by the intelligent treatment of the Editor." — Solicitors' Journal, " The notes are full, but anything rather than tedious reading, and the law contained in them is good, and verified by reported cases. ... A distinct feature of the work is its copious index, practically a summary of the marginal headings of the various paragraphs iu the body of the text. This book is worthy of all success." — Law Magazine. In 8vo, price \2s., cloth, THE LAW OF NEGLIGENCE.. SECOND EDITION. By Robert Campbell, of Lincoln's Inn, Barrister-at-Law, and Advocate of the Scotch Bar. " No less an authority than the late Mr. Justice Willes, in his judgment in Oppehheiin v. White Lion Hotel Co., characterised Mr, Canipbell's ' Law of Negligence ' as a * very good book ; ' and since very good books are by no means plentiful, when compared with the numbers of indifferent ones which annually issue from the press, we think; the profession will be thankful to the author of this new edition brought down to date. It is indeed an able and scholarly treatise on a somewhat difficult branch of law, in the treatment of which the author's knowledge of Roman and Scotch Juris- prudence has stood him in good stead. We con- fidently recommend it alike to the student and the practitioner."— AffTu Magazine. In royal 8vo, AN INDEX TO TEN THOUSAND PRECEDENTS IN CONVEYANCING and to common and commercial FORMS/ Arranged in Alphabetical order with Subdivisions of an Analytical Nature ; together with an Appendix containing an Abstract of the Stamp Act, 1870, with a Schedule of Duties ; the Regulations relative to, and the Stamp Duties pay- able on. Probates of Wills, Letters of Administration, Legacies, and Successions. By Walter Arthur Copinger, of the Middle Temple, Barrister-at-Law. BIBLIOTHECA LEGUM. In izmo (nearly 40O pages), price 2x., cloth, A CATALOGUE OF LAW BOOKS. I-luding aU the Reports in the various Courts of Englaiid, Scotland, and Ireland ; with a Supplement to December, 1884. By Henry G. Stevens and Robert W. Haynes, Law PubUshers. In small 4to, price 2s, , cloth, beautifully printed, with a large margin, for the special use of Librarians, : - CATALOGUE OF THE REPORTS IN THE VARIOUS COURTS OF THE UNITED KINGDOM OF GREAT BRITAIN AND IRELAND, arranged' both in alpha- BETICAL &= CHRONOLOGICAL ORDER. By Stevens & Haynes; Digitized by Microsoft® Law Publishers. STEVENS &^ MA YNES, BELL YARD, TEMPLE BAR. 41 Second Edition, much, enlarged,; in 8vo., price zos., cloth. CHAPTERS ON THE LAW RELATING TO THE COLONIES. To which are appended Topical Indexes of Cases decided in the Privy Council 'on Appeal from the Colonies, Channel Islands and, "the Isle of Man, and of Cases relating to the Colonies decided in the English Courts otherwise than on Appeal from the Colonies. By CHARLES JAMES TARRING, M.A., ASSISTANT JUDGE OF H.B.M. SUPREME CONSULAR .COURT, CONSTANTINOPLE, AND H.m'S CONSUL; AUTHOR.OF " BRITISH ,C.ONSUI-AR JURISDICTION IN THE EAST," "a^TUKKISH GRAMMAR," ETC. CONTENTS. ' : Table of Cases Cited. Table of Statutes Cited. Introductory. — Definition of a Colony. Chapter I. — The laws to which the Colonies are subject. Section i. — In newly- discovered couotries. Section z. — In conquered or ceded countries. Section 3. — Generally. - - ' Chapter 11. — The Executive. Section i. — The Governor. A. — Nature of his office, power, and duties. B, — Liability to answer for his acts. I.— Civilly. I. a. — In the courts of his Govern- ment. b, — In the English courts. 2. — For what causes of action. II. — Criminally. Section 2. — The Executive Council. jCiapter JIXI.- — T-he Legislative Power. Section i. — Classification of colonies. Section 2. — Colonies with responsible govern- ment. Section 3.