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DIGEST
OP THE
LAW OF PEOPERTY IN LAND
PARTS L, 11.
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The original of tliis book is in
tine Cornell University Library.
There are no known copyright restrictions in
the United States on the use of the text.
http ://www.arch ivg..£rjg(d^tai[gpu31 924021 641 51 3
AN
ELEMENTAKY
DIGEST
OP THE
LAW OF PROPERTY
IN
LAND
BT
STEPHEN MAETIN LEAKE
BABBISTEB-AT-LAW
LONDON
STEVENS AND SONS
119 CHANCEET LANE
1874
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FEINTED BT TAYLOK AND CO.,
■WTTIE QUEEN STREET, LINCOLN'S INN TIELDS.
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PEEFACE.
The complaint is found in the earliest writers on our law^
that the .laws and customs of the realm are not put into
writing, that they may be known by all who have to ad-
minister or to obey them (a). This complaiat has been
continually repeated, under an ever increasing pressure of
the inconvenience, but with very little attempt at a
remedy (b), up, to the present time; when, at last, it has
called forth some more decided efforts for relief.
These efforts have already produced some useful results,
chiefly in rendering the Statute law more compendious and
accessible ; but in the direction of their immediate object of
reducing to writing that body of law which rests upon
custom and precedent, they appear to have been arrested
by the preliminary question whether the written exposi-
tion of law should take the form of a Code or a Digest ; and
much discussion has ensued upon the essential distinctions
and comparative advantages of these two forms of a corpus
jv/ris, but without any conclusion as yet upon the future
course of proceeding.
If, as seems generally agreed, the main distinction between
(a) See Home's Mirror of Justices, Chap. V. sect. 1, 3, where this is
reckoned as one of the "abusions " of the common law.
(b) See Bacon's " Offer of a Digest of the Laws of England," Law
Tracts, p. 15.
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VI PREFACE.
a Code and a Digest be tliat a Code is the immediate ema-
nation of authority, at once both the source and the text of
the law, legislating as it speaks ; while a digest is an exposi-
tion of the law compiled from the various existing sources,
having no independent authority beyond the credit due to
the compilation ; then a Code, as such, is necessarily a
public undertaking and must await the action of the public
powers. It is at once seen to be altogether beyond the
scope of private exertion and enterprise.
But if, passing over this extrinsic point of difference, it
be considered that either Code or Digest must contain the
same matter, and for the same purpose, namely, that the law
may be readily accessible to all ; and that for this purpose it
must be equally an object with either that it should be
framed in the most serviceable and intelligible form ; also
that even public authority must submit to the laws of scien-
tific order, and that every general exposition of law, whether
Code, or Digest, or separate Treatise, to be practically
convenient and useful, must conform to a correct method
and to sound principles of arrangement ; then it may be seen
that a wide field of inquiry lies open, in which private
exertions may be permitted to assist, — a field of inquiry in
which public authority can stand at no advantage, and
in which the result of any successful exertions would
be equally applicable either to a Code or a Digest,
either to authoritative or unauthoritative expositions of
law.
The following work is an essay in this field of inquiry ;
and it has been undertaken and executed under a firm con-
viction that an essential condition of obtaining a public
Code or Digest, whether of the whole or of detached portions
of the law, will be found in the attainment of correct
principles of order. The law has here been carefully
collected, point by point and case by case, as found in its
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peefaoe. vu
various sources, and has been arranged according to the
connections and relations of the matter, with the view
of developing the principles of order to which it con-
forms, and by means of which it may be presented as
harmonious and coherent.
The law of property in land has been selected, on this
occasion, as the subject of treatment, — a branch of the law,
which, although from its special character in English law it
may not perhaps be thought the best adapted for the pur-
pose, yet from its necessary importance in that as in every
other system of jurisprudence and from the many and various
interests affected by it, appears to be, at least equally with
any other, worthy of attention and promising in practical
results.
The law of property in land has hitherto been treated,
for the most part, upon the basis of history ; the law of the
present day is made intelligible only by reference to that
of past ages ; and through a long course of changes, more
or less obscure, we derive from remote antiquity the present
form of aboriginal institutions. The scientific method of
treatment, that is, a treatment having reference to the
internal order and connections of the subject has been
thought inapplicable or, at least, has been made a sub-
ordinate consideration. But, while the necessity of the
historical method in the present state of the law may
be fully recognised, it may yet be maintained that an
improved order of treatment may be employed as an im-
portant auxiliary. The scientific method of treatment is
certainly, in general, the practical one ; and it may be
called in aid for presenting the living law, as it exists, in a
more accessible and efiicient working form.
The question of a Code, as to this branch of law, ob-
viously depends upon the possibility of separating the
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Vm PEEFACE.
positiye results of the law from the series of historical
events and legislative acts through which they have reached
us ; abstracting the rules of law from their various sources,
and stating and arranging them in a uniform style and
method ; — a process which might be described as a transla-
tion of the law from an historical to a scientific form of
exposition. For the purposes of a Code law must be dis-
sociated from history and must appear as positive law.
Historical development finds no place in a Code ; nor in-
deed does any sort of discursive explanation or argument.
The very idea of a Code, as constituting the law itself, not
only as to the letter but also as to formal authority, is at
once self-suSicient, and precludes the introduction of any
other grounds of consideration and judgment. The order,
consistency, and internal relations of the parts comprise
the only argument and explanation therein admissible.
The present attempt at an extended application of the
principles of order may, therefore, serve some purpose in
pointing out some of the difiiculties to be encountered in
the undertaking of a Code of this branch of law. It may,
perhaps, shew that the law of real property will not be capable
of a very complete systematic arrangement, until it has been
reduced by a large process of amendment to greater harmony
and uniformity in its component elements. It will certainly
serve to show how extensive a space in the statement of the
law is at present necessarily occupied in explaining the
sources of the law, their diversity, and the remote deduc-
tion of their origin.
The present work makes no pretence of competing with
or improving upon the existing treatises upon the various
matters here included by a more complete or more accurate
statement or discussion of the matter of the law.; in this
respect it aims merely at giving the law, as it exists, with
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PEEFACE. IX
such accuracy and completeness as is reasonably to be ex-
pected in an elementary and compendious work. The
reader is referred to the numerous well approved treatises
on the various branches of real property law for further
details and for the discussion of special points of doubt
and difficulty. But for the advantageous perusal of those
treatises it is for the most part requisite that the reader or
student should be prepared with a clear conception of the
subject in general ; and the present work may^ it is hoped,
be found useful in contributing some means towards the
attainment of such a conception.
With respect to fullness of detail, however, there may be
claimed on behalf of a treatise, arranged with especial refer-
ence to order and unity of plan, the capacity, at least, of
comprising an extensive degree of detail within compara-
tively narrow limits of space ; because the order itself should
serve to indicate many analogies and connections, distinc-
tions and qualifications in the several parts of the subject,
which in a more detached, or less methodical treatment of
the same topics require to be noticed with particularity on
every occasion, in order to prevent misapprehension arising
from a too general style of expression.
It may be further observed that a subject arranged upon
a scientific order, provided that order be the correct one, is
capable of being readily and without confusion extended
into indefinite detail by the mere process of continued
development. Wherefore, to assist those who may have
occasion to pursue their inquiries further on any point the
necessary authorities, including all the more recently reported
cases, have been here collected in the notes.
As the chief object in view has been to enforce the con-
clusion that the essential virtue of a digest is to be found
in the order of arrangement, it has not been thought worth
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X PEEFACE.
while to contrive or adhere to any strict formality of style.
Much care has been taken that the statements of the law
should be accurate^ clear, and concise, and as nearly as
possible in the language of the original sources ; some care
has also been taken to preserve a certain general uniformity
of expression ; but it has been found convenient frequently
to admit some explanatory observations, and to cite some
illustrations from decided cases, which may, perhaps, be
considered informal and irregular in a work bearing the title
of a Digest of law.
In a Code or authoritative Digest a more formal and
perhaps legislative style would be expected, and a stricter
condensation of matter. Such a work would probably be
framed, after the model of existing codes, with an exact sub-
division into articles and paragraphs, numbered, perhaps,
for convenience of reference. In the present far slighter
undertaking the attempt at such an elaboration of form,
while it would have caused much additional labour, would
have imposed a great restriction upon the freedom of treat-
ment, and would have imported into the work an assump-
tion of perfection and completeness to which, in its present
state, it makes no pretence.
If an excuse be required for the separate publication of
the first two Parts of the work, beyond the indulgence that
may be asked for an undertaking which, with every
care for compression, has been found greatly to exceed the
moderate limits originally contemplated, it may perhaps
be allowed in the embarrassment caused by impending
changes in the law. In the course of preparing this volume
the Supreme Court of Judicature Act, so largely unsettling
the relations, of law and equity, has become an accomplished.
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PEEPACE. XI
thougli deferred, fact ; and the Land Titles and Transfer
Actj with its compulsory system of Registration, an assured
expectation. The former act, together with the Vendor
and Purchaser Act, 1874, containing amongst various
provisions supplementary to the former Act, the im-
portant enactment by which the priority and protection
hitherto allowed in equity to the legal estate has been
abolished, have been noticed in this volume, so far as can be
safely ventured before they have been judicially interpreted.
But the Registration Act promises such extensive changes
in regard to the transfer of land and the practice of con-
veyancing, involving, as it does, an entirely new and exclu-
sive mode of conveying the legal title, that it would be
useless to attempt any further progress with the Part of
the work to which these matters belong, until the Act has
been finally settled by the legislature. The Parts still
awaiting publication are, in other respects, in an advanced
state of preparation ; and it is calculated that they may be
contained in another volume of equal bulk with the present.
The Parts contained in this volume are sufficiently complete
in themselves to admit of separate publication ; but the author
respectfully deprecates a final judgment upon his work be-
fore seen in its integrity, because many matters may appear
here deficient which are reserved for their appropriate place
in a later Part, and he would prefer that it should be judged
by the complete scheme rather than by the mode of execu-
tion in detail.
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SUMMAEY OP DIGEST {a).
PAET I. THE SOIJECES OF THE LAW.
Chapter I. The law of Freehold Tenure.
II. The law of Customary Tenure.
III. The law of Uses.
IV. The law of Trusts and Equitable Interests.
PART II. ESTATES IN LAND.
Chapter I. The Limitation of Estates as to Quantity.
II. The Limitation of Estates as to Time of
Commencement.
PAET III. LAND AS THE SUBJECT OE PROPEETT.
Chapter I. Eights of Use and Enjoyment.
(1) As to the various kinds.
(2) As to appropriation to the various
Estates.
(a) The explanation of this arrangement is given in the Introduction.
The contents of Parts III., IV., V., are here given proviaionally and
subject to alteration in further preparation for publication.
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SUMMAEr OF DIGEST. XIU
Chapter 11. Eights of Use and Enjoyment in the
land of another.
(1) Easements.
(2) Profits a prendre.
(8) Public Eights and Customs of the
nature of easements;
(4) Eents.
PAET IV. THE TEANSPEE OP PEOPEETY IN LAND.
Chaptee I. By Conveyance.
(1). The Power of Disposition incident
to the various estates in land.
(2). The Forms of Conveyance.
II. Disposition by Will.
III. Descent.
IV. The law of Merger.
V. Escheat and Forfeiture.
VI. Legal Process, Bankruptcyj etc.
PAET V. THE LAW OP PEESONS AS APPECTING
PEOPEETY IN LAND.
Chapter I. The Number of Persons as owners.
(1). Joint Tenancy.
(2). Tenancy in Common.
II. The Capacity of Persons as owners.
(1). Aliens.
(2). Infants.
(3). Husband and Wife.
(4). Corporations.
(5). The law of Charitable Uses,
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TABLE OF CONTENTS («)•
INTEODUCTION.
Rights distinguished as jura in rem, and jura in personam
Subjects of property distinguished, as land and goods
Property in land and goods distinguished .
Estates in land .....
The various uses of land as subject of property
Title and possession .
Principles of the civil law of property
Dominium &iadjura in re .
English law of property in land
Possessory and future estates
Difference between English and civil law
Distinction of things as real and personal
Keal and personal property — Real and personal s
Order of treatment .
Estates in land .
Land as subject of property
Transfer of property in land
Law of persona, as affecting property i
Sources of English law .
Law of freehold tenure
Law of customary tenure ,
Equity — Uses — trusts
Statute law
Arrangement of the work in Parts
in land
actions
PAGE
1
2
3
3
4>
5
6
6
6
6
7
8
8
9
9
9
11
11
12
12
12
13
13
15
(a) This Table of Contents consists of the contents given at the head
of each section throughout the volume, but it has been carefully revised
and in many places corrected and altered. An alphabetical index will be
found at the end of the volume.
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CONTENTS.
PAET I.
THE SOTJECES OP THE LAW.
PAGE
Chapter I. The law of Freehold tenure, as subsisting at common
law ... . 17
II. The law of Customary tenure . . . . 70
III. The law of Uses, aa incorporated in the common law by
the Statute of Uses 99
IV. The law of Trusts and equitable property in land . 125
CHAPTEE I.
THE LAW OP FREEHOLD TENURE.
Section I. Tenure .... ...
II. Estates of freehold tenure
III. Seisin and conveyance of freehold estates
IV. Descent, and disposition by will
17
31
45
60
Sbction I. Tenuee.
Tenure 17
Subtenure — infeudation — sub-infeudation 18
Statute Quia emptores ...... .18
Manors 19
Demesne land and services . . . . . . .19
Court baron .......... 20
Creation of manors ........ 21
Extinction of manors — ^reputed manors ..... 21
Customary tenants and customary court of manor . . 22
Services of tenure .22
Knight service — escuage ..... . . 23
Special forms of knight service ... . . 23
Socage tenure — rent service .... . . 24
Special forms of socage tenure . 24
Frankalmoign .... . . 25
Incidents of tenure ...... . . 26
Homage and fealty ..... .26
Wardship and marriage ... .... 26
Relief — heriots . ....... 27
Fines — aids — escheat ... ..... 28
Statute 12 Car. II., abolishing feudal incidents and converting
tenures into common socage 29
Section II. Estates of Feeehoid Tenttee.
The fee or feudal estate 31
Grant extended to heirs ........ 32
Restricted to heirs of the body 32
Title of heir by grant and by descent 33
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XVI
CONTENTS.
Fee simple at common law .....
Limitation to heirs ........
Estate for life ..........
Followed by limitation to lieirs — Bule in Shelley's case
Pee simple conditional .......
Fee conditional upon issue ." . . .
Ancient instances of fee simple conditional
Effect of the statute Quia emptores upon such limitations .
Fee tail under the statute I)e donis ......
EiEoaoy of Fines and Beeoveries in bai-ring entails .
Fines and RecoTeries abolished and new mode of disentailing
substituted ... . .
Base fee
Reversion and remainder ....
No reversion or remainder after fee simple
Tenure of tenant to reversioner
Services, etc., incident to reversion .
Freehold estates
Lease for years ......
Estate and tenjire of lessee
Leaseholds and chattels real are personal estate
PAGE
33
33
34
34
35
35
36
36
37
38
39
40
40
41
42
42
43
44
44
45
SiiCTioN III. The Seisin and Oohveyaitce op Febbhold Estates.
Seisin of the freehold .....
Feoffment by livery of seisin
Livery for particular estate and remainder
Limitations shifting the seisin .
Eule against abeyance of the seisin .
Limitations of freehold to commence in j
Contingent remainders
Possession of leasehold .......
Lease for years ........
Lease for years with remainder of freehold
Lease to commence infuturo .....
Deed of feoffment — statutory requirements of feoffment .
Freehold now lies in grant .....
Bules of limitation in grants .....
Limitation to grantor or his heirs, at common law .
Creates a new title by statute .....
Things lying in grant .......
Reversions and remainders .....
Incorporeal hereditaments .....
Attornment to grant at common law — abolished by statute
Release — conveyance by lease and release
Disseisin — conveyances having tortious operation
Rights of entry and of action ...
Real actions abolished by statute
45
46
46
46
47
47
48
49
49
49
50
50
51
51
51
51
52
53
53
54
55
56
58
59
Section IV. § 1. Descent and § 2. Disposition bx Wili..
§ 1 . Descent.
Seisin as root of descent 60
Descent traced from purchaser under the Inheritance Act . 61
Descent restricted to the blood of the purchaser .... 61
Breaking the descent 62
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CONTENTS.
XVll
Half blood excluded at common law
Doctrine of possessio fralris ....
Half blood admitted by the Inheritance Act
Descent in tail .......
Preference of males— preference of the paternal line
Primogeniture — parceners . . . .
Lineal ancestors excluded at common law — collateral descent
Lineal ancestors admitted by the Inheritance Act — collateral
descent excluded
Eight of representation to deceased ancestor .
PAGE
62
62
63
63
63
64
64
65
65
§ 2. Disposition by Will.
Land not devisable at common law — except by special custom . , G6
Uses in equity deTisable— until the Statute of Uses .... 67
Statutes of Wills— the Wills Act, 1 Vict. c. 26 . . P7
Disposition by will— how far subject to the rules of common law 68
How far independent of those rules ... .68
Executory devises .69
Construction of wills — use of technical terms . . .69
OHAPTEE II.
THE LAW OF CUSTOMABY TENURE.
Section I. Origin and form of customary tenure . . 70
II. Limitation and transfer of customary estates ... 79
III. Bights and Bemedies incident to customary tenure . . 86
IV. Extinguishment, Bsgrant and Enfranchisement . 93
Section I. Oeioin and Foem as Custom iET Tbnitbe.
Origin of customary tenure
Villenage — services of villenage
Form of customary tenure
Tenancy at will of the lord
Conveyance by surrender and admittance
Title by copy of court roll
Customary Court
The court rolls
Customs of manors— general customs
Special customs — evidence of customs
Land not grantable by copy, except by custom
Custom to grant wa?te by copy
Copyhold and customary freehold
Special forms of customary tenure .
Customary tenures excepted from 12 Car. II.
Application of statutes to customary tenure
70
71
72
72
72
72
72
73
73
74
76
76
76
77
78
78
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XVIU
CONTENTS.
Section II. The Limitation and TsAifsrEE os Estates op
CtrSTOMABY TeHITEB.
The customary estate
Limitation of uses of surrender.
Construction of limitations
Pee simple conditional
Estate tail by special custom
Modes of barring estate tail
Future and contingent uses
Powers of appointing uses.
Lease for years — at common law
By surrender to use .
Terms freebold estate, seisin, etc., applied to copyholds
DeTise by surrender to use of will
Devise without surrender .
Power to devise under the "Wills Act, 1 Vict. c. 26
Descent in customary tenm-e .
PAGE
79
80
80
81
81
82
82
83
84
84
84
84
85
85
86
Section III. Bights and Ebmebies incident to Customabt
Tenuke.
Eights of copyholder incident to possession
Special custom to take minerals, timber, etc.
Remedies of copyholder .
Trespass and ejectment .
Mandamus to compel admittance
Bill in chancery
Eights of lord .....
Seizure to compel admittance
Suit to ascertain boundaries ».
Eines on admittance, etc.
Eees to steward
Fealty and services of customary tenure
Escheat and forfeiture
Waiver of forfeiture .
86
'. . 87
87
87
88
88
88
88
89
89
90
,
90
90
92
Section IV.
Extikgitishment oe Customaet Tenitee; Eegeant;
Eneeanohisement,
Union of copyhold and freehold titles
Surrender to lord — for particular estate .
Surrender to lord having a particular estate
Copyholder acquiring estate in the freehold
Copyholder acquiring tlie manor
Severance of the tenement from the manor
Eegrant of copyhold
Must conform with the custom .
Eegrant is voluntary
Enfranchisement ....
To copyholder for life or years
To copyholder in tail
No tenure or services can be reserved
Statutes to facilitate enfranchisement
93
93
93
94
94
94
95
96
96
97
97
98
98
98
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CONTENTS.
XLK
CHAPTEE III.
THE LAW OF USES.
Section I. TjBes before the Statute of Uses
II. Uses since the Statute of Uses
lit. Operation and limits of the Statute of Uses
pAGm
99
105
115
SECTioif I. Uses bepoee the Statute oe Uses.
Origin and nature of Uses .... ... 99
Uses at law ...... . . 100
Possession of cestui que use .... . . 100
Uses in equity ...... . 100
Enforced in Chancery by subpoena . . . 101
Not subject to rules of tenure .... 101
Assignment of Uses . . . . 102
Disposition of Uses by will . . . . . 102
Descent of Uses ......... 102
Statutes concerning uses — the Statute of Uses . . . . 103
Seotioh" II. Uses since the Statute op Uses.
Creation of uses within the statute ... ... 105
With transmutation of possession . . 105
By declaration of use ... . . . 105
Uses raised by payment of consideration . . . 106
Besulting uses . 107
Creation of uses, without transmutation of possession . 108
By bargain and sale 108
By covenant to stand seised . ... 109
Limitation of uses . . . Ill
Express limitations . . . . . . . .111
Resulting uses . . ... . . 112
Limitation of uses upon bargain and sale . . . 112
Uses in remainder .... . . 112
Springing and shifting uses .... . . 112
Powers of reToeation and new appointment . 114
Uses limited to the grantor — or to his heirs . .114
Section III. Opebation op the Statute oe Uses.
Operation in executing the use.
Nature of possession transferred
Mode of operation upon future and contingent uses .
Doctrine of scintilla juris ....
Superseded by statute .....
Seisin required to support uses ....
Seisin not co-extensive with the uses — seisin for life
tail
Limits of operation of the statute ....
Uses declared upon possession for term of years
Uses limited to the grantee of the legal possession
Uses limited upon a use
Special or active trusts and passive trusts or uses
Application of the statute of uses to wills
The statute does not apply to copyholds .
115
116
116
116
117
117
118
118
118
119
120
121
122
123
h%
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xx
CONTENTS.
CHAPTER IV.
THE LAW OF TfiUSTS AND EQUITABLE ESTATES.
Section I. The Nature and Origin of Trusts ....
II. The Creation of Trusts . ....
III. Equitahle Estates, and Estate and Office of Trustee
Section I. Tsn Natueb and Obimn of Tettsis.
Uses not executed by the statute
Trustee and cestui que trust ....
Trusts in equity .... ...
Equitahle seisin and estate ......
Legal estate held subserrient to the eqtiitable estate
Trusts at law ... ...
Possession of cestui que trust
Legal and equitable title ..... . .
Union of legal and equitable title
The Supreme Court of Judicature Act
Trusts of copyholds ....
Section II. Creation oe Teusts.
Trusts raised upon conveyance of the legal estate
By declaration of trust ....
Precatory trusts .....
Evidence in writing required by the Statute of
By constructive trust .....
Erom payment of consideration
Purchase in name of wife or child
Voluntary conveyances ....
Conveyances obtained by fraud .
By resulting trust ......
From partial declaration of trust
.From declaration which fails of eifeet
Trusts raised without conveyance of the legal estate
By declaration of trust .....
Voluntary declaration of trust .
By constructive trust arising from contract
Voluntary agreements ....
Imperfect gifts ......
Voluntary declarations of trust distinguished
Frauds
PAGE
125
131
139
125
126
126
126
127
127
127
127
128
129
129
131
131
132
132
133
133
133
134,
135
135
135
136
136
136
136
137
137
138
138
Section III. § 1. Equitable Estates, and
Oeeice op Trustee.
2. Estate and
§ 1. Equitable Estates.
Limitation of equitable estates . . . . . 139
Bules of tenure and doctrines of freehold have no application . 140
Equitable estates of copyhold follow the custom .... 140
Are not subject to fines and incidents of the legal tenancy . . 141
Lord not bound by trusts — unless appearing on the rolls . . 141
Equitable estates arising by constructive trusts .... 14X
Conveyance of equitable estates ...... 143
Writing required by Statute of Frauds ..... 142
Equitable estate in copyhold passes without surrender . . 142
Disposition by will and descent of equitable estates .... 142
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CONTENTS.
XXI
§ 2. Estate and Opfice ov Tettsteb.
Estate of trustee ...
Trust follows the estate
Purchaser for value witliout notice of the trust
Subpurchaser with notice
Purchaser without value
Purchaser with notice ...
Purchaser under trust for sale .....
Power of trustee to give receipt for purchase money
Statutory power to give receipt ....
Power to appoint new trustees .....
Jurisdiction of Court of Chancery to supply the want
Statutory power of Court to appoint new trustees
Statutory power without the aid of the court
Duty of trustee to account ....
Remuneration for time and services
Expenses and employment of agents
Indemnity against loss ....
Liability for breach of trust or negligence
For default of agent .....
Default of co-trustee ....
Trustee must account for the profits of the trust
Purchase of the trust property by trustee .
Purchase of incumbrance by trustee .
Renewal of lease by trustee
Purchase by trustee from his cestui que trust .
Purchase by persons in fiduciary position .
of trustees
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PAET II.
ESTATES IN LAND.
Chapter I. The Limitation of Estates as to quantity
II. The Limitation of Euture Estates
155
312
CHAPTER I.
THE LIMITATION OF ESTATES AS TO QUANTITY.
Section I. Eee simple
II. Fee tail
III. Estate for hfe
IV. Estate for years
V. Tenancy at will
VI. Conditional limitations and conditions
VII. Equitable estates and interests in land
155
168
189
197
206
214
243
Section I. Feb Simple.
§ 1. The limitation of a fee simple in conveyances
§ 2. The limitation of a fee simple in wiUa
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§ 1. Thb IjImitation of a tee simple in conveyances.
PAGE
Fee simple . ■ 155
Limitation to " heirs " necessary to pass a fee . . 156
Exceptions to tlie rule . 156
The rule in Shellei/'-s case 157
Limitation to " heirs " as purchasers .... • 157
Imports fee simple — descendible from ancestor . . 158
Limitation to heirs of grantor ... . . 158
Meaning of " heir " as word of purchase ..... 158
"Heir" with additional description — "Heir" quaLfled by de-
scription — " lieir male " — " heir now living " . . . 1 58
§ 2. Limitation oe Feb Simple in Wills.
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160
160
160
161
161
162
162
164
164
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165
165
166
Devise to " heirs " as word of limitation
The rule in Shelley's case applied to wills
Devise to "heirs " as devisees
Imports fee simple — descendible from ancestor
Devise to testator's own heir
Meaning of " heir " as designation of devisee
" Heir '' with additional description
" Heir " qualified by description
Devise without words of limitation under the Wills Act, passes fee
simple unless contrary intention appear .... 163
Not under the Wills Act, passes estate for Hfe . . . 163
Devise without words of limitation passing fee simple by apparent
intention .....
Devise of estate, property, etc.
In fee simple, for ever, etc.
Devise of power of disposition
Fee simple implied from devise over
Implied from charge imposed on devisee
Devise to trustees passes fee simple, unless definite estate limited . 167
Limitation of estate implied from purposes of the trust 167
SEOTioif II. Fee Tail.
§ 1. The limitation of a fee tail in conveyances . . . 168
5 2. The limitation of a fee tail in wills . . . . 175
§ 1. The Limitation oe a Fee Tail in Contbtances.
Fee tail — general — special — male .... .168
Words of inheritance necessary — heirs— issue, etc. . . . 169
Words of procreation necessary — heirs of the body . . .169
" Heirs " with limitation over upon failure of " heirs of the
body" 170
Limitation of estate in special tail ••.... 170
In tail male or female ... . . . 171
Limitation to " heirs male " . . ... 171
The rule in Shelley's case applied to limitations to " heirs of the
tody" 171
Limitation to heirs of the body as purchasers . . .172
Rule in Mandemlle' s case .... . 172
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Meaning of " lieir male of the body " as words of purchase
Limitation of estates tail in copyholds
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174
§ 2. Limitation op Feb Tail in Wills.
§§ 1. Limitations to "heirs of the body,'' etc.
§§ 2. Limitations to "issue," "children," etc.
175
180
§§1. Limitations to "Hbies op the Bodt," etc.
Devise to heirs of the body, etc., as words of limitation . . . 175
To "heirs male" 176
To heirs with devise over upon failure of heirs of the body . 176
To heirs with devise over to person capable of being heir . 176
The rule in Shelley's case 176
Limitation to heirs of the body implied from devise over upon
failure of such heirs ........ 177
Devise to " heirs of the body," etc., with additional words of limita-
tion 177
Devise to " heirs of the body," etc., with words of distribution
superadded ......... 178
Devise to " heirs of the body," etc., as devisees .... 178
Meaning of " heirs of the body," etc., as devisees . . ■ 179
§§ 2. Limitations to "issue," "ohildben," etc.
Devise to " issue," as word of limitation
The rule in Shelley's case applied ....
Devise to A. and his heirs with devise over upon failure of issue
To A. for life with devise over upon failure of issue .
Devise over upon failure of issue at death
Devise to testator's heh% upon failure of issue of A. .
Meaning of phrases " die without issue," etc., in wills made before
1838
Construction under the Wills Act, 1 Vict. o. 26
Devise to " issae," as devisees .....
Devise to issue with words of limitation and distribution
added ........
Meaning of " issue " as devisees ....
Apphcation of the rule in Mandeville's case
Devise to " children " as word of limitation
Kule in Wild's case ....
" Sons " as word of limitation ....
"Family"
uper-
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182
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184
185
186
187
187
188
189
Section III. Estates ioe Lieb.
Estate for life — for life of the tenant— ^Mr autre vie . . .189
For several lives — for joint lives 190
For lives of the tenant and others 190
Limitation of estates for life ......•• 191
Grant to A. without words of limitation 191
To A. for life without expressing whose life .... 191
Lease for several lives — for joint lives 192
Devise of land without words of limitation, under the Wills Act . 192
In wills not under the Wills Act 192
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CONTENTS.
Devise for life by implication ....
Occupancy of estate pur autre vie ....
Limitation of estate pur autre vie to special occupant
To the heirs — to the heirs of the body
To the executor or administrator
Occupancy by statute
Occupancy of copyholds
Special occu.pant by designation — by custom
By statute .......
Discovery of death of persons on whose Uvea estates depend
Presumption of death
PASE
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194
194
195
195
19fi
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196
Section IV. Estates job Yeaes.
Estate for years — " term " — " lease "...
Requisites of lease — parol lease
Limitation of term, as to duration — certainty required
Lease for successive periods ....
Lease "from year to year " — notice to determine
Implied tenancies from year to year
Limitation of term, to A. and to his executors
To A. and to his heirs .....
To A. and to the heirs of his body .
Lease vpitli covenant for renewal ....
Covenant runs with the land ....
Renewal conditioned upon observing covenants, etc., in the
Chattel interests of uncertain duration
For payment of debts — for arrears of rent
Tenant by elegit — by statute merchant
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Section V. Tenancy at Wiii..
Tenancy at will — of both lessor and lessee
Of lessee only .....
Tenancy at will creates no tenure or reversion
Creation of tenancy at will
With reservation of rent
Possession of cestui que trust .
Possession under agreement to purchase
Customary tenancy at will
Determination of tenancy at will— by the lessor
By the lessee .....
By death of lessor or lessee
Under the statute of limitations
Tenancy at sufferance ....
Distinction between tenancy at sufferance and at will
Statutory remedies against tenants holding over
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208
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209
209
210
210
211
212
213
213
Section VI. Conditioitai, Limitations and Conditions.
§ 1. Conditional limitations ... ... 216
§ 2. Conditions 223
I 3. Construction and application of conditions . . . 235
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§ 1. Conditional Limitations.
Pee Simple conditional ....
Fee tail with proTiso for cesser
Proviso for partial cesser void
Proviso for cesser may be barred
Estate for life with conditional limitation
Proviso for cesser on alienation, etc.
Estate for life determinable at will .
Estate for ^ ears determinable upon life or lives
Term determinable by notice .
Proviso for cesser of satisfied terms .
Satisfied terms attendant upon the inheritance
Cesser of attendant terms by statute
Assignment of satisfied terms to protect a pm-chaser
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221
221
222
222
222
§ 2. Conditions.
Condition distinguished from conditional limitation . . 223
Words of limitation — words of condition .... 224
Condition annexed to freehold operates by entry or claim . . 225
Condition annexed to leasehold does not require entry unless so
stipulated 226
Construction of conditions in leases ...... 227
Condition can be resei-ved only to the grantor and his heirs . . 227
Could not be assigned at common law — made assignable by
statute 228
Distinction as to reversion upon a conditional limitation . . 228
Waiver of condition ......... 228
Cannot be retracted 229
Cannot operate after avoidance 229
Effect of writ in ejectment as election to avoid . . . 229
Condition avoids the estate and revests it in the grantor . . 230
Effect upon mesne estates and charges ..... 230
Upon remainders and ulterior limitations .... 230
Conditions implied in tenure 231
Expressed in the grant 231
Effect of the statute Quia emptores ..... 232
Condition in mortgage at common law ... . • 232
Equity of redemption ........ 232
Proviso for redemption ........ 233
Conditions in leases for payment of rent 233
Statute enabling landlord to bring ejectment without demand or
entry ........... 233
Conditions for performance of covenants .... 234
§ 3. CoNSTEirOTION AND APPIIOATION OF CONDITIONS.
Illegal and impossible conditions void ....
Examples in conditions in restraint of marriage, etc.
Conditions void for uncertainty ....
Conditions void as repugnant to the estate limited .
Construction of conditions ......
Conditions construed as subsequent rather than precedent
Construed strictly in favour of vestmg, and against divesting
Condition of re-entry construed strictly as to the person
entitled ........••
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PAGE
Conditions determined by licence .... . ■ 240
Statute restricting licence to specific act- ..... 240
"Waiver of breach restricted to specific instance . . 240
Belief against conditions — at law — in equity 241
"Under the Supreme Court of Judicature Act .... 242
SeOTIOIT VII. EQUITABtB ESTATES AND lUTEEESIS IN LaSD.
§ 1. Equitable estates corresponding to legal estates . . . 243
§ 2, Trusts for conTersion . 248
§ 3. Charges of money upon land ..... 257
§ 4. Mortgages ... 278
§ 5. Equitable estates and interests arising out of contracts of
sale . 302
§ 1. EqTJITABIE estates COEEESTONDING to LEQ-AI; ESTATES.
Equitable estates corresponding to legal estates .... 243
Created by express limitation ...... 243
By construction of equity . ...... 244
Executory trusts ....'... . 244
Exceptional construction of the limitations . . 245
Examples in marriage articles — in wills ..... 246
Equitable rights to property arising from fraud, mistake, etc. dis-
tinguished from equitable estates ...... 246
§ 2. Trusts eoe conteesion.
248
249
249
249
250
250
253
254
254
255
255
256
Trusts for conversion
Of land into money .
Of money into land ....
Absolute and conditional conversion
Conversion at discretion of trustees .
Resulting interest under a conversion by deed .
Where the whole interest results there is no conversion . . 251
Proceeds of conversion by will, undisposed of, results to the heir . 251
"When included in residuary bequest or in residuary devise . 25i
Heir or residuary devisee takes the proceeds as personalty
Election against conversion
Election by owner of share
By tenant in tail ....
"What constitutes election
Conversion of real estate of partnership .
§ 3. Chae&es oe Mottet ttpon Land.
Charges of money for portions — debts — legacies — mortgages . . 257
Charge of debts by deed 258
Trust for debtor — for creditors . . .... 258
Charge of debts by will 259
Implied from general direction to pay debts .... 259
Charge of debts creates equitable assets ...... 260
Distinction between legal and equitable assets .... 260
Creditors having priority against legal assets postponed in
equity ........... 261
Land formerly not assets, unless charged by will .... 262
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CONTENTS.
xxvu
46
Eemeclies for specialty debts binding tbe heirs
Extended against devisees
Land not charged by will made equitable assets by 3 & 4 Will. IV. c.
104
Priority of specialty debts — abohshed by 32 & 33 Vict.
Effect of 8 & 4 Will. IV. o. 104, in charging the land
Specific devise exonerates land as against the heir or residuary devisee
Charge upon specific real estate in exoneration of residue
Charge of debts upon real in exoneration of personal estate
Charge upon mixed fund rateably ....
Preferential charges are not binding against creditors
Charge of legacies on real estate in aid of personal estate
On real and personal estate rateably .
On real estate exclusively ....
As against devisees .....
Charge of legacies implied from residuary gift
Interest upon charges .....
Of debts — of legacies ....
Power to raise charges . . . " .
Statutory power in devisee or executor
Power to raise charge by sale or mortgage
By " rents and profits "
Charges of annuities
Power to discharge by receipts
Express — implied
Power in executors .
Statutory power in trustees
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277
unless eon-
§ 4. MOEiaAGES.
Mortgage by conveyance with proviso for redemption
Kedemption .........
Foreclosiu-e .
Power of sale .........
Covenant to pay debt and interest . . . .
Mortgage by conveyance upon trust for sale
Equity of redemption of mortgage in fee
Of mortgage of term of years .
Special reservation of equity of redemption in mortgage deed
Surplus proceeds of sale under the mortgage. .
Liability of the personal estate for the mortgage debt
Locke King's Act, making the land primarily liable
trary intention appear .....
Act to explain " contrary intention " in will
Mortgagor in possession at law ....
Tenant under mortgagor
Kedemise to mortgagor .....
Distress for rent or interest ....
Mortgagor in possession in equity considered as owner
Liable to injunction against impairing the security
Not liable to account for rents and profit .
Charge of mortgagee for debt interest and costs
Legal estate of mortgagee
Devise by mortgagee ...
Transfer of legal estate by vesting order
Personal representative of mortgagee may convey
Mortgagee in possession bound to account
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XXVIU
OONTlflTS.
Annual rests 295
Costs of repair, etc. — insurance . . . 295
Distinction between a mortgagee and a trustee
Equitable mortgage by deposit of deeds .
Agreement as to the deposit ....
Kemedy of equitable mortgagee
Equitable mortgage by agreement without deposit .
Mortgage of copyholds . . . .
Mortgage of leaseholds
Mortgage of equitable estates and interests — notice to the
trustee 301
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297
297
298
299
300
300
§ S. Equitable Estates and Interests aeising- out oe Contbacis
OS Sale.
Vendor trustee for specific performance .
Equitable estate of purchaser .
"Vendor in possession liable to account for rents and profits
Lien of vendor for unpaid purchase money
Discharge of lien by taking other security .
Lien of purchaser for deposit ^ .
Claim to return of deposit
CouTersiou of the land by contract of sale
Depends upon liability of vendor to specific per
Devise of land contracted to be sold .
Effect of compulsory sale .
Conversion of the purchase money by the contract
Depends upon liability of purchaser to specific performance
Purchase money primarily charged upon the land by statute
formance
302
303
30?
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304,
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309
309
309
310
CHAPTEE II.
THE LIMITATION OE FUTURE ESTATES.
Section I. The limitation of future estates at common law
II. Future Uses ......
III. Future Devises
ly. Powers .... . .
V. Perpetuities and Accumulations
VI. Future Equitable Estates and Interests .
313
349
356
373
438
4,69
Section I. The Limitation op Future Estates at Common Law.
§ 1. Reversions. . ....... 313
§ 2. Remainders ......... 317
§ 3. Contingent Remainders 322
§ i. Rule in Shelley's case . . . . 342
§ 1. Reversions.
Rule that freehold cannot be limited infuturo ..... 313
Reversion and remainders of freehold ..... 313
Reversion in fee upon creation of particular [estate .... 314
Limitation of reversion to the grantor or his hen's void at
common law ......... 315
Digitized by Microsoft®
CONTENTS.
TAGB
Creates title by purchase under statute 3 & 4 Will. IV. o. 106 . 315
KeTersion in particular estate upon creation of less estate . . 815
In estate tail .......... 315
In estate for life 316
In term of years upon underlease . . 816
Tenure of particular estate to reversion .... . 317
Grant of reversion carries the incidents of tenure . . 317
Section II. Remaindebs.
317
318
318
318
319
319
320
320
320
321
Eemainder .........
Must follow immediately on the particular estate
Must wait the determination of the particular estate
Must be created at same time with tlie particular estate
Remainder cannot be limited after fee simple .
Eemainder after fee tail — after base fee
Remainder expectant upon term of years .
Remainders in particular estates ....
Term of years does not admit of remainder
Tenure of particular estate and remainder
§ 3. CoNTiiraEKT Remaindees.
Vested and contingent remainder 322
Classification of contingent remainders ..... 323
Distinction of contingency as to ownership and as to interest . 324
Examples of contingent remainders ...... 324
Contingent remainder must be supported by a particular estate of
freehold . . 326
Limitation of term of years with remainder of freehold . . 326
Contingent remainder must vest before or at the determination of the
particular estate ......... 328 '
Exception as to posthumous child 329
Contingent remainder takes effect notwithstanding the forfeiture or
merger of the particular estate . .... 329
Effect of forfeiture or merger .... . . 330
Trustees to preserve contingent remainders .... 331
Contingent remainder of copyhold . ... . 332
Remainder to unborn child . 333
Remainder to child of unborn chOd void 334
Strict settlement . . .... . 335
Cy pres doctrine of construction of wills . ... 336
Contingent remainder for life or in tail with vested remainder . . 337
Alternative contingent remainders in fee 338
Contingent remainder in fee with vested remainder . . 338
Construction of remainders as vested or contingent .... 339
Words of contingency referred to possession rather than vesting 339
Remainder construed to vest as soon as possible . . . 340
Remainder to class, as children . 341
Remainder to children who shall attain twenty-one . . . 342
§ 4. The Rule in Shelley's Case.
The Rule stated . .... ... 342
Application of the rule 343
Where there are intermediate remainders . . . . .343
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XXX CONTENTS.
Where the remainders are contingent ....
Remainder to heir as purchaser ....
Remainder to heir witli additional words of hmitation
Estate of freehold in ancestor .......
Estate pur autre vie .....••
Estate determinable by conditional limitation .
Estate for years
Limitations in separate instruments ....■■
Limitations of estate pu/)- autre vie .
Limitations of term of years— lease for life with remainder to
executors for term of years ... . .
Limitation of remainder to next of tin ....
PAGE
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347
348
Section II. FrrTUJti; Uses.
Future uses limited aa remainders ... ... 349
Application of the rule in Shelley's case . . . 349
Springing and shifting uses ........ 350
Examples of springing uses ....... 350
Examples of shifting uses ........ 351
Resulting use until springing use tates effect ..... 352
Construction of limitation to the use of the heirs of the body of
the grantor .......... 353
Limitation to the use of the heirs of the body of another . . 353
Future use after preceding estate construed as a remainder if
possible ......... 354
Limitation which cannot take effect as a remainder . . . 355
Section III. Futttke Devises.
Devises by way of remainder ........ 356
Application of the rule in Shelley's case 357
Executory devises ......... 360
Executory devise not preceded by estate of freehold . . . 360
Freehold subject to the executory devise passes to the heir or
residuary devisee ........ 361
Executory devise before determination of preceding estate . . 361
Effect in divesting preceding estate ...... 362
Devise over failing in effect ....... 863
Devise over as conditional limitation of preceding estate . . 363
Executory devise after determination of preceding estate . . . 363
Alternative executory devises ........ 364
Future devise construed as remainder, if possible .... 864
Remainder or executory devise according to events at or after
testator's death ......... 365
Devise construed in favour of vesting ...... 866
Words of futurity referred to the possession rather than vesting 366
Words of contingency referred to divesting rather than vesting 367
Constructions restricting contingency ..... 867
~ ■ ■■ 369
370
370
371
372
372
Constructions extending contingency
Devise to children .
To after-born children
Future devise to children
Child in ventre sa m^re
Illegitimate children ,
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CONTENTS. . XXXI
Section IV. Powees.
PAGE
§ 1. Powers distinguished.