- -Privileges and powers of colonial Legislative Assemblies. Chapter IV, — The Judiciary and the Bar. Chapter V. — Appeals fr'om the Colonies. Chapter VI. — Imperial Statutes relating to the Colonies. Section i, — Imperial Statutes relating to the ' Colonies in general. ; Section 2. — Subjects of Imperial Legislation ' relating to the Colonies in general. Section 3. — Imperial Statutes relating to par- ticular Colonies. Topical Index of Cases decided in the Privy Council on appeal from the ■ Colonies, the Channel Islands, and the Isle of Man. Index of some Topics of English Law dealt with in the Cases. Topical Index of Cases relating to the Colonies decided in the English Courts otherwise than on appeal from the Colonies. Index of Natnes of Cases. Appendix I, , General Index. In 8vOj price ioj., cloth, THE TAXATION OF COSTS IN THE CROWN OFFICE. COMPRISING A COLLECTION OF BILLS OF COSTS IN THE VARIOUS MATTERS TAXABLE IN THAT OFFICE; .INCLUDING COSTS UPON THE PROSECUTION OF FRAUDULENT BANKRUPTS, AND ON APPEALS FROM INFERIOR COURTS ; TOGETHER WITH A TABLE OF COURT FEES, and a scale of costs usually allowed to solicitors, on the taxation of costs on the crown side of the queen's bench division of the high court of justice. By FREDK. H. short, chief clerk in the crown office.. " This is decidedly a useful work on bhe subject of those costs which are liable to be taxed before the Queen's Coroner and Attorney (for which latter name that of ' Solicitor ' might now well be substituted), or before the master of the Crown Office ; in- fact, such a book is almost indispensable when preparing costs for taxation in the Crown Office, or when taxing an opponent's costs. Country solicitors will find the scale relating to bankruptcy prosecutions of especial use, as such costs are taxed in,the Crown Office. The ' general observations ' constitute a useful feature in this manual." — Lajw Tivies. "The recent revision of the old scale of costs in the Crown Office renders the appearance of this work particularly opportune, and- it cannot fail to be welcomed by practitioners. Mr. Short gives, in the first place, a scale of costs usually^Uowed to solicitors on the taxation of costs in the ;.Crowm Office, and then bills of costs in -various miatters. J'hese^re well arranged and cleariy pointed. —SdlicUors' Journal. Digmzea L^y i.^'if^ ^o/M 42 STEVjENS 6- HAYNES, BELL YARD, TEMPLE BAR. Just Published, in 8vo, price Ts. 6d., cloth, BRITISH CONSULAR JURISDICTION IN THE EAST, WITH TOPICAL INDICES OF CASES ON APPEAL FROM, AND RELATING TO, CONSULAR COURTS AND CONSULS; Also a Collection of Statutes concerning Consuls. By C. J. TARRING, M.A., ASSISTANT-JUDGE OF H.B.M. SUPREME CONSULAR COURT FOR THE LEVANT. In one volume, 8vo, price 8j. 6cl., cloth, A COMPLETE TREATISE UPON THE NEW LAI OF PATENTS, DESIGNS, & TRADE MARKS, CONSISTING OF THE PATENTS, DESIGNS, AND TRADE MARKS ACT, 1883, WITH THE RULES AND FORMS, FULLY ANNOTATED WITH CASES, &c. And a Statement of the Principles of the Law upon those subjects, with a Time Table and Copious Index. By EDWARD MORTON DANIEL, OF Lincoln's inn, barrister- at- law, associate of the institute of patent agents. In 8vo, price 8j., cloth, The TRADE MARKS REGISTRATION ACT, 1875, And the Rules thereunder ; THE MERCHANDISE MARKS ACT, 1862, with an Introduction containing a SUMMARY OF THE LAW OF TRADE MARKS, together with practical Notes and Instructions, and a copious Index. By Edward Mortoji Daniel, of Lincoln's Inn, Barrister-at-Law. Second Edition, in one volume, 8vo, price 16s., cloth, A CONCISE TREATISE ON THE STATUTE LAW OF THE LIMITATIONS OF ACTIONS. With an Appendix of Statutes, Copious References to English, Irish, and American Cases, and to the French Code, and a Copious Index. By HENRY THOMAS BANNING, M.A., OF THE INNER TEMPLE, BARRISTER-AT-LAW. "The work is decidedly valuable."— Zazy Times. *' Mr. Banning has adhered to the plan of printing the Actsin an appendix, and making Ms book a running treatise on the case-law thereon. The cases have evidently been investigated with care and digested with clearness and intellectuality." — Lcew y_onmal. In 8vo, price u., sewed, AN ESSAY ON THE ABOLITION OF CAPITAL PUNISHMENT. Embracing more particularly an Enunciation and Analysis of the Principles of Law as applicable to Criminals of the Highest Degree of Gitilt. By WALTER ARTHUR COPINGER, OF THE MIDDLE TEMPLE, ESQ., BARRISTER-AT-LAW. Sixth Edition, in 8vo, price 31J. dd.y cloth, THE INDIAN CONTRACT ACT, No. IX., of 1872. TOGETHER WITE AN INTRODUCTION AND EXPLANATORY NOTES, TABLE OF CONTENTS, APPENDIX, AND INDEX. By H. S, CUNNINGHAM and H. H. SHEPHERD, BARR1STERS-AT-LA\V. Digitized by Microsoftfs) STEVENS &• HAYNES, BELL YARD, TEMPLE BAR. 43 Second Edition, in 8vo, price 15^., cloth, LEADING CASES and OPINIONS on INTERNATIONAL LAW COLLECTED AND DIGESTED FROM ENGLISH AND FOREIGN REPORTS, OFFICIAL DOCUMENTS, PARLIAMENTARY PAPERS, and other Sources. With NOTES and EXCURSUS, Containing the Views of the Text- Writers on the Topics referred to, together with Supplementary Cases, Treaties, and Statutes ; and Embodying an Account of some of the more imj^ortant International Trans- actions and Controversies. By PITT COBBETT, M.A., D.C.L., OF gray's inn, BARRISTER-AT-LAW, professor of law, university of SYDNEY, N.S.W. "The book is well arranged, the materials well i "The notes are concisely written and trust- selected, and the comments to the point. Much worthy. ... The reader will learn from them a . :ii u r J • n ■ i_- 1 1 » - great deal on the subject, and the book as a will be found in small space m this hook: -u.aw ^hole seems a convenient introduction to fuller and Jourfial. I more systematic works." — Oxford Magaziiie. Second Edition, in royal 8vo. iioo pages, price 45^., cloth, STORY'S COMMENTARIES ON EQUITY JURISPRUDENCE. Second English Edition, from the Twelfth American Edition. By W. £. GRIGSBY, LL.D. (Lond.), D.C;L. (Oxon.), AND OF THE INNER TEMPLE, BARRISTER-AT-LAW. " It is high testimony to the reputation of Story, I has been rendered more perfect by additional and to the editorship of Dr. Grigsby, that another indices." — Laiu Times. edition should have been called for. . . . The work | "* Second Edition, in 8vo, price 8j., cloth, THE PARTITION ACTS, 1868 & 1876, A Manual of the Law of Partition and of Sale, in Lieu of Partition. With the Decided Cases, and an Appendix containing Judgments and Orders. By W. Gregory Walker, B.A., of Lincoln's Inn, Barrister-at-Law. "This is a very good manual — practical, clearly written, and complete. The subject lends itself well to the mode of treatment adopted by Mr. Walker, and in his notes to the various sections he has carefully brought together the cases, and dis- cussed the difficulties arising upon the language of the different provisions." — Solicitors' Journal. Second Edition, in 8vo, price lis, cloth, A TREATISE ON THE LAW AND PRACTICE RELATING TO INFANTS. By ARCHIBALD H. SIMPSON, M.A., OF LINCOLN'S INN, BARRISTER-AT-LAW, AND FELLOW OF CHRIST'S COLLEGE, CAMBRIDGE. SECOND EDITION, By E. J. Elgood, B.C.L., M.A., of Lincoln's Inn, Barrister-at-Law. "Mr. Simpson's book comprises the whole of the law relating to infants, both as regards their per- sons and their property, and we have not observed any very important omissions. The author has evidently expended much trouble and care upon his work, and has brought together, in a concise and convenient form, the law upon the subject down to the present time." — Solicitors' JournaL "Its law is unimpeachable. We_ have detected no eri-ors, and whilst the work might have been done more scientifically, it is, beyond all question, a compendium of sound legal principles." — Law Times. *' Mr. Simpson has arranged the whole of the Law relating to Infants with much fill ^-3-'~:i — j ^f^ifi^^'&f mtchs!dfm yet in comparatively little space. The result is due mainly to the businesslike condensation of his style. Fulness, however, has by no means been sacrificed to brevity, and, so far as we have been able to test it, the work omits no point of any im- portance, from the earliest cases to the last. In the essential qualities of clearness, completeness, and orderly arrangement it leaves nothing to be desired. " Lawyers in doubt on any point of law or prac- tice will find the information they require, if it can be found at all, in Mr. Simpson's book, and a vifriter of whom this can be said may congratulate himself on having achieved a considerable success.'' jf zzfie, February, 1876 a STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. In one volume, royal 8vo, 1877, price 30?., cloth, THE DOCTRINES & PRINCIPLES OF THE LAW OF INJUNCTIONS. By WILLIAM JOYCE, , OF Lincoln's inn, earristee-at-law. "Mr. Joyce, whose learned and exhaustive work on 'The Law and Practice of Injunctions' has gained such a deservedly high reputation in the Profession, now brings out a valuable companion volume on the 'Doctrines and Principles' of this important brapch of the Law. In the.jiresent work the Law is enunciated in its abstract rather than its concrete" form, as few cases as possible being cited ; while at the same time no statement of a principle is made unsupported by a decision, and for the most part the very