§§ 1. As to their source and operation .... 374
2. In connection with estates .... 381
3. As to the objects 389
§ 2. Construction of powers as to the estates to be appointed and
priority of operation 393
§ 8. Execution of powers.
§§1. Time of execution . . 398
2. Forms and conditions of execution 402
3. Construction and operation of instrument of execution . 408
4. Execution in excess of power ... . . 416
§ 4. Equitable jurisdiction OTcr powers.
§§ 1. Jurisdiction in aid of execution . . . 421
2. Jurisdiction to set aside or control execution . . 430
§ 1. Powees Distin&uished.
§§ 1. as to theie sotteoe and opeeation.
Power of appointing uses 374
Power of reTOcation 374
Uses appointed take effect as if inserted in the original instrument . 375
Uses appointed upon a use ...... 375
Uses appointed in remainder ....... 375
Application of the rule in Shelley's case to appointed uses . 376
Application of the rule against perpetuities . . . 376
Uses vested in default of appointment ... . . 376
Powers created by will at common law 377
Under the Statute of Uses . . . . .377
Power to executors or trustees to sell ...... 377
Devise upon trust to sell ........ 377
Construction of "will as giving power or estate .... 378
Implied power in executor . . ... 378
Statutory power in executor or trustee ..... 378
Powers to lease, sell, charge, etc. ....... 379
Powers in settlements operating upon the beneficial interests . 379
Powers in settlements operating upon the subject of property . 379
§§2. Powees DisiiNairisHED in Connection with Estates.
Power co-existing with estate . . . . . 381
Conveyance of estate ........ 381
Execution of power 381
Donee of power subsequently acquiring the fee . . . . 382
Execution of power divests estate limited in default of appointment . 383
Power cannot be exercised in derogation of conveyance . . . 383
' Suspension of power 383
Conveyance with. reservation of power ..... 384
Powers impliedly reserved ....... 384
Bifect of a judgment upon the power . . . . 385
Powers appendant or appurtenant ...... 385
Powers collateral or in gross .... ... 386
Power simply collateral ........ 387
Powers both appendant and collateral 3S8
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xxxu
CONTENTS.
§§3. Powers DisTiNauiSHED, as to the Objects oif the Power.
PAGB
General and particular powers .....•• 389
Powers of appointment to a class ... • • 389
Distributive and exclusive powers .... 389
Power of selection from class
Power to appoint to children .
To children living at death of parent
Child in ventre sa mere
Power to appoint to " relations "
Implied gift to children in default of appointment
Gift to children with power to apportion shares
390
390
390
391
391
391
391
§ 2. CONSTETTCTION OE POWEES.
Construction of Powers as to the uses and estates to be appointed . 393
Power in general terms extends to fee .... • 393
Po» er to appoint fee includes less estates .... 393
Appointment of a charge ........ 394
Of a sale and conversion . . . . . . . . 394
Devise of absolute power of disposition passes the fee . . . 394
Devise of power restricted as to the objects .... 395
Devise for life with power over remainder .... 395
Construction of powers as to priority of operation .... 396
Powers of sale, leasing, jointuring, etc. in settlements . . 396
§ 3. Execution oe Powbes. §§ 1. Time oe Execution.
Power may be executed at any time during the life of the donee . 398
Notwithstanding the determination of his estate . . . 398
Power given at a future time or event ..... 399
1 ower given after decease of a tenant for life .... 399
Power given to tenant of an estate when in possession . . 399
Power given upon contingency ....... 400
Power given to survivor of two or more persons . . . 400
Power restricted to certain time or event ...... 400
Power during coverture — notwithstanding coverture . . . 401
Powers impliedly restricted to purposes of settlement . . 401
§§2. The Foem and Conditions oe Execution.
Forms and conditions prescribed by the power must be strictly
complied with ... ..... 402
Power given in general terms ........ 402
Power to be executed by deed . ...... 403
By other instrument or writing . ... . . 403
Will operating as instrument of execution .... 403
Statutory form of execution by deed 403
Power to be executed by will 404
Statutory form of execution by will 404
Execution by will revocable ....... 405
Consent required to execution ........ 406
Power involving discretion cannot be transferred .... 406
Power extending to heirs or executors . ... 406
To assigns 406
Execution by attorney 406
General power may be transferred . . .... 407
Execution by giving power 407
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CONTENTS. XXXIH
§§ 3. Construction and Opebation of the Insibumbnt op
exectttion.
PAGE
Intention to execute the power — examples 408
Convey an ce or devise operating as execution of power . 409
Where donee of power lias no estate . . 409
Wliere donee has estate .... . . 409
Where donee, having estate, both appoints and conveys . 410
Execution of power operating as conveyance . 410
Statutory effect of general devise in execution of power . 411
Where power created subsequently to the will . . 412
Construction of the nsea and estates appointed . . .412
Partial and repeated execution of power .... 412
Execution for mortgage or charge only ..... 413
Execution with reservation of new powers of revocation and appoint-
ment ... . . . . . 413
New powers must be expressly reserved ..... 414
New power of revocation does not include new appointment . 414
New powers do not require the formalities of the original power . 414
Execution by will revocable without reservation . 415
Execution subject to a condition . ... 415
§§4. Execution in Excess oe Powek.
Excess as to the objects of the power . . . . 416
Appointment amongst persons, some of whom are strangers to
the power ... ... 416
Appointment to object, with appointment over to stranger. 417
Appointment to stranger with appointment over to object. . 417
Appointment to child for life with remainder to his children or issue,
not being objects ...... . 418
Estate tail by cy-pres doctrine . ... 418
Excess in the estate appointed ... ... 418
Lease in excess of power . . ■ . . . . 418
Charge in excess of power . . . 419
Appointment with directions and conditions in excess of power . 419
Direction that stranger should share . . . 419
Direction that appointed property be settled . . . 420
Invalid directions inseparable from appointment . . 420
§ 4. Equitable Jueisdiction otee Powers.
§§ 1. jueisdiction in ald of execution.
Defective execution aided in favour of purchaser, wife, child, etc. . 421
Against persons claiming in default of appointment . . . 422
Defects of form aided . ■ • 422
Execution by will instead of deed . • • 4,23
By deed instead of will ..... • 4.23
Non-execution or defective intention not aided . . . . . 424
Covenant or contract to execute a power enforced in equity . 424
Covenant to execute future power .425
Covenant to appoint satisfied by allowing estate to pass m default
of appointment 426
Powers held in trust enforced in equity 426
Trust for creditors raised by appointment to a volunteer . . 427
C
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XXXIV CONTENTS.
PAGE
Statutory relief against defects in leases under powers I . 427
Defective lease to be considered in equity as a contract . . 427
Confirmation of lease . . • • *28
§§ 2. JUKISDICTION TO SET ASIDE EXECUTION.
Execution in fraud of the power set aside in equity — examples . 430
Motive distinguished from purpose of execution . . 432
Appointment to child in consideration of benefit to parent . . 432
Consideration paid by a third party 433
Appointment for the purpose of disposing to a person not an object
of the power. ......... 433
Appointment for ulterior purpose consistent with the pcTWer . . 433
Execution partly in fraud of the power 434
Appointment of jointure in excess of interest given to wife . 434
Appointment to one of children in fraud of the power . . 43S
Subsequent execution after prior invalid appointment . ■ . 435
Purchaser from appointee under fraudulent appointment . . . 435
Illusory appointment imder non-exclusive power .... 435
Appointment not invahd on the ground of exclusion, unless so
declared in the power ........ 436
Section V. Pebpetuities and Accumulations.
§ 1. The Eule against perpetuities 438
§ 2. Accumulation of rents and profits .... 462
§ 1. The Euie As-ainst Perpetuities.
The Eules restricting the limitation of future estates . . . 489
Eemainders ... ....... 439
Springing uses and executory devises ..... 440
The Rule against perpetuities stated ...... 440
Any lives may be taken as the measure of the time with an
additional term of twenty-one years ..... 441
Time of gestation allowed, when the person taking is a child
in venire sa mere .•■...,. 441
Application of the rule to limitations of terms of years . ] 442
Limitations to persons to be ascertained by description . . 442
Limitations to classes of persons .... . 440
Children — grandchildren ........ 443
Limitations to take efliect upon death of children . . \ 445
Limitations upon failui'e of issue .... . ' 445
"Upon failure of issue within restricted period . . .' 44g
Of term of years upon failure of issue . . . ' " 447
Construction of phrases importing failure of issue . .' ' 447
Exceptional constructions of limitations ou failure of issue .' 448
Validity of limitations Is independent of subsequent events [ 449
Limitation to class, some of whom may not be ascertained within
the period ■••.... Ann
Where the shares are ascertained within the period
Limitations with modifications too remote
Directions to postpone the possession beyond the period
Limitation in alternative of limitation too remote
Limitation in restricted alternative ■ . . '.
Limitations restricted by the duration of the estate limited
Estate for life of living person ....
450
451
451
452
53
^53
453
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CONTENTS.
XXXV
PAGE
Leasehold for life .... .... 454
Limitations after estates tail . . .... 455
Provisoes for cesser of estate tail ...... 455
Limitations to take effect after determination of estate tail . 456
Term preceding estate tail upon trusts subsequent . . . 457
Application of the rule to powers ....... 458
Power may be unrestricted in terms .... 458
Execution of the power is subject to the rule .... 458
The time is computed from the creation of the power . . 458
General power is equivalent to ownership and the time is com-
puted from the execution ....... 458
Power to appoint to grandchildren or remoter issue . . 459
Appointment must take effect within the rule .... 459
Power in marriage settlement to appoint to chUdren . 460
Powers of sale, leasing, etc. may be unrestricted in terms . 460
Power of sale with consent of tenant for life .... 461
Power of sale extending over estates tail .... 461
'Powers impliedly restricted to the continuance of the settle-
ment 461
§ 2. ACOTTMULATION OE ESNTS AND PbOWTS.
Accumulation of rents and profits restricted by statute . . . 462
Exception of provisions for payment of debts, portions, etc. . 463
Accumulation allowed during one only of the statutory periods . 464
Directions to accumulate in excess of statutory period . . . 464
Implied directions to accumulate 465
Directions to accumulate beyond the rule against perpetuities . 466
Destination of income as to excess of accumulation . . 467
Where the gift of the property is immediate . . . 467
Where it is deferred .... 467
Directions 'to accumulate after present vesting ... . 468
Section VI. Future Equitable Estates and Inteeesis in Land.
§ 1. The limitation of future equitable estates and interests . 469
§ 2. Priority of estates and interests in equity . . 477
§ 3. Protection of the legal estate 485
§ 4. The doctrine of notice 492
§ 5. Tacking and consohdating mortgages ; Marshalling . . 506
§ 1-
The Limitation oe Futube Equitable Estates and
Inteeests.
Future equitable estates corresponding to legal estates
Remainder and reversion ....
Limitation of freehold infuturo
Limitations in defeasance of prior estate— powers
The rule against perpetuities
Trusts for accumulation ....
Contingent limitations of equitable estates
Vesting of intermediate interest . •. . • .
The rule in Shelley's case applied to equitable limitations
Limitations partly equitable and partly legal .
Legal limitations subject to trust
Application of the rule to executory trusts
C 2
469
469
470
470
470
471
471
472
472
472
472
473
Digitized by Microsoft®
CONTENTS.
Future charges upon land of portions, legacies, etc.
Construction of charges as vested or contingent
Charges upon personalty . . . •
Charges upon both real and personal estate
Charge of portions subject to advancement
Presumption against double portions
§ 2. The Pbiokity of Estates and Inteei
Priority of estates and interests in equity
Priority of acquisition gives prior equity
Priority lost by fraud or negligence
Negligence as to custody of title deeds .
Trusting to representations as to deeds
Trustee depositing deeds in breach of trust
Tender signing receipt for purchase money
Priority by notice to trustee of equitable interests
In personalty or money charged upon land
No priority in real estate by notice to trustee
PAGE
. 473
. 473
. 474
. 475
. 476
. 476
;STS IN Equity.
. 477
. 478
479
. 479
. 481
. 481
. 481
. 482
. 482
. 483
§ 3. Peoteotion op the LEfiAL Estate.
Protection of the legal estate against prior claims .... 485
The Vendor and Purchaser Act, 1874, disallowing protection . 485
Protection of the legal estate to a purchaser for value without notice 486
Purchaser without notice obtaining legal estate after notice . . 487
Erom a prior mortgagee ........ 487
From a trustee ......... 487
Purchaser with notice from purchaser without notice . . . 488
Purchaser without notice from purchaser with notice. . 488
Repurchase by trustee 488
Prior claims paramount to vendor ..... 488
Claim to set aside or correct the legal title .... 489
Purchaser having legal estate entitled to concurrent equitable
remedies .......... 489
Not entitled to auxiliary equitable remedies in aid of legal title 490
Plea of purcliase for value without notice applies only to the jui'isdic-
tion of equity over legal rights . . . . . .491
Not between merely equitable claims . . . . .491
Assignee of equitable interest takes it subject to equities without
notice ........... 491
Priority of claims since the Vendor and Purchaser Act, 1874 . 492
§ 4. The Doctbines of Notice.
Notice of prior claim ......... 492
Notice received before payment of the purchase money . . 493
Before conveyance ......... 493
Actual and eoTistructive notice . . . . . 493
Duty of inquiry . . 493
Notice of deeds belonging to the title and their contents . . 494
Trusting to representations as to the deeds . . . 495
Notice of possession of deeds by banker or solicitor . . 495
Deeds suppressed by fraud or accident ... . 496
Informality or defects in deeds .... . 493
Constructive notice from the possession of the land . . , 497
Eights and equities of tenant in possession .... 497
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CONTENTS. XXXVli
„ . ,. . PAGE
JNoUce to solicitor or agent . 493
Where solicitor is also solicitor of vendor .... 499
Fraud of solicitor ......... 499
Lis pendens affects purchaser as to the rights in litigation . . 500
Registration of lis pendens .... . . BOO
Crown debts . .......... 501
Do not affect purchaser unless writ issued and registered . 501
Judgments 501
Statute tating away their effect upon land until execution . . 502
As to interests not capable of delivery in execution . . 503
Purchaser with notice of registered judgment .... 503
Judgment operates only upon beneiicial interest of debtor . 504
Registration in Middlesex and Yorkshire ..... 504
Notice prevails notwithstanding registration . . . 504
Registration under 25 and 26 Vict. c. 53 505
§ 5. Tacking and Consolidating- Moet&ages; Mabshalling.
The doctrine of tacking 506
Priority by tacking taken away by the Vendor and Purchaser
Act, 1874 507
Right of mortgagee to tack a further charge against mesne incum-
brancers .... ..... 507
Tacking not allowed after notice ... . . 508
Tacking against surety .... ... 508
Further charge must be proved in writing .... 508
Right of assignee of mortgage to tack a further charge . . . 509
Assignment after notice ...... . 509
Pending a suit to realize the security . . . . 509
Notice to first mortgagee 510
Mortgage after satisfaction gives no priority 510
Assignee of mortgage in same position as mortgagee . . . 510
Mortgagor can give no priority amongst equitable charges by subse-
quent transfer of legal estate 510
Where legal estate outstanding charges rank in priority of time . 511
Statute against clandestine mortgages ...... 511
Fraudulent concealment of inoumbranee ..... 511
Debts not charged on the land cannot be tacked against mortgagor . 511
May be tacked against heir or devisee 512
Cannot be tacked against creditors . .... 512
Tacking judgment debts .....-•• 512
Consolidation of mortgages . 513
Assignee of mortgage may consolidate . . . • . 513
Consohdation against purchaser or mortgagee of equity of re-
demption .......■•• 514
The doctrine of marshalling 514
Marshalling securities in favour of second mortgagee . . 515
Marshalling assets in favour of creditors .... 515
Marshalling in favour of legatees 516
Digitized by Microsoft®
TABLE OF CASES.
Aberaman Iron Works u. Wiokens,
305.
Aokroyd «. Smithson, 250, 251, 253.
Acton V. Woodgate, 258.
Adams v. Adams, 413, 415, 417, 418.
V. Bush, 341.
V. Savage, 108, 112, 354.
Affleck v. Affleck, 400, 425.
Agra Bank v. Barry, 495, 505.
Aislabie v. Rice, 236.
Albany's Case, 387-
Albert Insurance Company, re, 304.
Aldrich v. Cooper, 268, 515, 516, 517.
Alden's Case, 25.
Alexander v. Alexander, 416.
V. Mills, 383, 384, 386.
V. Young, 399.
Aleyn v. Belchier, 430, 434, 436.
Alison's Case, 270.
Allan ». Backhouse, 273.
V. Gott, 266, 267, 268.
V. Liverpool, 199.
Allen V. Aldridge, 90.
V. Knight, 481, 487.
Allgood V. Blake, 172, 181, 187.
Allhusen v. Whittell, 271.
Amesbury v. Brown, 268.
Ancaster, Duke of, v. Mayer, 266, 287.
Anderson v. Dawson, 348.
V. Midland Railway Company,
201, 208.
V. Dawson, 348.
V. Pignet, 222.
Andrews v. Hulse, 88.
Anglesea v. Hatherton, 76.
Anon, 116.
Anson v. Lee, 286.
Antrobus v. Smith, 138, 139.
Archer's Case, 57, 179, 230, 324, 330,
360.
Archer v. Snatt, 512.
Arden v. Wilson, 98.
Arlett V. Ellis, 74.
Armstrong v. Wholesey, 107.
Arnold v. Congreve, 451.
V. Hardwick, 432.
Amsby v. Woodward, 226.
Ashburner v. Maeguire, 270, 274.
Ashton V. Corrigan, 298.
Askham v. Barker, 435.
Askew V. Eooth, 153.
Atkinson ». Baker, 194.
Atterbury v. WaUis, 499.
Attorney-G-eneral v. Andrews, 85.
V. Barker, 74.
V. Bright, 374.
V. Brunning, 253, 261, 307.
V. Catharine Hall, 238.
V. FuUerton, 89.
V, Lomas, 253.
• V. Parsons, 20.
V. Poulden, 465.
V. Sands, 102.
■ V. Stephens, 89.
■ V. Wilkinson, 409.
Atwell v. AtweU, 250.
Audsley v. Horn, 188, 371.
Aylesford, Earl of, v. Morris, 270.
Ajlwin's Trusts, 220, 341, 376, 398.
Bacon v. Proctor, 467.
Badger v. Ford, 74, 96.
Badham v. Mee, 384.
Bailey's Trusts, re, 502.
Bailey v. Ekins, 259, 260, 262.
Baillie v. McKewan, 481.
B^iin V. Sadler, 260, 261.
Baker v. Q-ostling, 316.
V. Harris, 512.
V. Parsons, 124, 168, 194, 472.
Baldwin v. Rogers, 341, 371.
Balfour v. WeUand, 276.
Ball V. CuUimore, 207, 209.
V. Harris, 273, 275.
Bankes v. Holmes, 449.
Barker v. Greenwood, 122,
Digitized by Microsoft®
I'ABLE OF CASES.
XXXIX
Barker v. Keat, 109.
V. May, 260.
Barlow «. Salter, 454.
Barnes v. Mawson, 75.
V. Wood, 303.
Barrington ». Liddell, 464.
Bartholomew, re, 474.
Barwick's Case, 47, 50.
Basingstoke, Mayor of, v. Bolton, 28.
Basset v. Basset, 329.
«. Nosworthy, 490.
Bassil V. Lister, 463, 466.
Batetnaa v. Hotchkin, 366, 464, 467,
468.
Bates V. Johnson, 488, 509, 510.
Bath, Earl, o. Abney, 84.
Bath's Case, Bishop of, 199, 221, 226.
Beale v. Beale, 391.
Beard v. Westcott, 334, 337, 453.
Beardmau «i. Wilson, 316.
Bearpark v. Hutchinson, 193.
Beasney's Trusts, 196.
Beauclerk v. Mead, 249.
Beaumont v. Marquis of Salisbury,
316
Beavan v. McDonnell, 306.
V. Earl of Oxford, 504.
Beckett v. Buckley, 285, 427, 503.
«. Leeds, 25.
Beckwith's Case, 107, 112.
Bectire, Earl of, v. Hodgson, 468, 472.
Bedell's Case, 110.
Beere v. Hoffmister, 431.
Beeson ti. Burton, 207, 220.
Beevor v. Luck, 513, 514.
Belchier v. Benforth, 509.
Benuet v. Davis, 147.
Bell V. Carter, 284.
Bellamy v. Briokenden, 296.
u. Sabine, 500.
Bengough v. Edridge, 440, 455.
Beresford's Case, 170, 171.
Berkeley v. Hardy, 407.
Berry v. Gribbons, 500.
Best -0. Donmall, 122, 361, 367, 471,
472.
Best's Settlement, 348.
Betton's Trust Estates, 286.
Betta V. Thompson, 20, 74, 76.
Beulah Park Estate, re, 270.
Beverley v. Beverley, 328.
Bickley v. Bickley, 161.
V. Guest, 387.
Biddle v, Perkins, 460.
Bielefield «. Record, 390.
Bignold's Settlement, 148.
Billson V. Crofts, 220.
Bingham's Case, 315.
Bingham «. Woodgate, 77, 94.
Birch «. Sherratt, 274.
Bird, re, 149.
Birley v. Birley, 433.
Biscoe V. Perkins, 331.
Bishop V. Howard, 201.
Blackburn «. Stables, 175, 329, 442.
Blacklow D. Laws, 399.
Blackwood v. London Chartered Bank
of Australia, 487.
Blanchard, re, 148.
Bland v. Bland, 418.
Blandy v. Widmore, 426.
Blasson v. Blasson, 329.
Blinstou J). Warburton, 166, 182.
Blore V. Sutton, 424, 425.
Blundell v. Gladstone, 140.
Blyth V. Dennet, 229.
Boddington v. Aberuethy, 83.
Boden's Trusts, 294.
Bolton V. Bolton, 163, 165, 325.
Bond V. Eosling, 198.
Booth V. Coulton, 274.
v. Turle, 133.
Bootle «. Blundell, 266, 273.
Boraston's Case, 199, 221, 324, 325
327, 366.
Boughton V. Boughton, 267.
Boulcot V. Winmill, 20.
Bourne v. Bourne, 250, 286.
V. Taylor, 87.
Bourton V. Williams, 279.
Bovey v. Skipwith, 513.
Bower v. Cooper, 141, 244, 303.
Bowen v. Scowcroft, 368
Bowes V. East London Water Works,
410, 419.
Bowker v. Bull, 508.
Bowles' Case, 190, 331, 339, 344.
Bowser x>. Colby, 226, 241.
V. MacLean, 87, 209.
Boyce ti. Hanning, 460.
Boyd w. Petrie, 426.
Boydell v. McMichael, 5.
Bozon V. Williams, 496.
Brace v. Duchess of Marlborough,
507, 509, 511, 512, 513.
Bradford ti. Belfield, 406.
V. Brownjohn, 151.
Bradley v. Carr, 72.
». Cartwright, 181, 185.
Bradshaw v. Lawson, 19, 21, 72, 98.
V. Melling, 186.
Brandon v. Eobinson, 219.
Bray v. Hammersley, 407.
Braythwaite v. Hitchcock, 201.
Brecon, Mayor of, v. Seymour, 510.
Bredon's Case, 53.
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TABLE OF CASliS.
Brent's Case, 103, 104, 108.
Bridge v. Beadon, 482.
Bridges v. Potts, 200.
Bridgenorth, Corporation of, v. Col-
lins, 466.
Brigga v. Jones, 480.
V. Earl of Oxford, 467.
Bringloe v. Groodsou, 384, 396.
Bristow 11. Boothby, 457.
V. Warde, 460.
Brittle v. Dale, 25.
Britton v. Twining, 347.
Bromfleld v. Crowder, 239, 367.
Brook V. Brook, 395.
Brooks !). Brooks, 83.
Brooke v. Turner, 334, 336.
Brookman v. Smith, 34, 162, 165, 359,
363, 370, 395, 445.
Broome «. Monck, 309, 310.
Brotherton v. Halt, 499.
Broughtou V. Broughton, 149.
Brouncker v. Bagot, 203.
Brown's Case, 71, 79, 81, 84, 86.
Brown's Settlement, 375, 382, 461.
Brown's Trusts, 369, 372, 416.
Brown v. Higgs, 147, 390, 391, 426.
V. Nisbett, 417.
V. Price, 282.
V. Wales, 89.
V. "Warner, 207.
Browne v. Browne, 342.
V. Stoughton, 467.
Brownson v. Lawranoe, 265, 289.
Brownsword v. Edwards, 326.
Bruce v. Bruce, 408, 409, 416, 423.
Brudenell v. Elwes, 334, 337, 390, 415,
417, 418, 453, 460.
Brudnel's Case, 190, 192, 221.
Brummel v. Maopherson, 240.
Bryant ». Busk, 128.
Brydges v. Brydges, 128, 472.
V. PhUUps, 266, 268.
Buckmaster v. Harrop, 309, 310.
Buckworth v. Simpson, 201.
Budget. Gummow, 149.
Buffar V. Bradford, 187, 188.
Bugden v. Bignold, 501.
Bulteel V. Plummer, 426, 437.
Bunting v, LepingwelJ, 80, 83.
Burdett v. Spilsbury, 404.
Burdick v, Garrick, 150.
Burgess v, Robinson, 242.
t. Wheate, 29, 33, 101, 126,
139.
BurreU v. Dodd, 77.
». Smith, 263.
Burt v. HeUyar, 189.
V. Sturt, 464.
Burt V. Trueman, 487, 488, 5l0.
Burton v. Gtrnj , 297.
V. Powers, 166.
Busher v. Thompson, 25.
Butcher v. Jackson, 432.
Butler V. Gray, 391, 395, 410.
V. Lowe, 370.
Butt's Case, 316.
Byam v. Munton, 252.
Byng V. Byng, 187.
Caballero Y. Henty, 498.
Cadell V. Palmer, 440, 441, 455.
V. Caldwell, ex p. 483.
Cambridge v. Eous, 453.
Campbell v. Home, 432, 434.
V. Leach, 410, 419,
Cardigan, Earl of, v. Armitage, 36.
Carpenter v. Carpenter, 142.
Carr v. Atkinson, 417.
V. Earl of Erroll, 456.
Carter v. Barnardiston, 204.
V. Carter, 489, 496.
V. Haswell, 253.
V. ganders, 264, 265.
V. Williams, 498.
Carver v. Bowles, 420, 451.
V. Eichards, 435.
Carwardine v. Carwardine, 354.
Casborne v. Scarfe, 284.
Case V. Drozier, 457-
Casson v. Koberts, 306.
Casterton v. Sutherland, 392.
Castle V. Gillet, 269.
Catley v. Sampson, 264, 285.
Catlin V. Brown, 451.
Catt's Trusts, 218, 237.
Cavander?). Bulteel, 497.
Churchill ». Churchill, 420.
Chadwick v. Doleman, 415.
Challoner v. Bowyer, 324, 357.
V. Murhall, 98.
Chambers v. Taylor, 158, 159, 162,
175,179,360.
Chapman v. Blisset, 371, 471.
V. Bradley, 351.
V. Chapman, 297.
V. Towner, 201.
Chatfleld v. Berchtoldt, 191, 195.
Chauntler's Claim, 512.
Chawuer's Will, 280.
Chedington's Case, Hector of, 197, 221.
Chetewood v. Crew, 21.
Chidgey v. Whitby, 271.
Cholmondeley v. Clinton, 157, 296.
Christie v. Gosling, 215, 443.
Chudleigh's Case, 57, 101, 102, 103,
112, 116, 338, 349.
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tABLE Of CASES.
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Churchill D. Churchill, 420.
Churchman v. Harvey, 418,
Clark V. Day, 360.
V. Henry, 369.
Clarke «. Pranklin, 249, 250, 251.
V. Willott, 128.
Clarke's Trusts, 286, 285.
Clarkson v. Hanway, 110.
ClaTering v. Kllison, 237, 239.
Clay V. Willis, 260.
Clayton v. Blakey, 202.
V. Cookes, 89.
Clements v. Seuckmore, 73.
Clere's Case, 67, 113, 382, 409.
Clifford V. Lewis, 260,
Clough V. Bond, 149.
V. London and North Western
Ey. Co. 229.
Cloves V. Awdry, 411.
Clowes V. Hughes, 291.
Coape v. Arnold, 345, 346.
Cockcroft V. Sutcliffe, 433, 434.
Cookell V. Taylor, 492.
Cole V. Sewell, 326, 335.
V. Wade, 406.
Coleby ». Coleby, 288.
Coleman v. Portbury, 229.
V. Winch, 512.
Collier v. M'Bean, 36.
V. Walters, 36, 168, 217, 331.
CoUingwood v. Row, 308.
CoUins V. Lewis, 267, 517.
CoUinsoii V. Patrick, 137.
Colman v. Duke St. Albans, 293.
Colquhoun v. Courtenay, 135.
Colyer v. Pinch, 480, 490.
Combe's Case, 73, 73.
Combe ». Hughes, 371.
Conron v. Conron, 269.
Cook V. Cook, 170, 186, 187.
V. Dawson, 260.
— V. Gregson, 261, 285.
V. G-uerra, 55.
V. Hart, 293.
Cooke V. Crawford, 406.
■ B.Wilton, 511.
Coombe, ex p. 297, 299.
Coombes v. Brookes, 148.
Cooper V. Cooper, 420, 432, 476.
V. Kynoch, 120, 122, 472.
V. Martm, 400, 405, 423.
Coot V. Lowndes, 289.
Cope V. Earl Delawarr, 352.
Corbet's Case, 204, 205, 218, 230.
Cork, Earl of, v. KusseU, 285, 502.
Cornish «. Stubbs, 211.
Corser v. Cartwright, 273.
Cory V. Eyre, 478.
Cotterell v. Stratton, 293.
Cottrell V. Finney, 293.
Coulson V. Coulson, 343, 358.
Counden v. Gierke, 162.
Cowbridge By. Co. re, 503.
Cowx V. Foster, 394, 408, 420.
Cox V. Bent. 201.
V. Bishop, 299.
o. Chamberlain, 382.
V. Leigh, 229.
Coxe «. Day, 399, 400.
Cranmer's Case, 347, 348.
Craven v. Brady, 220, 417.
Crawley v. Crawley, 468.
Credland v. Potter, 504, 509.
Crockett «. Crockett, 371.
Croft V. Lumley, 220.
Crofts «.Middleton, 333, 344, 364.
Crompe v. Barrow, 417, 453, 460.
Cropton V. Davies, 166.
Cross V. Hudson, 382.
Crow V. Pettingill, 134.
Crowther v. Crowther, 128.
Crozier v. Crozier, 393, 417.
Cruikshank v. Puffin, 273, 279, 280.
CuUey V. Taylerson, 59.
Cupit V. Jackson, 274.
Curnick v. Tucker, 132, 165, 372,395.
Curre v. Bowyer, 307.
Curteis Trust, re, 134.
Curtis V. Daniel, 87.
». Lukin, 465, 468.
V. Price, 354, 472.
Custanoea. Bradshaw, 257.
Dalby v. PuUen, 400.
Dale's Case, 191.
Damerell v, Protheroe, 28.
Dance v. Goldingham, 146, 276, 478.
Daniels v. Davison, 497.
Dann v. Spurrier, 200.
Darby ». Darby, 256.
Darcy's Case, Lord, 27.
Daubeny v. Cockburn, 427, 432, 433,
435.
Davenport r. Hanbury, 185.
Davie v. Stevens, 165, 177.
Davis' Trusts, 405,411.
Davies v. Asliford, 255, 268.
V. Kicholson, 267.
V. Speed, 113, 351, 354.
V. Strathmore, 503.
V. Topp, 265.
Davies' Trusts, 147.
Davis V. Waddington, 206, 220.
Daws V. I'errell, 299.
Dawson v. Dawson, 242.
Day V. Day, 212, 279.
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TABLE OF CASES.
Dearie t. HaU, 301, 482.
Doe V. Day, 197, 213, 290, 291, 419
De Lauoey 's Succession, re, 249, 253.
V. Dixon, 200.
Dendy v. NichoU, 228.
,,. Dobell, 200, 201.
Denn v. Cartwright, 200.
V. Easley, 176.
V. Bawlins, 210.
0. Edgar, 209.
V. Shenton, 183.
V. Elvey, 325, 338. -
V. Slater, 176.
V. Ewart, 183, 366, 454.
V. Spray, 75.
«.Eyre, 215,363,417.
Depree v. Bedborough, 306.
V. Eeatherstone, 178.
Derby, Earl, v. Taylor, 316.
V. Field, 123.
DicconBou v. Talbot, 151.
if.Eonnereau, 346, 364.
Dickenson v. Dickenson, 276.
D. Eord, 338, 339.
Dickson's Trusts, 219.
V. Garrod, 188.
Digges' Case, 375, 387, 418.
-i). Gatacre, 57, 58, 330.
Dilkes V. Broadmead, 487.
-0. Gladwin, 229.
Dillon V. Dillon, 419.
0. Goddard,79, 195.
Dimes v. Grand Junction Canal Co.,
V. Goodier, 292.
72.
V. Green, 200.
Dixon D. Gayfere, 304.
V. Hall, 73, 88.
V. Muckleston, 299, 478, 481,
V. Hellier, 88, 91.
494, 495.
V. Hopkinson, 324.
Dobson V. Land, 296.
ti. Howell, 330, 364, 366, 376.
Docker v. Somes, 150.
V. Huntingdon, 77, 78.
Doe V. Allen, 164.
V. Hutton, 360, 361.
«. Amey, 201.
1. Lea, 366.
V. Angell, 179.
». Lewis, 195.
II. Askew, 75.
V. Lightfoot, 290.
V. Baker, 221, 226.
■ V. Llewellin, 77, 85.
V. Baucks, 227.
V. Lufkin, 84, 91.
D. Bateman, 228, 232.
V. Luxton, 194.
V. Bell, 201, 202.
V. Lynes, 53, 57.
V. Biggs, 106, 122.
V. Jackson, 97.
». Birch, 228.
v. Jones, 208, 229.
V. Bird, 401.
ti. Keen, 63.
». Bottriell, 78.
11. M'Kaeg, 208, 211.
V. Bousfield, 84.
— .— V. Briggs, 324.
V. Martin, 146, 195.
V. Browne, 200, 207.
V, Martyn, 17 1.
V. Burdett, 404.
V. Mason, 75.
V. Burlington, Earl of, 91.
V. Maxey, 341.
V. Calloway, 73.
V. Mee, 73.
V. Calvert, 419.
V. Moore, 239.
V. Garew, 237.
V. Morgan, 52, 328, 357, 364,
V. Carter, 210, 212.
365.
V. ChalUs, 364, 370, 445.
V. Muscott, 88.
V. Chamberlain, 209.
V. Newman, 76.
D.Clare, 91.
I!. Olley, 292.
S.Clark, 38, 81, 174.
u. Oper, 391.
V. Clarke, 372.
V. Owens, 364.
V. Clement, 91.
V. Passingham, 120.
». Collier, 122.
V. Pearson, 227.
V. CoUis, 181.
v. Peck, 229, 234.
V. Colyear, 176, 357.
V. Perratt, 163, 340.
V. Cox, 202, 208, 291.
I). Powell, 201.
V. Crago, 201.
V. Prestwidge, 119.
V. Danvers, 77, 85.
1). Price, 209.
V. Davidson, 76, 77.
V. Prince, 51, 111, 113, 117.
V. Davies, 202, 206, 208.
V. Pritchard, 228.
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tABLE OF CASES.
xliii
i)oe V. Quigley, 213.
V. Redfern, 18.
V. Eoaoh, 365.
V, Eobson, 4il9.
V. Boot, 208, 210, 212.
V. Koe, 25.
V. Eucastle, 181, 358.
V. Scarborough, Earl of, 318,
219, 456.
V. Scott, 195.
V. Scudamore, 323, 325, 338.
V. Shotter, 378.
V. Simpson, 38, 42, 81, 174, 319.
• V. Sissons, 75, 76.
V. Smaridge, 200.
V. Smyth, 161.
V. Stanion, 209.
D. Stenlake, 160.
V. Taylor, 46.
V. Thomas, 61.
V. Timmis, 161.
V. Tom, 290, 292.
V. Tomkinson, 329, 40O.
V. Trueman, 88, 92.
• V. Turner, 208, 209, 212, 213.
V. Walker, 181, 314.
V. Watt, 224, 227.
■ V. Watts, 201.
V. Webber, 72.
V. Welford, 343, 376, 390.
V. Weller, 201.
». Whitehead, 239.
V, Wichelo, 63.
V. Williams, 111.
V. Wood, 201, 202.
• V. Yates, 352.
Doncaster v. Doncaster, 461.
Donne v. Lewis, 265.
Doran v. Wiltshire, 276.
Dorin v. Dorin, 372.
Douglas V. Congreve, 178, 359, 473.
Dowell V. Dew, 419.
Dowle V. Saunders, 480.
Dowliug's Trusts, re, 369.
Down V. Hopkins, 79.
Drant v. Vause, 309.
Driver v. Frank, 340, 341.
Dubber v. Trollope, 175, 177.
Duffield V. Duffield, 366.
Dugdale v. Dugdale, 267, 517.
Dumpor's Case, 227, 228, 240.
Dunn V. Green, 98.
Duppa V. Mayo, 225.
Dyer v. Dyer, 133, 134.
V. Hargrave, 303.
Dyke's Estate, re, 424.
Eales V. Conn, 457.
Eastwood V. Lookwood 365.
Eaton V. Watts, 132.
Eddel's Trusts, 367, 471, 472.
Edmondson's Estate, 367, 444, 445.
Edmore v. Craven, 26.
Edwards v. Edwards, 368, 369.
«. Hammond, 239, 367.
V. Jones, 138, 139.
V. Tuck, 464, 65.
Egerton v. Brownlow, 172, 215, 236,
238, 245, 327, 332.
V. Jones, 449.
V. Massey, 330, 338.
Eland «. Eland, 276.
Elborne v. Goode, 464, 468.
EUicombe v. Gompertz, 449.
Elliott V. Merrimari, 145, 272, 275,
277.
Ellis V. Maxwell, 465, 468.
Ellison V. EUison, 109, 131, 136, 137,
138, 258.
Else V. Else, 368.
Blsey V. Lutyens, 505.
Elstou V. Wood, 73.
Elton V. Eason, 447.
Elvy V. Norwood, 512.
Erauss V. Smith, 309.
Eno V. Eno, 449, 450.
II. Tatham, 289.
Espin 1). Pemberton, 495, 499.
Evans v. Astley, 334.
V. Bioknell, 481.
V. Elliott, 290.
V. Evans, 414.
V. Hellier, 464, 465.
V. Eoper, 219.
Eyre v. Maraden, 251, 464, 468.
Fairfield v. Morgan, 449.
Farebrother v. Wodehouse, 508.
Farington v. Parker, 395.
Farmer v. Francis, 452.
V. Martin, 432, 435,
Farrar v. Winterton, 307, 308.
Fearon v. Desbrisay, 432,
Fenn v. Smart, 226, 232.
Fenny v. Child, 91.
Fenwick v. Mitford, 115, 353.
Fermor's Case, 58.
Fernie v. Scott, 207, 220.
Ferrier v. Jay, 408, 420.
Festing r. Allen, 342, 367.
Fillingham v. Bromley, 237.
Filmer v. Gott, 110,
Finch's Case, 21, 95.
Fhich V. Pescott, 270.
Firmin v. Pulham, 432,
Fisheru. Fisher, 266.
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xiiv
TAiLE OP CASES,
Fisher v. Webster, 454.
V. Wigg, 80.
Fitoli V. Weber, 252.
Ktzroy v. Bichmond, 433.
Flack V. Downing College, 83.
Fleming v. Buchanan, 427.
Fletcher v. Ashburner, 249, 250, 254,
255,806.
Fhnt V. Warren, 250, 251.
Floyer v. Bankes, 457.
Forbes v. Peacock, 276.
V. Steven, 253, 256, 257.
Ford V. Olden, 151, 296.
V. Tynte, 515.
V. White, 491, 505.
Forrest v. Presoott, 266.
Forster v. Abraham, 148.
V. Hale, 132.
Forth V. Chapman, 183, 447, 448.
Fosbrook v. Fosbrook, 189.
Foster v. Blackstone, 479, 483.
V. Cautley, 415,
V. Cookerell, 479, 483.
V. Handley, 285.
Fowler v. Cohen, 390, 394.
Fox's Case, 109.
fox V. Mackreth, 150, 151.
raunces' Case, 239.
Frayne v. Taylor, 308.
Freelaud v. Pearson, 399, 405.
Freeman v. Barnes, 208.
r. Edwards, 292.
41. Phillipps, 75.
Freer v. Hesse, 504.
Freke v. Carbery, 9, 45.
Fremoult v. Dedire, 138.
French's Case, 94, 95, 96.
Fuller V. Benett, 499.
Gainsford v. Dunn, 269, 390, 436.
Gale V. Fenwick, 288, 289.
Gardiner v. Stevens, 166.
V. WilUamson, 54.
Gardner v. Eowe, 132.
Garland v. Jekyll, 28.
Garnett v. Actou, 309.
Garrard v. Lord Lauderdale, 258.
J). Turk, 208.
Garth «. Baldwin, 139, 347,
c. Townsend, 408, 424.
Geary v. Bearcroft, 116.
General Provident Asa. Co. re, 512.
George v. Milbanke, 427.
Gibbins v. Eyden, 265, 289.
Gibbs V. Cruikshank, 290, 292.
Gibson v. Rogers, 273.
Gillespie v. Alexander, 267.
Gillies V. Longlands, 256.
Glass 1). Richardson, 83, 85.
Glegg V. Kees, 258.
Glenorchy v. Bosville, 244, 245, 246,
380, 473.
Good V. Good, 175.
Goodright «. Cornish, 327.
V. Wells, 128,
Goodtitle v. Billington, 354.
II. Burtenshaw, 173, 328.
V. Edmunds, 166.
V. Gibbs, 117.
V. Jones, 223.
D. Newman, 61, 63.
t). Pugh, 162.
Goodwin's Trusts, re, 872.
Goodwright v. Wright, 157, 844, 858.
Gordon v. Adolphus, 340.
V. Atkinson, 251.
Gore V. Gore, 861.
Gorst V. Lowndes, 465.
Graham ». Ewart, 78.
V. Sime, 89.
Grange v. Tiving, 387.
Grant i>. Astle, 89, 91.
V. Mills, 145.
Gratwick's Trusts, 409.
Gravenor i). Brook, 79.
Graves v. Hicks, 274.
Gray y. Warner, 151.
Green v. Belcher, 273.
. V. Bridges, 242.
Greenaway v. Hart, 397.
Greenway v. Greenway, 160, 175.
Gregory v. Wilson, 242.
Greig v. Somerville, 267.
Greswold's Case, 52.
Greville v, Browne, 269.
Grey v. Grey, 134.
V. Jenkins, 461.
V. Pearson, 326, 361.
Grier v. Grier, 246.
Griffin v. Blandford, 73.
Griffith V. Harrison, 337.
V. Pownall, 459.
V. Ricketts, 249, 250, 251, 259,
528.
Griffiths V. Grieve, 446.
K.Vere, 464,465.
Grimman v. Legge, 306.
Grimwood v. Moss, 229.
Guest V. Cowbridge Railway Co., 503 .
!). Smythe, 151.
Gulliver v. Ashhy, 218.
Habergham v. Yincent, 346.
Hadfield's Case, 116.
Hadley v. London Bank of Scotland,
30.
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Haggerstou «. Hanbury, 117, 120.