language of the Courts has been adhered to. Written as it is by so acknowledged a master of his subject, and with the conscientious carefulness that might be expected from him, this. work cannot fail to prdve of the greatest assistance alike to the Student — who wants to grasp principles freed from their superincumr bent details — and to the practitioner, who wants to refresh his memory on points of doctrine amidst the oppressive details of professional work," — Laiu Magazine and Review. BY THE SAME AUTHOR. In two volumes, royal 8vo, 1872, price 70J.3 cloth, THE LAW & PRACTICE OF INJUNCTIONS. EMBRACING ALL THE SUBJECTS IN WHICH COURTS OF EQUITY AND COMMON LAW HAVE JURISDICTION. By WILLIAM JOYCE, OF LINCOLN'S INN, BARRISTER-AT-LAW. REVIEWS. "A work which aims at being so absolutely complete, as that of Mr. Joyce upon a subject which is of almost perpetual recurrence in the Courts, cannot fail to be a welcome offering to the profession, and doubtless, it will be well received and largely used, for it is as absolutely complete as it aims at being This work is, therefore, eminently a work for the practitioner, being full of practical utility in every page, and every sentence, of it We have to congratulate the pro- fession on this new acquisition to a digest of the law, and the author on his production of a work of permanent utility and fame." — Law Magazine and Review. " Mr. Joyce has produced, not a treatise, but a complete and compendious e-vposition of the Law and Practice of Injunctions both in equity and common law. 'Part III. is devoted to the practice of the Courts. Contains an amount of •valuable and technical matter notukere else collected. •' This work, considered either as to its matter or manner of execution, is no ordinary work. It is a complete and exhaustive treatise both as to the law and the practice of granting injunctiops. It must supersede all other works on the subject. The terse statement Of the practice will be found of incalculable value. We know of no book as suitable to supply a knowledge of the law of injunctions to our common law friends as Mr. Joyce's exhaustive work. It is alike indispensable to members of the Common Law and Equity Ears, Mr. Joyce's great work would be a casket without a key unless accompanied by a good index. His index is very full and well arranged. We feel that this work is destined to take its place as a standard text-book, and the te:fl:-book on the particular subject of which it treats. The author deserves great credit for the very great labour bestowed upon it. The publishers, as usualj have acquitted themselves in a manner deserving of the high I'eputatiori they bear." — Canada Lazu' youmaL " From these remarks it will be sufficiently per- ceived what elaborate and painstaking industry, as well as legal knowledge and ability has' been necessary in the compilation of Mr. Joyce's work. No labour has been spared to savethe practitioner labour, and no research has been omitted which could tend towards the elucidation and exemplifi- cation of the general principles of the Law and Practice of Injunctions." — Law Journal. " He does not attempt to ^o an inch beyond thelt for which he has express written authority ; he al- lows the cases to speak, and does not speaJ: for them. "The work is something more than a treatise on the l^w of Injunctions. It gives us the general law on almost every subject to which the process of injunction is applicable. Not only English, but American decisions are cited, the aggregate number being 3,500, and the statutes cited 160, whilst fjve index is, we think, the most elaborate we have ever seen — occupying nearly 200 pages. The work is probably entirely exhaustive." — Law Tijues^ Digitiz e d by Microsoft® STEVEMS df* HAYNES, BELL YARD, TEMPLE BAR. 45 Third Edition, in 8vo, price i.os., cloth, A TREATISE UPON THE LAW OF EXTRADITION, WITH THE CONVENTIONS UPON THE SUBJECT EXISTING BETWEEN ENGLAND AND FOREIGN NATIONS, AND THE CASES DECIDED THEREON. By Sir EDWARD OF, LINCOLN S INN, S.