Haigh V. Kaye, 133, 135.
Hales V. Cox, 515.
Haley v. Bannister, 465.
Hall V. Hall, 135.
V. May, 406.
Hampson v. Fellowes, 292.
Hanbury v. Lichfield, 498.
Hanmer v. Chance, 87.
Hanson v. Graham, 475.
Harbin v. Masterman, 452, 468.
Harding v. Glyn, 136.
V. Harding, 290, 311.
Hardingham v. NichoUs, 145, 493.
Hare v. Burges, 203.
Hargreaves v. Eothwell, 499.
Harland v. Binks, 259.
Harmer v. Priestly, 279.
Harmood v. Oglander, 265, 266.
Harrington v. Harrington, 245, 443.
Harries v. Bryant, 204.
Harris i>. Barnes, 361.
V. Davis, 175.
V. Lloyd, 370.
Harrison's Jlstate, re, 163,
Harrison v. Forth, 488.
Hart's Trusts, 474, 475.
Hartopp V. Lord Carbery, 457.
Hartshorne v. Watson, 230, 234.
Hastings Union v. S. James, Clerken-
well, 202.
Haselfoot's Estate, 512.
Haswell v. Haswell, 398.
Hatton V. Haywood, 285, 427, 503.
Hawkes v. Baldwin, 242.
Hawkins, Ex. p., 309.
Hawkins v. Kemp, 402, 406.
Hay V. Coventry, 334.
Haydon v. Smith, 87.
Hayes v. Foorde, 346.
V. Hayes, 334.
Haynes v. Haynes, 309.
Head v. Egerton, 490.
Heams v. Bance, 512.
Heaseman v. Pearse, 186, 441, 456.
Heath v. Crealock, 489, 490, 491.
V. Heath, 165, 268.
Heathcote's Trusts, 369.
Hele V. Bond, 414.
Henning v. Brabazon, 328.
Hensman v. Fryer, 265, 267, 517.
Henstead's Case, 210.
Hepworth v. Hepworth, 134.
Herman v. Hodges, 298.
Hervey v. Hervey, 413, 419.
Hewitt V. Loosemore, 495.
V. Wright, 250.
Hext V. Gill, 87.
Heydon's Case, 78, 81, 82.
Heyman v. Dubois, 514.
Hickman v, Machin, 290.
Hioks V. Downing, 316.
Hide's Case, 94.
HiU's Trusts, 369.
Hill ,j. Crook, 372.
V. Simpson, 277.
V. StaiFordshire Railway Co.,
270.
V. Wiggett, 73.
Hilton p. Hilton, 468.
Hind V. Poole, 294.
Hinton v. Sparkes, 306.
Hoare v. Wilson, 73.
Hobart v. Hammond, 89.
Hockley v. Bautoek, 298.
Hoddel V. Pugh, 307.
Hodges' Iiegacy, 242.
Hodgson V. Ambrose, 340, 358, 359.
V. Dean, 505.
V. Hooper, 76, 209, 212.
Hodson's Settlement, 148.
Holder v. Preston, 85.
Hole !■. Escott, 328, 354, 376, 384,
400.
Holford V. Hatch, 316.
HoUiday v. Overton, 401.
HoUoway v. Berkelev, 28.
V. Radcliffe, 252, 254.
Holmes v. Coghill, 394, 427.
V. Godson, 237.
V. Gordon. 68.
V. Prescott, 342, 357, 471, 472.
Holroyd v. Breare, 72.
V. Marshall, 302.
Home V. Pillans, 369.
Hood V. Hood, 290.
. ., JEx. p., 508.
Hooper, Sx. p., 298.
Hopkins v. Hopkins, 112, 121, 361,
365.
Horn V. Horn, 276.
Horsman v. Abbey, 401.
Horton v. Hall, 274.
Hougham v. Sandys, 146.
Houston V. Hughes, 124, 140.
Howard v. Chaffer, 268, 276.
V. Ducane, 151.
V. Harris, 279, 280, 282.
V. Shrewsbury, Earl of, 128.
Hudson V. Cooke, 290, 310, 311.
Hudsons, re, 474.
Hughes' Trusts, 301, 477, 483.
Hughes V. Dolben, 262.
Hugo V. WiUiams, 160, 177.
Huguenin v. Baseley, 135.
Huish's Charity, re., 434.
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TABLE OF CASES.
Humberston v. Humberstou 334.,
386.
Humphrey c. Olver, 432, 435.
Hunt V. Elmes, 481, 490.
Hunter v Nookolds, 283.
V. "Walters, 479, 482.
Huntingdon v. Huntingdon, 286.
Hurst V. Hurst, 282, 426.
Hutton 0. Sealey, 82.
Ibbitson's Estate, 250.
Idle V. Cook, 80, 170.
Iggulden V. May, 203.
Imperial Mere. Credit v. Coleman,
269.
Innes v. Jackson, 413.
i>. Sayer, 421, 422.
Irby V. Irby, 512.
Isaac V. Hughes, 426.
Isaacson v. Harwood, 282.
Isherwood v. Oldknow, 397, 419.
Ivy V. Gilbert, 274.
Jackson v. Innes, 286.
V. Lever, 303.
V. Noble, 363, 472.
V. Rowe, 495.
James v. James, 298.
V. Lichfield, 498.
u. Ray, 149.
V. Rice, 298.
V. Richardson, 159, 192, 179.
Jeakes v. White, 128.
Jeans v. Cook, 79, 195.
Jee V. Audley, 450.
Jefferys v. Jefferys, 137.
JefPerys' Trusts, 391, 415.
Jeffreson v. Morton, 262.
Jemott V. Cowley, 205.
Jenkins v. Jones, 146, 281.
V. Young, 119.
Jenning's Case, 39.
Jennings v. Rigby, 264.
Jervoise v. Duke of Northiimberland,
235.
Jesson V. Wright, 178.
Jessopp V. Watson, 251, 253.
Job 11. Banister, 204.
Johnson v. Baber, 399.
V. Foulds, 218, 219, 224, 291,
352.
V. Kennet, 275, 276.
V. Simcock, 449.
V. Touchet, 400, 426.
Johnston v, Newton, 149, 271.
Johnstone v. Hudlestone, 200.
Jolly V. Arbnthnot, 291, 292, 293.
Jones V. Bruce, 268, 269.
Jones V. Carter, 227, 229.
V. Frost, 500.
V. Jones, 302, 477, 483, 484.
II. Lewie, 149.
V. Powlej, 488.
■ V. Smith, 494, 495, 512.
V. Winwood, 320, 384.
Jordan v. Adams, 178, 179, 186, 358,
359.
Josselyn v. Josselyn, 452.
Joyce V. De Moleyns, 490.
Judd V. Judd, 452.
Kampf V. Jones, 420.
Keech v. Hall, 290.
V. Sandford, 151.
Kelsey v. Kelsey, 274.
Kemp, ex p., 482.
Kennard v. PutTOye, 511.
V. Eiennard, 408, 424.
Kennedy «). Green, 482, 496, 497, 499.
'v. Kingston, 390, 391.
Kenney v. Wenham, 303.
Kensington, ejr p., 297, 298.
Kenworthy 11, Bate, 394.
Kerr's Policy, re, 270.
Kerr v. Lord Uungannon, 443.
Kerrick v. Saffery, 284.
Keyse v. Powell, 87, 209.
Kiallmark v. Kiallmark, 239.
Kidd V. Boone, 282.
Kidman v. Kidman, 475.
Kilpin V. KUpin, 132.
Kinderley v. Jervis, 264, 265, 504.
King's Leaseholds, 108, 200, 207, 220.
King V. Cotton, 455.
0. Denison, 136.
V. King, 434.
V. Moody, 94.
o. Smith, 292.
Kinnersley «. Williamson, 231.
Kinsman ii. Kinsman, 500.
Kirkwood u. Thompson, 151, 284,
296.
Kitchen v. Ibbetson, 144.
Kite V. Queintou, 73.
Knight V. Benett, 201.
w. Boughton, 132.
V. Davis, 287.
V. Knight, 132.
V. Majoribanks, 151, 296.
KnoUys w. Shepherd, 309.
V. Knott, ex, p., 509.
Knox V. Gye, 150.
Lacey v. Ingle, 507, 513.
Lacon v. Mertins, 309.
Lake v. Craddock, 256.
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TABLE OF CASES.
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Lake v. Gibson, 256.
Lamb v. Archer, 117.
Lambarde v. Peach, 215, 224, 332.
Lambe v. Eames, 165, 189, 395.
Lambert v. Lambert, 271.
V. Thwaites, 392.
Lancastel v. AUer, 53.
Lanoefield v. Iggulden, 265.
Lane's Case, 94.
Lane v. Debenham, 379.
V. Jackson, 504.
V. Page, 434.
Lanesborougb, Lady, v. Pox, 449.
Langhead v. Phelps, 453.
Langston, ex. p., 297.
Lantsbery v. Colher, 461.
Lanyon v. Carne, 28.
Laugher v. Humphrey, 72.
Lavender v. Stanton, 276.
Lawes v. Bennett, 307.
Layard v. Maud, 480.
Leake v. Leake, 476.
V. Kobiuson, 444, 450, 453,
475.
Lee V. Pernie, 431, 433.
V. Green, 503.
V. Hewlett, 477, 483.
u. Lee, 341.
V. Page, 306.
Leese v. Martin, 297.
Legard v. Hodges, 137.
Legate v. Sewell, 360.
Leith V. Irvine, 295.
Le Neve v. Le Neve, 494, 497, 499,
500, 505.
LethieuUier v. Tracy, 182.
Letts II. Hutchins, 279.
Lewes' Trusts, 196.
Lewis V. Branthwaite, 87.
Lewis V. Lane, 133.
Lewis V. Lewis, 287, 288, 289.
Ley t). Peter, 208.
Liddy v. Kennedy, 226.
Liefe v. Saltingstone, 393.
Line v. Hall, 418.
Lippard v. Kicketts, 270.
Lister v. Bradley, 474.
Litchfield v. Ready, 291.
Liverpool Marine Credit Co. «. Wilson,
507.
Lloyd V. Crisps, 240.
V, Jackson, 166.
• V. Eosbee, 197.
II. Spillet, 133, 134, 135.
Loch V. Bagley, 245.
Locke V. Lamb, 475.
V. Lomas, 145, 276.
V. Matthews, 209, 212.
Lockhart «. Hardy, 283.
Locking V. Parker, 284, 296.
Loddington v. Kime, 338.
London Chartered Bank of AustraUa
v. Lempriere, 348.
London and Provincial Telegraph
Co., re, 483.
Long V. Blackall, 442.
V. Long, 394.
V. Kankin, 383, 385, 386,
Longdon v. Simpson, 465.
Longley v. Longley, 164.
Lonsdale, Earl of, v. Eigg, 78.
Loveridge v. Cooper, 301, 482.
T.ovies' Case, 203.
Low V. Burron, 194, 320, 455.
Lowe's Case, 23, 26.
Lowry's Will, 309.
Lowther i). Carlton, 488.
V. Raw, 89, 90.
Lucas V. Comerford, 299.
V. Goldsmid, 189.
V. Jones, 255.
Luif V. Lord, 151.
Lumsden -w. Praser, 307.
Lywood V. Ember, 179, 186.
V. Warwick, 179, 186.
M'Adam v. Logan, 400.
M'Cormick v. Grogan, 133.
M'Creight v. Foster, 137, 302.
M'Donald v. Bryce, 466, 468.
M'Fadden v. Jenkyns, 132, 138.
Maokeohnie v. Majoribanks, 432.
Mackett v. Mackett, 395.
Mackinnon v. Sewell, 370, 445.
Mackreth v. Mackreth, 132.
V. Symmonds, 304, 305.
M'Leod V. Drummond, 277.
M'Queen v. Parquhar, 434, 488.
Magrath v. Morebead, 245.
Makepiece v. Fletcher, 169.
Mallory's Case, 166.
Manchester and Southport Railway
Co., re, 309.
Mandeville's Case, 172, 173, 178,
186.
Mangles v. Dixon, 481.
Manning's Case, 204, 225, 228.
Manning v. Gill, 135.
Mannox v. Greener, 163, 189, 269.
Mansell v. Mansell, 331.
Marlborough, Duke of, v. Earl Go-
dolphin, 334, 458.
Marler v. Tommas, 409.
Marlow v. Smith, 145.
Marryat «. Marryat, 282.
Marsden's Trust,
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TABLE OF CASES.
Marsli 1). Lee, 507, 509, 611, 513.
Marshall v. HoUoway, 467.
Martin v. Smith, 202.
— ■ — ». Strachan, 39.
Maskell v. Harrington, 269.
Massey v. Banner, 149.
Maasingberd v. Ash, 321.
Mathew v. Blaekmore, 282.
Matthews v. Goodday, 280, 298, 299.
Maundrell v. Maundrell, 223, 374,
377, 381, 382.
Maxfield v. Burton, 487, 496.
Maxwell's Will, re, 394.
Mayow's Case, 230.
Meadows v. Parry, 370.
Meller v. Woods, 270, 298.
Melling v. Leake, 208.
Mellish V. Mellish, 188.
Melwieh's Case, 84, 87.
Menzies v. Lightfoot, 508.
Meredith v. Jones, 119.
Metropolitan Counties Ass. v. Brown,
292.
Meux D. Bell, 484.
Meyricl «. Laws, 362.
V. Mathias, 218, 352.
Middleton v. Losh, 464.
V. Windrop, 236.
Mildmay's Case, 114, 218, 237.
Mildred v. Austin, 285, 502.
Miles V. Langley, 498.
Miller v. Miller, 250.
Mills V. Banks, 274.
Milnes v. Slater, 266.
Minet ». Morgan, 73.
Mirehouse v. Scaife, 267, 269, 517.
Mogg V. Mogg, 370.
Montagu v. Katei-, 414.
Montefiore v. Enthoven, 220.
Monypenny v. Bering, 337.
Moor V. Raisbeck, 308.
Moore v. G-reg, 299.
Moores v. Cheat, 299.
More's Trusts, re, 368.
Moreeock v. Dickens, 505.
Moreton v. Lees, 121.
Morgan a. Gronow, 407, 420, 460,
515.
V. Milman, 425.
V. Morgan, 170, 464, 466, 468,
475.
Morley v. Morley, 262.
V. Kennoldson, 219, 236.
Morrett v. Paske, 512.
Morris v. Howes, 401.
Morse v. Ormonde, 456, 457.
Mortimer v. Hartley, 361, 449.
V. West, 336.
Morton v. Woods, 202, 290, 291.
Moseley's Trusts, 444, 451.
Moss V. Harter, 412.
Mountfort, ex p., 297.
Mountfort «. Scott, 297, 499.
Mower's Trusts, 515.
Mowleni, re, 329.
Muggeridge's Settlement, 215, 220.
Muggleton v. Barnett, 75.
Mumford v. Stohwasser, 487, 511.
Munno v. Isle of Wight Ey. Co.,
305.
Munt V. Glynes, 245.
Murray v. Addenbrooke, 452.
V. Jones, 370.
Murrel's Case, 95.
Murrel v. Smith, 76.
Mutlow V. Bigg, 252.
JVairn v. Prowse, 487.
Wanfan v. Legh, 175.
Nanson v. Barnes, 62.
Napper v. Sanders, 328.
Nash V. Coates, 472.
Neale v. Mackenzie, 50.
Nelson v. Booth, 295.
». Page, 288, 289.
• V. Peunell, 504, 513.
Newcastle, Duke of, re, 503.
WewiU 0. Newill, 372.
Newis V. Lark, 223, 231.
Newman v. Newman, 444.
V. Selfe, 282.
V. Warner, 406.
Newton v. Newton, 478, 481, 491.
NichoUs, !. g., 196.
NiohoUs )'. Saunders, 55.
Nichols V. Hawkes, 163.
Nicolls t'. Sheffield, 456.
Norfolk's Case, Duke of, 446.
Norris v. Frazer, 133.
Northwick, Lord, v. Stanway, 76.
North V. Champernown, 142.
Nottingham v. Jennings, 176.
Dates V. Jackson, 371.
Oceleston o. FullaloTe, 372, 422.
Oddie V. Brown, 465.
Ogilvie V. Jeaifreson, 497, 499.
O'Neill V. Lucas, 464, 468.
Oppenheim v. Henry, 371.
Orme's Case, 119.
Osman v. Sheafe, 351.
Oxford, Uniyersity of, u. Clifton, 181.
Page V. Adam, 276.
V. Bennett, 242.
Paget's Case, 79.
Digitized by Microsoft®
TABLE OF CASES.
slix
Paget V. Auglesea, 293.
Paine v. Meller, 303.
Palin 11. HiUs, 348.
Palmer's Case, 27.
Palmer v. Heudrie, 283.
V. Holford, 441, 444, 453, 454,
V. Temple, 306. 467.
Parker v. Carter, 127.
V. Clarke, 185, 488, 510.
V. Hodgson, 474, 475, 476.
V. Housefield, 298.
V. Parker, 419.
V. TasweU, 198.
V. Turner, 98.
Parkin v. EadclifFe, 28.
Parmenter v. Webber, 316.
Parsons v. Mills, 351.
Patch V. WUd, 295.
Peachy v. Duke of Somerset, 141,
241, 242.
Peacock v. Burt, 484, 510.
1^. Eastland, 119.
V. Peacock, 266, 269.
Pearce v. Carrington, 329.
V. loman, 476.
V. Morris, 279, 285.
». Vincent, 162.
Pearl v. Deacon, 508.
Pearson v. HeUiwell, 274.
V. Lane, 254, 255.
Peck's Trusts, 367, 475.
Pells V. Brown, 446, 454.
Pembroke v. Friend, 288.
Penhay v. Hurrell, 355.
Pennant's Case, 225, 228, 229.
Peunock v. Pennock, 395.
Peppercorn v. Wayman, 378, 379.
Perceval v. Perceval, 338, 342, 357.
Perrin v. Blake, 343.
Perry v. Merritt, 237.
Perry Herrick v. Attwood, 480.
Perrymau's Case, 78.
Peter V. Bradley, 362.
Pettinger v. Ambler, 412.
Phene's Trusts, 196, 391.
Philips V. Brydges, 172, 472.
PhilUps V. Bridge, 234.
«. Miller, 497.
V. Phillips, 85, 477, 478, 489,
490, 509, 511.
V. Silvester, 303.
Phipps V. Ackers, 239, 367.
V. Lovegrove, 484.
Phipson V. Turner, 407, 460.
Plant V. Pearman, 501.
Playters v. Abbott, 274.
Pledge V. Bass, 508.
Plunket V, Holmes, 330,
Plunket V. Penson, 285.
Podger's Case, 79, 83, 92, 93.
Pomfret V. Perring, 409.
Poole V. Heron, 268, 269.
Poor V. Miall, 236.
Pope V. Biggs, 291.
Porter's Case, 107.
Portington's Case, 217, 220, 224, 231,
237.
Potts V. Britton, 398, 401.
Powell V. Rawle, 242.
V. Smith, 200.
PoweU's Trusts, 395, 411, 459.
Pratt «. Mathew, 372.
Prebble v. Boghurst, 84.
Price V. Hall, 239, 324, 325, 328,
367.
Price 41. Worwood, 234.
Pride v. Fooks, 466.
Proby V. Landor, 403.
Procter v. Bishop of Bath and Wells,
443, 453.
Proctor V. Cooper, 504.
Pryee v. Bury, 298, 300.
Pryor v. Pryor, 433, 434.
Pruen v. Osborne, 186.
PuUen V. Middleton, 141, 174.
Pulteney «. Darlington, 255.
Purefoy v. Eogers, 330, 338, 364.
Pusey V. Pusey, 23.
Pybus !). Mitford, 350, 351, 353.
Pye, ex p., 476.
Quested v. MieheU, 34, 395, 472.
Eadford v. WaUs, 239.
Radnor, Earl, v. Shafto, 310.
Ranking v. Barnes, 433, 435, 437.
Ratcliffe v. Barnard, 481, 490, 495.
Rawley v. Holland, 355.
Kay V. Pung, 383.
Read v. Snell, 160.
Rede v. Farr, 227,
«. Oakes, 146.
Regina v. DuUingham, 89.
V. Lumley, 196.
■ V. St. George's Union, 199.
V. Shropshire Union Co., 481.
V. Smith, 199.
Eeid V. Shergold, 404, 424.
V. Reid, 420.
Remnant v. Hood, 474.
ReveU v. Goddrell, 76.
Rex V. Brewer's Co., 88.
V. Coggan, 88, 89.
V. Hendon, 89, 141.
«. Henham, 88.
V. Hornchuroh, 76.
d
Digitized by Microsoft®
TABLE OP CASES.
Hex V. Mildmay, 91.
V. Oundle, 83.
11. Eigge, 88.
V. Stafford, 393.
V. Wflby, 16.
V. WiUes, 91.
Reynolds v. Woodham Walter, 98.
II. Wright, 195.
Ehodes v. Muswell Hill Land Co.
238.
Kioe V. Rice, 305, 478, '479, 482.
Richards, re, 271.
Richards v. Lady Bergavenny, 175.
V. Delbridge, 138.
V. Richards, 329.
Richardson v. Horton, 262, 264.
V. Langridge, 201, 202, 208.
«. Morton, 268.
Right V. Bawden, 195.
V. Beard, 209, 210.
V. Darby, 200, 201.
V. Day, 361, 449.
V. Smith, 106.
Ring V. Hardwicte, 451.
Ripley v. Waterworth, 194, 195, 251.
Rivis V. Watson, 71.
Roach V. Wadham, 382, 383.
Roads V. Trumpington, 199.
Roberts v. Croft, 481, 494.
«. Davey, 226, 227.
V. Dixall, 394, 420.
V. Marchant, 307, 308.
V. Walker, 267.
Robins V. Rose, 220.
Robinson «. Hardcastle, 334, 453.
V. Knight, 161.
V. London Hospital, 252.
V. Pett, 149, 150.
V. Robinson, 249, 250.
V. Wood, 215, 363.
V. Woodward, 503.
Roohford v, Hackman, 237.
Eoddam d. Morley, 140, 262.
Roddy V. Fitzgerald, 181.
Roe V. Baldwere, 62, 108, 115.
V. Briggs, 97, 98.
V. Griffita, 115.
V. Hayley, 203.
V. Ireland, 98.
V. Jeffery, 75, 454.
• ■ V. Loveless, 97.
V, Parker, 75.
V. Prideaux, 419.
V. Street, 209.
V. Tranmer, 111, 113, 117, 351.
V. Vernon, 77.
V. York, Archbishop of, 410.
Rogers, ex p., 182.
Rogers v. ffibson, 360, 361.
V. Humphreys, 397.
Rolfe V. Chester, 512.
RoUand v. Hart, 499, 505.
Rollason v. Leon, 198.
Rolt V. Hopkinson, 508.
Rooper «. Harrison, 511.
Roper B. Roper, 187, 188.
Rose V. Watson, 270, 305.
Rosse's Case, 191.
Rosslyn's Trusts, 465.
Round V. Bell, 282.
Eoundell v. Ourrer, 235.
Routledge v. DorrU, 334, 337, 453,
459.
Row, re, 255.
Rowley v. Eowley, 433, 435.
Rucker v. Scholefield, 420.
Rudge V. Richens, 283.
Ruding's Settlement, 412.
Rush, re, 503.
Russel V. Russel, 297, 298.
Russell Road Purchase, re, 486,
505.
Eyall II. Rowles, 482.
Rye's Settlement, 454.
Ryves v. Ryves, 266.
SaokTille v. Smyth, 166.
Sadler D. Pratt, 416, 419.
St. Paul V. Lord Dudley, 94.
Salisbury, Marquis of, v. Gladstone
87.
Salmon v. Gibbs, 433.
Saloway v. Strawbridge, 294.
Samme's Case, 50, 119, 120.
Sandon ». Hooper, 295.
Saunders ti. Dehew, 487.
V. Milsome, 282.
V. Vautier, 452, 468.
Savage v. Tyers, 166.
Say V. Smith, 199.
Sayer's Trusts, 445, 450.
Sayre «. Hughes, 134.
Scarisbrick v. Skelmersdale, 467.
Scolastica's Case, 217.
Scott II. Harwood, 370.
». Tyler, 219, 2 6, 277.
Scrope's Case, 409.
Scrope ji. Offley, 426.
Seaward v. Willock, 334, 336.
Seeley v. Jago, 255.
Selby «. Alston, 128.
V. Pomfret, 513, 514.
Seton 11. Slade, 232, 279, 309.
Sewell V. Denny, 468.
Seymor's Case, 40, 42, 118, 194,
217.
Digitized by Microsoft®
TABLE OF CASES.
Slmdfortli v. Temple, 307.
Shalloross v. Finden, 260.
Shannon v. Bradatreet, 400, 419, 425.
Shapland v. Smith, 122.
Sharington v. Strotton, 110.
Sharp V. St. Sauveur, 255.
Sharpies v. Adams, 487, 511.
Shaw V. Bunny, 296.
V. Foster, 137, 297, 302.
V. STeale, 508.
V. Rhodes, 463, 464, 465, 466.
Sheffield v. Lord Orrery, 340.
Shelburne v. Biddulpb, 203.
Sheldon v. Cox, 499.
Shelley's Case, 34, 80, 157, 160, 171,
176, 339, 342, 349, 353, 357, 376,
472.
Sherwin v. Shakespeare, 303.
Shiphard v. Lutwidge, 260.
Shrapnell v. Vernon, 126.
Sibley v. Perry, 186.
Silk V. Prime, 260, 261, 264, 266, 269,
285, 427.
Silvester v. Wilson, 122.
Simkin v. Ashurst, 212.
Simmons v. Ileseltine, 128.
V. Pitt, 261, 468.
Simpson v. Bathnrst, 385.
V. Clayton, 303.
V. Peach, 452, 475.
Simpson's Settlement, 392.
Singleton v. Gilbert, 371.
Skett V. Whitmore, 182.
Sladen v. Sladen, 158.
Slark 13. Dakyns, 407, 460.
Slater v. Dangerfield, 178, 185.
Smartle v. Penhallow, 79.
Smith V. Adkins, 403.
V. Claxton, 253.
V. Clyfford, 58.
V. Dormer, 58.
-0. Eggington, 290.
V. Packhurst, 323, 324, 331.
V. Smith, 444, 450.
Smith's WUl, 452.
Snook V. Sonthwpod, 141 .
Soames v. Kobinson, 261.
Soane v. Ireland, 22.
Sollory V. Leaver, 274.
Solomon v. Solomon, 288.
Somerset, Duke of, «. Fogwell, 54.
V. France, 76, 90.
Somerville v. Lethbridge, 336, 337.
South, re, 427, 503.
Southampton, Lord, T. Marquis Hert-
ford, 467.
Southeott V. Stowell, 52, 172.
Sowarsby v. Lacy, 276.
Spalding v. Spalding, 865.
Spencer v. Duke of Marlborough,
458.
V. Wilson, 249, 251, 252, 367,
474, 475.
Spensley v. Harrison, 293.
Spong V. Spong, 269.
Spoor V. Green, 383.
Sporle V. Whayman, 299.
Spurway v. Glynn, 268.
Stackhouse v. Countess Jersey, 478,
481.
Stafford, Earl, v. Buckley, 38, 319.
Stanley v. Colthurst, 245.
Stead V. Hardaker, 266.
Steed V. Preece, 253, 255.
Stephens v. Stephens, 361, 363, 364,
444.
Steven's Will, 294.
Steward v. Blakeway, 256, 257.
Stewart's Trusts, 255, 256.
Stillman v. Weedon, 412.
Stock V. M'Avoy, 132, 134.
Stokes' Trust, 148.
Stone V. Theed, 151.
Stonor V. Curwen, 246.
Storrs V. Benbow, 370, 372, 451.
Strafford v. Edge, 198, 199.
Streatfield v. Streatfield, 416.
Strickland v. Strickland, 517.
Stroud !). Norman, 419.
Stroughill V. Anstey, 273, 276.
Stuart V. CockereU, 441, 444, 454,
483.
Sugden v. Crossland, 150.
Sutton V. Wilders, 149.
Swayne's Case, 95.
Swift V. Swift, 390.
Sykes v. Sykes, 457.
Tait V. Lord Northwick, 266.
Talbot's Case, 28.
Taltarum's Case, 39.
Tanliam v. Nicholson, 200.
Tarbuck v. Tarbuck, 370.
Tassell ». Smith, 513.
Taylor «. Biddall, 366.
V. Meads, 403, 405.
t). Stibert, 497.
V. Taylor, 274.
Teape's Trusts, 408.
Tebb V. Hodge, 299.
Tebbott V. Voules, 307, 808.
Tempest, re, 148.
Tench v. Cheese, 267, 463, 464, 465,
466, 468.
Tennanfc v. Trenchard, 150, 280.
Tewart v. Lawson, 467.
Digitized by Microsoft®
11
TABIiE OP CASES.
Teynham v. Webb, 415.
Thacter v. Key, 404, 424, 426.
Theebridge v. Kilburn, 347.
Thelusson v. Woodford, 463.
Thomas v. Buxton, 303.
V. Lloyd, 459.
V. Thomas, 459, 512.
Thompson v. Fisher, 246.
V. Grant, 280.
V, Hardinge, 78.
V. Hudson, 295.
u. Leach, 830.
Thornbrough v. Baker, 293, 295.
Thornton ». Court, 283.
V. Finch, 503.
Thorpe v. Holdsworth, 479, 491.
V. Owen, 158.
Thunder v. Belcher, 213, 290.
Tibbetts v. Tibbetts, 238.
Tidey v. MoUett, 198.
Tilburgh v. Barhut, 176, 319.
Toleman v. Portbury, 234, 239.
Tollemache v. Earl of Coventry, 443.
ToUett V. ToUett, 421, 422, 423, 424,
Tombs V. Eoeh, 265.
Tomlinson v. Lighten, 395, 409, 410.
Topham v. Duke of Portland, 406,
430, 431, 432, 434, 435.
Torrance v. Bolton, 270, 306.
Tourville v. Naish, 145, 493.
Townley v. Bedwell, 250, 307.
Townshend v. Wilson, 379.
Trappes v. Meredith, 220.
Trash v. Wood, 187, 334, 336.
Trent «. Hunt, 293.
Treport's Case, 53.
Tress v. Savage, 201.
Trickey v. Trickey, 46V.
TroUope v. Eoutledge, 390. 434, 437.
Trotter v. Watson, 137.
Trower v. Butts, 372.
V. Knightley, 254.
Tubby 1). Tubby, 264.
Tuffnell ■v. Page, 85, 142.
Tunstall's Will, 148.
Turner v. Buck, 271.
Turvin v. Newcombe, 467.
Tweedale v, Tweedale, 513.
Twiaden v. Twisden, 476.
Tyler v. Thomas, 500.
Tyrone, Earl, «. Waterford, 187.
Tyrrel's Case, 120.
Umbers v. Jaggard, 471.
Uuion Bank of Manchester, ex p.
482.
Unity Banking Ass. v. King, 301.
Uxbridge, Earl of, v. Bayley, 396.
Van V. Barnett, 250.
Vanderplauk v. King, 337.
Vane v. Lord Dungannon, 432.
M. Eigden, 261.
V. Vane, 5.
Venables v, Morris, 376.
Vernon v. Smith, 203.
V. Wright, 170.
Verulam, Earl, v. Bathurst, 203, 347.
Vigers v. Dean of St. Paul's, 54.
Vincent v. Bp. of Sodor and Man,
404.
Vint V. Padget, 513, 514.
Vorley v. Cooke, 488.
Vyse V. Poster, 150.
Wace V. Mallard, 395.
Wadham «. Postmaster General, 234.
Waldron v, Sloper, 480.
Walker, re, 196.
Walker v. Denn, 255.
V. Jones, 283.
V. Walker, 236.
V. Ware and Buntingford Eail-
way Co., 305.
Wall V. Bright, 137, 309.
Wallis V. Freestone, 461.
Walmsley v. Vauglian, 392.
Walsh V. Wallinger, 391.
Walsingham'e Case, 38.
Walter v. Maunde, 250.
Walters v. Webb, 88, 89.
Walwyn i: Coutts, 258.
V. Lee, 490.
Want V. Stallibrass, 128, 399.
Warburton «. Earn, 384.
Ward V. Arch, 249.
V. Day, 229.
V. Lenthall, 414.
Warde v. Dixon, 434, 435.
Ware v. Cann, 176, 319.
Waring v. Coventry, 461.
V. King, 201.
Warneford v, Thompson, 378.
Warner, ex p., 300.
Warren v. Lee, 231.
Warrick v. Queen's College, 20, 74,
76.
Wastneys v. Chappel, 455.
Waterer v. Waterer, 256.
Waterhouse «>. Clout, 265.
Watson V. Rose, 306.
Watt V. Creyke, 419.
Watts V. Oguell, 55.
V. Symes, 513.
V. Watts, 307, 308, 309
Wayne v. Hanham, 280.
Weale v. Lower, 325.
Digitized by Microsoft®
TABLE 01' CASES.
Hii
Wealthy v. Bosville, 361.
Weaver v. Maule, 141.
Webb V. Byng, 187.
V. Sadler, 202, 348, 394.
V. Shaftesbury, Earl of, 150,
348, 472.
V. Webb, 465.
Weeding v. Weeding, 308.
WeUesleT v. Mornington, 431.
Wells B.KUpiii, 503.
West V. Berney, 386, 387.
V. Fritche, 291.
V. Holmesdale, 244, 246.
V. Keid, 494, 495.
Westbrook v. Blyth, 504.
Wheeler's Case, 23, 24, 25, 26.
Wheeler v. Branscombe, 291.
Whitbread, ex p., 297, 298.
Whitbread d. Jordan, 300.
White V. Collins, 175, 179, 360.
V. Hffl, 369.
V. Parker, 122.
V. Titty, 268.
V. Wakefield, 482.
Whiteohurch v. Holworthy, 87.
Whitlock's Case, 397.
Whittaker v. Whittaker, 310.
Whitworth v. G-augain, 504.
Wickham v. Wing, 376, 398.
Widdowson v. Harrington , 87, 88.
Wigg V. Wigg, 145, 493.
Wight's Mortgage Trust, 299.
Wilday v. Barnett, 411.
WUdbore v. Gregory, 409.
Wild's Case, 66, 181, 187, 188, 371.
WUkinson, re, 411.
Wilkinson v. HaD, 197, 291.
1). Wilkinson, 220.
Willes V. Greenhill, 484.
Willet V. Sandford, 13.
WiUiams v. Jekyl, 346.
V. Lonsdale, 88.
V. Owen, 279, 508.
V. Williams, 264.
Wfflion V. Berkeley, 38, 42.
Willis V. Brown, 504.
V. Hiscox, 179.
V. Lucas, 166.
Willowe's Case, 89, 91.
WUloughby v. Willoughby, 223.
Wills V. G-resham, 150.
V. Palmer, 173, 353, 355.
Wilmot V. Pike, 302, 477, 483, 484,
511.
Wilson, ex p., 293.
Wilson V. AUen, 98.
V. Bennett, 406.
Wilson V. Cluer, 295.
■». Halliley, 274.
V. Mount, 445.
V. Piggott, 409, 425.
1). Willes, 74.
V. Wilson, 451, 464.
Wilton V. Dunn, 291.
Wiltshire v. Kabbits, 302, 484.
Winchester, Bp of, v. Knight, 87.
V. Paine, 305, 500.
Wing V. Tottenham and Hampstead
Ey. Co. 305.
Winter v. Lord Anson, 304.
V. Jeringham, 73.
V. LoTeday, 71.
Witham v. Bland, 414.
WoUaston v. Hakewill, 316.
V. King, 407, 418, 460.
WoUey V. Jenkins, 382, 461.
Wood's Estate, re, 151.
Wood J). Cox, 136.
V. Ordish, 266.
V. Kichai'dson, 393.
V. White, 460, 461.
V. Wood, 401.
Woodhouse v. Herrick, 180, 181, 238.
Woolridge v. Woolridge, 420,
Wormald i). Maitland, 495.
Worsley v. Scarborough, 499, 500.
Wortley v. Bu-khead, 509.
Wright V. Cartwright, 197, 221, 316,
321
v. Pearson, 139, 204, 344,
472.
V. Rose, 286.
V. Stavert, 199.
V. Ternon, 165, 170, 172, 177.
V. Wakeford, 404.
„. Wright, 156, 160, 362.
Wright's Mortgage Trust, re, 504.
Wrightson v. Macaulay, 162, 174,
179, 341.
Wrigley v. Sykes, 260.
Wykham «. Wykham, 418.
Wynn v. Wilhams, 223.
Wynne ». Cookes, 98.
V. Wynne, 219.
Wythes v. Lee, 305.
Yates V. University College, 238.
Tellowly v. Gower, 397.
York, Mayor of, d. PUkington, 74.
Young V. Dymook, 119.
;- V. Lord Waterpark, 437
Zouch V. Porse, 97, 195, 196.
V. Woolston, 413.
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Digitized by Microsoft®
ADDITIONS AND COIIEECTIONS.
This list includes the principal Statutes and Decisions to the end of 1879.
PAGE.
59. Add a reference to the " Real Property Limitation Act, 1874," 37 &
38 Vict. u. 57.
76. Note (e), add -.—LasceUes v. Onslow, T;. R. 2 Q. B. 433 ; 46 L. J. Q. B. 333.
79. (a):~The Queen v. Venn, L. E. 10 Q. B. 310; 44 L. J. Q. B. 158.
87. (c) -.—Att.-Oen. v. Tomline, L. R. 5 C. D. 750; 46 L. J. C. 654.
89. (c) -.—Brown v. Wales,!,. E. 15 Eq. 142; 42 L. J. C. 46; Spike v.
Warding, L. E. 7 C. D. 871; 47 L. J. C. 323.
122. {b) and 124 (a) -.—Baker v. White, L. E. 20 Eq. 166; 44 L. J. G. 051.
128. (a) : — CainberweU Building Soc. v. Holloway, L. E. 13 0. D. 754.
133. (6) -.—Isaac v. WaU, L. E. 6 C. D. 706 ; 46 L. J. C. 576.
134, {a):—Eykyn's Trusts, L. E. 6 C. D. 115; Bennet v. Bennet, L. E. 10
C. D. 474.
136. {d) -.—Kronheim v. Johnson, L. E. 7 0. D. 60 ; 47 L. J. C. 132.
137. (c) i—Lysaght v. Edwards, L. E. 2 G. D. 499; 45 L. J. G. 459.
139. (a):— Sewed v. King, L. E. 14 C. D. 179; 49 L. J. C. 73.
143. (6) :— 38 & 39 Vict. c. 87. Morgan v. Swansea, L. E. 9 C. D. 682.
146. (c):— See 37 & 38 Vict. c. 78, s. 3.
160. (c) -.-Wingfield v. Wingjield, L. E. 9 G. T>. 65S; 47 L. J. G. 768.
184. (a) :- Dawson v. Small, L. E. 9 G]». 651.
196. (e) :— Hickman v. f/^jsaif, L. E. 4 C. D. 144; 46 L. .T. G. 245.
200. (/) :— 38 k 39 Vict. c. 92, s. 51. Wilklmon v. Calvert, L. E. 3 C. P.
D. 360; 47 L. J. C. P. 679.
211. (c) ■.—Mellm- v. Watkins, L. E. 9 Q. B. 400.
218 (a) and 242 (c) -.—Astley v. Earl of Essex, L.E. 18 Eq. 290 ; 43 L. J.C. 817.
228. [d] : — Davenport v. The Queen, L. E. 3 Ap. Ua. 115; Keene v. Bisaie,
L. K. 8 C. D. 201 ; 47 L. J. C. 044.
229. (c) -.-Walrond v. Ilaiokins, L. E. 10 C. P. 342; 44 L. J. C. P. 116.
234. (b) :— Evans v. Daiis, L. E. 10 G. D. 747; 48 L. J. G. 22S.
236. (a):—Bellairs v. Bellairs, L. E. 18 Eq. 510; 43 L. J. G. 669; Jones v.
/ones, L. E. 1 Q. B. D. 279 ; 45 L. J. Q. B. 166.
237. (/) -.-Shaw v. Ford, L. E. 7 C. D. 669 ; 47 L. J. C. 531.
250. (c) -.—Spencer v. Harrison, L. E. 5 C. P. D. 97 ; 49 L. J. G. P. 193.
265. (c) -.—Lancefield v. Iggulden, reversed L. E. 10 G. 136 ; 44 L. J. G. 203.
266. (by.— Jones v. Caiess,-L. E. 10 G. D. 40; Scott v. Cumberland, L. E.
18 Eq. 578; 44 L. J. G. 226; (jowan v. Broughton, L. E. 19
Eq. 77 : 44 L. J. G. 275.
274. (d) :— Mason v. Robinson, L. E. 8 G. D. 411 ; 47 L. J. C. 6fi0.
279. (a) :— Campbell v. Holyland, L. E. 7 G. D. 166; 47 L. J. C. 145.
286. (a\ :— Jones v. Davies, L. E. 8 G. D. 205.
288. (6) and 290 [b) :— 40 & 41 Vict. c. 34.
289. (c) -.—Eossiter v. Rossiter, L. E. 13 G. D. 355 ; 49 L. J. C. 36.
307. [a] ; 309 (a) -.—Lysaght v. Edwards, L. E. 2 G. D. 499 ; 45 L. J. G. 459.
328. (6) :— 40 & 41 Vict. c. 33.
369. (c) -.—Ingram v. Soutten, L. E. 7 H. L. 408.
371. (c) :— Emmet v. Emmet, L. E. 13 C. D. 484; 49 L. J. C. 295.
380. (a):— 40 & 41 Vict. c. 18.
388. [b) -.—Andrews v. Andrews, 49 L. J. G. 184.
412. (6) -.—Boyes v. Cook, L. E. 14 G. D. 53; 49 L. J. G. 350.
418. (a):— Meredith's Trusts, L. E 3 C. D. 767.
436. {b)-.—Re Capon's Trusts, L. E. 10 C. D. 484; 48 L. .J. G. 355.
444. \a) -.—Picken v. Matthews, L. E. 10 G. B. 264; 48 L. J. G. 150.
451. (6) '■.—Mosdey's Trusts, L. E. 11 G. D. 555.
468. (d) :— Wetherall v. Thornburgh, h. E. 8 0. D. 261 ; 47 L. J. C. 668.
485, 492, 493, 507 : — " Vendor and Purchaser Act, 1874," s. 7, repealed by
38 & 39 Vict. c. 87, s. 129.
503. (e):-Exp. Etans, re Watkins, L. E. 13 G. D. 252; 49 L. J. B. 7.
605. (a) -.—Lee v. Clutton, 46 L. J. C. 48.
514. (6) -.—Mais V. Jennings, L. E. 13 G. D. 639 ; 49 L. J. G. 209.
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INTEODUCTION.
Eights distinguished — jnra in rem— jura in personam.
Subjects of property distinguished — land and goods.
Property in land and goods distinguished — estates in land
— various uses of land as subject of property — title and
possession.
Principles of the civil law of property.
English law of property in land — possessory and future estates
— difference between the English and the civil law.
Distinction of things as real and personal — real and personal
property — jeal and personal actions.
Order of treatment — estates in land — land as subject of pro-
perty — transfer of property in land — law of persons, as
affecting property in land.
Sources of English law — law of freehold tenure — law of custo-
mary tenure — equity — uses — trusts — statute law.
Arrangement of the work into Parts.
Jurisprudence distinguishes Rights^ using the term in Kgiits ais-
the strict legal meaning, into the two classes of Rights ju'^u remind
to Things and Rights against Persons, familiarly known ■"^'""'''"°"'""'
in the civil law by the terms jura in rem and jura, in
personam {a).
(a) "The distinction between terras 'jus in rem' and' jus in per-
rights — is that aU-pervading and sonam ' were devised by the civilians
important distinction which has of the middle ages, or arose in times
been assumed by the Eoman In- still more recent. I adopt them
stitutional writers as the main without hesitation — for of all the
groundwori of their arrangement : numerous terms by which the dis-
namely, the distinction between tinction is expressed, they denote it
rights in rem and rights in per- the most adequately and the least
sonam ; or rights which avail against ambiguously." 2 Austin Jur. 32,
persons generally or universally, and Lect. xiv ; 3 lb. 189. Compare I
rights which avail exclusively against Ortolan Inst. Part 2, tit. 2, Des
certain or determinate persons. The Droits, p. 491, 7th ed.
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INTEODUCTION.
Jura in rem.
Eights to things^ jura in rem, have for their subject
some material thing, as land or goods, which the owner
may use or dispose of in any manner he pleases within
the limits prescribed by the terms of his right. A
right of this kind imports in all persons generally
the correlative negative duty of abstaining from any
interference with the exercise of it by the owner ; and by
enforcing this duty the law protects and establishes the
right. But a right of this kind does not import any
positive duty in any determinate person, or require any
act or intervention of such person for its exercise and
enjoyment {a).
Jura in per-
sonam.
Eights against persons, /wra in personam, on the other
hand, have for their subject an act or performance of some
certaiu determinate person, as the payment of money, the
delivery of goods and the like. A right of this kind
imports the correlative positive legal duty in. the deter-
minate person to act in the manner prescribed. It
depends for its exercise or enjoyment upon the perform-
ance of that duty, and is secured by the legal remedies
provided for a breach of performance. This class of
rights includes the rights arising from contracts and aU
transactions of the nature of contract, which form the
branch of law known as the Law of Contracts (&). The
present work treats of the former class of jura in rem,
and of only one subject of that class.
The subjects of
property difl-
tiDguished.
Eights to things, Jura in rem, vary and are distinguished
according to the things or material subjects in the use or
disposal of which the right consists.
Things, as subjects of property, may be referred to two
principal kinds, distinguished by quahties inherent in their
nature.
The one kind, which may be designated by the general
(a) 2 Austin Jur. 33, Leot. xiv.
(i) Austin, supra. See Leake on
Contracts, Introduction.
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INTRODUCTION. 3
term Land, is characterised by the abstract physical Land,
qualities : — that the subject is immoveable and inde-
structible; that the use and enjoyment of it is perpetual
and uniformly continuous.
The other kind, which may be designated by the Goods.
general term Goods, is characterised by the qualities : —
that they are moveable and perishable ; that the use and
enjoyment of them is not perpetual nor uniform, but is
transitory and exhaustible. They are, in various degrees,
consumed or destroyed in using,' — quae in ipso usu con-
sumuntur.
These two classes are designated in the Eoman civil
law after their most characteristic quality, by the terms
" moveable " and " immoveable," — res mobiles and res im-
mohiles or quoe soli sunt (a).
The distinctions of quality in the subjects of property property in land
form the ground of important differences in the law. tkigmshed.'''^"
By reason of the perpetuity and uniform continuity of Estates in land
the use of Land the future use may be considered sepa-
rately from the present possession, and may be limited or
measured out by intervals of time and treated in distinct
property or properties. It is true, the use and posses-
sion of land in specie cannot be anticipated ; it flows on
uniformly and concurrently with the progress of time by
which the property is measured out ; but though th$
possession be deferred, the future use or property is
capable of presently defined ownership, with a present
power of sale or exchange whereby it may be made avail-
able for present purposes. The total or indefinite exten-
sion, as to duration, of property in land may thus be
portioned out by means of successive intervals of use
into separate properties, measured by terms of years, or
by lives, or other specified times or events of certain or
uncertain occurrence. In this manner are produced the
(a) Seel Ortolan Inst. Parti. Code Civil, liv. ii. tit. 1.
tit. 3, Des Choses, p. 461.
B 3
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* INTRODUCTION.
various Estates in land which are familiar^ at least, to
BngHsli Jurisprudence [a).
Absolute pro. But Goods, as a class, by reason of their transitory and
per(7 m goods, pgpigi^ajjie nature are incapable, except in a slight degree,
of this mode of treatment, and the property in such
subjects is, iu general, simple and absolute.
There are, however, included in this class of things
subjects of various degrees of permanency, which may,
therefore, in corresponding degrees be assimilated to land
in legal treatment. Accordingly, the general legal
doctrine that the property in goods must be simple and
absolute is largely quahfied by various concurrent legal
doctrines and principles ; such, for iastance, as the law
of baUmentj or the delivery of the possession of goods
under contracts for special and limited purposes.
Also English Courts of Equity by means of the doctrine
of trusts create temporary and substitutional interests in
property of this kind ; and by the peculiar equitable
doctrine of conversion it may be impressed, for many
purposes, with the' quality of permanence, and may be
distributed iu as many and complicated estates and
limitations as land itself.
Tbe various uses Land, again, is a complex subject, subservient to a
j°eot of property, great Variety of beneficial uses, some derived from the
surface, some from the regions above and below the sur-
face, some from the various productions of the land,
animal, vegetable, and mineral ; — and some of the uses
and profits of land are so far independent and separable
(a) " An estate in the land is a his own life, and so of him who has
time in the land, or land for a time, an estate in land for the life of
and thex'e are diversities of estates, another or for years." Plowden
which are no more than diversities 555.
of time, for he who has a fee-simple " ^11 estates are but times of their
in laud has a time in the land with- continuances. — There are two sub-
out end, or the land for time without atantial and essential diiSerences of
end, and he who has land in tail estates, the one limiting the times,
has a time in land or land for time —and the other maketh differeuoe
as long as he has issue of his body, of possession, as remainder ; aU
and he who has an estate in land for other differences of estates are but
life has no time in it longer than for accidents." Bacon's Tracts, p, 337.
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INTEODtrCTION. 5
from the rest that they may be appropriated as dis-
tinct subjects of property. Such are the rights of
taking minerals^ rights of common^ rights of way, and
numerous other rights of using land for profit^ or for
mere convejiience. Whence arises an extensive branch
of law concerning the various uses and profits of land
and their separate appropriation.
On the other hand, the kind of property designated
by the term goods, while it comprises many species of
things each subservient to a distinct purpose, does not
admitj as to specific things, of a like division into separate
uses and property; and there is no corresponding branch
of law relating thereto.
Again, by reason of the fixity and permanency of land Title and pos-
the difficulty of ascertaining and identifying any portion
is inconsiderable, and the title is conveniently referred to
records and documentary evidence. Property in land, with
few exceptions, is transferred only by written instruments;
while all future estates and interests, which form so large
a proportion of that class of property, being incapable of
possession, rest entirely upon documentary title. Posses-
sion of land, if wrongfully taken, can always be restored ;
and mere possession, though presumptive evidence of
right, is of no efficacy whatever against proof of a
rightful title ; nor is prolonged possession of any avail
except by the operation of time in extinguishing adverse
claims (a).
On the other hand, by reason of the moveable and Title and posses-
T . /« -1 sion of goods.
fluctuating nature of goods and the consequent difficulty
of tracing and identifying them, and by reason also of
the use lying for the most part in consumption, possession
(o) " With regard to real pro- has nothing to do with the nature,
perty, the possession is considered , origin or duration of the defendant's
as nothing, but the title only is possession, but simply whether the
looted to." Parke, B., in Soy- plaintiff has or has not proceeded in
dell T. M'Michael, 1 C. M. & R. 177. due time after the accruer of his right
"The law gives no special privilege of suit." L. E. 8 Oh. 397 ; 42 L.
to the length of possession. — Under J. C. 302, in Vane v. Vane.
the statute of limitations thia court
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6 INTEODTJCTIO?!.
is, in general, taken as sufficient proof of property, and
the mere transfer of possession as a sufficient act of con-
veyance. Possession, if wrongfully taken, can seldom be
restored, and it generally happens that the only practicable
restitution is by compensation in value.
Prineipiea of the In the Romau civil law and the systems founded upon
property. it, as the French ' Code Civil,' the capacity of land to be
appropriated in possessory and future interests is not
directly recognised. Property in land and in goods is
reduced to one and the same system of rules, subject
only to necessary modifications in detail. Property,
strictly so called, whether in land or in goods, things
immoveable or moveable, is entire, indivisible, and
absolute. Eights of temporary possession, so far as they
are recognised, are not considered as infringing upon the
iategrity of property, but are ranged, together with
rights to detached uses and profits, in a separate class
under the denomination of jura in re aliend or simply
jura in re and opposed to dominium or jus in re propria.
A corresponding distinction is marked in the terms
corporis dominus and is qui jus habet, the former having
possession and the latter merely a quasi possession ; —
also in the classification of things as res corporales and
res i/ncorporales, quce injure consistunt (a).
Dominium and
jura in re.
future estates.
EngUshiawof The fuU recognition of possessory and future property
prope y m an . ^^ \^-^^ jjjg^y jjg gg^j^ ^q coustitute the characteristic feature,
of the English system. It is made a leading distinction
Possessory and by Blackstoue that " estates, with regard to the time of
their enjoyment, may either be in possession or ia
expectancy {h) ;" and upon this capacity of sustainiag
(a) 2 Austin, 479 ; 3 lb. ] 87 ; Sa- absolutely prohibited, Art. 896 ; with
vigny on Possession, b. 1, § ix. xii., an exception in favour of children,
in Perry's Transl. 76, 131 ; 1 Ortolan Art. 1048 ; and, where no children,
Inst. 4,47, 509, 7th ed. ; Code Civil, in favour of brothers and sisters,
Jiv. ii. tit. ii., DelaPropriete, tit. iii.. Art. 1049. '
De rUsufruit, etc. In the French (S) 2 Elackst. Com. 163.
code substitutions of ownership are
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INTSODTJCTION. 7
future estates depends all the intricacy of limitations
occurring in the settlement and distribution of land.
The cause of this difference between the Roman and Difference
English systems seems to lie in the derivation of the and BngUsii
latter from the Feudal system; under which the originally
precarious interest of the tenant became gradually esta-
blished as a fixed estate or property in the land as against
the lordj whose property was thereby converted into a
reversionary or future estate. The principle of division
of estates thus instituted was subsequently worked out
by conveyancers and sanctioned by the courts to the full
capacity of the subject for such mode of treatment^ and
in subservience;, it must be presumed, to the exigencies of
the public. The Legislature interfered but seldom with
this process of development ; and even its occasional
interference has operated in most cases in aid of the
principle by facilitating the creation and disposition of
future estates^and by liberating future estates andinterests
from their ancient dependance upon the present seisin
or possession {a).
On the other hand, the English law of property in goods, ko fntm-e pro-
conforming to the different nature of the subject, does not ^" '' " ^°°
admit the same mode of limitation. According to Black-
stone : — " By the rules of the ancient common law, there
could be no future property, to take place in expectancy,
created in personal goods and chattels ; because being
things transitory, and by many accidents subject to be lost,
■ destroyed, or otherwise impaired, and the exigencies of
trade requiring also a frequent circulation thereof, it would
occasion perpetual suits and quarrels, and put a stop to
the freedom of commerce, if such limitations in remainder
were generally tolerated and allowed." (&).
(a) " While in this country, and so many important consequences,
in every other country whose juris- utterly dissimilar, the distinction
prudence is of a feudal extraction, between them in the civil law, except
the difference between real and per- in the term of prescription, is seldom
sonal, or immoveable and moveable discoverable." Butler's note to Co.
property is so strongly marked, and Lit. 191 a, II. 2 ; and see lb. V. 3;
the legal qualities and incidents of Butler's note to Feame, C.R. 567.
the two species of property, are in (S) 2 Blackst. Com. 398.
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INTRODUCTION.
Things real and
personal.
Beal and per-
sonal property.
Distinction de-
rived from real
and personal
actions.
Thus it appears that in the English law property in
land and property in goods are regulated upon different
systemsj and require to be treated as separate branches
of law.
Accordiag to English law the subjects of property
are divided into Things real and Things joersonal.
The class of Things real comprises land, and all the
separate uses, profits and interests ia land which are
capable of being treated as separate subjects of property.
The class of Things personal comprises goods and all
thiags moveable. The terms Beal property and Per-
sonal property follow for the most part this division of
things the subjects of property {a) .
The terms real and personal were originally applied,
following the civil law, to actions, which were distinguished
as real and personal, in rem and in personam : the
former, claiming to recover the -thing in, specie, were
appropriate to 'land, which, as being immoveable and
indestructible, was always at hand to answer the claim;
the latter, claiming to recover compensation or damages,
applied to injuries to the person and property, including
moveable things as not being adaptable to recovery in
specie. Hence the terms real and personal were after-
wards transferred to the subjects of property, to the
deprivation of which such actions were appropriate, and
they were so used in the time of Coke (6).
(a) 2Blact8t.Coin. 16, 384, 389,
397 ; 3 lb. 117, 144. But the term
personal property inoludea certain
interests in land known as chattels
real, to be explained hereafter,
and it further includes all rights
arising out of contracts and rights of
action.
(h) Bracton, 11; 101 6-102 I.
According to Coke, " goods or
chattels are either personal or
real. Personal, as beasts, household
stuff, and such like, called per-
sonal, because for the most part
they belong to the person of a man,
or else for tliat ihey are to be
recovered by personal actions. Real,
because they concern the realty, as
terms for years of lands or tene-
ments, and such like." Co. Lit.
118 b ; see lb. 1 5, 6 a.
Blackatone explains personal pro-
perty as consisting in " property
which may attend a man's person
wherever he goes, and from thence
receives its denomination." This
explanation of its scope and deriva-
tion would coniine it to moveables,
and it would then conform in
extent with the international maxim
mobilia sequnntur personam, but it
is not wide enough to include
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INTEODOCTION. 9
The abstract considerations above noticed respecting order of treat.
property in land may serve as a guide to the distribution "™''
of the subject or order of treatment. They may be
referred to the three following heads, namely, — The
various estates and interests admissible in land in
general ; — The specific nature and qualities of land as the
subject of property ; — And the title and modes of transfer
of property in land.
For the purpose of investigating the various estates Estates in laud.
and interests which may be had in land, that quality of the
subject only need be considered upon which the limita-
tion of estates is based, namely, perpetuity and uniformity
of use ; abstracting and reserving for after consideration
the various specific uses and modes of enjoyment of
which land is capable, some of which may be found to
fall short of or deviate from the assumed basis of limita-
tion, and consequently to require modifications of the
general law of estates in its application to the subject
in specie.
Property in a subject of the standard quality here
assumed admits of variation only in two respects,
namely, in the quantity or duration of the possession,
and in the time when the possession is to begin. And
accordingly this Part of the work will treat of the
rules of law regulating the limitation of estates, and will
be conveniently divided into two Chapters treating re-
spectively of the limitation of estates as to quantity or
duration, and of the limitation of future estates.
The inquiry may then be directed to the specific nature Land as subject
of land as subject of property. Land will here be con- ° ^""^"'^ ^'
sidered as it exists iu fact, a complex subject constituted
of many and varied specific uses and profits, all of which,
so far as they are important in law, must be passed in
review.
chattels real or personal interests in 384 ; see Freke t. I/ord Carbery,
land, to be explained hereafter. 3 L. K. 16 Eq. 461, that chattels real
Blacist. Com. 144; and see 2 lb. 16, are not within the above maxim.
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10
INTEODUCTION.
Upon sucli review it will appear tliat land, to a con-
siderable extent^ deviates from the assumed standard of
perpetuity and uniformity ; some of the uses and profits
of land are not uniform, but recurrent at intervals ;
others are neither uniform nor recurrent, but occasional
only. Therefore, the system of limitation of estates,
founded on the assumption above made, cannot be
applied without the modifications in respect of use and
enjoyment required to meet such cases of deviation.
These will appear in the apportionment and restriction of
the rights of use and enjoyment appropriated to the
various estates and interests previously defined.
Again, as already noticed, some of the uses of land are
found to be capable of being detached from the general
ownership and appropriated in separate property. One
person may be entitled to the land in cm-pore while
another is entitled to rights of using it for various pur-
poses, or to rights of taking or sharing certain of the
profits derivable from it. Therefore, to complete the
treatment of land as subject of property the law re-
gulating these separable and detached incidents will have
to be considered.
Accordingly, this Part of the work, dealing with land
as the subject of property, will treat, — firstly, of all the
elements of use and enjoyment comprised in that com-
plex subject ; such are mines and minerals, timber and
crops, water and watercourses, buildings, fixtures, and
all matters whatever which may appertain to land as the
subject of property. — Secondly, of the quantity of use
and enjoyment appropriate to the various estates in land,
and the restrictions imposed by reason of their limited
duration. — Thirdly, of the uses and profits of land which
may be separated from the general ownership and held in
different property ; such are rights of common, rights of
way and the other numerous rights of use and profit which
may be had or taken in or out of the land of another.
Having discussed the various estates and interests
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INTEODaCTION. 11
which may be had in land in general^ and all the Transfer of pro-
specific uses which are comprehended in land as the
subject of property, the enquiry remains as to the title or
the modes of acquiring property in land, or rather, as to the
modes of transfer or transmission of property, for it can only
be acquired by some process of transfer or transmission.
Theories of original acquisition, by virtue of occupancy
or otherwise, are purely speculative and obviously have
no place in a system which deals with property in the
condition of an accomplished institution. In such a
system all things are assumed to be already in property,
and no scope is left for acquisition by other means than
the regular legal processes of transfer.
The transfer of property in land is effected by act of
the owner, or by act of law. Transfer by act of the
owner is effected either inter vivos or by last will. Under
the former head it is necessary to show the powers of
alienation incident to the various estates in land, and
the modes and forms prescribed for exercising them.
Under the latter head it is necessary to show the power
of testamentary disposition and the formalities prescribed
for wills. Transfer by act of law takes effect upon certain
occasions, as death, marriage, bankruptcy, execution and
process of law and the like, which will require to be
enumerated and explained. This Part of the work, there-
fore, dealing with the Transfer of property in land, will
treat of the above matters in order.
There will remain still to be considered the effects on l»w of persons
the law of property caused by the personal condition of pertymiand
the owner. The person, as owner of property, has
hitherto been considered as a single person sui juris,
abstracted from the complications of joint ownership
and from all the variations of the status or condition of
the person. The general doctrines of personal status
and conditions belong to the Law of Persons. But the
law of property becomes modified, when applied to per-
sons impressed with such conditions, as also when applied
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12 INTEODUCTXON.
to combinations of interest in a number of persons.
These modifications, in a general system of law, migbt
perhaps be properly referred to that department which
treats of the Law of Persons ; but in treating the Law of
Property in a detached form they require to be noticed in
order to make the subject complete. There remains,
therefore, a Part of the work, supplementary to the
former Parts, dealing with the eflfects and modifications
caused in the law of property by the nmnber and by the
special status and conditions of persons, as owners.
The scheme of treatment above indicated will, it is
conceived, form a convenient and sufficient, if not in all
respects scientifically accurate, arrangement for a Digest
of the English law of property ia land. But in entering
Sources of upon the matter of that branch of law there occurs at the
outset a peculiar difficulty in the way of systematic treat-
ment of any kind, in the circumstance that the sources of
the law are not homogeneous. There is no single source
or standard of authority to which the law on all points is
to be referred, and which can be tacitly assumed on all
occasions, as the basis of statement and argument.
There exist concurrently several systems, sprung from
distinct historical sources, and developed independently
through distinct lines of progress ; framed on different
technical principles and producing difi'erent and in many
points contradictory sets of rules ; but which combinedly
constitute the English law of real property. These have
to be compared and duly subordinated in operation in
order to discover the resultant regulative efiTect.
The various sources here referred to may be summarily
enumerated as follows : —
Law of freehold The law of Freehold tenure, being the common law of
the realm, generally appUcable to all land thereiu.
English law*
tenure.
Law of custo- The law of Customary tenure applicable to particular
mary enure, j^^^g only, which are commonly known as lands of
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INTRODUCTION. 13
customary or copyhold tenure. This law, where it exists,
is concurrent with the former, being engrafted upon it by
local custom. It is composed in part of general customs
applicable to all such lands, and partly of special customs
prevailing only in particular places.
Concurrently with the above, property in land has from Equity,
an early date been regulated by the system of Equity, as
administered in the Court of Chancery and its branches ;
which court, while recognising the rules of freehold and
customary tenure, has exercised a jurisdiction to control
and modify their efifect, by compelling the legal owner to
deal with the land at law according to the rules and
principles of equity.
The system of equity, in its application to land, may
again be divided into two periods : — The system of Uses uses.
or equitable property before the passing of the Statute
of Uses. Uses by that statute were converted into legal
estates; and the doctrines of uses, after the passing of
the statute, became matter of legal cognisance and juris-
diction. — And the system of Trusts or modern equitable Trusts,
property in land, which remains within the exclusive
jurisdiction of the Courts of Equity {a).
In addition to the above systems or sources of law statute law.
there is to be noticed a large body of Statute law by
which they have been, sometimes collectively, sometimes
separately, from time to time, modified and amended.
(a) "It is necessary to take notice estate. Thirdly, the trust ; which
of the different interests in land at the common law takes no notice of,
this day. There are three kinds : but which carries the beneficial
first, the estate in the land it- interest and profits in this court,
self,' the ancient common law fee. and is still a creature of equity, as
Secondly, the use; which was ori- the use was before the statute."
ginally a creature of equity, but Willet v. Sandford, 1 Ves. sen. 186,
since the statute of uses, it draws per Hardwicte L. C._ Compare
the estate in land to it; so that 1 Hayes Oonv. ch. iy. 5th ed.
they are joined and make one legal p. 110.
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14 INTRODUCTION.
These statutes may, for the most part, be considered
and treated as constitutive parts of the systems to which
they respectively relate.
In attempting to construct a systematic body of law
out of these apparently discordant materials the problem
presented is to obtain the compound results of the various
sources in the form of positive rules, and to state and
arrange them in an uniform style and method. But the
rules of law are found so deeply rooted in their peculiar
sources and so dependent upon those sources for their
relative efficacy that it is impossible entirely to sever
the connection or to leave the sources whoUy out of con-
sideration. It is impossible, for instance, to give an
intelHgible exposition of freehold property in land, as it
exists, without referring at some length to the principles
of feudal tenure and the leading statutes and events
which have brought it to its present form. Estates in fee
simple and entails can only be understood by referring to
their gradual development. It would be useless to men-
tion the name of copyhold or anything concerning it,
without entering upon its origin and derivation in history.
Laws founded on custom can only be explained by
reference to the origin and growth of the custom.
So, likewise, with the distinctive sources and nature of
Law and Equity, the changes effected by the Statute of
Uses, and many other matters of the like kiad. These
matters essentially require some extended explanation,
and do not admit of a mere statement of results in the
form of positive law.
This difficulty, in dealing with what may be described
as the historical element, may, it is conceived, be best
met by devoting a separate Part of the work to a concise
account of the various Sources of the law, sufficient to
explain their distinctive origin and character, and then-
present scope and operation. This Part of the work wiU
be introductory to the subsequent Parts, which may then
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INTKODUCTION. 15
be confinedj as strictly as the subject will permit, to the
body of the law, as it exists at present, with such
references only as occasion may require to the sources
from whence it is derived.
The work will accordingly be arranged in the following Arrangement of
Parts : — parts.
Part I. The Sources of the law.
Part II. Estates and interests in land.
Part III. Land as the subject of property.
Part IV. Transfer of property in land.
Part v. The law of Persons, as affecting property in
land.
The subdivisions of these Parts will appear in the
course of the work.
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16
PART I.
THE SOUECES OF THE LAW.
Chaptek. I. The law of Freehold tenure, as sub-
sisting at common law.
II. The law of Customary tenure.
III, The law of UseSj as incorporated in
the common law by the Statute of
Uses.
IV. The law of Trusts and equitable pro-
perty in land.
The Sources of the law of property in land wiU be
treated in this Part in the above order according to the
arrangement proposed in the Introduction.
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17
CHAPTEE I.
THE LAW OP FREEHOLD TENURE.
Section I. Tenure.
II. Estates of freehold tenure.
III. Seisin and eonveyanoe of freehold estates.
IV. Descent, and disposition by will.
Section I. Tenure.
Tenure — subtenure — infeudation — sub-infeudation — statute quia
emptores.
Manors — demesne land — serrices — court baron — creation of
manors — extinction of manors — reputed manors — customary
tenants and customary court.
Services of tenure — Knight service — escuage — special forms of
knight service.
Socage tenure — rent service — special forms of socage tenure
— burgage — ^gavelkind — ancient demesne.
Frankalmoign.
Incidents of tenure — homage — fealty — wardship — marriage —
reUef — heriots — fines — aids — escheat.
Statute 12 Car II., abolishing feudal incidents and converting
tenures into common socage.
The law of freehold tenure is derived from the feudal
system ; it still retains much of its original feudal form,
and is expressed in terms and phrases which can be
rightly interpreted only by reference to their feudal origin.
The feudal system of property in land, as established Tenure.
in England, was based on the theory that all land held
by a subject was derived originally by grant from the
crown, as sovereign lord or owner ; — that land could
not be held by a subject in absolute independent
ownership, for such was the exclusive prerogative of
the crown ; — but that all land was held under obli-
c
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18 PART I. CHAP. I. THE LAW OP PEEEHOLD TENURE.
gation of duties and services, imposed either by force
of law or by express terms of th'e grant ; whereby a
relation was constituted and permanently maintained
between the tenant and the crown called the tenure of
the land, characterised by the quality of the duties and
services upon which the land was held.
snb-tenure. In like manner the tenants of the crown might grant
out parts of their land to sub-tenants upon similar terms
of rendering services, thereby creating a sub-tenm-e or
relation of tenure between themselves, as mesne or inter-
mediate lords and their grantees as tenants ; but without
affecting the ultimate tenure under the crown as lord ,
paramount (a). A tenure without the interposition of
any mesne lord was called a tenure in capite or tenure in
chief {b).
infendation. The cstate of the tenant in the land was called a feud,
fief, or fee; — the infeudation or grant was effected by the
ceremony of feoffment or delivery of the land by the lord
to the tenant to be held by him upon the terms then ex-
pressed or implied ; — and the tenant was thereby invested
with the seisin or actual possession of the land (c).
The power of sub -infeudation, by which sub-tenures
statute Quia
that
from henceforth it shall be lawful to every freeman to
statute quia
emptorea abolish- , -, , -, in
ing aub-iufeuda- wero Created, was taken away by the
empiores, 18 Ed. I., c. 1, (a.d. 1290,) which enacted
{a) "For the better understanding
of that which shall be said here-
after, it is to be known, that first,
there is no land in England in the
hands of any subject but is holden
of some lord by some kind of ser-
vice. Secondly, all the lands within
this realm were originally derived
from the crown, and therefore the
king is sovereign lord, or lord para-
mount, either mediate or immediate
of all and every parcel of land within
tlie realm. Thirdly, that in ancient
time lords upon the creation of their
tenures did not only reserve rents,
services, and profits, etc., but also
took an humble submission of his
tenant by promise and oath to be
true and faithful to him for the
tenements holden of him, which
submission is called homage and
fealty, according to the tenure re-
served." Co. Lit. 65 a ; Hargravc's
note (1) lb. ; Co. Lit. 1 o, 93 S ;
Butler's note to Co. Lit. 191 u, V.
"This universality of tenure is
peculiar to England." lb.
(i) Co. Lit. 108 a ; Hargrave's
note (3) lb. It seems that in the
absence of proof of mesne tenure,
itwill be presumed to be immediately
under the crown. See Doe v. Red-
fern, 12 East, 96.
(c) Co. Lit. 1 J, 9 B.
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SECT. I. TENURE. 19
sell at his own pleasure his lands and tenements, or part of
them j so that the feoffee shall hold the same lands or
tenements of the chief lord of the same fee by such ser-
vice and customs as his feoffor held before."
Since this statute no tenant can alien or grant his fee
to be held of himself. The statute admitted the right
of the tenant to dispose of the fee, but, upon a feoffment
being made, the land was to be held by the feoffee of the
next superior lord of whom the feoffor held before, and
by the same services (a) .
Before the statute the tenant, though he might by
sub-infeudation have created a new tenure of himself as
lord, could not transfer or get rid of his own tenure,
with its attendant duties and services, without the licence
of the lord. The statute, while disabling him from sub-
infeudation, enabled him freely and without licence to
alien his own tenure (&) .
The statute extends only to the sale or alienation of
the entire fee or estate in the land (c.) By ahening
the land for a partial or less estate, reserving the ulterior
estate in the fee, a species of sub-tenure or imperfect
tenure might still be created {d).
A grant of land from the crown under the feudal system Manors,
usually conferred rights of jurisdiction and other sove-
reign rights or franchises within the territory, by virtue
of which it was constituted a manor. The larger manors,
comprising inferior manors and lordships held of them
by sub-infeudation, were, in early times, often called,
with some slight distinctions of meaning, honours and
baronies.
In regard to territory, a manor comprised the portions Demesne lands
o '' ' iTi'TP ^^^ services.
of the fee retained in possession by the lord himself,
called the demesne lands, terrce dominicales, and the por-
(ffi) Lit. s. 140 ; Co. Lit. 98 * ; note (2) lb., & auth. there cited.
Bradshaw v. Lawson, 4 T. B. 443. (e) 18 Bd. I. ^. i. a. 3.
(5) See Co. Lit. 43 a ; Hargrave's (d) See post, p. 43.
c2
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20 PART I. CHAP. I. THE lAW OP FREEHOLD TENURE.
Waste land.
Court Baron.
tions granted in fee to tenants by sub-infeudation to
hold of the manor by services^ terrm tenementales, of
which the lord retained the seignory and services. There
might also be waste land, not as yet in occupation, used
in common by the tenants of the manor for pasturage
and like purposes ; but the title remaiaed in the lord, who
might from time to time approve or appropriate the waste,
subject to the rights exercised over it by his tenants.
In regard to jurisdiction, the manor comprised a court
called the Court Baron or Lord's Court, having two dis-
tinct branches or courts. The superior or freehold branch
of the court was constituted of the tenants holding fees
of the manor, who were bound by their tenure to give
suit or service at the court, as judges ; and their jurisdic-
tion extended to pleas concerning the lands thus held of
the manor.
The aggregate of these rights and incidents constituted
a manor in the legal acceptation of the term ; and, ac-
cordingly, a manor is described in law as consisting of
demesne lands, and seignories and services anciently
united thereto, together with the jurisdiction of a court
baron ; all of which elements are necessary to constitute
a perfect manor (a) .
(a) Pertins, s. 670 ; Co. Lit. 58
a, b ; Co. Cop. e. 31 ; Spelman
Gloss. ' Manerium.' As to the dis-
tinction of the demesne lands and
the lands in tenure, see Co. Lit. 17 a ;
Att.-Qen. v. Parsons, 2 C. & J.
279, and the authorities cited in the
judgment. As to the right of the
tenants over the waste and of the
lord to approve the waste, with and
without the consent of the tenants,
see Boulcot v. Winmill, 2 Camp.
261 ; JBetts v. Thompson, L. R. 6
Ch. 732 ; Warrick v. Queen's Coll.
Ox. lb. 716.
Numerous conjectures have heeu
made as to the derivation of the
word manor. A plausible one is
from the French word mesner to
govern, which Coke notices as most
agreeing with the nature of a
manor — "for a manor in these
days signifieth the jurisdiction and
royalty incorporate, rather than the
land or site." Co. Cop. s. 31 ;
approved by Watkins, Cop. p. 7.
In this view of a manor it is in-
cluded in the list of Ranehises, the
definition of a franchise being, — " a
royal privilege or branch of the
king's prerogative, subsisting in the
hands of a subject." 2 Blackst.
Com. 37. Manor has also been
derived a manendo, as being the
seat of the feudal lord. Co. Lit.
58 a ; Spelman ; 2 Blackst. Com.
90. Manors, together with moot
of the other elements of feudality,
are said to have had their com-
mencement, historically, in England
in Saxon times. Co. Lit. 58 b ;
and see 1 Speace Eq. Jur. p. SI, and
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SECT. I. TENTJEE. 21
After the statute Quia emptores no new manor could creation of
be created. The grant of a fee no longer created a™™°"'
seignory and tenure, for the grantee held of the superior
lord and not 'of the grantor. The lord, therefore, could
not create freehold tenants to hold a court baron, which
is an essential element in the constitution of a manor.
Moreover, manors are sanctioned only by prescription or
ancient custom; hence the king himself, though he can
create a new tenure, cannot create a perfect manor at the
present day (a).
A manor may become extinguished, as a perfect manor, Bxtinotion of
by the severance of the demesne lands from the seignory ™'"'°"-
and services of the lands in tenure ; as, if the lord trans-
fer to some stranger the services of all his tenants, and By Beveranco of
, -t • ipni *f»T , the demeanee and
reserve unto himselt the demesnes ; or, it he grant aeraoes.
away the demesnes and reserve the services. A manor
may also be extinguished by the extinction of the services ; bj extinction of
as if the lord purchase all the land of the freeholders, °°^™°^^'
or release unto his freeholders all their services (&).
A manor might also be extinguished by failure of the By faUure of the
court baron. Two freeholders of the manor, at least,
were necessary to hold the court baron ; consequently, if
this number of tenants failed, the court could no longer
be constituted, and the manor, without a court baron,
ceased legally to exist (c) .
But in all the above cases of extinction, though the Eeputedmanora.
manor no longer exists in its legal integrity, it may con-
tinue as a manor hy repute, nomine tantum ; and it may
still be attended with such of the rights and incidents
authorities there referred to. But Baron in writs of right concerning
they were consolidated into a system lands within the manor was ex-
of general application at the Con- pressly aholished by 3 & 4 Will. IV.
quest. 1 Spence, 90. c. 27, s. 36, and in all other matters
(o) Co. Cop. s. 31 ; see Bradshaw the court has been either superseded
V. Lawson, 4 T. R. 443. or fallen into disuse. See a provi-
(J) Co. Cop. s. 31 ; Sir Moyle sion for the surrender of manorial
Finch's Case, 6 Co. Kep. 63 a. courts in which debts or demands
(c) Co. Lit. 58 a; Co. Cop. s. may be recovered, 9 & 10 Vict.
31 ; see Chetewood v. Crew, Willes, c. 95 (the County Courts Act),
614 ; Bradshaw v. Lawson, i T. K. s. 14,
443. The jurisdiction of the Court
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22
PART 1. CHAP. I. TRE LAW OP PEEEHOLD TENURE.
Baron.
of the original manor as may remain unaffected by the
legal extinction {a).
CustomaiT or It mav here be mentioned that besides the freehold
copyhold tenants "^
tenants holding fees of the manor^ there is, m many
manors, a class of tenants occupying parts of the
demesne lands without acquiring fees or freehold estates.
They hold under a distinct tenure known as customary or
copyhold tenure, which forms the subject of the next
Chapter of this Part. Corresponding to which is the
Customary Court customary branch of the Court Baron having jurisdiction
over these customary tenancies of the demesne lands.
In this branch of the court, the lord or his steward
is the judge; and it may still be held though the
freehold branch of the Court Baron may have become
extinct (&).
Another distinct court frequently existed as a franchise
of a manor called the Court Leet, exercising a general
criminal and administrative jurisdiction within the manor.
This court was not a necessary incident of a manor, but ap-
pertained to the lord only by special prescription or special
grant of the franchise from the crown ; its jurisdiction has
been wholly superseded by other courts and officers (c).
Services of
tenure.
Knight service.
Tenures were distinguished by the character of the
services. The chief distinction of services was between
those of a military or protective character, and those of
an agricultural or profitable character; on which was
founded the corresponding distinction of tenures into
knight service, servitium militare, and socage, soca-
gium {d).
Tenure by knight service originally bound the tenant
to attend the king or next superior lord in war. Tenure
in chief of the king was, for the most part, of this kind ;
{a) Co. Cop. sect. 31 ; see 6 Co.
64 a, 66 b ; Soane v. Ireland, 10
East, 259 ; Watkin's Cop. by
Coventry p. 27, n (1), lb. p. 48; as
the right to manorial wastes, lb.
(b) Co. Lit. 58 a ; post, Part I.
Ch. II. ' Customary Tenure.'
(c) Co. Cop. a. 31 ; 4 last. c.
54 ; see Kitchen on Courts.
(rf) Lit. ss. 118, 119.
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SECT. I. TENURE. 23
if the king granted land in fee without reserving any
service, or even by the express words absque aliquo inde
reddendo, it constituted in law a tenure by knight
service (a).
Knight service, depending upon war, was necessarily Bsouage.
uncertain as to occasion, and, therefore, as to quantity ;
but upon each occasion of war the lord could only claim
attendance for a fixed time. The obvious inconvenience
of which system led to a commutation of the personal
service of the tenant for a payment in money, called
escuage or scutage ; whence arose tenure' by escuage as
a species of knight service (&). Escuage might be fixed
at a certain sum by the terms of the grant ; where the
escuage was uncertain the parliament acquired the
power of assessing it for the occasion (c).
There were varieties of knight service distinguished special forms ot
by special services : — the chief of these was Grand ser- —grand aer-
• 1 jeanty.
jeanty in which the tenant was bound to some special
service in person to the king, as to carry his banner, or
his lance, or to lead his army, or the like, or to do some
service of honour at his coronation, or to hold some office
of his exchequer {d) .
Tenure by Castle guard was by the service of keeping a Castie guard,
castle or part of a castle of the lord, instead of the ordi-
nary military service or escuage (e). Tenure by Gornage comage.
bound the tenant to wind a horn to signal the approach
of an enemy, a tenure prevalent in ancient times in the
marches of Scotland (/) .
(a) Co. Lit. 75 b; Wlieeler's able though the castle had fallen into
Case, 6 Co. 6 S ; Lowe's Case, 9 Co. ruins, but that a service of castle
122 4. guard in kind would have been sus-
(J) Lit s 95-97 pended until the castle was rebuilt.
(e) Lit. ». 97, 120 ; Co. Lit. ib. (/) L!t. s. 156 ; Co. Lit. 107 a.
(d) Lit. s. 153 ; Co. Lit. ib. ; see See Fusey ». Fuseij, 1 Vern. 273,
Blount's Ancient Tenures, by Beck- where the horn, used as the symbol
■jpitli. of tenure, was held to pass with the
(ej Lit. 3. Ill ; Co. Lit. ib. ; as estate, like title deeds, as an heir
to tenure by rent for castle guard, loom. Xeniu-e of the king by corn-
see 4 Co. 88 a, where it appears that age was a species of grand serjeanty.
rent for castle guard remained pay- Co. Lit. 107 a.
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24 PART I. CHAP. I. THJS LAW OF PBEEHOLD TENURE.
Socage tenure. The services of socage tenure were originally of an
agricultural or profitable kind to be rendered on the
demesne lands of the lord in manner and quantity specified
in the grant. But the chief characteristic of socage
tenure^ as distinguished from tenure by military ser-
viceSj was that they were certain and fixed ; so that aU
tenures of land by certain and invariable rents and
services^ though not agricultural, came to be regarded as
socage in efi'ect (a). " Some tenures in socage are named
a causd and some and the greater part ab effedu — as
having the Hke effects and incidents as socage hath^' (&).
Thus where escuage was fixed by the grant at a certain
sum, the tenure was deemed to be in effect the same with
socage tenure, by reason of the certainty of the service (c).
Eeut sei-vioe. Mutual Convenience led in course of time to a commu-
tation of agricultural services into money payments of
fixed amount, retaining the ancient remedies for their
punctual observance. They thus became rents or rent
service attended with the common law remedy of dis-
tress {d). Hence a division of socage tenure sometimes
made into free socage, where the services were com-
muted into money rent ; — and villein socage where the
services were to be rendered in kind, as ploughing land,
carrying dung, plashing hedges and the like (e).
Special forms of Other forms of tenure were classed under the general
socage enure, ^^j,.^ socago, by roasou of their certain services and similar
general incidents ; — as Petit serjeanty and Burgage
tenure: — And some socage tenures had local peculiarities,
as Gavelkind, and Ancient demesne.
Petit serjeanty. Petit sorjcanty was a tenure of the King in chief to
yield to him yearly a bow, or a sword, or a lance, or
arrows or such other things belonging to war, like a rent,
but not to do anything in person ; such service was there-
(a) Lit. 88. 117, 119; see (d) Lit. S8. 119, 122, 213; see
Wheeler's Case, 6 Co. 6 b. BuUen on Distress, p. 4.
(i) Co. Lit. 86 o. Ce) Co. Cop. s. 18; see post,
(c) Lit. ss. 98, IIV, 119, 120 ; p. 71.
Co. Lit, 87 a.
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SECT. I. XENUEE. 25
fore socage in effect, and subject only to the incidents of
tliat tenure (a).
Tenure in burgage is the tenure in ancient boroughs Burgage,
in respect of tenements held of the king or other lord by
a certain annual rent. It is socage in effect, though
generally subject to local customs (b).
GaTelkind is the socage tenure existing in the county Qaveikind.
of Kent, having some peculiar incidents, of which the
most important consists in the partition of the land on
descent. All lands in that county are presumed to be of
Gavelkind tenure, until the contrary be proved ; whence
it has been called the common law of Kent (c).
Ancient demesne {antiquum dominium regis) consists Ancient demesne,
of those manors which, though now perhaps granted out
to subjects, were anciently ia the property of the crown,
and so appear to have been by the record of Domesday
Book. In such manors, the Court Baron of the manor
had exclusive jurisdiction in all suits concerning lands of
the manor held in socage, so that a suit respectiag such
lands brought in the superior courts might be met by a
plea to the jurisdiction (d) .
Frankalmoign [in liberam eleemosinam) is the tenure Frankalmoign,
by which all ecclesiastical persons, as bishops, deans and
chapters, archdeacons, prebends, parsons, vicars and the
like, being incorporate bodies aggregate or sole, hold
lands to them and their successors ; they are bound to
(a) Lit. Bs. 159, 160, 161; Co. Domesday. Doe v. Soe, 10 East
Lit. ib. ; see Wheeler's Case, 6 Co. 523; see^osi, Parti. Ch. II., "Custo-
6 b. mary Tenure." A fine or recovery
(J) Lit. B. 162-165, see Busker ofsuehlandin the Court of Common
V. Thompson, 4 C. B. 48 ; Beckett Pleas, until reversed, had the effect
V. Leeds, L. R. 7 Ch. 421. of destroying the peculiar tenure
(c) Lit. 8. 265 ; Co. Lit. 14 a, and rendering the landfranJcfree or
175 i ; Robinson on Gavelkind, c. ordinary socage. The 3 & 4 W. IV.
ii, V. c. 74, S3. 4-6 was passed to remedy
(d) 4 Inst. c. 58 ; Alden's Case, the uncertainty of tenure caused by
5 Co. 105 a; Brittle v. Dale, Salk. such proceedingsbeing inadvertently
185. Doe V. Roe, 2 Burr. 1046 ; taken, and operates by restoring the
whether a manor is ancient demesne tenure in certain cases.
or not is tried^tesk ^^^ record of
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26 PART I. CHAP. I. THE LAW OP PEEBHOLD TENUEE.
divine services, for wMclij however, they are answerable
only to their ecclesiastical superiors, and they owe no
fealty or temporal service (a). If the tenure were by a
certain divine service, as to sing a mass on appointed days,
to find a chaplain or to distribute alms to the poor, the lord
might distrain as for other services certain ; but such a
tenure is not frankalmoign, for in that tenure no mention
is made of the manner or certainty of the service {h) .