-G. CLARKE, , Q.C., M.P. *' Mr. Clarke's accurate and sensible book is the best authority, to which the^.English reader can turn upon the subject of Extradition." — Saturday "The opinion we expressed of the merits of this work when it first appeared has been fully justified, by the reputation it has gained. It is seldom we come across a book possessing so much interest to the general reader and at the same time furnishing so useful a guide to the lawyer." — Solicitors' Journal, "The appearance of a second edition of this treatise does not surprise us. It is a useful book, well arranged and well written. A student w'ho wants to learn the principles and practice of the laiy of extradition will be greatly helped by Mr, Clarke. Lawyers v/ho have extradition business will find this voJume an-excellent book of reference. Magistrates who have to administer the extradition law will be greatly assisted by a careful perusal of 'Clarke upon Extradition.' This may be called a warm commendation, but those who have read the book will not say it is unmerited." — Law Joit-mal. The Times of September 7, 1874, in a long article upon "Extradition Treaties," makes con- siderable use of this work and writes of it as " Mr. Clarke sitsefiU Work on Extradition." In 8vo, price zs. 6d., cloth, TABLES OF STAMP DUTIES FROM 1815 TO 1878. By WALTER ARTHUR COPINGER, OF THE MIDDLE TEMPLE, ESQUIRE, BARRISTER-AT-LAW : AUTHOR OF '* THE LAW OF COPYRIGHT IN WORKS OF LITERATURE AND ART," " INDEX TO PRECEDENTS IN CONVEYANCING," "TITLE DEEDS," &C. ' *' We think this little book ;ought to find its way ijito a good many chambers and offices." — Soli- citors* joumaL ■' This book, or at least one containing the same amount of valuable and well-arranged information, should find a place in every Solicitor's office. It is of especial value when examining the abstract of a large number of old title-deeds." — Lauu Times. ' His Tables of Sta7n^ Duties, f ran 1815 to 1878, have already been tested in Chambers, and being now published, will materially lighten the labours of the profession in a tedious department, yet one re- quiring great care," — Laiv Magazine arid Review, In one volume, 8vo, price 14J., cloth, TITLE DEEDS: THEIR CUSTODY, INSPECTION, AND PRODUCTION, AT LAW, IN EQUITY, AND IN MATTERS OF CONVEYANCING, , Including Covenants for the Production of Deeds and Attested Copies ; with an Appendix of Precedents, the Vendor and Purchaser Act, 1874, &c. &c. &c. By Walter Arthur Copinger, of the Middle Temple, Barrister-at-Law ; Author of " The Law of Copyright " and " Index to Precedents in Conveyancing. " here. Mr. Copinger has supplied a much-felt want, by the compilation of this volume. We have not "The literary execution of the work is good enough to invite quotation, but the volume is not large, and we content ourselves with recommending it to the profession." — Law Times. " A really good treatise on this subject must be essential to the lawyer : and this is what we have space to go into the details of the book ; it appears well arranged, clearly written, and fully elaborated. With these few remarks we recommend his volume to our readers." — Law Journal. Third Edition, in 8vo, considerably enlarged, price 361., cloth, THE LAW OF COPYRIGHT In Works of Literature and Art; including that of the Drama, Music, Engraving, Sculpture, Painting, Photography, and Ornamental and Useful Designs ; together with International and Foreign Copyright,. with the Statutes relating thereto, and ; References to the English and American Decisions. By AValter Arthur Copinger, of the Middle- Temple, Barrister-at-Law. " Mr Copinger's book is very comprehensive, merits which will, doubtless, lead to the placing of dealine' with every branch of his subject, and even thl,s edition on the shelves of the members of the extending to copyright in foreign countries. So far profession whose business is concerned with copy, as we have examined, we have found all the recent right ; and deservedly, for the book is one of con- authorities noted up with scrumJou- csre jnd ^ s'dsrableMtoe. —Solicitors Journal. there is an unusually good iM(i J.), 26, 41, 42. Taswell-LaN'Gmead, 21. Thomas (Ernest C), 28. Tyssen (A.-D.), 39. Van der Keesel (D. G.), 38. Van Leeuwen,-38. Van Zyl, 38. Waite (W. T.), 22. Walker (W. G. ), 6, 18, 43. Watts (C. N.), 47, Wertheimer (J.), 32. Whiteford (F. M.y, 20. Whitfield ,(E. E.), 14. Williams (S. E.), 7. r^. ... , , -WORTHTNGTON (S. W.), 20. DigitiTBcihy Mien _^ — LONDON: BRADBURY, AGNEW, & CO. LD., PRINTERS, WHITEFRIARS, E.G. Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® m