Occasional inoi- Bosidos the above regular services of tenure prescribed
by the grant according to the requirements of the lord,
other occasional rights and profits accrued to the lord as
incidents of the tenure, for the most part by rule of law
without special reservation ; some being incident to
tenure generally, and some to particular tenures only.
Of these the following may be mentioned as the most
important.
Homage. Homago and fealty, or fealty at least, were due to the
lord by his tenant (c). Homage, which included fealty,
was an essential incident of knight service and pre-
sumptively indicated that tenure, though it might be iu-
cident also to socage tenure [d).
Fealty. Pcalty was the universal incident of every tenure ex-
cept tenure by .frankalmoign, which owed no temporal
service. Whatever services were expressed, fealty was
implied ; and though no services were expressed, fealty,
at least, was due to preserve the tenure. To hold by
fealty only was socage tenure. Homage disappeared
with knight service ; and the formal observance of fealty
has long ago become obsolete (e).
Wardship. Wardship entitled the lord, upon the death of a
tenant in knight service leaving an infant heir, to have
(a) Lit. ss. 133-136 ; Co. Lit. ib. 67 &, 68 a, 86 a.
(b) Lit. o. 137 ; Co. Lit. ib. (e) Lit. -ss. 130, 131, 132 ;
(c) Lit. ss. 85, 91 ; Co. Lit. 65 a/ Wheeler's Case, 6 Co. 6 I ; Lowe's
where see as to the manner and Case, 9 Co. 123 a ■ see Edmore T.
significance of homage and fealty. Craven, Preo. Ch . 574
{d) Lit. SB. 117, 118; Co. Lit.
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SECT. I. TENURE. 27
tlie land until his age of 21 years j subject only to tlie
charge of maintaining and educating him ; because such
heir by intendment of the law was not able to do knight
service before that age (a). There was no wardship
in socage tenure, because the heir might perform the
services by his guardian ; and for this purpose the next
of kin of the heir to whom the fee could not descend
was entitled^ as guardian in socage, to hold the land
until the age of the heir of fourteen, but for the use of
the heir, to whom he was bound to account on coming
of age (&).
The lord was also entitled to the marriage of the Mamage
infant ward for such value as he could obtain, or to the
value of the marriage, and that whether he tendered a
marriage or not. The heir might refuse a marriage
tendered, subject to satisfying the lord's claim for its
value j but if he married without the lord's license, the
lord was entitled to double value of the marriage by the
Statute of Merton (c).
Relief was a sum payable by the heir to take up Relief.
{relevare) the fee upon the death of his ancestor. It was
common to all tenures by common law without special
reservation ; — in knight service a fourth part of the
annual value, according to the assessment of a knight's
fee; — and in socage tenure, one year's rent {d). In
tenures in capite of the king, whether knight service or
socage, it took the form of primer seisin or first fruits,
being one year's profits of the fee (e).
A heriot is a right in the lord upon the death of the Heriots
tenant to seize his best beast, or, it may be, some other
(a) Lit. s. 103 ; Hargrave's note b, 76 a, 83 a, I ; see Hargrave's
(11) to Co. Lit. 88 b. note (2) to Co. Lit. 93 a.
(b) Lit. 8. 123-125 ; Co. Lit. 87 (e) Co. Lit. 77 «■■ When the
*; Hargrave's note (13) to Co. heir had been in ward, he sued
Lit. 88 b. out livery or an ouster-le-main,
(e) Lit. ss. 103, 110 ; 20 H. 3. c. which was half a year's profit of
6 ; Palmer's Case, 5 Co. 126 b ; his land, instead of a relief, or
Lord Da/rcy's Case. 6 Co. 70 6. primer seisin. lb.
(d) Lit. s. 112, 126 ; Co. Lit. 69
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28 PART I. CHAP. I. THE LAW OP PBEEHOLD TENUEE.
chattel, in the name of a heriot. Such right is not of
general incidence, but must be claimed either by special
custom or by the express terms of the grant ; it may
be reserved in the form of heriot-service and is then
attended, like rent service, with the remedy of distress ;
in other cases it is only recoverable by seizure, as vest-
ing in the lord immediately upon the death (a) . The
custom may be that a sum of money be assessed in the
lord's court as payable in lieu of the heriot (&).
Fines on aUena- The tenant Originally could not alien his fee without
the licence of the lord, for granting which a fine or pay-
ment was charged. The Statute quia emptor es, enabled
tenants to alien without licence j but this statute did not
extend to the tenants in capite of the crown. The claim
of the crown was afterwards settled by statute at a
reasonable fine, which was adjudged to be one third of
the yearly value for licence, and one year's value upon
alienation without licence (c).
j^i^B Aids were contributions exacted by the lord to meet
his expenses upon the occasions of marrying his daughter,
aide piw file marrier, and of making his son a knight,
aide fur faire fitz chivalier. They were incident to both
knight service and socage tenure {d).
Escheat. Escheat may be here mentioned as a right of seignory,
though it is not, strictly speaking, an incident of tenure,
as it occurs only upon the determination of the tenure.
On failure of the heirs designated in the grant of the fee,
the land escheats or falls back to the lord. The Hke
occurred upon the determination of the tenure by
forfeiture. Hence it was said " to happen two manner
(a) Co. Cop. a. 24 ; 2 Wmg. see Garland v. Jeltyll, 2 Bing. 273 ;
Sauud. 168, notes to Lanyon v. Solloway v. BerTdeley, 6 B. & C. 2.
Came ; Talbot's Case, 8 Co. 104 i ; Provision has been made by statute
Damerell v. Frotheroe, 10 Q. B. for the extinguishment of heriots at
20 ; Mayor of Basingstoke v. Bolton, the instance of either lord or tenant.
1 Drew. 270 ; 22 L. J. C. 305. 21 & 22 Vict. c. 94, s. 7.
(S) Parkin v. Radcliffe, 1 B. & (e) 18 Ed. I. c. 1, ante, p. 19 ; 1
P. 282, 393. As to the multiplioa- Ed. III. o. 12 ; 34 Ed. III. o. 15 j
tion of heriots on division of the Co. Lit. 43 a, J ; 2 Inst. 67.
tenement amongst several tenants, (d) Co. Lit. 76 a, 91 i*.
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SECT. I. TENURE.
29
of waysj aid per defectum sanguinis, i.e., for default of
heirj aut per delictum tenentis, i.e. for felony.-" (a).
The statute 12 Oar. II. c. 24, finally put an end to the statute car.ii.
distinctions of freehold tenures, by reducing them to the te^uref Sfto
one general form of common socage, and by abolishing, '=°°™™ =<"'»s^-
with few exceptions, the special services and occasional
incidents by which they were characterised (&) .
The statute, entitled " An act taking away the court
of wards and liveries, and tenures in capite and by
knights service, and purveyance, and for settling a
revenue upon his Majesty in lieu thereof" provided as
follows : — (s. 1.) " that the court of wards and liveries and wardahipB, etc.,
all wardships, liveries, primer seisins, and ouster- le-mains, '"""'" '''"'^'
values and forfeitures of marriages, by reason of any
tenure of the king or of any other by knights service be
taken away and discharged, — and that all fines for Knes for aiiena-
T.. • T -, n T ,' , tion, etc'., taken
ahenation, seizures and pardons for alienations, tenure away.
(a) Lit. s. 4 ; Co. Lit. 13 a.
" In the beginning of feudal tenure,
thia right was a strict reversion.
The grant determined by failure of
heirs, tlie land returned as it did
upon the expiration of any less
temporary interest. It was no
fruit, but the extinction of tenure ;
it was the fee returned. This holds
equally, whether the investiture was
to general or special heirs ; for, oi-i-
ginally, by the feudal law, tlie
tenant could not alien in any case
without the lord's concurrence. As
soon aa a liberty of alienation was
allowed without the lord's consent,
this right changed its name. It
became a sort of caducary succes-
sion. Thence the lord was called
tanquam Timres, uliimus hares, etc.
The resemblance of the lord's right
by escheat to the heir's by descent
does not hold throughout ; and
therefore the lord by escheat is in
Co. Lit. 2 1 5 J, with accuracy con-
sidered as assign in law." See Lord
Mansfield in Burgess v. Wheaie, 1
Eden, 227, and see that case at large
as to the doctrines of escheat.
[d) This statute, passed in 12
Car. IL, 1660, the first year of the
restoration, was made to operate
retrospectively from 24 Feb. 1645
(sect. 1), that being the date from
which the feudal seignories had been
before suspended by parliament.
Scobell's Acts, 1654, c. 9, 1656,
c. 4. A similar reform had been
presented to parliament by the ting
in 18 Jac. I. see 4 Inst. 202.
The statute deprived the king, as
lord paramount, of valuable rights,
forming an important part of his
revenue, in recompense for which he
was granted an excise on the sale of
beer (sect. 14). Mesne lords lost
similar valuable rights, but were
compensated by being reUeved from
the services and duties owed to their
own next superior lords. The lowest
rank of tenants or tenants paravail,
those in actual occupation of the
land, having no seignories to lose,
received an unmixed benefit in the
relief from the feudal services and
duties, taken away by the act, except
so far as they contributed their
share of the indirect tax, for which
this branch of royal revenue was
commuted.
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30 PART I. CHAP. I. THE LAW OP PEEEHOLD TENURE.
by homage, and all charges incident to tenure by knights
service, escuage, and also aide pur file marrier, et pur
faire fitz ohivalier, be likewise taken away and discharged,
Tmnres by — ^-^i^ t^^t all tenures by knights service of the king or
S'away."^ of any other person and by knights service in capite and
by soccage in capite of the king and the fruits and
consequents thereof be taken away and discharged, —
Au tenures and all teuurcs of any honours, mannours, lands, tene-
eommon socage, ments or hereditaments of any estate of inheritance at
the common law, held either of the king or of any other
person, are hereby enacted to be turned into free and
common soocage to all intents and purposes."
AU tenures here- Soct. 4 enacted " that all tenures hereafter to be created
after created to . ,-, i . , . , . • P,
be common by the king, his heirs or successors, upon any giits or
^ ' grants of any mannours, lands, tenements or heredita-
ments of any estate of inheritance at the common law
shall be in free and common soccage, and shall be ad-
judged to be in free and common soccage only, and not
by knights service or in capite."
sa-ring of rents, Scct. 5 cxprcssly provided that the act " shall not take
heriots, suits of i ■ i • i * i p i i i
Court, fealty etc. away any rents certain, heriots or suits oi court belong-
ing or incident to any former tenure now taken away or
altered by virtue of this act, or other services incident
or belonging to tenure in common soccage, — or the
fealty and distresses incident thereunto, and that such
relief shall be paid in respect of such rents as is paid in
case of a death of a tenant in common soccage.'"
Fines by custom Sect. 6 provided that the act " shall not take away
any fines for alienation due by particular customs of
particular manors and places, other than fines for alie-
nation of lands, and tenements holden immediately of
the king m capite."
Saving of frank. ^ect. 7 provided "that this act shall not take
hoTdfindTOTo- away tenures in frank almoigne or subject them to any
Jtlltf.^^^ ^"' greater or other services than they now are, nor alter
or change any tenure by copy of court roll or any services
incident thereunto, nor take away the honorary services
of grand serjeanty."
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SECT. II. ESTATES OI' FBEEHOLD TENURE. 31
The statute^ it has been justly observed, uses very in-
accurate language and undistinguishing modes of expres-
sion, especially in the title and enacting clause, as to
taking away tenure in capite. The intention and effect is
to take away such tenures so far only as they varied from
common socage, by converting them into common soc-
age, and not " to annihilate the indelible distinction
between holding immediately of the king, and holding
of him through the medium of other lords." (a)
The statute retained the principle of tenure and left
untouched the rules of freehold tenure as regards the
estate of the tenant, and the formal modes of convey-
ancing, — which matters are treated in the following
sections of this Chapter.
Section II. Estates op Freehold Tenure.
The feudal estate — extended to heirs — restricted to heirs of the
body — title of heir by grant — by descent.
Fee simple at common law — limitation to heirs.
Estate for life — followed by hmitatiou to heirs — Eulein Shelley's
case.
Pee simple conditional — fee conditional upon issue — ancient in-
stances of fee simple conditional — efiect of the statute Quia
emptores upon such Hmitations.
Fee tail under the statute De donis — efficacy of Fines and Ee-
coyeries in barring entails — Fines and Recoveries abolished
and new mode of disentailing substituted — base fee.
EcTcrsion — remainder — no reversion or remainder after fee simple
— tenure of tenant to reversioner — services, etc., incident to
reversion .
Freehold estates.
Lease for years — estate and tenure of lessee — leaseholds and
chattels real are personal estate.
The fee or feudal estate in the land appears to have The feo or
feudal estate.
been granted, in early times, for the life of the tenant
(o) Hargrave's note (5) to Co. Lit. 108 a, and notes lb, 85 a, 93 b.
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32 PAET I. CHAP. I. THE LAW OF FEBEHOLD TENUEE.
only, the land reverting to the lord upon a vacancy by
Grant extended death. The grant was afterwards extended to the sons
to heirs. °
and other issue of the tenant under the designation of
heirs, leaving no reversionary interest in the lord
except upon the failure of the heirs so designated (a).
A grant extending to the heirs was originally confined
to the issue or lineal descendants of the first feudatory.
Upon his death without issue, his brothers and other
collateral relations acquired no claim under such grant ;
but upon the death of a tenant who had acquired the fee
as heir, his collateral relations might succeed as being
heirs of the original feudatory. In the former case the
fee was distinguished as feudum novum ; and in the latter,
Bisfeudnm antiquum. The fee might be enlarged ia its
creation to all the heirs, collateral as well as lineal, by
granting the feudum novum expressly to be held ut
antiquum ; and such appears in later times to have be-
come the general construction of a grant even without
that express addition ; at least, in the English common
Heirs general, law a grant " to a man and to his heirs " simply, was
construed as extending to the heirs general, collateral as
well as lineal.
Grant restricted This extcusion of the term heirs at the same time
to the heirs of . - n xi _l i • •
the body. necessarily required that the restriction of the fee to the
lineal heirs, if intended, should be expressed in terms ;
such grants were accordingly made with the Hmitation
"to the heirs of the body." Similarly, the grant might
be restricted " to the heirs ma.le of the body," or to the
heirs by a certain wife, or to other restricted lines of
issue (6).
(a) Wright's Tenures, p. 14 ; 2 subsequent period became here-
Blackst. Com. 55, citing Liber Feud.; ditary. No satisfactory proof, how-
Butler's note to Co. Lit. 266 b. ever, appears to have been brought
" Most of those who have written of the first stage in this progress."
upon the feudal system, lay it down Hallam's Middle Ages, Chap. ii. and
that benefices were originally pre- note ib. See 1 Spence Eq. Jur. 45.
carious and revoked at pleasure by (b) Wright's, Tenures, lfi-18,
the sovereign ; that they were after- 186 ; 2 Blackst. Com. 221, 222, 229 ;
wards granted for life ; and at a seepost, Part IT. Chap. I. ' Pee tail.'
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SECT. II. ESTATES OF EEEEHOLD TENUEB. 33
The heir originally derived his title to the fee from Title of heir by
the grantor by designation in the grant, per formam doni.
But as the tenant acquired, in course of time, the
power of alienating the fee, the interest of the heir be-
came reduced to a mere expectation of succeeding, in
the event of the ancestor not exercising that power.
The additional grant " to the heirs " was then referred
wholly to the estate of the ancestor, as importing
merely an estate of inheritance, an essential incident
of which was the power of transferring the land to
another for a like estate ; and the heir no longer claimed by descent,
as grantee by designation in the grant, but derived his
title from the ancestor by descent {a).
Such was the ultimate state of the fee simple or estate Fee simple at
of inheritance at common law. It conferred the largest
rights of use and enjoyment allowed by law, together
with the largest power of alienation. A grant in fee
simple left no estate or interest in the grantor, except
the rights of seignory appertaining to the lord by
the rules of tenure, amongst which was the right of
escheat, whereby the lord was entitled to resume the
possession of the land upon the death of a tenant with-
out heirs. But even these rights could not be reserved
after the statute Quia emptores ; for by the effect of that
statute the new grantee held directly of the same lord as
the grantor held before (6).
Ultimately also the limitation " to the heirs," became Limitation " to
the technical description of an estate of inheritance, which
could not be legally expressed by any other means (c) .
(a) See ante, p. 32. According whom he will." Co. Lit. 22 b ;
to Coke — "the ancestor during his Burgess v. Wheate, 1 W. Bl. 133;
life beareth in his body (in judg- 1 Eden. 191, see judgment of Clarke,
ment of law) all his heirs, and there- M. E. and authorities there cited,
fore it is truly said, that heeres est Butler's note to Co. Lit. 191 u,, V.
pars antecessoris. And this ap- 3 ; and to Co. Lit. 266 6.
peareth in a common case, that if (6) Lit. ss. 1, 11 ; Co. Lit. 13 a ;
land be given to a man and to his Bwrgess v. Wheate, supra,
heirs, all his heirs are so totally in (e) Lit. n. 1 ; Co. Lit. 9 u.
him, as he may give the lands to Words importing the power of
D
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84 PAET I. CHAP. I. THE LAW OP FREEHOLD TENURE.
Estate for life. A grant to a person simply witliout extending it in
terms " to his heirSj" and without any other limitation
of the estate intended, continued to be construed ac-
cording to its primitive force and effect, as conferring an
estate only for the term of his life {a).
Estate for life The grant " to A. and to his heirs," and a grant " to
tation to heirs. " A. for life and after his decease to his heirs," according
to the primitive force and effect of the expressions, were
manifestly identical; inasmuch as they both conferred
life estates upon A., and upon the persons designated as
his heirs in succession. They were still construed as
identical, notwithstanding the change in the position
and interest of the heir consequent upon the enlarged
power of alienation in the ancestor ; the limitation " to
the heu's," in both cases, ceased to confer directly any
estate upon the persons answering to that designation,
and was referred to the estate of the ancestor, which,
though expressed to be in the first place for life, it en-
larged to an estate of inheritance, so that the heir took
only by descent. This is the origin and simplest form
Euiein Shelley's of the rule in Shelley's case, an ancient rule of great
case. . . , ,
importance m oonstrmng the hmitations of estates, which
will be noticed more fully hereafter {b).
alienation appear to have been added but where it follows sufficient words
in feoffments, when that power be- of limitation, it merely imports the
came recognised ; and that power power of alienation legally incident
may perhaps originally have de- to the estate and is superfluous ;
pended upon their insertion ; the where used alone it may be opera-
earlier feoffments given in Madox tive in giving a power of appoint-
Formulare Anglicanum do not con- ment. Quested v. Michell, 24 L.
tain any such expressions. After a J. C. 722 ; see BrooTcman v. Smith,
period not clearly defined, from the L. R. 6 Ex. 291, 306 ; 40 L. J. Ex.
early charters not hearing dates, they 161,170. The express mention of
seem to run either with or without "assigns" appears to have had
phrases like the following : — " JSt some operation in extending the
liceredihus suis vel suis assignatis," effect of warranties and covenants,
" vel guiitcs assignare voluerit,'' see Braeton. 17 b,
'■vel cuicumque dare voluerit," (a) .4mn T . T tions, — liroita-
freehold estates; for it followed as an immediate con- tion of freehold
to commence in
sequence of the rule, as also from the nature of the /"tor",
essential act of conveyance by livery of seisin, that a
grant of the freehold could not be made to commence at
a future time, leaving the tenancy vacant during the
interval. " Livery of seisin must pass a present freehold
to some person and cannot give a freehold in futuro." —
" If a man makes a lease for life to begin at Michaelmas
it is void, for he cannot make present livery to a future
estate, and therefore in such case nothing passes (c).
As a consequence of the same rule if a feoffment were Limitation sus-
- . T , T T pj, pending the free-
made to A. for life and after his death and one day alter hold,
to B. for life or in fee, the limitation to B. was void, be-
cause it would leave the freehold without a tenant or in
abeyance for a day after the death of A [d] .
estate, and remainder, to many m- (S) Co. Lit. 342 h ; Butler's note
tents and purposes, make but one lb ; see 1 Hayes Conv. 5th ed. p. 12,
estate in judgment of law." Co. 14.
Lit. 143 a. See 1 Hayes Conv. 21. (e) Co. Lit. 217 a; 5 Co. 94 b,
(a) Plpwden, 29 ; 1 Hayes Cout. Barwick's Case.
I9I21. W Plowden, 25; Fearne 0. R,
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48
PART I. CHAP. I. THE LAW OP PEEEHOLD TENUEE.
Eemainderin The seisin Or freehold in remainder might be in abey-
ingaepartioaiar ance during the continuance of the particular estate; for
estate. -i , . p
the present seisin of the tenant of that estate was suf-
ficient to satisfy all the requirements of tenure, and it
represented and supported all the future estates and
interests in the fee.
Accordingly, a remainder might be limited to take
effect upon a condition, or in a person not ascertained, as
an unborn child, so as to be in abeyance or uncertainty
until the condition happened or the person became ascer-
tained. Such a limitation was good and might remain in
uncertainty so long as the particular estate continued, as
it was supported by the seisin of that estate. But it was
essential that it should have become certain and absolute
at the time when the particular estate determined ; and if
not then ascertained, so as to be capable of taking up the
seisin, it failed altogether, and the next estate in re-
mainder took immediate effect (a).
A remainder limited to an uncertain person or upon an
uncertain condition, and so long as the uncertainty lasted,
became known as a contingent remainder. A remainder
limited absolutely and to a determinate person, or which
had become absolute and certain in ownership by subse-
quent events was a vested remainder ; the remainderman
was presently invested with a portion of the seisin or
freehold {b).
307. " Since the tenancy was not
allowed to be vacant or in suspense
for an instant, it was essential to the
TaHdity of every conveyance of the
freehold that it should be made to
take immediate effect. — On the same
principle, it was essential that all
substitutions should be so strictly
consecutive as not to leave the feud
unprovided with a tenant even for
an instant." 1 Hayes Conv. 16.
(o) Co. Lit. 342 A ; 378 « ; Per-
kins, ss. 52, 87. "If a man seised of
land, lease it to a stranger for life,
and grants the remainder over to
the right heir of J. S,, which J. S.
is then alive ; in that case the fee is
Contingeot re^
madnder.
Vested remain-
der.
m abeyance, viz., in the considera-
tion of the law, and is in no certain
person." lb. s. 708. Pearne C.
R. 3, 281, 307 ; " It is a general
rule, that every remainder must
vest, either dm-ing the particular
estate, or else at the very instant
of its determination." lb. 307.
A contingent remainder, as put-
ting the fi-eehold in abeyance,
seems to have beet originally re-
garded as an infringement of feudal
principles, and is said not to have
been fully recognised until the reign
of Hem-y VI. See WiUiams Eeal
Prop. 243, 7th ed.
(6) See ante, p. 46.
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SECT. III. SEISIN AND CONVEYANCE OP FREEHOLD ESTATES. 49
The term seisin did not apply to tlie possession of a Possession of
tenant for years or leaseholder in his own right ; he had "^'^ ° '
no participation in the freehold, and was described in law
simply as possessed. But his possession, being referred
to the title of the freeholder under whom he held, consti-
tuted the seisin. The freeholder was still described as
seised, though his seisin was subject to the lease for
years (a).
As a lease for years did not import a transfer of the Lease for years
n 1 ■ 1 -I •, ■ -, T T did not reqiiire
seism or ireehoid, it required no iivery ; and at common livery.
law a lease for years might be made by mere parol,
without deed or writing. The Statute of Frauds, 29 Car.
II. c. 3, s. 1, required all leases to be made in writing and statute requiring
signed by the lessor or his agent; excepting (s. 2) leases wntinf;.
not exceeding three years from the making and on which
a rent of two-thirds at least of the full value is reserved.
The statute 8 and 9 Vict. c. 106, s. 3, enacted that all statute requiring
leases, required by law to be in writing, must be
made by deed (6).
If a lease were made for years with remainder over to Lease for years
IT rt ,, nn-iiini'n 'i-i • with remainder
another tor an estate oi ireehoid, tor hie or in tail or m ot freehold,
fee, it was necessary for the lessor to make livery of
seisin to the lessee for years before entry, in order to
pass the remainder (c). If the lessee entered before
livery, his estate in the term was perfected by the entry
and the freehold and reversion was in the lessor; and
livery of seisin could not afterwards be made, because the
possession was already in the lessee {d).
If a lease were made for years with a contingent re- Lease for year^
mainder of freehold, the limitation in remainder was remainder of ^
freehold.
(a) Lit. s. 324 ; Co. Lit. ib. ; possession could not be made to the
Butler's note to Co. Lit. 330 b, next in remainder, because the
ante, p. 44. possession belonged to the lessee for
(J) See post, Part IV. Chap. I. years." Co. Lit. 49 a.
' Conveyances." Lit. s. 59. {d) Lit. ». 60 ; Co. Lit. 49 b,
(c) Lit. s. 60. " This livery is " by the entry of the lessee he is in
not necessary for the lessee himself actual possession, and then the
because he hath but a term of years, livery cannot be made to him that
hut it is for the benefit of them in is in possession, for quod semel meum
the remainder : for the livery of the est amplius meum esse non potest.''^
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50 PAET I, CHAP. I, THE LAW OF IBEEHOLD TENUEE.
Lease for years
to commence in
ficturo.
wholly void, because it left tlie seisin in abeyance until
the happening of the contingency ; nor could livery be
given for such an estate for want of a present certain
grantee of the freehold (a) . Thus, " it is a general rule,
that wherever an estate in contingent remainder amounts
to a freehold, some vested estate of freehold must precede
it" (&).
A lease for a term of years might be made to commence
in futuro, though a grant of the freehold could not;
because such lease was merely an executory contract as
to the possession, which might be executed at the time
agreed upon ; "as if a man make a lease for years to
begin at Michaelmas next ensuing, it is good " (c).
Deed or char
ter of feoif-
A deed or charter of feoffment was generally used to
attest the livery of seisin and record the terms of the
grant. Livery of seisin was then expressed to be made
according ' to the form of the deed, secundum formam
cartce ; and a memorandum of such livery was endorsed
upon the deed. The deed or charter was not necessary
to the feoffment at common law ; and in case of variance
between the terms of the deed and of the feoffment, the
latter as the efBcient act prevailed ; unless the feoffment
was expressly made according to the form of the deed,
when the deed regulated the effect of the feoffment {d).
The Statute of Frauds, 29 Oar II. c. 3, s, 1, first made
?eoKnt,— writ- a Writing necessary to a feoffment by enacting " that
estates made or created by livery and seisin only, or by
statutory re-
quirements of
(o) Ante, p. 47 ; Co. Lit. 217 a.
(b) Fearne, C. E. 281 .
(e) 5 Co. 94 i, BarmcVs Case ;
Bee Neale v. Macjcenzie, 1 JSl. & W.
747, 759; and see ante, p. 44. But "if
a lease for years be made to begin at
Michaelmas the remainder over to
another in fee, if the lessor make
livery of seisin before Michaelmas,
the livery is void, because if it
should work at all it must take
effect presently and cannot expect."
Co. Lit. 217 a.
(d) Co. Lit. 6 a, 7 a, 48, 49, 121 b,
222 b i Lit. s. 359 ; Samme's Case,
13 Co. 54 b. Thus— "If a man
make a charter in fee and deliver
seisin for life secundum formam
cartce, the whole fee simple shall
pass." — " If a man make a lease for
years by deed and deliver seisin
according to the form and effect of
the deed, yet he hath but an estate
for years and the livery is void." Co.
Lit. 48 a.
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SECT. III. SEISIN AND CONVEYANCE OF PEBEHOLD ESTATES. 51
parolj and not put in writing and signed by the parties so
making or creating the same, or their agents thereunto
lawfully authorised by writing, shall have the force and
eflfect of estates at vill only." And the statute 8 & 9 Deed.
Vict. c. 106, s. 3, enacted " that a feoffment shall be void
at law unless evidenced by deed."
The same statute dispensed with livery of seisin Freehold now
altogether by enacting (s. 2) that " after 1 October, 1845, weu^a^nih'e^.
all corporeal tenements and hereditaments shall, as re-
gards the conveyance of the immediate freehold thereof,
be deemed to lie in grant as well as in livery." Since
this enactment a deed of grant alone is sufficient to
convey freehold estates, and feoffment by livery of
seisin may be described as obsolete.
But this enactment has made no alteration in the rules Euiesofiinuta.
of common law above stated concerning the limitation of '°° " ^™ ^'
estates ; and although a deed of grant is now made
effectual by the statute to pass the seisin and freehold
without livery, it is not thereby made effectual to pass
the seisin infuturo, or to shift or suspend the seisin, or to
leave it in abeyance. The same rules of limitation of
estates apply now to a grant of the freehold, as before
applied to a feoffment by livery of seisin {a). It is
different with a grant operating under the statute of uses
to be noticed hereafter (b) .
It was impossible for a person to make a direct con- Limitation to
■*■ ^ . . - , . grantor at com-
veyance to himself, so as to alter his title to his own mon law.
property and take as purchaser from himself, by feoffment,
grant, or any mode of conveyance known to the common
law. The maxim applied "nemo potest esse agens et
patiens " ; he could not be both feoffor and feoffee, or
grantor and grantee. So, if upon a feoffment or grant
he limited the estate to himself for life, with remainder
(a) See ante, p. 47 ; Doe t. Prince, (S) Post, Part I. Chap. III. ' Law
20 L. J. C. P. 223. of Uses.'
E 2
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52
PAET I. CHAP. I. THE LAW OF JEEEHOLD TEN0EB.
Limitation
to lieirs of the
grantor.
Limitation to
grantor or his
heira ereatea
new title by
statute.
to anotlierj tlie remainder was void for want of a particular
estate to support it (a) . By making a feoffment or grant
to another and taking a re-feoffment to himself and his
heirSj he could acquire a new title ^by purchase^ which
might make an important difference in tracing the
descent (&).
Nor could a person by any common law conveyance
make his heir a purchaser, for it was a maxim that hceres
est pars antecessoris. Thus, if a man made a gift in tail,
or a lease for life, with remainder to his own right heirs,
the limitation of the remainder was inoperative, being
merely descriptive of the reversion remaining in him ;
so, if the remainder were limited to the heirs male of his
own body, this was a void remainder, for the donor could
not make his own right heir a purchaser (c).
By the statute 3 & 4 W. IV. c. 106, (the inheritance
Act) s. 3, it is enacted that "when any land shall have
been limited by any assm-ance (executed after 31st
December, 1833), to the person or to the heirs of the
person who shall thereby have conveyed the same land,
such person shall be considered to have acquired the same
as a purchaser by virtue of such assurance, and shall not
be considered to be entitled thereto as his former estate
or part thereof " {d).
Distinction of The distinction between grant and livery referred to
grant and livery, . , i • j_ ^ rm •
-things lying in the suDjcct ot Conveyance, inings incapable of actual
possession, of which, therefore, no livery could be made,
(a) Per Hale, C. J., in Pibus v.
Mitford, 1 Vent. 378 ; Southoot t.
Stowell, 2 Mod. 210 ; 1 Sand. Uses,
129. Prom the principle of tlie
common law that husband and wife
are one person, it followed that a
husband could not during the cover-
ture by any conveyance at common
law limit an estate to his wife. See
post, Part y. Chap. II.
(5) Co. Lit. 12 h ; Doe v. Morgan,
7 T. E. 103. A person may also
convey to himself under the Statute
of Uses. See post. Part. I. Chap.
III. ' Law of Uses.'
(c) Co. Lit. 22 i, " without de-
parting of the whole fee simple out
of him." Greswold's Case, Dver,
156 a. ' ■'
{d) See 1 Hayes Conv. 315.
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SECT. III. SEISIN AND CONVEYANCE Of FREEHOLD ESTATES. 53
were said to lie in grant, tliat is to say, were conveyed by
a deed of grant (a).
Eeversions and remainderSj being incapable of posses- EeversionB and
sion during the continuance of the particular estate, were
not tte subject of livery, but were conveyed by deed of
grant (&). If the tenant of the particular estate and
the reversioner joined in a feoffment, though without
deed, it was supported by means of an imphed surrender
of the particular estate to the reversioner preceding the
livery by him (c) . So, a feoffment by the reversioner to
the tenant of the particular estate might be supported by
an implied surrender of the particular estate preceding
the livery {d) .
A grant of a reversion or remainder was subject to the Future Umita-
T • . p p rv ^ioj^s of rever-
same rules, as to future limitations oi estate, as a leon- siona and re-
mauiders.
ment of the present seisin. It could not be made to A.
from Christmas next, or to A. for life and after his death
and one year to B. ; but it might be made for a particular
estate with remainder, vested or contingent, as to A.' for
Hfe with remainder to B., or with remaiader to the heirs
or children of B. not yet born (e).
The class of rights and interests in land known as incorporeal
.... hereditaments.
incorporeal hereditaments, comprising seignones, rents
and services, rights of profit or use in the land of another,
as rights of common, rights of way and the like, when
(o) " This word grant is taken 6 Co. 15 a, Treport's Case ; see Soe
largely where anything is granted or v. Lynes, 3 B. & C. 388; Co. Lit.
passed from one to another, and in 48 h.
this sense it doth comprehend feoff- {A) Lancasfel v. Aller, Dyer,
ments, bargains and sales, gifts, 358 a.
leases, charges, and the like. But (e) See ante, p. 47 ; 1 Hayes
the word being taken more strictly Cout. 21. " On every conveyance,
and properly it is the grant, convey- therefore, whether of the actual
ance or gift by writing of such an possession, or of the present right to
incorporeal thing as lieth in grant the future possession, there must
and not in livery, and cannot be have been an immediate grantee,
given or granted by word only, capable of receiving the transfer ;
without deed." Shepp. Touch. 228 ; and his substitutes, if any, must
and see 2 Sand. Uses, 25 ; 2 Wms. have been designated at the same
Sauud. 96 b. time to succeed continuously as
(*) See Doe v. Cole, 7 B. & C. remamder men, in regular order,
243. without any cessation or disturban6e
(c) Sredon's Case, 1 Co. 76 u. of the possession." lb. p. 22.
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54 PART I. CHAP. I. THE LAW OF FREEHOLD TENUBB.
taken as separate subjects of property and not as incident
or appurtenant to other land, being incapable of actual
possession or seisin, lie in grant, that is, are conveyed by
deed of grant ; nor can any estate or interest in them be
created except by deed (a).
Attornment to Upou the grant of a manor or seignory to which
iro^'r^on'S tenure with rent or other services was incident, attorn-
ment or consent of the tenant to hold of the grantee was
necessary at common law to give effect to the grant ; —
so likewise with the grant of the reversion of a particular
estate, for years, or for life, or in tail (6) . Attornment
was described as "an agreement of the tenant to the
grant of the seignory, or of a rent; or of the donee in
tail or tenant for life or years, to a grant of the re-
version " (c).
Grant made Attornment was taken away by the Statute of 4 Anne,
atenmeSby™* c- ^6, enacting by sect. 9, "that all grants or con-
Btatute. veyances thereafter to be made of any manors or rents
or of the reversion or remainder of any messuages or
lands shall be good and effectual to all intents and pur-
poses, without any attornment of the tenants of any
such manors or of the land out of which such rent shall
be issuing, or of the particular tenants upon whose par-
ticular estates any such reversions or remainders shall be
expectant or depending, as if their attornment had been
had and made." Sect. 10 provides " that no such tenant
shall be prejudiced or damaged by payment of any rent
to any such grantor, or by breach of any condition for
(a) Co. Lit. 9 b, 49 a, 121 b, note (1), lb. " And the grant of the
172 a; Duke Somerset v . Fogwell, reversion by deed with the attom-
B B. & 0. 875 ; Gardiner y. William- ment of the lessee, do countervail in
son, 2 B. & Ad. 336 ; see post, law a feoffment by livery, as to the
Part III. ' Land as subject of Pro- passing of the freehold and in-
perty.' heritance." Co. Lit. 315 b. The
(6) Lit. ss. 551, 553, 567, 568. attornment of a tenant could not be
Timers v. Dean of St. Paul's, 14 Q. compeUed even ia Chancery. Gary,
B. 909 ; 19 L. J. Q. B. 84. p. 5.
(c) Co. Lit. 309 a ; see Butler's
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SECT. III. SEISIN AND CONVEYANCE OF FREEHOLD ESTATES. 55
non-payment of rent^ before notice shall be given to him
of such grant by the grantor." (a).
A subsequent statute 11 Geo. II. c. 19, s. 11, after Attornment to
reciting that the possession of estates in land is rendered to™'" °'''™™'
very precarious by the frequent and fraudulent practice
of tenants in attorning to strangers who claim title to
the estates of their landlords or lessors, enacts that all
such attornments of any tenants shall be absolutely nuU
and void, and the possession of their respective landlords
or lessors shaU not be anywise changed, altered or
affected by any such attornments.
A grant of a reversion or remainder to a person Keiease.
having a prior vested estate in the land was distinguished
as a Release. Such conveyance, like a grant, required to
be by deed under seal, and differed from a grant only in
its special effect and operation in enlarging the previous
estate (6).
A lessee for years, or even a lessee at wiU, after entry, Eeiease to lessee
might take the freehold reversion by release ; but not °'' ^^^^^'
before entry, because he then had but an interesse termini
and no possession, and the release by way of enlarging
an estate could only operate upon a possession ; before
entry there was no reversion and the immediate freehold
could only pass by livery (c) .
The capacity of a lessee for years to take the reversion ConTeyance of
by release, supplied the means in early times of convey- andreiease.witii-
ing an immediate freehold without livery of seisin. A
lease for a year was first made under which the lessee
obtained possession by entry, and was then in a position
to take the reversion by release. By the lease and re-
(o) See Watts v. Oguell, Cro. Jae. tions of releases, see lit. o. 444 ;
192 ; Be Nicholls v. Saunders, L. Co. Lit. ib. ; Butler's note (1) to
E. 5 0. P. 589 ; 39 L. J. C. P. 297 ; Co. Lit. 267 a ; and see post, Part
Cook v. Chterra, L. E. 7 C. P. 132 ; IV. ' Conveyances.'
41 L. J. C. P. 89. (e) Lit. s. 459, 460 ; Co. Lit. 46
(h) Lit. s. 465 ; Co. Lit. 273 a ; 6 ; 270 a ; ante, p. 44, 49.
as to the different tinds and opera-
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entry.
56 PART I. OHAP. I. THE LAW OF FREEHOLD TBNCEE.
lease thus executed the freehold was conveyed as
effectually as by feoffment with livery of seisin {a).
Leaae for years After the passiug of the Statute of uses the necessity
saieSout™ of an actual entry to perfect the estate of the lessee was
obviated by making a bargain and sale for a year instead
of a lease for a year at common law ; a use was thereby
created in the lessee which was at once executed in
possession by mere force of the statute^ as hereafter
explained. In this form the conveyance by lease and
release, without entry or livery of seisin, continued in
use for the ti'ansfer of freehold estates until quite recent
times (fe).
statute making The statuto 4 Vict. c. 21, s. 1, further simplified
release effectual . - . n n it * 'j-i j.'L. l
without lease, this modo 01 Conveyance by dispensing witn tne lease
altogether, and rendering the release alone as effectual
for the conveyance of freehold estates as if the releasing
party had also executed a deed of bargain and sale or
lease for a year for giving effect to such release.
Lease and release But the Conveyance by lease and release is now super-
grant, seded altogether by the more direct conveyance by deed
of grant, which, under the statute 8 & 9 Vict. c. 106,
s. 2, was rendered effectual for the transfer of all free-
hold estates (c).
DiBseisin. Disseisin was a wrongful entry upon the land and ouster
or dispossession of the freeholder. The seisin de facto
thereby obtained had the same effect as a rightful seisin
in conferring an apparent title to the land, and the means
of alienation by livery. The disseisee retained a mere
right of entry {d).
Disseisin divested Disseisiu of the tenant of a particular estate disseised
remainders and -i>iniii-i jj- -t • i
reversion. Or divcstod ail the estates m remainder or reversion, and
converted them into mere rights of entry, exercisable
in their order of succession (e).
(a) 2 Sand. Uses, 62, citing Year {d) Lit. =. 279 ; Co. Lit. 153 b,
books, 11 H. 4, 33 ; 21 Ed. IV. 24. ISl a ; " every entry is no disseisin,
(i) 2 Sand. XJses, 62; see post, unless there be an ouster also of
Chap. III. ' Law of Uses.' the freehold." lb.
(c) See ante, p. 51. (e) See ante, p. 46.
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SECT. III. SEISIN AND CONVEYANCE 01' FREEHOLD ESTATES. 67
The tenant himself of the particalar estate whether conTeyances
for lifoj or for years^ having the actual seisin, had it in opera tio"— "°
his power to make a feoffment to another by livery, teuanTof parti-
which effectually conveyed the fee, if it in terms imported
to do so, irrespectively of his own estate or interest;
and such feofi&nent disseised all the estates in remainder
or in reversion dependant upon his seisin and converted
them into rights of entry {a). Feoffment by tenant in
tail operated rightfully at common law, but was provided
against by the statute de donis, giving a writ o{ formedon
to the issue or reversioner or remainderman. It therefore
took away the right of entry and left only the right of
action under the statute (6).
But such act on the part of the tenant for life or operated as a
for years was a direct breach of the conditions of '"■^''™°-
his tenure, and operated as a forfeiture" of his estate,
which thus became merged or extinguished in the
reversion or seignory, and the reversioner or next
remainderman became entitled to the immediate pos-
session with the right to enter accordingly (c).
In such case if the next estate in remainder was then destroyed con-
in contingency so that it could not take effect in posses- d'em!" '™'"°"
sion, it failed altogether, and the next vested remainder
took immediate effect, because the freehold could not re-
main in abeyance. Contiagent remainders might thus
be destroyed by a feoffment of the tenant of the particular
estate ; and it was formerly the practice to use feoffments
for this purpose {d). The statute 8 & 9 Vict. c. 106, s. 8, contingent re-
protected contingent remainders from this mode of de- ^rved by statute.
struction, enacting that they should be capable of taking
effect, notwithstanding the determination by forfeiture of
(ffl) Lit. 88. 599, 611, 698; Butler's 38,39; see Boev. Lynes, 3 B. &
note (1) to Co. Lit. 830 I. C. 388.
(4) Lit. 595, 596, 597 ; Co. Lit. (d) Archer's Case, 1 Co. 66 J ;
327 a,h; see ante, p. 37. ChudleigWs Case, 1 Co. 1 35 S ; Doe
(c) Lit. as. 415, 416; Co. Lit. v. Goteore, 5 Bing. N. C. 609 ; see
233 b, Butler's note, lb. ; Co. Lit. post, Part II. Chap. II. ' Contingent
251 u, h; 252 a; Q-ilbert's Tenures, Remainders.'
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covenes.
58 PAET I. CHAP. I. THE LAW OP FKEBHOLD TENTTEE.
any preceding estate of freehold in the same manner as if
such determination had not happened.
KnesaDdRe- A fine Or rocovery, in general^ had the same efficacy as
a feoffment in conveying the fee, if it purported to do so ;
and if by a tenant for life, it induced a forfeiture of his
estate and thereby destroyed contingent remainders im-
mediately expectant (a).
Grant and re- Conveyances by deed without livery, as a grant, release, or
tiou8 operation, a leaso and release, in whatever terms, had no effect beyond
the estate and interest which the person executing might
rightfully convey. Those conveyances only which operated
directly upon the seisin, as feoffments, fines and recoveries
could operate tortiously according to their import, irre-
spectively of the estate of the party conveying (6) . So,
of things lying in grant as rents, commons, rever-
sions and remainders, the conveyance, though importing
to be in fee, had no tortious effect, nor did it induce a
forfeiture, for nothing passed thereby but that which
rightfully might pass (c).
Tortioua opera- By the 8 & 9 Vict. c. 106, s. 4, a feoifment has no
anoes taken away longer any tortious Operation, and Fines and Recoveries
were abolished by the statute 3 & 4 W. IV, c. 74 ; conse-
quently the doctrines of law relating to the tortious opera-
tion of conveyances and the forfeiture thereby incurred
have no longer any application.
Eight of entry. An entry on the land within the time allowed by law
restored the seisin, and, if made by the tenant of a par-
ticular estate, it restored or revested the estates in re-
mainder or reversion, which were dependant upon the
same title. Hence a right of entry was sufficient to pre-
serve a contingent remainder {d).
(a) Co. Lit. 356 a ; Doe t. Gatacre, only by estoppel between the parties
5 Bing. N. 0. 608 ; notwithstanding and had no ulterior effect ; see
the recovery by tenant for life was Fermor's Case, S Co. '77 a; 3 Atk.
made void by statute 14 Eliz. o. 8, 141, Smith v. Dormer.
and see Smith y. Gltgord, 1 T. K. (5) lit. 83.600, 618; Co. Lit. 332
738. As to the effect of a fine or re- a ; Butler's note to Co. Lit. 330 a.
covery by tenant in tail, see ante, p. (c) Co. Lit. 251 h.
39. Fine by lessee for years operated (rf) Fearne, C. E. 286.
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SECT. III. SEISIN AND CONVEYANCE OE FREEHOLD ESTATES. 59
The riglit of entry, arising upon a disseisin, was lost Eight of entry
in certain events ; as by tlie seisin being cast by descent cast, ^
upon the heir of the disseisor, which was technically
called a descent cast (a) ; — also by an alienation of the fee
by the disseisor to another, which was called a discontinu- by diBcontinu-
cmce of the possession (6) . On the other hand, the right
of entry might be kept alive against a descent cast by preserved by
the process of continual claim (c) . contmua c aim.
Where the right of entry was lost there remained a Right of action,
mere right of action, to be prosecuted within certain
limits of time in the form of real action provided for the
circumstances of the case {d).
The doctrines concerning rights of entry and of action
and the proceedings in real actions were highly technical
and elaborate, and formed a large and complicated branch
of the law of real property, until the amendments of the
law made by the statute 3 & 4 W. IV, c. 27. By that statute aboUsh-
. , ing real actions,
statute, s. 36, real actions were abolished, and the action
of ejectment was left as the only, and the comparatively
simple, remedy at law for the recovery of the possession
of land. By the same statute the right of entry or action Descent cast and
Ti 7 . . 7. _,. discontinuance.
IS no longer defeated by a descent cast or a dtscontmuance
(s. 39) ; and it is exempted from all other casualties except
lapse of time. But it must be prosecuted within twenty Limitation of
, 7pn • 1 , f ci\ I'j entry or action.
years next after the accrual ot the right (s. Z) ; subject
to the provisions of the statute in the case of disabilities
in the person entitled, (ss. 16-19.)
A risrht of entrv was not assignable at common law by Assignment of
• •71171 "S''' °f entry.
deed, nor by will ; though it might be released to the person
in actual seisin of the freehold ; and if not so released
it descended to the heir (e). A Eight of entry, whether
immediate or future, and whether vested or contingent,
may now be disposed of by deed, 8 & 9 Vict. c. 106, s.
(a) Lit. a. 385 ; Co. Lit. ib. Lit. 239 a.
(b) Lit. s. 592 ; Butler's note to («) Co. Lit. 214 a, 266 a ; Per-
Co. Lit. 325 a. tins, ss. 85, 86, 156, 271 j see
(c) Lit BS. 414, 417, 422, 423. Culley v. Taylerson, 11 A. & E.
(d) See Butler's note (1) to Co. 1008, 1020.
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60 PAET I. CHAP. I. THE LAW OF FltEEHOLD TENUEE.
6 ; and may be devised by will, 1 Viot. c. 26, s. 3 ;
and will descend in the same manner as tbe land, if' re-,
covered, would descend, 3 & 4 W. 4, c. 106, ss. 1, 2.
Section TV. § 1. Descent and § 2. Disposition
BY Will.
§ I. Descent.
Seisin as root of descent — descent traced from purchaser under
the Inheritance Act.
Descent restricted to the blood of the purchaser — breaking the
descent.
Half blood excluded at common law — doctrine oi possessio fratris
— half blood admitted by the Inheritance Act.
Descent in tail.
Preference of males — preference of the paternal line.
Primogeniture — parceners.
Lineal ancestors excluded at common law — collateral descent —
hneal ancestors admitted by the Inheritance Act — collateral
descent excluded.
Bight of representation to deceased ancestor.
seiein the root As the seisin presumptively represented the fee, so it
was also taken as the root of descent, — as expressed in the
maxim seisina facit stipitem. The title by descent was
traced from the person last seised (a) . The heir origiaally
derived title from the terms of the gv&nt, jperformamdoni,
and must accordingly have traced his descent from the
original grantee or purchaser ; but the adoption of the
seisin as the root of descent was a maxim of convenience
to avoid further inquiry into the origin of the title (&).
{a) Co. Lit. 11 6; Bracton, 65 b ; possible, by length of time and a
2 Blackst. Com. 209. long course of descents, to deduce a
(*) See ante, p. 32. " It is not title to the first feudatory or pur-
properly a rule of descent, but of CTi- chaser, proof of being heir to the
dence, and is not therefore substan- last was necessarify allowed as the
tive but relative to the old feudal best proof that could be expected of
course of succession, and calculated title from the first." Wright on
to make that good as far as possible ; Tenures, 185.
for it becoming in many cases im-
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SECT. IV. DESCENT. 61
According to the above maximj an lieir^ by obtaining seisin of heir,
seisin in fact, (either by entry or through the possession of
a tenant,) constituted himself a new root of inheritance ;
his heir was not necessarily the heir of the purchaser.
The seisin in law which vested in an heir before entry was
not sufficient to change the root of descent from his
ancestor, as being the person last seised (a). A purchaser, of purchaser.
or person entitled otherwise than by descent, had in all
cases sufficient seisin to make the root of descent {b). A
disseisor could transmit the seisin by descent, and the of disseisor,
descent cast (until 3 & 4 W. IV. c. 27, s. 89) took away
the right of entry of the disseisee (c.)
The Inheritance Act, 3 & 4 W. IV, c. 106 (applying to Descent from
all descents after 1833), restored the original principle of inheriSe'Acr
descent by enacting that " in every case descent shall be
traced from the purchaser." But it added the rule that
" the person last entitled to the land shall be considered to
have been the purchaser thereof, unless it shall be proved
that he inherited the same." This rule, enacted as a
substitute for the above common law maxim as to seisin,
" to the intent that the pedigree may never be carried
further back than the circumstances of the case and the
nature of the title shall require," more nearly satisfies the
original principle of reaching the purchaser.
Kotwithstanding' the force attributed to seisin as the Descent re-
° Btricted to blood
root of descent, the principle of descent from the pur- of purchaser,
chaser appeared in the rule of common law which confined
the descent to the blood of the purchaser ; according to
which rule the heirs on the mother's side were excluded
from an inheritance descended from the father, and con-
versely (d) . The above rule is now included as a con-
(a) Lit. s. 4, 8; Co. Lit. 14 i, it is an old and true maxim in law,
15 a ; Goodtitle v. Newman, 3 Wils. that none shall inherit any lands as
516. heir, but only the blood of the first
(i) Doe V. Thomas, 3 M. & G. purchaser, for refert a quo fiat
815. perquisitum." Bracton, 65 A ; 2
(c) See ante, p. 59. Blaokst. Com. 222.
(d) Lit. B. 4 ; Co. Lit. 12 a. " Note,
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62 PART I. CHAP. I. THE LAW 01" PBBBHOLD TENTJEE.
sequence of the new rule of the Inheritance Act, that in
every case descent shall be traced from the purchaser.
Breaking the A person taking by descent might by various means
acquire a new title by purchase and so break the former
line of descent and constitute himself a new root, not
only as regards the seisin, but for all purposes. He might
thus admit both his paternal and maternal lines of heirs,
on whichever side the inheritance might have descended
upon him. The Inheritance Act (s. 3) renders a direct
conveyance to himself sufficient for this purpose, before
which enactment it required, at common law, a feoffment
and re-feoffment, or conveyance and re-conveyance, to
break the line of descent {a) .
Half-blood ex- The Same principle of descent from the purchaser ex-
mon°iaw. ""^ tended at common law to the general exclusion of relations
of the half blood of the person last seised, upon the ground
that they were as likely not to be, as to be, descended from
the purchaser (&) .
Doctrine of Heuco the peculiar effect of the iwssessio fratris, or
seism 01 a brother mheritmg from the father, m excluding
a brother of the half blood from the future inheritance.
Thus, where the father died seised in fee simple, leaving
a son and daughter by a first marriage and a son by a
second marriage, if the eldest son entered and died with-
out issue, the daughter inherited and not the younger son,
though he was next heir to the father, because the descent
was traced from the eldest son as the person last seised,
to whom the half brother could not iuherit ; but if the
elder son died without entry, the younger son inherited,
and not the daughter, because the descent was then traced
from the father. The inheritance of the sister to the ex-
clusion of the half brother was expressed in the maxim,
(a) Co. Lit. 12 b ; ante, p. 52 ; see Chap. III. "Law of Uses.'
Roe V. Baldwere, 5 T. E. 104; (A) Lit. ss. 6, 7 ; Co. Lit. 14 a;
Nanson v. Barnes, L. E. 7 Eq. Hargrave's note (3) to Co. Lit. 14a;
250; as to conveyances under the Wright on Tenures, 186; 2 Blackat.
Statute of Uses, see post, Part I. Com. 228.
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SECT. IV. DESCENT. 63
possessio fratris de feodo simpUci facit sororem esse
hcBredem [a).
The Inheritance Act, s. 9, enacts "that any person re- Half blood made
lated to the person from whom the descent is to be traced iXritooe Act.
by the half blood shall be capable of being his heir ; "
and it assigns the place in which any such relation by the
half blood shall stand in the order of inheritance, giving
priority to the relations of the whole blood.
An heir in tail still claims per formam doni, by substitu- Descent in tail,
tional gift and not by right of descent ; and the title to a
fee tail must in all cases be traced from the original donee
in tail (b). Hence the doctrine of possessio fratris had no
application to a fee tail, for the seisin of the heir in tail
did not change the root of descent. The half blood
coming within the description of the entail are as capable
of succeeding as the whole blood (c).
The exigencies of feudal tenure required an efficient preference of
tenant to perform the services and duties of the fee. ""^ ^^'
Hence as a general rule of descent males were preferred
to females in each degree ; or, as it was expressed, the
ivorthiest of hlood should inherit. Therefore the son was
preferred before the daughter, the brother before the
sister, the uncle before the aunt {d).
According to this rule, in collateral descent from a preference of
purchaser, though the heirs on the side of both parents "^^ ""^
might inherit, yet all those on the father's side, including
females, were preferred before any on the mother's side.
iThus Coke says, — " Here it is to be understood that the
father hath two immediate bloods in him, viz., the blood
of his father and the blood of his mother. And both these
{a) Lit. s. 8 ; Co. Lit. 14 S ; see 8 T. R. 211, per Kenyon, C. J.
Qoodtitle v. Newman, 3 Wils. 516'; {d) Co. Lit. 14 a ; Bracton, 65 a ;
i'oe T. Xee», 7 T. R. 386. see Hale's first general rule, "in
(J) See ante, p. 37; Bracton, descents the law prefers theworthiest
68 J, 69 a ; 2 Blackstone, 221, 222. of blood." Hale, Hist. Cora. Law,
(o) Co. Lit. 14 b ; Doe v. Wichelo, Runnington's ed. 320.
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64
PAET I. CHAP. T. THE LAW OF lEBEHOLD TENURE.
bloods of the part of the father must be spent before the
heir of the blood of the part of the mother shall inherit.
And the reason of all this is, for that the blood of the part
of the father is more worthy, and more near in judgment
of laWj than the blood of the part of the mother " {a) .
Primogeniture
Parceners.
The exigencies of feudal tenure also required, in
general, a single tenant to secure the performance of the
services and duties of the fee ; and the eldest was selected
amongst males of equal degree (b). With females, there
being no capacity for the active duties of tenure, all took
together as one heir to their ancestor ; but the law enabled
them to obtain a partition of the land, whence they were
called parceners (c) .
The common law excluded lineal ancestors as such, it
being a maxim that an inheritance could descend but
not ascend (d), but it admitted collaterals to inherit in
(a) Co. Lit. 12 b; and see Co.
Lit. 14 a ; Lit. 9. 4.
(b) Lit. s. 5 ; Co. Lit. 14 a.
Primogeniture obtained in mili-
tary tenures as early as the reign of
William the Conqueror, such tenures
peculiarly requiring a single personal
representative of the fee, but in the
time of Glanvill (Hen. IL) socage
lands were still partible amongst
all the sons, according to the ancient
English rule of descent. In the
reign of Henry III., or soon after,
primogeniture obtained also in socage
tenure. Glanvill, 1. 7, c. 3 ; see
Beames' transL 152 ; Co. Lit. 14 a;
Butler's note to Co. Lit. 191 a, V. 4 ;
Land in the county of Kent still
retains the ancient i-ule of partition
under the custom of Gavelkind,
ante, p. 25 ; Eobinson, on Gavel-
kind, c. ii. ; Hale's Hist. C. L.
c. xi., Runnington's ed. p. 312. So
material alteration occurred in the
rules of descent as they appear in
Bracton (temp. H. 3) until the
passing of the Inheritance Act of
Will. IV. Hale, p. 318.
It may be here observed that the
custom of primogeniture was not
foundedon anysuch idea of beneficial
preference of the eldest son as attends
it in modern times, for the onerous
duties and returns of the tenure
must be supposed to have been
originally a full equivalent for the
fee. The lord doubtless dispensed
his lands, which were his only wealth,
for the largest returns he could get,
in supply of his various wants. By
the abolition of the feudal incidents
and the depreciation or purchase of
fixedrents, the tenant in course of
time acquired a substantial beneficial
interest in the fee, and the eldest
son now succeeds to a valuable in-
heritance.
(c) Lit. S.241 ; Co. Lit. 163 b. The
common law writ of partition was
taken away by 3 & 4 WOl. IV. c. 27,
B. 36, and the proceeding is now
by bill in Chancery for partition.
(d) Lit. ». 3 ; Co." Lit. 10 i, 11a.
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SDCT. IV. DESCENT. 65
theirown right, as brothers and sisters, uncles, great-uncles^
etc., who were traced from the ancestors in ascending
order. Hence according to Coke, "a division of heirs,
viz., lineal (who shall first inherit) and collateral (who are
to inherit for default of lineal) ; for in descents it is
a maxim in law, quod linea recta semper praefertm- trans-
versali. Lineal descent is conveyed downward in a right
line; as from the grandfather to the father, from the
father to the son, etc. Collateral descent is derived from collateral de-
the side of the lineal ; as grandfather's brother, father's
brother, etc. — and the father's brother and his posterity
shall inherit before the grandfather's brother and his
posterity " (a) . As the inheritance could not ascend in a
right line, the father could not succeed to the inheritance
of the son except as collateral heir to the uncle, if the
latter by dying seised formed a new root of descent (b).
The Inheritance Act altered the law both as to lineal imeai ancestors
ancestors and collaterals. It renders the lineal ancestors inheritance Act.
capable of inheriting and ranks them in ascending order
next after the issue of the purchaser ; and at the same Collateral de-
time it excludes collateral inheritance, except by right of
representation to the ancestor (c). Accordiag to the
interpretation clause (s. 1), "the word 'descent' shall
mean the title to inherit lands by reason of consanguinity,
as well where the heir shall be an ancestor or collateral
relation as where he shall be a child or other issue " (d).
The right of representation to a deceased ancestor, EigM of repre-
who, if he had lived, would have inherited, remains as at ceased ancestor.
common law ; his eldest son or other lineal heir inherits
by right of representation. Thus, a child or grandchild
or remoter lineal descendant of a deceased eldest son
succeeds before a younger son. "Whensoever the father,
(a) Co. Lit. 10 J, 13 i ; Lit. ss. 2, 5. (d) Accordiug to Coke, " descent
(S) Lit. B. 3. in the legal sense signifieth when
(o) Sects. 5, 6, and see as to the lauds do by right of blood fall unto
order of ancestral descent, ss. 7, 8, any after the death of his ancestors."
pdsi, Part IV. Chap. III. ' Descent.' Co. Lit. 13 b.
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66 PART I. CHAP. 1. THE LAW OP FREEHOLD TENURE.
if he had lived, should have inherited, his lineal heir by
right of representation shall inherit before any other,
though another be, jure -proipinquitatis, nearer of
blood" (a).
The rules and doctriaes of descent, as at common law
and under the Inheritance Act^ of which the sources and
principles are here briefly referred to, will be more fully
detailed in treating of descent hereafter. (6) .
§ 2. Disposition by Will.
Land not devisable at common law — except by special custom —
uses in equity devisable — until the Statute of Uses.
Statutes of Wills— Statute of Frauds— the Wills Act, 1 Vict.
c. 26.
Disposition by will — how far subject to the rules of common law
— how far independent of those rules — devises of future
estates.
Construction of wills — ^use of technical terms.
Land not devis- The feudal principles of the common law did not admit
able at common
law, — except by
special custom.
ableatcommon „ -, . ... -, •^^ jy ^ T r r 1 i n j_ tt
law,— except by 01 a disposition by Will 01 land oi ireenoid tenure. Upon
the death of the tenant his heir was originally entitled by
the terms of the grant ; and though afterwards the title
of the heir became liable to be defeated by an alienation
of the ancestor during life, it was never defeasible at
common law by a devise or testamentary disposition at
death. Land was devisable by will in some places by
special custom, as lands of gavelkind tenure in the
county of Kent, land in the City of London, and in some
boroughs ; which customs are supposed to be relics of
the earlier and prse-feudal common law (c) .
(a) Co. Lit. 10 S ; 2 Blackst. Com. ix., clearly indicating the course of
216. descent before and since the Inherit-
(S) Part rV. Chap. III. ' De- ance Act.
scent.' See the rules of descent at {r) See ante, p. 33 ; Lit. o. 167 ;
common law stated in St. German, Co. Lit. Ill a ; Hargrave's note (1)
Doctor and Student, Dial. 1, c 7 ; on Co. Lit. Ill h; 6 Co. 16 i,
Hale's Hist. Com. Law, o. xi. ; and Wild's Case ; Robinson on Gavel-
see the Tables in Hayes Conv. App. kind, b ii. u. v.
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SECT. IT. DISPOSITION BY WILL. 67
Under the system of uses, to be noticed presently, the Uses in equity
use or beneficial interest in the land, as recognised in the thntatutTSf '
Court of Chancery, became disposable by will ; and a
testamentary disposition of land might be eflFected by
conveying it to be held to the uses to be declared by
will (a) . The Statute of Uses, 27 Hen. VIII., by the con-
version of uses into legal estates, took away this capacity
of testamentary disposition ; but, probably for that reason,
it was soon followed by the Statutes of Wills, conferring
a direct testamentary power over the legal estate.
These statutes, 32 Hen. VIII. c.l, and34& 35Hen.VIII. statutes of wtiis.
c. 5, empowered a tenant in fee simple to give, dispose,
will or devise to any person or persons by his last will and
testament in writing, all his manors, lands, tenements,
rents and hereditaments or any of them, " at his own free
will and pleasure." The power was expressly restricted,
as to lands held by the tenure of knight's service, to the
extent of two -thirds of such lands only. But the statute,
12 Car. II. c. 24, which afterwards converted the tenure
of knight service into socage tenure, abolished this
restriction, and rendered all lands of freehold tenure
uniformly disposable by will (6) .
The Statute of Frauds, 29 Car. II. c. 3, s. 5, further statute m
/,t\ Fi^^uds, aa to the
regulated the form of wills or lands, by enacting (sect. 5) form of wiUa.
" that ail devises and bequests of any lands or tenements
devisable either by force of the Statute of Wills, or by this
statute, or by force of the custom of Kent, or the custom
of any borough, or any other particular custom, shall be
in writing, and signed by the party so devising the same,
or by some other person in his presence and by his
express directions, and shall be attested and subscribed
in the presence of the said devisor by three or four
credible witnesses, or else they shall be utterly void and
(o) Lit. 88. 462, 463; Co. Lit. lb.; (A) Co. Lit. Ill A; Hargrave's
Perkins, a. 528, 538 ; Clere's Case, note (1) ib. ; see Butler's note to
6 Co. 17 b ; see post, p. 102. Co. Lit. 271 *, HI. 5.
e2
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68 PART I. CHAP. I. THE LAW OF fKBBHOLD TENUKB.
of none effect. Sect. 6 prescribed the modes by which
devises might be revoked (a).
The Wills Act, 1 The abovo enactments were all repealed by the last
Vict. 0. 26. -"^ •'
Wills Act, 7 Will. IV. & 1 Vict. o. 26, s. 2 (except as
to wiUs made before 1838, sect. 34) ; and under this
statute the power to dispose of real estate by will now
subsists, and the mode of exercising it is regulated (6) .
Disposition by A disposition by will, equally with a disposition by deed,
is subject to the general rules of the common law
regulating the estates or interests which may be given.
How faf subject A tostator Can only devise such estates as are known to
the common law. the law, nor Can he alter or take away the legal incidents
and qualities of such estates; for instance, he cannot
render estates of inheritance inalienable, nor alter the
law of inheritance (c).
Howfarindi). But the power of disposition by will, being derived
onaw" ° "^"^ " directly from the statute, is for the most part independent
of the restrictions imposed by the peculiar feudal doctrines
of the common law, and by the common law forms of
conveyance. Devises of freehold estates were operative
without livery of seisin, and without attornment, before
these formalities were dispensed with by statute [d).
Devises of future Devises of freehold estates may be made to take effect
in futuro, at a future date or upon any specified event,
leaving the inheritance in the meantime to descend to
the heir; or such devises may be made to take effect in
defeasance of and in substitution for preceding devises ; —
although such limitations of estates are contrary to the
rules of the common law, which admit no future limi-
tations or substitutions of the tenancy, except by way
of remainders (e). These future devises are analogous
(a) See HargraTe's note (3) to Co. heritance by other words than a
Lit. Ill h. gift can, yet cannot a devise direct
(A) See post, Part IT. Cliap. II. an inheritance to descend against
' Disposition by Will.' tlie rule of law." Co. Lit. 25 a.
(c) See Holmes v. Gordon, 8 De (d) Lit. s. 586.
Gt. M. & &. 152; 25 L. J. C. 317. (e) See ante, p. 46, 47.
"Albeit a devise may creat3 an in-
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SECT. IV. DISPOSITION BY WILL.
69
to the springing and shifting uses which became legal
limitations under the Statute of Uses, and they are called
distinctively executory devises (a).
The testator, in expressing his intention, is not re- conBtmction of
stricted to the technical language of the common law ; —
nor to any technical rules, beyond the rules of construc-
tion which, with some aid from statutes, have been
developed by judicial criticism and authority.
But a testator in using technical words, is presumed to presumptiye
use them in their technical meaning and effect, unless he ScaUermB.
expresses a clear intention of using them otherwise.
Hence devises in the terms of common law are construed
according to the rules of common law, as in a deed ; so
devises to uses expressly declared are presumed to be
intended to pass estates according to the operation of the
Statute of Uses and are so construed, as will be explained
hereafter in treating of Uses (6).
The principles thus generally indicated are carried out
in particular rules regulating the power of testamentary
disposition and the construction of devises, which wiU be
stated in their appropriate places in treating of the
matters to which they are applied.
(a) See ante p. 113; post. Part
II. Ch.II. Sect. III., " Executory
Devise."
(J) See Butler's note to Co. Lit.
271 i, III. 6; 1 Sanders on trses,
241 ; Hawkins on Wills, Intro-
duction ; 2 Jarman on Wills,
196 ; as to the application of the
Statute of Uses to wills, see post,
p. 122.
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70 PART I. CHAP. II. CUSTOMAEY TENUEE.
CHAPTEK II.
Customary Teniteb.
Section I. Origin and form of customary tenure.
II. Limitation and transfer of customary estates.
III. Eights and Remedies incident to customary tenure.
IV. Extinguisliment, Regrant and Enfranchisement.
Section I.
Oeigin and Foem of Customaet Tenuee.
Origin of customary tenure — Villenage — services of villenage.
Form of customary tenure — tenancy at will of the lord — con-
veyance by surrender and admittance — title by copy of
court roll.
Customary Court — court rolls.
Customs of manors — general customs — special customs — evidence
of customs.
Land is not grantable by copy, except by custom — custom to
grant waste by copy.
Copyhold and customary freehold — Special forms of customary
tenure.
Customary tenures excepted from 12 Car. II. — application of
statutes to customary tenure.
Ongm of custo- The law of freehold tenure is of universal application,
extending over all lands withiu the realm. Customary-
tenure exists only in certain places, concurrently with
the freehold tenure ; and in those places the rights of
the freeholder are subjected to the rights of the customary
tenant. Customary tenures are generally supposed to
have arisen in the following manner.
Under the manorial system described iu the last
chapter the territory of the manor was partly held by
the lord in demesne, and partly granted out in fee to
freehold tenants upon services. Of the demesne lands
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SECT. I. OEIGIN AND POEM 01 CUSTOMARY TENURE. 71
part were occupied by the lord himself, and part were
usually allotted to a class of tenants^ to whom freehold
estates^ with the attendant rights of freeholders, were not
conceded. This class called villeins, seem to have been
originally in the position of slaves, whose persons and
labour from their birth belonged absolutely to the lord.
They occupied the parcels of land, necessarily allotted to viUenage.
them for dwelling and maintenance, by a tenure called vil-
lenage, holding at the will of the lord and being removable
at his pleasure (a) .
In course of time the usage prevailing in the manor in
regard to these tenants, under the control and influence
of the general law of the land, imposed restrictions upon
the lord's absolute right to dispossess them and to the
disposal of their persons and services, until by force of
custom they ultimately acquired the fixity of tenure,
together with the freedom of person and certainty of
service, which appears in modern times in customary
tenure. Thus, in relation to freehold tenure these lands
were still reputed to be demesne lands, being held at the
will of the lord and resumable at pleasure ; but under
the customary tenure they became tenemental according
to the custom of the manor (b) .
The services of villenagce consisted chiefly of agricul- Servicea of
- Tillenage.
tural labour on the lord's demesne lands; and though
originally arbitrary in kind and quality as regards the
pure villein, they were afterwards regulated by the
(a) " Villeine is A villa, quia villa! lord and not appurtenant to any
adscriplus est — and in the common manor or land. Lit. ». 181 ; Co.
law he is called MaiiTO*,2ma«a<«s erf Lit. 117 ft; 120 b. The title to a
servus. ViUenage is the serTice of Tillein requu-ed prescription, J.e. im-
a hondman." Co. Lit. 116 a. memorial custom, or, what was eqm-
" Villani sunt qui glelce ascripti Talent, confession of such title m a
villain colunt dominicam." Spelman court of record. Lit. s. 175.
Gloss. '•rilla,vernacuUamanoT." {b) Ante, p. 19; Lit. »■ 1'2 ;
lb. TUleins were either regardant Co. Lit. ib. ; Co. Cop. sb. 12, 13, 14,
i.e., appurtenant to a manor, S2 ; Brown's Case, 4, Co. 21 a; see
passing with the manor as part Rivis t. Watson, 5 M. & W. 255 ;
of the property in it ;— or in gross, Winter v. Loveday, Comyn. 40 ; 1
i.e., the personal property of the L. Kaym. 267 ; 2 Salk. 5H7.
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72
PART I. CHAP. n. CUSTOMARY TENURE.
Form of custo-
mary tenure.
custom of the manor. In course of time they -were, for
the most partj commuted, like other services, into money-
payments or rents, and thus became rent service re-
coverable by distress (a).
Customary tenure in point of form bears the distinctive
characteristics of its origin. — The tenant is technically
Tenauoy at will describod as holding at the will of the lord, according
of theiord. pi /7 \
to the custom oi the manor (o).
CouTeyanoe by He has no powcr of disposition by feoffment, grant or
surrender and , , i i i i i
admittance. otJicr common iaw conveyance, but only by surrender
and admittance. By custom he may surrender his tenancy
to the lord to the tise of any person or persons designated
by him ; and the lord is bound to admit such persons
into the tenancy according to the uses declared in
the surrender (c) .
The surrender and admittance and aU other transactions
relating to the title are entered upon the rolls of the
court of the manor. Copies of the rolls are delivered
by the steward to the tenants as evidence of their title ;
whence the tenure is called copyhold, and the tenants
are called copyholders, as holding by copy of Court Boll [d).
Title by copy of
Court Roll.
Customarycourt. The court in question is the customary branch of the
Court Baron, already referred to ; in this branch of the
court the lord or his steward is the sole judge. The
Customary court may be held notwithstanding the free-
hold branch of the Court Baron has become extinguished,
and the manor in its legal integrity destroyed, so as to
remain only a manor by repute (e). The statute 4 & 5
Vict. c. 35, s. 86, enables the lord or steward to hold a
Customary court, though there be no copyhold tenants of
(a) Lit. SB. 172, 213; Co. Lit.
120 6 ; LaugJier v. Humphrey, Cro.
Eliz. 524. See ante, p. 24.
(6) Lit. ss. 73, 82.
(c) Lit. d. 74 ; see Doe v. Webber,
3 Bing. N. C. 922 ; Dimes v. Grand
Junction Canal Co. D Q. B. 46!).
(d) Lit. 8s. 73, 75 ; Co. Lit. 58 a ;
see 9 Co. 76 b, Combe's Case.
(e) See ante, p. 20, 21 ; Co. Lit.
58 a; see Bradshaw v. Lawson, i
T. B. 443 ; Solroyd v. Breare, 2
B. & Aid. 473 ; Bradley v. Ccrr, 3
M. & &. 221.
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SECT. I. ORIGIN AND JOEM 01* CUSTOMAEY TBNUBE. 73
the manorj or thougli there be no such tenant present at
such court.
The court rolls are kept for the benefit of the tenants The Court Rolls.
and all parties interested, as well as of the lord ; therefore
a person showing a prima facie interest may obtain an in-
spection of the parts that concern his interest, by manda-
mus or order of court (a).
The court rolls are evidence of the transactions recorded,
and may be produced to prove a surrender or admittance
or other matter of entry. The copies of court roll delivered
by the steward are also admissible in evidence in all cases
to prove the title of the tenant. The stamp Acts require
the copy to be stamped, but not the original court roll;
and it is no objection to the production of the latter that
there is no stamped copy. The copyholder is not obliged
to take a copy of the roU of his title (b).
The court rolls are not, like the records of a superior
court, conclusive upon the parties, but the transacjtion
may be proved, or the roll corrected, by extrinsic evi-
dence (c).
The customs of manors regulating customary tenure General ouBtoms
are so far uniform as to admit of a general custom, or
system of rules generally applicable, as common law, to
lands of that tenure ; but subject to variation by the
special customs prevailing in particular manors (d) .
Courts of iustice take iudicial notice of the general General custom
. r 1 -1 judicially
customs of manors without proof; but special customs noticed,
must be particularly alleged and proved in legal proceed-
ings (e).
(a) ScriTen on Cop. 494, 4th ed. ; 2 My. & K, 678.
Taylor on Eridence, 1295, 5th ed. ; (d) Lit. a. 80 ; Co. Cop. 6. 33 ;
Hoare v. Wilson, L. R. 4 Eq. 1 ; Combe's Case, 9 Co. 75 a.
Minet t. Morgan, L. E. 11 Eq. 284. (e) Co. Lit. 175 b ; Bac. Abr.
(I) Doe V. Hall, 16 East, 208 ; Cop. D.; 1 Salk. 184 ; Clements v.
Doe T. Mee, 4 B. & Ad. 617. Scudamore, 1 Salk. 243 ; see Griffin
(e) Co. Cop. s. 40 ; Winter v. T. Blandford, Cowp. 63.
Jeringham, Dyer, 251 b ; Kite t. Thecrown.heinglordofamauor.is
Queinton, 4 Co. 25 a ; Sill T. Wig- entitled to institute a suit in equity
gett, 2 Vern. 547 ; Doe v. Callo- to have the customs of the manor
mat/, 6 B. & C. 484 ; Elston v. Wood, estabhshed by a decree of the court,
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74
PART I. CHAP. II. CUSTOMAEY TENUBE.
Specia] customs
of manors.
Customs void as
unreasonable or
uncertain.
Immemorial
usage
Special customs of a manor are proved by immemorial
uninterrupted usage ; subject to the conditions of being
certain and reasonable (a) . " Of every custom there be
two essential parts, time and usage ; time out of mind,
and continual and peaceable usage without lawful inter-
ruption" (6); — and "this incident every custom must
have, viz., that it be consonant to reason ; for how long
soever it hath continued, if it be against reason, it is of
no force in law " (c) .
Thus, a custom alleged to be that no copyholder shall
use his common until the lord have put in his cattle is void
because unreasonable, for the lord by not putting in his
cattle might deprive the tenant of his common {d). A
custom alleged for the lord of a manor to enclose the
waste without limit, as against the rights of common in
the tenants of the manor, is bad for the same reason (e) .
A custom in a manor for the customary tenants to dig
turf /or the improvement of their tenements, as occasion
requires, was held bad as being unreasonable and uncer-
tain (/) .
Immemorial usage originally meant a usage which could
not be proved to have had a definite commencement at
any time however remote. The time required for deducing-
title to land, and during which a presumptive title might
be rebutted by proof of an adverse possession, was at
common law equally indefinite ; until by statute 3 Ed. I.
c. 29, the date for alleging seisin and deducing title in
real actions was fixed at the commencement of the reign
of Richard I. (a.d. 1189) ; and by an equitable extension
and also an injunction to restrain
an action raising any questions whioli
are inTolved in such suit. Attorney-
Gen. T. Barker, L. K. 7 Ex. 177 ;
41 L. J. Es. 57, and it seems a
similar suit to establish customs may
be maintained by a subject, lord of
a manor, or by the tenants. See
lb. ; Warwici: T. Queen's Coll.
L. K. 6 Ch. 716; Mayor of Torh
V. Filkington, 1 Atk. 282.
(a) Co. Cop. s. 33.
(6) Co. Lit. 110 b.
(c) Co. Lit. 62 a.
(d) Co. Cop. s. 33 ; 5 Co. 84. a.
(e) Badger v. Ford, 3 B. & Aid.
153; Arlett i. Mlis, 7 B. & C.
346; Betts v. Thompson, L. E. 6
Ch. 732.
(/) Wilson V. miles, 7 East, 121.
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SECT. I. ORIGIN AND FOEM OF CUSTOMAEY TINUEB. 75
of this statute the same date was adopted for all rights
dependent upon usage {a).
Accordingly, ' The Act for shortening the time of pre- preamption Act
scription in certain cases/ 2 & 3 Will. IV, c. 71, recites in ^^IZ^"'
the preamble that " the expression ' time immemorial or
time whereof the memory of man runneth not to the con-
trary,^ is now by the law of England in many cases con-
sidered to include and denote the whole period of time
from the reign of King Richard the First, whereby the
title to matters that have been long enjoyed is sometimes
defeated by showing the commencement of such enjoy-
ment.''' This act shortened the period of usage required
for proof of the various rights therein mentioned as
founded on prescription or usage, but it made no altera-
tion in the rule requiring immemorial usage for the sup-
port of prescriptive rights in general, including customs.
The limitation for titles to land was modified from time
to time by various statutes and finally by the statute of
Limitations, 3 & 4 Will. IV, c. 27 (b).
The special customs of a manor may be proved by Evidence of
entries on the rolls of the court, either of general state- °^°°'° ""^
ments of the custom made by a proper authority (c), or
by entries of particular dealings with the land in a form
recognizing the custom {d) . An ancient customary of the
manor handed down with the court roUs from steward to
steward is admissible in evidence (e) ; also evidence of
reputation of the custom may be given by the steward
or by tenants or other persons acquainted with the cus-
tom (/). Depositions in former suits on behalf of per-
sons standing inparijure are admissible {g) . The customs
of one manor are no evidence of those of another, even
(a) See 1st Eep. of Eeal Prop. ton v. Barnett, 26 L. J. Ex. 47 ; 27
Commiss. p. 51. lb. 125.
(J) See post. Part IV. Chap. VI. (e) Denn v. Spray, 1 T. E. 466.
' Statutes of Limitation.' (/) Doe v. Sisson, 12 Bast, 62 ;
(o) Roe T. Parker, 5 T. E. 26. see Barnes v. Mawson, 1 M. & S.
\d) See Doe t. Mason, 3 WUs. 77.
63 ; Roe v. Jeffery, 2 M. & S. 92 ; (g) Freeman v. FUllipps, 4 M. &
Doe V. Askew, 10 Bast, 520 ; MuggU- S. 486.
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76
PAET I. CHAP. II. CUSTOMAET TENURE.
of a neighbouring manor, unless the two manors are so
connected as to raise a presumption that they have the
same customs (a).
Land cannot be Land Cannot now be granted upon customary or copy-
sranted by copy , , , ° ^ nil
except by CUB- hold tenure, unless it has been so granted or grantable
by immemorial custom ; because custom alone sanctions
this form of tenure (6). Copyholds have been created
by statute in some few instances (c) .
Special custom By special custom in some manors the lord may grant
to grant waste by ■ n -i -i -i
copy. out portions of the waste to hold by the customary tenure
of the manor; such land haying been by the custom
grantable, though not so granted, from time imme-
morial {d). But the lord cannot exercise such right to
the prejudice of the rights of common of the tenants
of the manor (e) .
There are two principal kinds of customary tenure : —
Copyhold. the one copyhold, commonly so called, in which the
tenant holds at the will of the lord, according to the
custom of the manor, by copy of court roU; — the other
castomary free- called customary freehold, in which the tenant holds by
copy, and according to the custom, but not at the will of
the lord. — The distinction is explained by reference to
the two kinds of ancient villenage from which modern
customary tenure is derived.
Pure TiUenage. Pure vUlenoge was the tenure of villeins by birth.
(a) Doe T. Sissons, 12 East, 62 ;
Anglesea v. Hatherton, 10 M. &,
W. 218 ; see Duke of Somerset v.
France, 1 Strange, 654. See a
variety of special customs collected
in Watkins' Cop. vol. ii., and in
Blount's Ancient Tenures, by Beck-
with.
(h) Co. Lit. 58 S i 4 Co. 24 J,
Murrel v. Smith ; Resell v. Joddrell,
2 T. R. 415 ; Scriven on Cop. 16,
17, 4tli ed.
(e) See Scriven, 16, n. (t).
\d) 1 Watkins on Cop. by
Coventry, 45 n. (1.) ; Doe v. New-
man, 3 Wils. 125 ; Lord Northwick
V. Stanway, 3 B. & P. 346 ; R. v.
Wilby, 2 M. & S. 504 ; R. v. Hom-
cTiurch, 2 B. & Aid. 189. "A copy-
hold cannot be created at this day,
except by Act of Parliament or by
custom to warrant the granting the
waste as copyhold." Doe v. David-
son, 2 M. & S. 175, 184; see Sodff-
son T. Sooper, 29 L. J. Q. B. 222.
(e) See ante, p. 74, n (e); Warrick
V. Queen's Coll. L. E. 6 Ch. 716;
JBetts V. Thompson, ib. 732.
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SECT. 1. ORIGIN AND FORM Of CDSTOMABY TENURE. 77
whose persons and services were at the arbitrary dis-
posal of the lord and who originally held their lands
absolutely at his will. These tenants became the modern
copyholdeis, who still hold nominally at the will of the
lord.
Villein socage was a privileged species of villenage in viuem socage,
which the services were certain and due only by tenure,
and not by reason of personal condition. It is said to
have arisen from freemen taking grants of portions of the
lord^s demesne to hold for estates, freehold as to quantity
and not at will only, but upon the same services as were
rendered in villenage. This tenure became known as
oustomary freehold ; but the freehold title remains in the
lord, and it is in other respects subject to the general
law of copyhold (a).
The latter kind of tenure is said to be almost peculiar Tenants in an-
te manors of ancient demesne ; whence the description of ""^^ ''™^™''
tenants in ancient demesne is sometimes used to desig-
nate these customary freeholders (&).
Some' special forms of customary tenure occur in special forma of
several places in England, which come under the same teoure.
consideration with the above, inasmuch as the freehold
title is in the lord and they are regulated by the custom
of the manor, but which have peculiar incidents and
qualities differing from ordinary copyhold.
There is a species of customary freehold peculiar to Tenant right,
the North of England, known as tenant right, in which
the estate of the tenant passes by a common law con-
veyance and admittance by the lord (c) .
{a) Lit. 8. 172 ; Co. Lit. 116 a, {I) Ante, p. 25 ; Blackstone's
i; Blackstone's Tracts, Cop. 211, Tracts, Cop. 217; see per Holt, C.
213, 230. Prima facie estates of J., Salk. 57. They are so termed in
the latter kind will pass in a wdl 5 & 6 W. & M. c. 24.
by the description of copyhold, but (e) Doe v. Huntingdon, 4 Bast
not by the description of freehold. 271 ; Doe t. Davidson, 2 M. & S.
Soe V. Vernon, 5 East, 51 ; Doe v. 175 ; Bnrrell v. Dodd, 3 B. & P.
Danvers, 7 East, 299. The word 378 ; see Bingham v. Woodgate, 1
" copyhold " in statutes indudes E. & My. 32, where the custom re-
both kinds of tenure. Doe v. quired a conveyance aa well as a
/ Llewellin, 2 C. M. & E. 503. surrender, and the freehold was held
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78
PAET 1. CHAP. II. CUSTOMAET TENURE.
Cattle gates. There is also a species of customary tenure in the
North of England known as cattle gates which are
customary estates of inheritance held of the manor by
certain fines^ rents and dues^ and passing by a customary
deed presented at the Lord's court and followed by
admission (a). -^
Application of
statutes to copy'
holds.
Customary Customarv tenures are excepted, by the general de-
tennies excepted . . „"' ,. ii /. i
from, 12 Car. 2. scjiption of tenure by copy of court rollj irom the opera-
tion of the statute 12 Car. 11, which reduced other tenures
to the form of common socage (b) .
It is a general rule, as to the application of statutes to
land of copyhold tenure, that statutes which would ope-
rate in prejudice of those interests of the lord or tenant
which are peculiar to the tenure do not extend to copy-
holds, unless expressly mentioned ; but statutes which do
not prejudice the interests of lord or tenant may include
copyholds by general words, without expressly mention-
ing them (c).
to be in the tenant. And see in-
stances of like customary freeholds
in Kent, Thompson, t. Sardinge, 1
C. B. 940 ; at Porchester, Perry-
man's case, 5 Co. 84 a.
{a) JEarl of Lonsdale y. Riffg, 25
L. J. Ex. 73 ; 26 lb. 196 ; Graham
V. Hwari, 25 L. J. Ex. 42 ; 29 lb.
297.
(b) Sect. 7 ; see atiie, p. 30 ; Doe v.
Huntingdon, 4s East, 271, 287.
(c) Co. Cop. 8. 53 ; Heydon's
case, 3 Co. 7 a ; see Doe t. Boitriell,
5 B. & Ad. 131. See a list of
statutes construed according to this
rule, Scriven, Cop. 81-90.
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SECT. II. LIMITATION AND TEANSFEE OF CUSTOMAEY ESTATES. 79
Section II. The Limitation and Teansebe op Estates
OP Customary Tenuee.
The customary estate — limitation of uses of surrender — construc-
tion of limitations.
Fee simple conditional — estate tail by special custom — modes of
barring estate taU.
Future and contingent uses— powers of appointing uses — use
limited to surrenderor.
Lease for years — at common law — under surrender to use —
freehold estate, seisin, etc., applied to copyholds.
Devise by surrender to use of wUl — derise without surrender — the
Wills Act, IVict. 0.26.
Descent in customary tenure.
The power of the lord to grant or admit to land to be The customary
held by copy is regulated strictly by the custom of the '^'^*'''
manor. The estate sanctioned by custom is in some in-
stances an estate of inheritance^ in some instances only
for a term of life or lives or for a term of years ; and in
the latter cases it is sometimes attended with the right of
renewal for new lives or for a new term of years (a) . A
grant for lives in some manors imports by custom that the
persons named take in succession (h).
A custom admitting of an estate in fee impliedly admits
of any less estate, as for life ox for years (c). So, a custom
admitting of an estate for three lives impliedly admits a
limitation for one (d). A custom admitting an estate for
life, admits of an estate durante viduUate (e). And it
seems that a custom to grant for years would warrant a
grant for a term of years, if the grantee should so long
live (/).
{a) Paget' s Case, Cro. Jac. 671; 4 Co. 23 a, Brown's Case.
Co. Cop. s. 41, 47 ; 1 Watkins by {d) Smartle v. Penhallow, 2 L.
Coventry, 71 n. (1). Eaym. 994 ; and see Gravenor v.
(6) Podger's Case, 9 Co. 104 a ; Brook, ib. 997.
Doe V. aoddard, 1 B. & C. 522 ; (e) Down v. Hopleins, 4 Co. 29 *.
Jeans t. Cooke, 27 L. J. C. 202. (/) 1 Watk. Cop. by Coventry,
(c) Co. Lit. 52 h ; Co. Cop. s. 47 ; 66, n.
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80 PART I. CHAP. II. CUSTOMARY TENURE.
limitations of The copyholder may, in general, surrender to the use of
renders. " another for his own estate and interest, or any less estate
within the custom. The uses of a surrender may be
limited in fee simple, or for term of life, or years ; — for a
particular estate with remainder over ; — and if for a par-
ticular estate only, the reversion, upon determination of
that estate, continues in the surrenderor and not in the
lord (a).
Construction of The limitation of the uses of a surrender is generally
framed in the same technical terms, and is subject to the
same rules of construction, as the limitation of estates in
a conveyance of the freehold at common law. Thus, a
surrender to the use of a person in general terms, without
words of inheritance, passes an estate for life only, and
the limitation " to the heirs " must be added in order to
authorise an admittance in fee (&). By special custom a
fee simple may be created without the word ' heirs ' as by
such words as " sibi et suis," ' sihi et assignatis,' or the
like (c).
The rule in Shelley's case applies to the limitations of
copyholds ; and if a grant or surrender be made to the
use of a person for life with a remainder to his heirs, the
limitation to the heirs is referred to the estate of the
ancestor, and enlarges it to an inheritance {i
hold title. or other common law estate under the freehold title of the
tenement, his copyhold interest, being a tenancy at wiU
only relatively to such estate, is merged or extinguished
Copyholder ao- absolutely. So, if the copyholder acquires by any means
manor. an estate in the manor, which includes the copyhold tene-
ment, his copyhold interest is extinguished ; but in this
case, as lord of the manor, he would have the right to
re-grant the tenement to be held by copy (6) .
Severance of the If the lord convcys away the freehold title in a copy-
tenement from ITT 1 - ■ 1 in
the manor. hold tenement, so that it is no longer parcel of the manor,
the custdmary tenure is extinguished, except as to the
rights of the copyholder. The rents and services
reserved may continue due to the grantee of the freehold,
but the rights incident to the lord, as such, namely, suit
of court, fines upon admittance, and the like are extin-
guished. They cannot be conveyed with the freehold of
the tenement, except as parcel of the entire manor ; for
" a manor is an entire thing, and not severable,'^ at least
by act of the party ; nor can a new manor be created at the
present day. The copyholder may afterwards release to
the grantee of the freehold or may take a release from
him, and so unite the titles ; and this seems the only mode
of dealing with the legal title of a tenement so circum-
(o) St. Paul T. Lord Dudley, 15 the tenure during his life only, and
Ves. 157, where the lord was tenant upon his death the customary tene-
for life of the manor ; King v. ment descended to his heir, while the
Moody, 2 Sim. & Stu. 579, where seignory revived in the succeeding
the lord was tenant in fee suhjeet to lord in remainder ; and see Co. Lit.
an executory devise. But see Bing- 313 a, there cited.
ham T. Woodgate, 1 Russ. & My. 32, (i) Soriven, 547 ; Lane's Case, 2
where the conveyance of a ciwiomary Co. 16 b; 4Co.31 a, French's Case-
freehold in fee to the tenant for life 4 Co. 31 6, Hide's Case.
of the manor, was held to suspend
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SECT. IV. EEGEANT. 95 '
stanced ; for it can no longer be conveyed by surrender,
because the land is no longer parcel of tlie manor (a) .
Where the copyhold tenement reverts to the lord, which Regrantof copy,
may happen, as already noticed, in various ways : — by sur-
render to the use of the lord, — by expiration of the copy-
hold estate, as where it is for lives only, and the lives have
expired, — by escheat or failure of heirs, — by forfeiture ;
— though the possession is then referred to his freehold
title, and he may dispose of the tenement under that title
by a common law conveyance ; yet he may, if he pleases,
grant it out again to be held by copy according to the
custom of the manor (6).
In like manner, where the copyhold tenure is ex-
tinguished by the copyholder acquiring an estate in the
manor, as lord of the manor he may again grant the
tenement to be held by copy (f).
The grant by copy is an exercise of his power as lord ; Eegrant is inde-
it does not take effect out of his estate and is not re- &™state. "
stricted thereby. Though entitled to the manor for a
particular estate only, as for life or for years or at will,
provided he is rightfully lord for the time being, he may
grant the customary tenements to hold by copy ; and if
the custom be strictly followed his grant will bind the
inheritance of the manor. The copyholder under such
grant is in by the custom ; his estate is independent of
the freehold title of the manor, and is not affected by
the charges and incumbrances attaching on that title (d) .
(a) Co. Lit. 58 i; 4 Co. 25 a, notes, lb.
MurreVs Case ; 6 Co. 64 a, Finch's (b) Co. Cop. e. 62 ; French's Case,
Case ; ScriTen, 7-14. It is to be 4 Co. 31 a ; ante, p. 93.
observed that the questions, whether (e) lb. ; anie, p. 94.
a manor can be divided, and as to the (d) Co. Lit. 58 b ; Co. Cop. ss.
effect of the conveyance of the free- 34, 41 ; 4 Co. 23 i ; Sioayne's Case,
hold of a customary tenement to a 8 Co. 63 b ; Doe v. Strickland, 2 Q,.
stranger, appear very doubtful upon B. 792. " Tenant for years, tenant
the authorities. The opinions of by elegit, and tenant at will, guar-
the best text vpriters seem to be as dian in chivalry, etc., who are not
above stated. Soriven, supra. 1 properly seised but possessed, are
Watk. Cop. by Coventry, 15-23, & domini pro tempore, not only to
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96
PAET I. CHAP. II. CUSTOMARY TENURE.
Eegrant is de- The lord retains the power of granting the tenement
pendent upon , ,.". i,i
the lord's by copy so long as he retains possession; but by any
interruption of his possessionj unless it be wrongful, the
customary quality or capacity of the copyhold is in-
terrupted and consequently lost. Thus, if the lord makes
a lease for years or for life or any other estate at common
law, the land can never after be granted by copy by him or
any persons claiming under him ; but the power of those in
remainder or reversion after him to grant by copy is not
affected. If the lord is wrongfully disseised, and the
land is afterwards recovered, it is again grantable by
copy (a).
Eegrant mnat In such TCgrant the lord must conform strictly to the
conform strictly jjij ,ji tt-
with the custom, custom, as to the tenement, the estate granted, the in-
cidents and appurtenances of the estate, the tenure, the
rents and services reserved and all other points ; for the
grant being authorised only by the custom, deviation
from the custom in any point would render it void (b).
The grant in such cases is voluntary and may be made
for any estate within the custom ; in this respect it differs
from an admittance upon a surrender, which is a minis-
terial and compulsory act, directed and controlled by the
uses of the surrender. An admittance, as conferring the
Regrant by copy
ia voluntary.
make admittance, but to grant
voluntary copies of ancient copy-
hold lands which come into their
hands ; — and voluntary grants by
copy, made by such particular
tenants as is aforesaid, shall bind
him that hath the freehold and in-
heritance, because all these be lawful
lords for the time being ; but so is
not a tenant by sufferance, because
he is in by wrong ; — and therefore
there is a diversity between disseisors,
abators, intruders and others that
have defeasible titles ; for their
voluntary grants of ancient copy^
hold lauds shall not bind the dis-
seisees or others that right have,
But admittances made by disseisors,
abators, intruders, tenants at suffer-
ance or others that have defeasible
titles, stand good against them that
right have, because it was a lawful
act, and they were compellable to do
them." Co. Lit. 58 b. Dominus
pro tempore may grant by copy in
reversion, if the custom permits it.
Hargrave's note, ib.
(a) Co. Lit. 48 b ; French's Case,
4 Co. 31 a ; Scriven, 14, 98. So if
the land is forfeited by the lord, or
escheated, or extended, or assigned
to his widow in dower, inasmuch as
the interruptions are lawful, it can
never after be granted by copy.
French's Case, supra.
(b) Co. Cop. 3. 41 ; Scriven, 94 ;
see Badger v. Ford, 3 B. & Aid.
153 ; Doe v. Sfriciland, 2 Q. B.
792.
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SECT. IV. ENFRANCHISEMENT. 97
legal titlej is equivalent to a grant and may be so pleaded ;
but it has no force except as following the surrender, and
an erroneous admittance cannot be supported as a
voluntary grant {a). A grant entered upon the rolls
imports an admittance or acceptance of the grantee as
tenant (b).
A regrant, being voluntary, is not, like an admittance No restriction aa
upon a surrender, restricted as to the fine or consideration
to be paid for it ; but the lord, as he is at liberty to grant
or not, may ask what he pleases (c).
Enfranchisement is effected by the lord of the manor EnfrancMse-
conveying the freehold title of the tenement in fee simple
to the copyholder; — the customary tenure is thereby
wholly extinguished {d). An enfranchisement operates
out of the lord's estate and not by exercise of his
power as lord. It is therefere dependent upon his
title to the manor, and can only be fully effected by a
lord entitled in fee simple, or having a power of disposition
to that extent. The conveyance of a less estate, or by a By conveyance
lord entitled for a less estate, would only give a limited
title to the freehold ; though by accepting such less estate
the copyholder's interest would be merged and ex-
'tinguished (e).
Enfranchisement or conveyance of the freehold in fee to copyholder
for lite or years.
simple to a copyholder for life or for years operates as an
enfranchisement for the benefit of those in remainder (/).
But it so operates in equity only ; the legal estate in fee
simple rests in the grantee and will pass to his heir or
(a) Co. Cop. s. 41 i 4 Co. 22 5 ; 2 without conveyance of the freehold
B. & Aid. 457, Soe v. Loveless ; estate, operates as an enfranohise-
Zoueh T. Forse, 7 East, 186. ment of copyholds, see Scriven, 552.
(4) Co. Cop. 38 ; see Soe v. Love- Such release is sufficient to eufrau-
Zew,2B. & Aid. 453;2Wm8.Saund. chise tenements held m ancient
422 c ; Doe v. Whitaker, 5 B. & demesne, and customary freehold or
Ad. 409. tenant right estates analogous to
(c) 13 Co. 3 ; see ante, p. 89. ancient demesne. Doe v. Hunting-
id) Scriven, p. 550. don, 4 East, 271 ; see ante, p 77.
(«) See ante, p. 94; whether a (/) 16 East, 415, iJoe j. Brjjr^* ;
release of all seignorial rights alone, see Doe r. Jackson, 1 B & t^. 44S.
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98
PAET I. CHAP. II. CUSTOMAET TENITEE.
To copyholder in
Ifo tenure or
services can be
reserved.
Enfranchise-
ment presumed.
devisee ; and a conveyance will be decreed to those
entitled in remainder, upon equitable terms as to the con-
sideration paid for the enfranchisement (a).
Enfranchisement to a copyholder in tail bars the entail
and all ulterior estates and limitations, and leaves no
interest at law or in equity in the issue in tail or the
remainderman (&).
Upon an enfranchisement since the statute of Quia
emptores no tenure or services can be reserved ; because
the grantee of the freehold holds of the next superior
lord. Consequently, if the deed of enfranchisement
purports to reserve a rent, it is not a rent-service, but
in the nature of a rent-charge granted by the tenant (c) .
An enfranchisement may be presumed in favour of a
long possession and course of dealing with the tenement
as freehold (d) .
statutes facilitat-
ing enfranchise-
ment.
Statutes have been passed from time to time to facilitate
the enfranchisement of customary tenures, at the in-
stance either of the lord or of the tenant, providing for
compensation for the rents and services by the payment of
a gross sum or a fixed rent-charge (e) .
(a) See Wynne v. Cookes, 1 Bro.
C. C. 515 ; Wilson v. Allen, IJ. &
W. 611, 621.
(J) ParTcer v. Turner, 1 Vern.
393 ; jyann v. Green, 3 P. Wms. 9 ;
Soe T. Briggs, 16 East, 406;
Challoner ¥. Murhall, 2 Ves. jun.
524.
(e) See ante, p. 19 ; Bradshmv t.
Lawson, 4 T. E. 443 ; Soriven, 558.
(d) JRoe V. Ireland, 11 East, 280.
(e) 4 & 5 Vict. 0. 35, amended by
6 & 7 Vict. 8. 23 and 7 & 8 Vict.
0. 55 ; 15 & 16 Vict. c. 51, providing
for compulsory enfranchisement ;
21 & 22 Viot. 0. 94, substituting a
new mode of compulsory enfran-
chisement. See Chitty's Statutes ;
Scriven, 550, Appendix. As to the
principles upon which compensation
to the lord is to be calculated, see
Arden v. Wilson, L. R. 7 C. P.
535 ; 41 L. J. C. P. 273, & eases
there cited ; Reynolds v. Woodham
Walter, L. E. 7 C. P. 639 ; 41 L.
J. C. P. 281.
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SECT. I. USES BBFOEE THE STATUTE OE USES.
CHAPTER III.
THE LAW OF USES.
Section I. Uses before the Statute of Uses.
II. Uses since the Statute of Uses.
III. Operation and limits of the Statute of Uses.
Section I. Uses before the Statute oe Uses.
Origin and nature of Uses.
Uses at law — ^possession of cestui que use.
Uses in equity — enforced hy subpoena — not subject to rules of
tenure — assignment of uses — disposition by will — descent.
Statutes concerning uses — the Statute of Uses.
The law of freehold tenure above described was ad-
ministered in the courts of common law. A concurrent uaoa.
jurisdiction over property in land was exercised by the
Court of Chancery in the system of Uses; which was
subsequentlyj to a great extent^ incorporated with the
law of freehold tenure by the Statute of Uses.
The system of Uses was founded on the practice^ origin and
adopted in early times for various purposes, of transfer- °°'*"^ °' °'°''
ring the seisin or legal possession of the land by feoffment
or other sufficient mode of conveyance to some person or
persons upon a trust or confidence to permit the feoffor
or some other person to have the Use. This trust was at
first of a secret nature, and not mentioned in the charter
of feoffment or instrument of conveyance ; but afterwards
a clause was commonly inserted expressing that the
feoffees were to hold " to the use " of the person intended
to be thereby benefited. The latter person became
h2
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100 FART I. CHAP. III. THE LAW OF USES.
known as the cestui que use, relatively to the legal feoifees
who were commonly known as the feoffees to uses {a) .
Uses at law. The courts of law took no notice of the use or trust;
they regarded the feoffee exclusively as tenant of the
land for all purposes. Hi's seisin or possession was sub-
ject to all the services and incidents of tenure, and was
liable to escheat and forfeiture. He had the power to
aliene the land by feoffment or other legal conveyance ;
and it passed by descent to his heir.
Poaseasion of Gestui que use, as such, had no estate or interest in the
fostei que me. j^^^^ ^j^ j^^^ . ^^^^ ^^ remedy in a court of law against the
feoffees to uses, nor against strangers. But while in
possession, with the consent of the feoffees, he was in the
legal position of a mere tenant at will (b) .
Uses in equity. lu the Com't of Ghaucery, on the other hand, the use
imparted all the beneficial incidents of property, namely,
the right of occupying and enjoying the land in specie,
and of taking the profits, also the power of directing
the disposal of it to another. The correlative trust im-
posed on the feoffee consisted in permitting the cestui
(a) In the feoffments collected in he says (probably meaning only
Madox's * Formulare Anglicanum,' without that statute), if tenant in
joint feoffees, which may be taken as fee simple enfeoffed a stranger with-
the sign in early deeds of secret uses out any consideration, and without
(see^osi, p.l02),appearfirsttowards expressing any use, there could be
the end of the reign of Edward III., no resulting use in the feoffor, be-
see forms 337, 49 Ed. III. ; 389, 50 cause the tenure and services sup-
Ed. III. ; 339, 13 Eic. II. The clause, plied a consideration to carry the
" ad usum," appears first in the reigu use to the feoffee. Perkins, s. 529 ;
of Henry VII., see forms 353, 14 see post, p. 108.
Hen. VII. ; 354, 21 H. VII. Bacon Coke states that during the wars
refers the clause, " atio^wse^M^MTO," between the houses of York and
to the reign of Kic. II. ; Bacon on Lancaster, the greater part of the
Uses, 22, Kowe's ed. note (41) ; and lands in England were in nse. Co. Lit.
see 1 Sanders on Uses, ch. 1. 272 a. And according to Bacon, from
Perkins speaks of uses before the 11 Henry VI. to 1 Kic. III., being
statute quia empfores, 18 Edw. I., the space of fifty years, uses were
but it seems only by way of most favoured. Bacon Uses, p. 27.
illustrating the effect of tenure in (J) Lit. ss. 462, 463, 464; Co.
rebutting a resulting use, and with- Lit. ib. ; Butler's note (1) to Co.
out meaning to assert the fact of the Lit. 271 b, sect. ii. ; 1 Co. 121 i ; 1
practice of uses existing at that Sanders on Uses, 66, 68, 4th ed. ;
early period. Before that statute, Bacon Uses, 20, Tracts, p. 316.
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SECT. 1. USES BEFORE THE STATUTE OP USES. 101
que use to occupy and take the profitSj in preserving the
legal title on his behalf, and in executing conveyances of
the land according to his direction (a) .
The Court of Chancery exercised jurisdiction over the Enforced in
use by giving to the cestui que use the remedy by mbpcma.
subpoena against the feoffee to compel him to disclose
and perform the use or trust upon which he held the
land (&) . The Court of Chancery also in course of time
enforced the trust against the heir of the feoffee to uses
taking the land by descent ; also against a purchaser from
the feoffee to uses taking the land with notice of the trust,
or without consideration. But a purchaser for a valuable
consideration and without notice of the trust held the land
free of any claim in equity on the part of the cestui que use,
whose remedy in such case lay against the feoffee only, for
the breach of trust committed in parting with the land (c) .
Accordingljj a use was summarily defined by Coke in
the following terms : — " A use is a trust or confidence
reposed in some other, which is not issuing out of the
land, but as a thing collateral, annexed in privity to the
estate of the land, and to the person touching the land,
scilicet, that cestui que use shall take the profit, and that the
terre-tenant shall make an estate according to his direc-
tion. So as cestui que use had neither _;ms in re nov jus ad
rem, but only a confidence and trust, for which he had no
remedy by the common law, but for breach of trust his
remedy was only by subpoena in Chancery" [d).
By these means the use or beneficial ownership of the uses not subject
land was withdrawn altogether from the rules of tenure tenure.
(a) Co. Lit. 272 ^ ; 1 Co. 121 a, Jur. 442, 445.
b, ChudleigTi's Case ; Bacon on Uses, {d) Co. Lit. 272 b ; see this defini-
p. 10 ; in Tracts, p. 306 ; Sanders tion developed and applied to trusts
on Uses, e. 1. in Lewin on Trusts, c. 1. Compare
(J) 1 Sand. Uses, 16, 20. the simpler and broader foundation
(o) 1 Co. 122 a, b, ChudleigKs of modern trusts since the Statute
Case ; Bacon Uses, IS, Tracts, p. of Uses, as established by Lord
312. See the progressive jurisdic- Nottingham, and expressed in the
tion over uses stated by Lord Mans- maxim that the trust in equity is
field in Burgess v. Wheate, 1 Eden, the land, post, p. 126.
218, 219; and see 1 Speuce, Eq.
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102
PART I. CHAP. III. THE LAW OF USES.
Power of diapo-
Bition oyer uaes.
Disposition by
vriU.
Descent of
Uses.
and from the feudal dues and incidents, attaching to the
legal estate. The legal ownership was still subject to
these obligations^ and though the regular services of the
tenure could not be avoided and might be enforced
against the land, yet by vesting the seisin in numerous
feoffees jointly, whose number was from time to time
renewed by a new feoffment to others upon the subsisting
uses, it was kept almost entirely clear of the occasional
charges which fell due by reason of descents, wardships,
marriages, alienations and the like, and from the graver
incidents of escheat and forfeiture (a).
By these means also the use became disposable, ac-
cording to the rules of equity and independently of the
rules of law, except so far as they were followed in
equity. — It was assignable without feoffment or deed,
attornment, entry, or any other common law for-
mality (6) . — It was devisable by will, although the free-
hold was not so devisable. A feoffment might be made
of lands to uses to be declared by will, and the will then
took effect by declaring the uses (c).
An estate of inheritance in the use descended, upon an
intestacy, according to the rules of the common law, or
(a) Butler's note to Co. Lit. 191
ii, sect. V. (11) ; lb. 271 b, II. ; see
ante,-p. 26 ; and see the preamble to
the Statute of Uses, 27 Hen. YIII.
c. 10, as to the subversion of the
ancient laws of the realm by means
of uses.
Besides the evasion of the rules
of tenure, conveyances to uses were
also employed in early times by
religious persons or corporations to
evade the Statutes of Mortmain,
which prohibited such persons from
purchasing land in then- own right,
until the statute 15 Rio. II. c. 5,
brought uses also within the pro-
hibition of those statutes. 2 Inst.
74 ; 1 Sanders on Uses, 16, 4th ed.
According to Coke, — " There were
two inventors of uses, fear and
fraud i fear iu times of troubles
and civil wars to save their in-
heritances from being forfeited, and
fraud to defeat due debts, lawful
actions, wards, escheats, mortmains,
etc." 1 Co. 121 6, Chudleigh's Case ;
or as variously stated — " the parents
of the trust were fraud and fear,
and a court of conscience was the
nurse." Att.-Gen. v. Sands, Hard.
491 ; see the various objects served
by uses fully stated in St. G-erman's
' Doctor and Student,' Dialog. 2, c.
22.
(b) 1 Sanders on Uses, 65.
" There is no case in law whereby an
action is transferred, but the
subpoena, in case of use, was always
assignable." Bacon Uses. 16.
(e) Co. Lit. Ill b, 271 J i 1 Co.
123 b, Chudleigh's Case ; 1 Sanders
on Uses, 65 ; Bacon reckons this as
one of the chief causes of uses.
Bacon Uses, 20, Tracts, 315.
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SECT. I. USES BEFORE THE STATUTE OF USES. 103
according to the special customs of descent, if any, to
which the land was subject (a).
Statutes were passed from time to time bringing the statutes relating
use within legal cognizance for certain purposes, amongst
which may be mentioned, as being the most important,
the statute 1 Ric. III. c. 1, giving the cestui que use a
direct power of conveying the legal estate (6) ; but the
earlier statutes were superseded in effect by the statute The statute of
27 Hen. VIII. c. 10. (a.d. 1535) commonly known as the
Statute of Uses, which was passed with the object of at
once converting the use into legal possession (c) .
The preamble of the statute recites that " where by the Preamble as to
common laws of this realm, lands, tenements, and here- men law.
ditaments be not devisable by testament, nor ought to
be transferred from one to another but by solemn livery
and seisin, matter of record, writing sufficient made bond
fide without covin or fraud ; — yet nevertheless divers
subtle inventions and practices have been used, whereby
the hereditaments of this realm have been conveyed from
one to another by fraudulent feoffments, fines, recoveries,
and other assurances craftily made to secret uses, intents
and trusts, and also by wiUs and testaments sometime
made by nude parols and sometime by writing ; — by Evils resulting
reason whereof heirs have been unjustly disherited, the
lords have lost their wards, marriages, reliefs, heriots,
escheats, aids, and scantly any person can be certainly
assured of any lands by them purchased, nor know surely
against whom they shall use their actions or execution,
for their rights titles and duties — to the utter subversion
of the ancient common laws of this realm."
The statute enacts, by sect. 1, "that where any person
(a) Co. Lit. 14 J, 23 o ; 1 Co. 88 is, statutum de usibtis in possessionem
a ; 1 Sanders on Uses, 64. transferendis." Bacon on Uses, 31,
(J) See Co. Lit. s. 272 a, b ; Lit. Tracts, 325. As to the intention of
s. 464 ; 1 Sanders on Uses, 23 ; see the statute, see 1 Co. 124 a, Chud-
the statutes collected in Bacon on leigh's Case; 2 Leon. 17, Brent's
Uses, 24, Tracts, 320. Case ; and see 1 Sanders on Uses,
(c) "The title in course of pleading 85 ; 1 Spence, Eq. Jur. 4fil.
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104 PART I. CHAP. III. THE LAW OP USES.
or persons stand or be seised, or at any time hereafter
shall happen to be seised of any honors, manors, lands,
tenements, rents, services, reversions, remainders or other
hereditaments to the use confidence or trust of any o^her
person or persons or of any body politic by reason of any
bargain, sale, feofiment, recovery, covenant, contract, agree-
ment, will or otherwise by any manner of means what-
Persons having soevcr it be, that, in every such case, all and every such
estate BhaU be person and persons and bodies politic that have or here-
of same estate as after shall have any such use confidence or trust in fee
they have in the -,
use. simple, fee tail, for term of life or for years, or otherwise,
or any use, confidence or trust, in remainder or reverter,
shall from henceforth stand and be seised deemed and
adjudged in lawful seisin estate and possession of and in
the same honours, castles, manors, lands, tenements,
rents, services, reversions, remainders and hereditaments,
with their appurtenances, to all intents constructions
and purposes in the law, of and in such like estates, as
they had or shall have in use trust or confidence of or in
Estate and pos- the Same : And that the estate right title and possession
session of person , • i ,i , l n i.
seised to uses that was in such person or persons that were or shall be
shall be deemed , p . - „ ^ ., i t
to be in them hereafter seised oi any lands tenements or hereditaments
that have the
nse. to the use confidence or trust of any such person or
persons or of any body pohtic, be from henceforth clearly
deemed and adjudged to be in him or them that have or
hereafter shall have such use confidence or trust after
such quality manner form and condition as they had
before in or to the use confidence or trust that was in
them."
Sect. 2 enacts to the same effect in the case where
divers and many persons shall be jointly seised to the
use, confidence or trust of any of them that be so jointly
seised (a).
(a) It was the common practice See Brent's Case, 2 Leon. 15 ; Madox
to make the cestui que use himself Form. Angl. ante,, p. 100, n. (a),
one of the joint feoffees to uses, and The above section of the statute ex-
to place his name first among them. pressly provides for such cases.
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SECT. n. CSES SINCE THE STATUTE OE USES. 105
Section II. Uses since the Statute op Uses.
Creation of usee within the statute — with transmutation of posses-
sion — declaration of use — uses raised by payment of con-
sideration — resvdting uaea.
Creation of uses without transmutation of possession — bargain
and sale — covenant to stand seised.
Limitation of uses — express limitations — resulting uses — limita-
tion of uses upon bargain and sale — uses in remainder —
springing and shifting usee — powers of revocation and new
appointment — uses limited to the grantor — or to his heirs.
As the statute did not proliibit or prevent the creation creation of uses
of uses in the future^ but operated by executing them^ tuto of Uses. '
that isj converting them into legal estates^ the creation of
uses became the means^ by force of the statute, of creat-
ing and conveying legal estates ; and it thenceforth be-
came necessary for the courts of common law to take
cognizance of such modes of conveyance, and of the
doctrines of uses upon which they depended. These
doctrines, which for the most part are still applicable,
may be shortly stated as follows.
Uses may be raised under two conditions, involving
different considerations; — with transmutation of posses-
sion, where uses are created upon an actual transfer of
the seisin or legal possession ; — without transmutation of
possession, where new uses are created upon the existing
seisin (a).
With transmutation of possession : — Upon a convey- witt traremu-
tation of posaes-
(a) " Uses are raised either by raise a use, see Plowden, 301. tion of uses,
transmutation of the estate, as by Accordingly, " after the statute legal
fine, feoffment, common recovery, conveyances were divided into those
etc., or out of the estate of the which took effect by way of trans-
owner of the land, by bargain and mutation of possession, and those
sale, indented and inroUed, or by which owed their operation exclu-
coveuantuponlawfiilconeideration," sively to the doctrine of uees." 1
etc. Co. Lit. 271 h ; Butler's note, Hayes Conv. 76, 5th ed.
ib. iii. (3) ; as to these two ways to
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106
PAKT I. CHAP. III. THE LAW OP USES.
Declaration of
uae must be
proved by
writing.
Use raiaed by
payment of con-
eideratioQ.
ance operating upon the possession at law a mere declara-
tion or expression of intention is sufficient to create and
direct the uses of the conveyance. It is not essential
that the word " use " be employed; any words express-
ing the intention of treating and limiting the beneficial
interest in the land separately from the legal possession,
and that the legal possession should be held for that
intent and purpose, would be sufficient to create a use,
which would be executed by the statute accordingly (a).
— Thus, upon a feoffment or conveyance of land to A.
and his heirs, to the use of B. and his heirs, or upon
trust or confidence for B. and his heirs, or to ]perm,it B.
and his heirs to take the profits, or in any terms to the
like effect, the use is in B., and the statute vests the
legal estate in him according to the use (&).
The declaration of the uses might have been made
without writing until the passing of the Statute of Frauds,
29 Car. II. c. 3, s. 7, enacting " that all declarations or
creations of trusts or confidences of any lands, tenements
or hereditaments shall be manifested and proved by some
writing signed by the party, who is by law enabled to
declare such trust, or by his last will in writing or else
they shall be utterly void and of none effect." This
enactment applies to uses ; but the following section (8)
excepts those " which may arise or result by implication
or construction of law." These are next to be con-
sidered (e).
In the absence of express declaration as to the use the
statement of a consideration paid serves as an implied
declaration of the use to the feoffee or grantee ; and for
the purpose of marking the intention, the amount of the
consideration is immaterial ; a merely nominal considera-
tion would suffice. But the presence or absence of a
(a) ] Sanders on Uses, 61, 98.
[b] 1 Sand. Uses, 97, 98 ; Right
T. Smith, 12 East. 455 ; Doe v.
Biggs, 2 Taunt. 109.
(c) Grilbert on Uses, 270, 271 ; 1
Sand. Uses, 210.
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SECT. II. USES SINCE THE STATUTE OF USES. 107
consideration has no effect to vary an express declaration
of the use (a) .
Upon a feoffment or conveyance in fee, if there be no Eesaitmg Uses,
declaration of use, nor any consideration expressed to be
paid, the use remains in the grantor, and is commonly
called a resulting use. The statute executes the use and
the grantor continues seised as before {b). This pre-
sumption against the use passing was founded on the
general prevalence of the early practice of secret uses ;
it was presumed not to pass unless expressly declared so
to do, or paid for with a consideration, and the proof of
consideration was put upon the purchaser (c).
Upon the same principle, if upon a feoffment or con- Eesuiting uses of
veyance in fee the use be declared for a particular estate plltiaius™
only, and no consideration appear to carry the residue,
so much of the use as is undisposed of by the declara-
tion remains in the grantor as a resulting use {d) . Thus,
if the use be declared to the grantee or another for life,
or in tail, or for years only, the reversion of the use being
undisposed of results to the grantor. And a considera-
tion paid in such case will be presumptively attributed to
the estate limited, and will afford no inference as to the
use undisposed of (e).
But if the use be declared to the grantor for an estate use declared to
for life or years, the reversion, though not expressly dis- resiutmg use.
posed of, does not result to him but vests in the grantee ;
for by the opposite construction the particular estate would
merge in the reversion and the grantor would resume the
entire fee, against the express terms of the declaration of
uses, which restricts his interest to the particular estate.
(o) 1 Co. 24 a, Porter's Case ; 1 Beckwith's Case ; Armstrong y.
Sand. TJses, 61, 62, 104 ; " the pay- Wholesey, 2 Wils. 19.
ment of 5s. or the like serves as an (c) Ante, p. 99 ; see Bacon on
implied declaration of the use to the TJses, p. 22 ; Gilbert on TJses, 45 ;
feoffee, when it is not otherwise ex- 1 Spenoe Eq. Jur. 451.
pressly disposed of." lb. 104 ; see {d) Co. Lit. 23 a, 271 i ; Sanders
Gilbert on TJses, 45. TJses, 61, 103.
(S) 1 Sanders on Uses, p. 61, 62, (e) 1 Sand. TJses, 104 j Co. Lit.
99 ; Perkins, b. 533 ; 2 Co. 58 a, 22 6, 271 b.
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108 PART I. CHAP. III. THE LAW OP USES.
If, however^ the use be declared to the grantor for an
estate tail^ he may also take the reversion by resulting
use ; for an estate tail and the reversion in fee may sub-
sist together in the same person (a).
Consideration of If the feoffment or conveyance of the legal possession
resulting use. be made for a particular estate only, as a gift in tail, or a
lease for life or for years, the tenure alone thereby
created, with its attendant services and obligations, sup-
plied a consideration sufficient to prevent the use from
resulting, and to carry it to the donee or lessee ; and this
doctrine applies at the present day. But an express use
declared in favour of another would rebut the use im-
plied from the tenure in such cases (6) . The statute Quia
emptores prevented the creation of any tenure which
might carry the use upon a conveyance of the fee
simple (c).
Uses raised with- Uscs may also be raised upon the existing seisin with-
out transmuta-
tion of posses- out a conveyance or transmutation oi the legal posses-
sion,
By bargain and sion : — Upon principles of equity any agreement, sup-
" "' ported by a valuable consideration, to the effect that an
estate or interest in land should be conveyed, as it might
be specifically enforced in the Court of Chancery, was
held to entitle the purchaser to the use or beneficial
ownership according to the terms and intent of the
agreement, without any legal conveyance ; and accord-
ingly the vendor was held to be or stand seised to the
use of the purchaser. Such transaction, as creating a
{a) Bacon on Uses, Rowe's ed. merged by the reversion in fee." Per
notes, p. 223; 1 Sanders on Uses, Kenyon, C. J., 5 T.E. 110, iniJoev.
103 ; see Adams v. Savage, 2 Salk. Baldwere.
679 ; L. Eaym. 854. " Generally (6) Perkins, ss. 534-537 ; 2 Leon,
speaking, when two estates unite in 16, Brenfs Case ; Dyer, 312 a. The
the same person in the same right, relation of landlord and tenant is a
the smaller one is merged in the consideration in law, hence in a con-
other, except in the case of an estate tract for a lease no other considera-
tail and a reversion in fee, which tion is necessary. King's Leaseholds,
may exist together : in such case by L. R. 16 Eq. 521.
the Operation of the statute de donis, (c) Perkins, u. 528, 529 ; see anie
the estate tail is kept alive, not p. 100 n. (a).
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SECT. II. USES SINCE THE STATUTE OF USES. 109
use executed by the statute, became tecbnically known as
a bargain and sale.
As a bargain and sale would thus have been effectual
to convey a legal estate under the statute by mere force
of the agreement without any writing or formality, it
was thought expedient to add some formal conditions to
the operation of the statute upon it ; and it was enacted
by a statute of the same session of parliament, 27 H. Formalities re-
VIII. c. 16, to the effect that no estate of freehold shall n^^e'ntf "
pass by reason only of a bargain and sale, unless made
by writing indented, sealed and enrolled in manner and
place therein provided. This statute applied only to
estates of freehold, and a use for a term of years might
still be created within the statute of uses by mere bar-
gain and sale without deed or enrolment (a) .
An agreement unsupported by a valid consideration, consideration
or a mere declaration of use without transfer of posses- ^^'"'^^^'^■
sion, was altogether void of effect in raising a use within
the statute by reason of the principle that equity will not
enforce gratuitous or, as they are called, voluntary agree-
ments. And, in general, no distinction was admitted in
equity in this respect by reason of the agreement or de-
claration being made in the form of a covenant or by
deed under seal ; although in law such formality supplied
the force of a consideration (6) . But the value or amount vaine of conai-
„, ., . .-, . x-lj-l -J- deration imma-
01 the consideration paid was immaterial ; tne existence teriai.
or expression of it was suJGB.cient to denote that the trans-
action was intended by way of bargain and not as a
mere voluntary agreement ; and if not a voluntary agree-
ment, it was effectual to raise a use by way of bargain
and sale (c).
An exception to the general rule of equity not to covenant to
stand seised.
(o) Fox's Case, 8 Co. 93 b ; but a (c) See ante, p. 106; 2 Sandera on
mere termor, BOt being seised, could Uses, 47. Thus, the rent of a
not create or transfer uses under the peppercorn was held sufficient con-
Statute of Uses, see post, p. 118. sideration to support a bargain and
(J) Bacon Uses, 13 ; Tracts, 310 ; sale for a year. Barker t. Keat, 2
see Ellison t. Ellison, IW. & T. L. Mod. 249 ; and see 1 Co. 24 a, 26
C. 223. a ; 10 Co. 34 a.
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110 PART I. CHAP. III. THE LAW OP USES.
enforce voluntary agreements was made in the case of a
covenant or declaration by deed executed by the person
seised to stand seised to the use of his wife, child, or
Good considera- somo blood relation. The motive then stood in place of
tion. , ^ -•-
a consideration, and it was said to be made upon a good
consideration, as distinguished from a consideration of
money or value, which formed the characteristic of a
bargain and sale. A Covenant to stand seised to uses was
thus a recognised mode of raising uses in family settle-
ments (a).
Accordingly, a covenant to stand seised to the use of
the brother of the covenantor raised a use in him ; so
a covenant to stand seised to the use of the heirs male
of the body, or the heirs male special of the body of the
covenantor effectually raised a use in such heirs male (6) .
But an illegitimate child is not within the consideration
of blood to raise a use (c).
A covenant to stand seised to the use of a son or rela-
tive, if expressed to be made for a valuable consideration,
is a bargain and sale, and requires enrolment under the
statute ; because the consideration expressed excludes the
implied motive or consideration of relationship (d) . The
same deed may operate both as a covenant to stand
seised and as a bargain and sale in favour of different
parties, " as if A. covenants that in consideration that B.
is his son, he shall have for life, and after his death in
(a) 2 Sanders 0[] Uses, 80 ; Shar- other advantage made of it, if it does
itigton T. Strotton, Plowd. 298 ; not raise the uses." Plowden, 308.
Bedell's Case, T Co. ZQ a. It is re- Hence, the form of a covenant is not
markahle that, though called a essential for the purpose, and a deed
covenant and indeed generally ex- purporting to be a conveyance but
pressed in that iorm, there is no void as such may operate as a cove-
covenant in the sense of a contract nant to stand seised. 2 Sanders on
for breach of which an action would Uses, 80.
lie, because there is nothing promis- (i) Sharrington v. Strotton,
Bory in the matter of such deed. It Plowd. 298.
simply purports to create a use, (c) Co. Lit. 123 a ; Hargrave's
which whether well created or not is note (8). lb.
a question of law and not of act or (d) 7 Co. 39 b, Bedell's Case ; 8 Co.
default of the so-called covenantor. 94 a ; Clarksoti v. Sanway, 2 P.
" Wo action of covenant shall be Wms. 204 ; see FiJmer v. iSott, 7
maintainable upon the deed, nor any Bro. P. C. 70.
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SECT. II. USES SINCE THE STATUTE OP USES. Ill
consideration that C. hath given him £100 that he shall
have in fee " (a) . A good consideration would not supply
the want of a valuable consideration for the purpose of
raising a use by an agreement or declaration not under
seal (&).
These modes of conveyance, operating without trans-
mutation of possession were formerly employed for the
purpose of avoiding the formalities necessary for trans-
mutation of possession at common law, such as livery of
seisin, entry, attornment and the like; but a deed of
grant being now in all cases sufficient without other for-
mality to transfer the legal possession, upon which uses
may be declared, the conveyances by bargain and sale
and covenant to stand seised are no longer required or
used. Some knowledge of them, however, is still neces-
sary for the investigation of past titles ; and it also occa-
sionally happens that a deed of grant, which is defective
as intended to operate, may be supported, upon a good
consideration, as a covenant to stand seised; it could not
be supported, upon a valuable consideration, as a bargain
and sale without enrolment (c).
In an express declaration of uses within the statute the Limitations of
same estates may be limited, and the same terms are used
and receive the same construction as in limiting estates at
common law ; thus the use may be limited in fee, in tail,
for life or for years. The technical limitation " to the Express Umita.
T • J, . , I I p ■ 1 •! • tions follow the
heirs IS necessary to convey an estate oi mheritance m eonatruotion of ,
the use, as in the freehold at commcta. law ; and a declara-
tion of use to a person, without words of limitation, is
construed in a deed to give only an estate for life (d) .
{a) 1 Co. 154 J. 2 Wils. 75 ; Doe v. Williams, 5 B.
(d) Bacon on Uses, 44, as cor- & Ad. 783 ; Doe v. Frince, 20 L. J.
rected in Eowe'a excellent edition ; C. P. 223.
the passage as printed in Bacon's {d) 1 Sanders on Uses, 122, 123 ;
Tracts, 336, is unintelligible; Gil- ante, p. 33, 34. In order to insure
bert on Uses, 271. uniformity of construction, where
(e) See ante, p. 51, 54 ; 2 Wms. equity followed the law, the practice
Saund. 96 h (1) ; Roe v. Tramner, was adopted of calling in the judges
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112
PART I. CHAP. III. THE LAW OP USES.
Resulting uses
how construed.
limitation of
uses upon bar-
gain and aaie.
Resulting uses^ arising in the absence of express
declaration^ follow the original estate of the grantor^
according to the presumed intention^ being the uses
remaining in him, subject to those expressly limited (a).
A bargain and sale before the statute raised a use in
the purchaser without express declaration and without
any words of limitation, by force of the agreement that
he should take the estate of the vendor. But after the
statute, when a bargain and sale became a recognised
form of legal conveyance, it was held that the estate
intended to be conveyed must be limited in the same
technical terms as in conveyances at common law; and
a bargain and sale of lands, not expressly limiting the
use " to the heirs " of the bargainee, was construed to
convey only an estate for life, according to the rule of
common law (b) .
Uses may be limited by way of particular estate and
remainders ; and such limitations being executed by the
statute become subject to the rules of law regulating
remainders. Accordingly, upon a conveyance to the use
of A. for a term of years, with remainder to the use of B.
for an estate of freehold in contingency, the use in re-
mainder is void for want of an estate of freehold to sup-
port it; though before the statute, when the freehold
remained in the feoffees, the use was well created in
equity, and took effect according to its terms (c) .
Springing Uses. The limitation of uses is not restricted by the doctrines
of common law concerning the seisin ; and, therefore, a
use for a freehold estate may be limited to arise infuturo
or upon a contingency without any prior limitation to
support it as a remainder. — Thus a conveyance of the
Uses in remain-
der.
to assist in Chancery or of sending
a case to a court of law to certify
aoeording to the rules of law ; see 1
Spence, Eq. Jur. 446 ; and seepost,
p. 139.
(o) Ante, p. 107 ; 1 Sanders Uses,
62, 101 ; iBeclcwiWs Case, 2 Co.
58 a.
{b) 1 Co. 87 J ; 1 Co. 100 i ; 1
Sanders Uses, 122.
(c) Ante, p. 50 ; Fearne, C. R
284 ; 1 Co. 135 a, Ciudleigh's Case
Adams t. Savage, 2 Salt. 679
Hopkim V. Hopkins, 1 Atk. 581
Sugden's note to Grilbert on Uses, d
1R4. ^
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SECT. II. USES SINCE THE STATUTE OF USES. 113
immediate legal possession may be made to the use of a per-
son and his heirs, after four years, or after the death of the
grantor, or to such uses as the grantor shall appoint by
will (a). So, a bargain and sale might be made to the use
of another after four years ; — so, a covenant to stand seised
to the use of another after the covenantor's death (&).
In all such cases of uses to arise in futuro, the use
being undisposed of except at the time or in the event
specified, results or remains in the grantor or covenantor
in fee simple as before, until the future use arises to dis-
place it ; the use does not result or remain for a
particular estate only, so as to convert siich limitations
into remainders (c).
A future estate in the use may also be limited to take shifting vaea.
effect in substitution or defeasance of a previously limited
estate, and even of an estate in fee simple ; for the rules
of common law, not admitting of any future limitations
shifting the freehold except by way of remainder, nor of
any limitations after an estate in fee simple, had no
application to the use. A marriage settlement is a
well- known instance of such limitations ; where the use
is first limited to the settlor in fee, and, upon the marriage
taking place, then to the uses of the settlement (d) .
Future uses of the above kinds, including all such as
are not limited by way of remainder, are called spring-
ing or shifting uses, the foi'mer term more especially
denoting those that arise or spring up without any prior
limitation ; the latter denoting those that shift the use in
substitution of a prior estate (e) . Being executed by the
statute, they made a great advance upon the common
law in the limitation of future estates.
(a) 1 Sanders on Uses, 136 ; &il- Sugden, 161, 162 ; 1 Hayes Cony,
bert on Uses, by Sugden, 153, 161 ; 464, App. ii. 2, on Resalting Uses ;
Clere's Case, 6 Co. 18 a ; Davies t. and see post, Part II. Chap. II.
Speed, 2 Salk. 675, per Holt, C. J. ' Future Uses.'
(6) Soe Y. Tranmer, 2 Wils. 75 ; {d)\ Sanders Uses, 143 ; Grilbert
Doe T. Prince, 20 L. J. C. P. 223. on Uses, by Sugden, 153.
(c) Bacon on Uses, Howe's ed. (e) Sugden's note to Gilbert on
note (137) ; Gilbert on Uses, by Uses, 152.
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114 PAET I. CHAP. III. THE LAW OF USES.
Powera of revo. SprinffinfiT or shifting uses may be thus limited to
cation and new _ i o o o \. ^^ •£ j ■ it-
appointment, arise upon an event or m a manner lully specinea m tne
deed declaring the uses ; or they may be limited to arise
according to the appointment or direction of some person
named in the deed for that purpose; — whose authority
is therefore described as a power of appointment, or (as
the uses appointed thereunder necessarily revoke and de-
feat those previously subsisting^) apower of revocation and
new appointment. The power of revocation is sometimeSj
though unnecessarilyj added in express terms. The uses
appointed in exercise of the power take effect as if ori-
ginally declared in the deed (a) .
Powers of appointment created by bargain and sale or
by covenant to stand seised are required to be restricted
to persons within the consideration ; because in those
modes of conveyance^ operating without transmutation of
possession, the uses must be supported by a valid con-
sideration (&).
Uses limited to It was impossiblo at common law for a person to make
a direct conveyance to himself with the effect of changing
the title into one by purchase ; nor could a person make
his own heirs to take by purchase ; all such Hmitations
being void and inoperative. But indirectly, by conveying
the legal estate to another and declaring uses in his own
favour, a person might acquire a new estate to himself, as
a purchaser, by force of the Statute of Uses. Thus, if a
person convey to another to the use of himself for life, or
for years or in tail, he takes a new estate by the statute
measured by those limitations. So, by a conveyance to
the use of another for life, with remainder to the use of
himself and the heirs of his body, the statute executes an
estate tail in him as a purchaser (c) .
But upon a conveyance by a tenant in fee simple to
{a) Co. Lit. 237 a ; Gilbert Uses, Cony. 51 n. (43), 81 u. (64) ; Mild-
by Sugden, 158, 158; 1 Sanders may's Case, 1 Co. 175 a.
on Uses, 154. (c) Ante, pp 51, 52 ; Co. Lit. 22
(b) Ante, p. 109 ; Sugd. Gilbert b ; 1 Sanders Uses, 131 ; Gilbert on
■Uses, 91, 163, 398, 420 ; 2 Hayes Uses, by Sugden, 150
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the grantor.
SECT. III. OPERATION OP THE STATUTE OP USES. 115
the use of himself and his heirs or upon a resulting use uses limited to
to himself and his heirs, he was still held to be in of the hia'^iSra,"''"'
ancient use and not by purchase (a) . So, the limitation to the teirs of
of a remainder to the use of the heirs of the grantor had
the same effect as at common law in leaving the reversion
in the grantor^ and the heir took nothing by way of
purchase (b). Now by the statute 3 & 4 Will. IV. c.
106, as before stated, under limitations to the person or
to the heirs of the person who shall have conveyed the
land, such person is to be considered as entitled by pur-
chase and not as of his former estate (c).
Section III. Operation op the Statute op Uses.
Operation of the statate in executing the use — natiire of the
poBBession transferred.
Mode of operation upon future and contingent uses — doctrine
of scintilla juris — lord St. Leonards' Act.
Seisin required to support uses — seisin not co-extensiYe with the
uses — seisin for life — seisin in tail.
Limits of operation of the statute — uses declared upon possession
for term of years — uses limited to the grantee of the legal
possession — uses limited upon a use.
Special or active trusts— passive trusts or uses.
Apphcatiou of the statute of uses to wills.
The statute does not apply to copyholds.
The statute executes the use, that is to say, invests it operation of the
with the seisin or legal title, and subjects it to all the in- L^eouting the
cidents of a legal estate. The grantee to uses is divested ™°'
of all estate and interest in the land, and the cestui que
{a) Co. Lit. 12 J, 13 a ; Hargrave's heirs special and to the use of the
note (2) to Co. Lit. 12 J ; 1 Co. 100 heirs general, of the grantor. The
h ; see Roe v. Baldwere, 5 T. E. same rule applied to the limitation
104. of the uses upon a surrender of
(i) Co. Lit. 22 i ; Fenwick v. copyholds. Roe v. Oriffits, 4 Burr.
Mitford, 1 Leon. 182; 1 Sanders 1952,1960; see Pearne, 0. E. 66.
Uses, 133 ; Fearne, C. E. 51, where (c) See ante, p. 52 ; as to the
see the distinction pointed out be- effect of such hmitations in breaking
tween a limitation to the use of the the line of descent, see ante, p. 62.
i2
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116
PAET I. CHAP. in. THE LAW OP 0SES.
Nature of pos-
session trans-
ferred.
use becomes seised or possessed in law of the same estate
and interest wtidi is limited to him in the use (a).
The possession transferred by the statute is equivalent,
for most purposes^ to that acquired by livery of seisin, or,
in case of leaseholds, by entry (6).
Mode of execut-
ing future and
contingent uses.
Doctrine of
Scintilla juris.
The mode of operation of the statute with future uses,
when limited by way of contingent remainders or as
springing or shifting uses, formerly caused much per-
plexity and difference of opinion. The statute seemed
to exhaust the seisin in serving the prior vested uses, so
as to leave none to serve such future uses as and when
they should arise. To meet this difficulty it was conceived
that there remained in the grantees to uses a possibility
of seisin, becoming an actual seisin when the executory
uses required it. This was the celebrated doctrine of the
scintilla juris, as this possibility of seisin was called.
The only practical bearing of this doctrine lay in the
suggestion that the scintilla juris might be dealt with in
a manner to risk the safety of the dependent uses.
After much abstruse speculation concerning the nature
of the statutory process the result generally accepted seems
to have been that it immediately converted uses of all
admissible kinds in bo legal limitations in a manner quite
beyond the power or control of the grantees to uses, and
that the latter were merely formal instruments for carrying
the legal title to the uses (c) .
(a) Co. Lit. 22 5 ; see Bacon Uaea,
45, Tracts, 337, describing the
modus operandi of the statute ; 1
Sand. Uses, 119.
{b) See SadfieWs Case, L. R. 8
C. P. 306 ; 42 L. J. C. P. 146, and
the authorities there cited. In that
case it was held to give the " actual
possession" required for qualifica-
tion of a voter under the Reform
Act, 2 WiU. IV. u. 45, o. 26. It seems
that it does not, without entry, give
the possession required to maintain
an action of trespass. &eary v.
Bearcrqft, Carter, 57, 66 ; but sea
Anon. Cro. Eliz. 46 ; and see Mad-
field's Case, supra.
(e) Bacon Uses, 47, Tracts, 339 ;
ChudleigKs Case, 1 Co. 120 a;
Pearne, C. K. 300 ; 1 Sanders Uses,
110, 232 ; aabert's Uses, by Sug-
den. 296 n. (10) ; Sugden on
Powers, Ch. I. sect, iii. 7th ed.
where see the doctrine of scintilla
juris fully discussed and all the cases
collected. See lb. 8th ed. p. 20.
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SECT. III. OPEEATION OF THE STATUTE OB USES. 117
All question as to the operation of the statute has been Lord st.
removed by the recent enactment of 23 & 24 Vict. c. 38^ thluifuseatake
(Lord St. Leonard's Act to amend the law of property), original" eisin.
s. 1 , " Where by any instrument any hereditaments have
been or shall be limited to uses, all uses thereunder,
whether expressed or implied by law, and whether imme-
diate or future, or contingent or executory, or to be de-
clared under any power therein contained, shall take effect
when and as they arise by force of and by relation to the
estate and seisin originally vested in the person seised to
the uses ; and the continued existence in him or elsewhere
of any seisin to uses or scintilla jv/ris shall not be deemed
necessary for the support of or to give effect to future or
contingent or executory uses ; nor shall any such seisia
to uses or scintilla juris be deemed to be suspended, or
to remain or to subsist in him or elsewhere.^'
There must be a seisin to support uses to be executed by seisin required
the statute. A conveyance purporting to transfer the free- *° ™pp°'* ^"^»-
hold at a future date is void at common law, and will not
, support a declaration of uses ; which, therefore, in such
case, unless it can be supported upon the seisin of the
grantor, without transmutation of possession, fails alto-
gether. Thus, a grant to A. and his heirs after the death
of the grantor is void, as purporting to transfer the seisin
at a future time ; but a grant to A. and his heirs, to the
use of B. after the death of the grantor, is good, the
transfer of seisin being present and the use only future ;
and the use is executed by the statute (a) .
The grant of a vested remainder or reversion conveys
the seisin corresponding to such estates, and uses may be
declared upon the seisin so transferred in remainder or
reversion, and will be executed by the statute (&).
(4) Soe V. Tranmer, 2 Wils. 75 ; note to Gilbert on Uses, 163.
Lamb v. Archer, 1 Salk. 225 ; Good- (i) Ante, p. 53 ; 1 Sanders Uses,
title V. Oihis, 5 B.& 0.709; Doer. 108; see Saggerston v. Sanbury,
Prince, 20 L. J. C. P. 223 ; Sugden's 5 B. & C. 101.
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118
PAET I. CHAP. III. THE LAW OF USES.
Seisin not co-
extensive with
the uses.
Seisin for life.
Seisin in tail.
The case of the seisin not being co-extensive with the
uses declared upon it is not expressly provided for in the
statute. According to Bacon, " the matter and substance
of the estate of cestid que use is the estate of the feoffee,
and more he cannot have ; so as if the use were limited
to cestui que use and his heirs, and the estate out of which
it was limited was but an estate for life, cestui que use
can have no inheritance.^' His estate must determine
with the life of the feoffee to uses {a).
So also, according to Bacon, " If I give land in tail by
deed since the statute to A. to the use of B. and his
heirs ; B. hath a fee simple determinable upon the death
of A. without issue." But the later opinion seems to be
that the statute does not apply to a seisin in taU. The
difliiculty arises from the seisin being appropriated to the
heirs in tail by the statute de donis, and the tenant ia taU
consequently having no power over it, to execute the use,
except by means of a recovery or disentailing assurance
(b). A tenant in tail might raise a use upon his seisin
co-extensive with his own life, as by a bargain and sale,
which would be executed by the statute for an estate de-
terminable upon his death (c).
Limits of opera,
tion of the sta-
tute.
Uses declared
npon possession
of terms of
The operation of the statute upon uses is restricted
partly by the express terms of the statute, and partly by
the judicial construction put upon the terms. The term
seised, used in describing the condition of its operation,
means invested with the legal possession for an estate of
freehold, excluding possession for a term of years or
chattel interest. Therefore, a use declared or raised
upon a term of years is not executed by the statute and
remains cognizable in equity only (d). It should be ob-
(a) Bacon Uses, 47 ; 1 Sand.
Uses, 89, 109 ; but see Sugden's
Gilbert on Usee, 127, n. (2).
(J) Bacon Uses, 57, Eowe's ed.
note (114) ; Gilbert Uses by Sug-
den, IP ; Lewin on Trusts, Intirod.
p. 6, n. (1) ; but see 1 Sanders Uses,
90, in accord with Bacon.
(e) Seymor's Case, 10 Co. 95 6.
(d) Ante, p. 49; Bacon Uses,
42 J a'racts, 335 ; 1 Sanders Uses,
263. '
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SECT. III. OPEEATION OF THE STATUTE OF USES. 119
served that a use for a term of years raised upon a seisin
of freehold is within the statute and executed ; as in the
bargain and sale for a year formerly made as the founda-
tion of the conveyance by lease and release (a).
The statute is also restricted in terms to the cases of a Uses Hmitedto
T - 'Tin {* 7 grantee of legal
person or persons being seised to the use or another per- estate.
son. According to Bacon^ " The statute ought to be ex-
pounded that where the party seised to the use and the
cestui que use is one person, he never taketh by the
statute, except there be a direct impossibility or imper-
tinency for the use to take effect by the common law."
Thus, if a grant be made to A. and his heirs to the use
of A. and his heirs, the use is not executed by the statute ;
but the express declaration of use rebuts any resulting
or impKed use ui the grantor, and the grantee remains in
for his own use and benefit at the common law (6).
So, if a grant be made to A. and his heirs to the use
of A. for life or for years, with remainder to the use of B.
and his heirs, A. is in of an estate for life or for years at
the common law (by way of abridgment of estate in
course of possession) and B. is in of the fee simple by
the statute (c). But if a grant be made to A. and his
heirs to the use of A. in tail, the use in tail is executed
by the statute, being a new estate in favour of the issue,
and no part of the legal estate conveyed by the grant ;
so also, if tenant in fee simple covenants to stand seised
to the use of himself in tail (d) .
The case of many persons being jointly seised to the usesUmitedto
(a) See ante, p. 56. Orme's Case, supra ; Shep. Touch.
(6) Bacon Uses, 63, Tracts, 352 ; by Preston, 106. TeacocTc v. Bast-
1 Sanders Uses, 91, 156 ; 13 Co. 56, lanA, L. R. 10 Eq. 17, holding that
Samme's Case ; I)oe\. Prestwidge, 4 grantee to his own use can disclaim
M. & S. 178 ; Orme's Case, L. K. 8 the estate, which the mere grantee of
C. P. 281 ; 42 L. J. C. P. 38. In the seisin to uses executed by the
such case the limitation of the use statute, it seems, cannot,
may operate as an habendum, limit- (c) Bacon Uses, 63, Eowo'e ed.
ing the estate conveyed at common note (136) ; but see Burton Com-
law. Jenkins Y. Young,S.O. nom. pend. (160), (160 n.)
YoungY.Bymock,^.C.'aom. Meredith (d) Bacon Uses, 63 ; 13 Co. 56;
V. Jones, Cro. Car. 230, 244, cited in 1 Sanders Uses, 95.
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120
PART I. CHAP. III. THE LAW OF USES.
some of joint
granteoB.
Uses limited to
grantor and
otliera.
Uses limited
upon a uae.
Upon a bargain
and sale.
Use limited upon
nse in grantee.
Use shifting pre-
vious use.
use of any of them is expressly provided for in the statute^
and the uses are executed accordingly (a) . Also in the
case of a grant to A. and his heirs to the use of A. and
B. and their heirs, the use is executed by the statute in
A. and B. jointly {b).
The operation of the statute was also limited by
judicial construction. The courts of law decided that
the statute did not execute a use limited upon a use ;
that is to say, upon a feoffment to A. and his heirs, to the
use of B. and his heirs, to the use or in trust for C, the
statute executed the use in B., and invested him with the
legal possession ; but the operation of the statute was
thereby exhausted, and the use limited to C. remained
unexecuted (c).
So, upon a bargain and sale to A., expressed to be to
the use of B., the use raised in A. by the force of the
consideration is executed by the statute, and the further
use to B. remains unexecuted (d). The bargain and sale
might be made to A. for a particular estate with re-
mainder to B., and the use in remainder executed by the
statute, as the consideration might be paid on account of
the remainder ; but all the uses declared upon a bargain
and sale must be within the consideration (e).
By the same rule, if the grant be to A. and his heirs
to the use of A. and his heirs, (or to and to the use of A.
and his heirs,) to the use of B. and his heirs, though A.
is in by the common law and the use declared to him not
executed by the statute, neither is the use declared to B.
executed, because it is a use limited upon a use (/).
A shifting use is not a use upon a use ia the above
sense, because it takes effect in substitution for and in-
stead of the use previously declared, and is then executed
(a) See sect. 2, ante, p. 104.
(J) Samme's Case, 13 Co. 54.
(c) 1 Sanders Uses, 263 ; see
Cooper T. Kynoch, 41 L. J. C. 296 ;
L. K. 7 Ch. 398.
(d) Tyrrel's Case, Dyer, 155 a ;
see Haggerston v. ffanhury, 5 B. &
C. 101.
(e) 2 Sanders Uses, 48, 52; see
ante, pp. 109, 114.
(/) Doe V. Passinoham, 6 B. &
C. 305.
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SECT. III. OPERATION OF THE STATUTE OF USES. 121
by the statute {a) . And where the previous use is declared
to the grantee himself so that it is not executed by the
statute, and he remains in at common law, a shifting use
in favour of another takes effect in substitution of the
use limited to him, and is not a use limited upon a use,
so as to be beyond the operation of the statute. — Thus, if
a grant be made to A. and his heirs to the use'of A. and
his heirs, but in a certain event, as the marriage of A., to
other uses, the latter uses are executed ; so if, as frequently
occurs, a conveyance be taken to A. and his heirs, to such
uses as he shall appoint, and until and subject to such
appointment to him and his heirs, the power of appointing
uses is valid and the -uses appointed under it will be
executed (b).
Thus, it has been observed, the statute has had no Operation of
, -^ ,-..-.. f, . statute avoided
other enect, as regards the lurisdiction or equity over by umiting inter-
mediate use.
uses, than to add three words to the conveyance, for the
purpose of declaring an intermediate use. Further uses
may then be declared beyond the reach of the statute,
and within the cognizance of equity only (c) .
The trusts or confidences upon which a conveyance special or active
... trusts.
may be made are further distinguished into special and
general; — sometimes distinguished as active and passive.
Special or active trusts are created for such intents and
purposes as require that the grantee should retain the legal
estate in order to perform them ; — as a trust to receive the
rents and profits and pay them over in a prescribed
manner, to pay taxes and outgoings, to do repairs, and
the like ; — a trust to execute an estate or settlement of the
land, or to grant leases ; — a trust to raise money by sale
(a) Ante, p. 113. has been overruled and the law
(J) It has been objected that as a settled as in the text. See 1 Sanders
grantee to his own express use takes Uses, 155 ; Sugden on Powers, 168,
at common law, and not under the citing Moreton y. Lees ; Barton
statute, a shifting use limited upon Oomp. (154) ; 1 Hayes Conv. App. ii.
his seisin is roid by the rule of com- p. 459, 5th ed.
mon law against shifting limitations (c) Fer Hardwicke, L. C, 1 Atk.
(see
Statute of Uses did not apply to the freehold, because it
could not apply to the copyhold, and that the legal title
of the freehold followed that of the copyhold in order to
keep them combined according to the expressed intention
of the testator (a).
(a) Houston v. Hughes, 6 B. & C.403 ; Baker t. Parson, 42 L. J. C. 228.
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SECT. I. THE NATURE AND OEIGIN OP TRUSTS. 125
CHAPTER IV.
THE LAW OF TRUSTS AND EQUITABLE
ESTATES.
Section I. The Nature and Origin of Trusts.
II. The Creation of Trusts.
III. Equitable Estates, and Estate and Office of Trustee.
Section I. The Natuee and Origin op Trusts.
Uses not executed by the statute — trustee and cestui que trust.
Trusts in equity — equitable seisin and estate — legal estate held
subservient to the equitable estate.
Trusts at law — possession of cestui que trust.
Legal and equitable title — union of legal and equitable title — the
Supreme Court of Judicature Act.
Trusts of copyholds.
L. The Statute of Uses was made with the object of con- Trusts ais-
verting uses into legal estates and so far as it operated m^ " °™
was effectual; but the operation of the statute was
restricted by the terms in which it was framed, and
further by the judicial construction with which it was
applied ; also by the essential nature of the uses upon
which it was intended to operate. It did not apply to
uses declared upon terms of years ; to uses declared upon
a use ; nor to special trusts and confidences requiring the
grantee of the property to retaiu it for the active per-
formance of his duties (a) .
The uses, trusts and confidences unexecuted by the
statute continued to be subject to the jurisdiction of the
(o) Ante, p. 118 ; also it did not upon the possession of a copyhold
apply to the uses or trusts declared tenancy, ^o«i, p. 130.
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126 PART I. CHAP. IV. TEU8TS AND EQUITABLE ESTATES.
Court of Chancery, and were administered upon the same
general principles of equity as before the statute^ though
with a more extensive application. They became known
as truats in a special sense ; the owner of the legal estate
being distinguished as the trustee and the owner of the
trust or beneficial interest as the cestui que trust. There
is originally no essential difference of meaning in the
words use and trust ; the distinction is between those
executed by the statute and those not executed, and in
the different practice of the Court respecting them before
and since the statute [a).
Trusts in equity. The cestui que trust is entitled in equity to the posses-
sion and enjoyment of the land, or to receive the profits
or proceeds of it, and to dispose of the same according
to the terms of the trust. The result is sometimes
expressed by the phrase that in the Court of Chancery
"the equity is the land"; and the cestui q/ae trust is
Equitable estate Said, by analogy, to be seised or possessed of an equitable
and aeisln. , , . 7 .
estate (6).
(a) Per L. Mansfield in Burgess under them, or in consequence of
V. Wheate, 1 Eden, 217 ; and see their estates, as the ownership or
Doe V. Collier, 11 East, 377. legal estate. — Whatever would be
(S) In the early days of trusts the rule of law, if it was a
after the statute they were treated estate, is applied in equity to a trust
as a mere chose in action enforceable estate." Per Lord Mansfield in
by subpoena, not assignable, and not Burgess v. Wlieate, 1 Eden, 223.
carrying with them any of the rights " Wow the trust in this court is the
and incidents of the seisin or legal same as the land, and the trustee is
estate. But about the period of considered merely as an instrument
the restoration, and particularly of conveyance." lb. p. 226 ; and
during the Chancellorship of Lord see per Thurlow, L. C, in Shrap-
Nottingham, who has been styled nell \. Vernon, 2 Bro. C. C. 268,
the father of equity, the court pro- 272.
eeeded to establish trusts upon a " It has been said by judges pre-
stricterconformitywith legal estates. siding in Chancery that 'the equity
According to Lord Mansfield, is the land ' in that court ; and so,
" trusts were not on a true founda- indeed, while the trust continues to
tion till Lord Nottingham held the charge the person of the legal owner
great seal ; the forum where they in respect of the laud, it virtually
are adjudged is the only difference is, in point of beneficial enjoyment,
between trusts and legal estates. But the essential nature of an equity
Trusts are here considered, as be- has not changed ; it remains at this
tween cestui que trust and trustee, day, what it always was, neither
and all claiming by, through, or jus in re nor jus ad rem, but a mere
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SECT. I. THE NATURE AND ORIGIN OF TRUSTS. 127
The court of equity recognises the legal owner of the The legai estate
land and admits his title, but makes him whoUy sub- to the equitable
servient to the equitable owner. It restrains him from
exercising his legal rights for his own benefit, and com-
pels him to hold, defend and dispose of the legal estate
for the sole purpose of maintaining and realising the
equitable estates and interests prescribed in the
trustj(a).
The cestui que trust, in general, may compel the trustee Eight of ceitm
to put him in possession of the property to which he is poBBeaSon.
beneficially entitled ; but where the cestui que trust is not
exclusively interested, and other parties have also claims,
the court will exercise a discretion as to whether the pos-
session shaU. remain with the trustee or be given to the
cestui que trust, subject to such claims and with proper
securities for them (b) .
The jurisdiction of the courts of law, on the other hand, Trusts at law.
is confined to the legal ownership, at least in theory, and
in regulating the rights of property takes no cognisance
of any trust or equitable estate or interest. — In relation possession of
to the trustee or legal owner, the cestui que trust, if in at'iaw .*"* ""
possession, though in accordance with the trust, is in the
position of a mere tenant at will (c) ; — and with regard to
the legal title, as against strangers, the possession of the
cestui que trust is the possession of the trustee [d) .
There may thus be two different titles to the same land Legal and cquit-
able title.
right against the person, to be en- may be regarded as established : —
forced by suipcena." 1 Hayes Conv. first, that a cestui que trust cannot
98 ; and see Lewia on Trusts, recover in ejectment in his own
Introduction. name, but must bring his action in
{a) Lewin on Trusts, 437, 553, the name of the trustee, who must
554, 4th ed. be indemnified against the costs ;
(j) Lewin, 437. secondly, that the trustee, as the
(c) Lewin, 439 ; see ante, p. 100; tenant of the legal estate, may re-
post, p. 208. cover in ejectment from his own
(d) Parker y. Carter, 4 Hare, cestui que trust, -who has no Aeience
400. Notwithstanding doctrines ad- to the action at law, but must have
vanoed by Lord Mansfield in the recourse to an injunction in equity."
last century, at the present day it Lewin, 440.
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128 PAKT I. CHAP. IV. TRUSTS AND EQUITABLE ESTATES.
Union of legal
and equitable
titles.
Right of cestui
que trust to the
legal estate.
subsisting concurrently, the legal and the equitable
title, regulated respectively by the different systems of
law and equity, but the title at law being held in sub-
servience to the equitable title. A title to land is not
complete unless it is fully recognised under both systems;
and a purchaser under a contract of sale is entitled, in
general, to have conveyed to him a good title both at law
and in equity (a) . Accordingly, upon a purchase of land,
the abstract of title to be delivered by the vendor must
show the legal title in the vendor, or in some person who
is trustee for the vendor, or whom he may compel to
concur in the sale (6) ; — and in an action at law by a
purchaser against a vendor for not making a good title,
the question raised is not merely as to the title at law,
but also whether it be such as a court of equity would
compel the purchaser to accept (c) .
If the absolute equitable and legal titles unite in one
person, the law alone is sufficient to maintain the rights
of the owner, and equity does not, in general, interfere ;
in such case the equitable estate is said to merge in the
legal and no longer exists ; the beneficial use and enjoy-
ment is referred wholly to the legal title {d) .
Where the legal estate is held simply upon trust for
another absolutely, the cestui que trust may be entitled in
equity to have the legal estate conveyed to him, so as to
(a) Sugden Vend. & Purch. 11th
ed. 506 ; Bryant v. Bush, 4 Euss. 1.
[h) Want T. Slalliirass, L. E. 8
Ex. 175, 179 ; 42 L. J. Ex. 108.
(c) Jeakes v. White, 6 Ex. 873 ;
Simmons v. Beseliine, 50. B. N. S.
554 ; 28 L. J. C. P. 129 ; Clarice v.
Willott, L. E. V Ex. 313 ; 41 L. J.
Ex. 197.
(d) Selly V. Alston, 3 Tea. 339 ;
S. C. nom. Goodright v. Wells,
Doug. 771. " Where the person is
seised of the estate at law and of
the same estate in equity, he cannot
have a subpoena against himself.
There ia nothing upon which equity
can act. The equitable estate is
absorbed ; the better phrase is, that
it no longer exists.'' _.^
Brydges, 3 Ves. 120, 127." " As a
general rule, a plaintiflf who has
both a legal and an equitable title
to laud must proceed at law and not
in equity." Bowardv. Harl Shrews-
bury, L. E. 17 Bq. 397, in which
case an exception is stated in favour
of an infant, who, under such cir-
cumstances, is entitled to proceed
in equity against a person in
adverse possession, as if he were
guardian or bailiff, and to have a
decree against him for an account of
past rents and profits and for posses-
sion; and Crowther v. Crowther, 23
Beav. 305 ; 26 L. J. C. 702, to the
contrary was disapproved of.
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SECT. I. THE NATURE AND ORIGIN OP TRUSTS. 129
invest the equitable interest with, the legal estate. But
when, as generally is the case in the creation of trusts,
many persons are interested concurrently or successively,
and each cestui que trust has only a partial interest, it is
then no part of his right to have the legal estate, but it
is essential that the legal estate should remain in the
trustee in order to support the various equitable estates
and interests (a).
By "the Supreme Court of Judicature Act, 1873," 36 supremo court
& 37 Vict. c. 66, (to come into operation 2 Nov., 1874,) let" '"""
s. 24, the Jurisdictions of Law and Equity will be com-
bined in the same court and some important changes will
be made in the remedies of a cestui que trust ; but it does
not appear that the fundamental distinctions of law and
equity wiU be thereby directly affected, except as regards
the procedure provided to administer them.
By sect. 25, some specific amendments are made in the
substantive rules of law and equity, by way of assimilat-
ing them (which will be noticed hereafter in treating of
the several matters to which they relate) ; and the section
concludes with the enactment that " generally in all mat-
ters not hereinbefore particularly mentioned, in which
there is any conflict or variance between the rules of
equity and the rules of the common law with reference to
the same matter, the rules of equity shall prevail •" (5) .
The Statute of Uses, as already stated, does not Trusts of
apply to copyholds ; and the uses of a surrender which °^'' °
(a) See 2 Spence, Eq. Jur. 2 ; a be intended to aifect thefundamental
trust though simple and absolute as distinction of the legal and equitable
regards the beneficial interest, may estate, or the relation of trustee and
be created for the purpose of pro- cestui que trust. As it will have
tecting the cestui que trust from to be construed judicially, upon
some personal disability or status, those points in detail in which its
as infancy or coverture, which may aid may be iuToked by the suitor,
require the trustee to retain the the anticipation of such points would
legal estate. lb. ; see post, Part V. here be purely speoulatiTe, and there-
' Law of Persons.' fore beyond the purpose of this
(b) No explanation is given of the work, which is confined to the state-
intended scope and operation of this ment of the law as it can be ascer-
enaotment, but it does not appear to tained to exist.
K
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130 PAET I. CHAP. IV. TEUSTS AND EQUITABLE ESTATES.
serve to direct and limit the legal estate and possession
under the peculiar forms and rules of customary tenure
are not matter of equitable jurisdiction, nor are they
within the scope of the statute of uses (a) .
Trusts of copy. But usos Or trusts may be raised upon the legal posses-
sion to which admission is given according to the uses of
the surrender, in like manner as upon the seisin of free-
hold tenure ; and as the statute does not operate upon
the possession of a customary tenant, such uses or trusts
remain within the cognisance of equity only. Thus if a
surrender be made to the use of A. to the use of or in
trust for B., the legal estate is vested in A. by admittance,
but he is trustee in equity for the use or trust de-
clared in favour of B. who accordingly takes the equitable
estate (b).
(a) Ante, p. 123. Trust Estates, p. 400, 4th ed., and
(J) Seriven on Cop. Chap. xi. eeepost, p. 141.
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SECT. II. THE OEEATION OP TEUSTS. 131
Section II. The Oeeation of Teusts.
Trusts raised upon conveyance of the legal estate.
By declaration of trust — precatoi-y trusts— evidence in writing
required by the Statute of Frauds.
By ooustructiTe trust — fi-om payment of consideration —
purchase in name of wife or child— voluntary convey-
ances — conveyances obtained by fraud.
By resulting trust — from partial declaration of trust — from
declaration which fails of effect.
Trusts raised without conveyance of the legal estate.
By declaration of trust — voluntary declaration of trust.
By constructive trust arising from contract — voluntary
agreements — imperfect gifts — voluntary declarations of
trust distinguished.
L The system of trusts is formed upon the same general creation of
principles of equity as that of uses before the statute ;
but it has been much more largely developed^ and in some
points with difi'erent results. Like uses before the statute,
trusts may be raised by express declaration, or by con-
struction of equity ; and they may be raised upon two
conditions of the legal estate, — upon a conveyance of
the legal estate, vesting it in another for the purpose of
or subject to the trust — or without any such conveyance,
by severing the equitable interest from the legal estate
as previously vested, leaving the legal owuer in the
position of trustee (a).
Upon a conveyance of the legal estate, a declaration of Trusts raised
trust is sufficient to denote the intention of the con- oi tL°ieM7™'^°
veyance, and to direct the course of the trust or equitable cLratimof °"
estate. If the legal conveyance is effectually made, the
court of equity enforces the trust according to such
direction/ (6).
(a) See 1 Hayes Conv. 102, 5th ch. vi., on transmutation of posses-
ed., where this distinction is con- sion.
trasted with the corresponding dis- (h) Ellison v. Ellison, 6 Ves. 656 ;
tinction in the modes of raising uses. 1 W. & T. L. G. 22-3 ; and authorities
See ante, p. 105 ; and see Lewin, there cited.
k2
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132 PART I. CHAP. IV. TRUSTS AND EQUITABLE ESTATES.
No tectnical language is required to declare a trust ;
any words or expressions from whicli the intention can
Construction of bo ascertained are sufficient. In the construction of
anTeipreaaionB! wills it is a general rule that even precatory words, as
words expressing a wish, request, recommendation, hope,
or confidence shall prima facie be taken to constitute a
trust, if the trusts in other respects, as to the subject
and object of the trust, be declared with sufficient
certainty. If a declaration in such terms is meant to be
discretionary only, and not imperative, it must be so
expressed (a).
Evidence in The Statute of Frauds, 29 Car. II. c. 3, s. 7, requires
™th?stetu™of that all declarations or creations of trust of lands tene-
ments or hereditaments shall be manifested and proved
by some writing signed by the party; with a saving
of trusts arising or resulting by the implication or
construction of law, as in the cases next mentioned (b) .
The statute applies to leaseholds and chattels real (c) ;
but not to personal chattels, and as to these a declaration
of trust may be made and proved without writing {d) .
Writing subse- The statute does not require that a trust shall be
of tast."'^''*'™ created by writing, but that it shall be manifested and
proved by writing ; and therefore the written declaration
or evidence may be subsequent to the creation of the
trust (e). The trust or disposition of the equitable
interest, whether declared or consti'uctive, is determined
at the time of the conveyance made, and, as then con-
stituted, cannot be altered or affected by subsequent
declaration, except under an express power of revocation
reserved in the declaration of trust (/).
(a) 1 Jarman Wills, 334 ; Haw- (c) Sietf v. Whitmore, 2 Freem
kins WiUs, 159 ; KaigU t. Knight, 280.
3 Beav. 148 ; S. C. in H. L. nom. ; {d) 1 Haa-e, 461, M'Fadden v,
Knight T. Boughton, 11 C. & F. 513 ; JenJeyns.
Katon V. Watts, L. E. 4 Eq. 151 ; (e) Forster v. Sale, 3 Ves. 696
see Mackreth v. Maclcreth, L. E. 14 Gardner t. Rome, 5 Euss. 258.
Eq. 49 ; Cm-nick t. Tucker, L. E. (/) See Kilpin v. Kilpin, 1 M. &
17 Eq. 320 ; see^os^, p. 136. K. 520, 531 ; Stock t. M'Avoy, L
(b) See ss. V, 8, cited ante, p. 106. E. 15 Eq. 55 ; 42 L. J. C. 230 '
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SECT. II. THE CEEATION OP TRUSTS. 133
Courts of equity will allow the trust to be proved by Trusts proved by
other means than writing, notwithstanding the Statute ^^^° "^ °"°'''
of Frauds, where it becomes necessary in the exercise of
their jurisdiction to prevent fraud; as where a person
accepts a conveyance or devise upon a trust, which he
afterwards fraudently refuses to execute, the trust may be
established against him by parol evidence {a) .
Where a cpnveyance is made without any declaration constructiTe
of trust, Equity, as a general rule, raises a trust in the payment of con-
purchaser or the person who advances the consideration
or purchase money ; and the rule is applied whether the
conveyance is taken in the name of a stranger, or in the
name of a stranger and that of the purchaser, either
jointly or in successive limitations (6). The trust thus
raised is within the saving clause (sect. 8) of the Statute
of Frauds, as being a trust arising by construction of
law, and may be proved by parol evidence (c) .
So with land of copyhold tenure, if a surrender or Trusts of copy-
l ' 1 Ti* f T • ^'^^^ raised by
grant be made without any declaration of trust, but it payment of fine
TT^pT.or purebase
appear that another person advanced the fine for admis- money,
sion upon the surrender, or the purchase money for the
grant, the surrenderee or grantee will be presumed to
hold upon a trust in his favour. Where admittance is
given for several lives in succession, if one of the cestui
que vies pay the whole price or purchase money, the trust
results to him for the whole estate granted ; and such
trusts are the creation of equity and independent of the
legal custom as to the distribution of the estate [d).
An exception to this rule occurs if the conveyance be Purchase in
^ _ name of wife
taken in the name of the wife, or a child of the purchaser ; or child.
a presumption then arises from the relationship that the
(o) See M'Cormich v. Grogan, L. W. & T. L. C. 184, 192.
E. 4 H. L. 82, 97 ; Haigh v. Kaye, (c) Lloyd v. Skillet, 2 Atk. 148,
L. K. 7 Ch. 469 ; 41 L. J. C. 567 ; 150.
Norrisy. Frazer, L. K. 15 Eq. 318 ; (d) Dyer y. Dyer, 2 Cox, 92 ; 1
Booth T. TurU, L. B. 16 Eq. 182, W. & T. L. C. 184 ; Leiois v. Lane,
and oases there cited. 2 M. & K. 449 ; Scriven, 408 ; see
(J) Dyer v. Dyer, 2 Cox, 92 ; 1 ante, p. 79.
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134 PAET I. CHAP. IV. TEUSTS AND EQUITABLE ESTATES.
Surrender of
copyholds to use
of wife or child
of purchaser.
Voluntary cou-
Teyance.
Voluntary con-
veyance void
against creditors
and purchasers.
purchase was intended for the benefit or advancement of
the wife or child. But such presumption may be rebutted
by contemporary evidence of a contrary intention (»).
So, where the conveyance was taken in the names of the
trustees of a previous marriage settlement containing
trusts for the benefit of the purchaser's wife and children,
it was held to be subject to the trusts of the settlement
for their benefit (&) .
So, if the surrender and admittance of copyholds be
taken in the name of the child or of the wife of the
purchaser, it imports an advancement for their benefit,
and rebuts the resulting trust in favour of the pur-
chaser (o).
Where a conveyance is made without any declaration
of trust, and without any payment of purchase money
whence to infer a trust or disposal of the beneficial
interest, it is presumed to be made for the benefit of the
legal grantee. The rule is different with uses, as has
been seen, for absence of consideration and of declared
intention raises a resulting use in the grantor. Thus, a
grant to A. and his heirs, without any declaration of use
and without any consideration to raise a use, imports a
resulting use in the grantor, which is executed by the
statute and the estate remains in him as before ; but a
grant to A. and his heirs to the use of B. and his heirs
conveys the legal and equitable interest to B. although
there be no consideration given or express appropriation
of the beneficial interest, and there is no resulting
trust {d).
But conveyances made without consideration, or
voluntary conveyances, as they are called, though good
and efiectual against the grantor and his representatives.
{a) Dyer t. Dyer, supra ; Grey t.
Grey, 2 Swanat. 594 ; Crov} t.
Pettingill, 38 L. J. C. 186 ; Sayre
V. Sughes, L. K. 5 Eq. 376 ; Hep-
wurth V. Hepworth, L. R. 11 Eq. 10
Stoch V. M'Avoy, L. B. 15 Eq. 55
42 L. J. C. 230.
(J) Re Curteis Trust, L. E. 14
Eq. 217 ; 41 L, J. C. 631.
(c) Dyer t. Dyer, supra ; Scriven
ou Cop. 411.
(d) A nte, p. 107 ; 1 Sanders ou
Uses, 334 ; see per Harrlwicke, t.
C, Lloyd V. Spillet, 2 Atk. 148.
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SECT. II. THE CREATION OF TRUSTS. 135
are held to be fraudulent and void against creditors and
subsequent purchasers^ within the statutes 13 Eliz. c. 5,
27Bliz. c. 4 {a).
It may here be noticed that a conveyance^ whether conveyance ob-
voluntary or not, obtained by fraud or undue influence
or mistake, may be set aside in equity, and a reconvey-
ance decreed ; and a trust may thus result in equity in
favour of the grantor (h) . So, a voluntary conveyance Voluntary con-
•1 1 ' T o -t n n^ / 1 ' "veyance for pur-
made lor a special purpose which faus of effect (not being pose whicb Mb.
an unlawful or illegal purpose), may entitle the grantor
to call for a reconveyance, and raise a resulting trust
in his favour (c). But the trusts are raised in these
cases by the general jurisdiction of equity to prevent
fraud, which is not within the scope of this treatise
further than to call attention to it as a copious source of
constructive trusts, distinct from those arising in the
ordinary bond fide dealings with property. °
Where a conveyance is made to trustees, in that cha- Resulting truBts,
. n 1 — from partial
racter, with a partial declaration of trust, or for the declaration of
. . trust.
purpose of a trust which does not exhaust the beneficial
interest, the interest undisposed of remains in the grantor
as a resulting trust, like a resulting use before the statute.
The presumption here is against the intention to pass
the beneficial interest beyond the trust or purpose ex-
pressed [d).
So with a devise of land by will, if it be declared to Devise upon
be upon trust for a particular purpose, as for the pay-
ment of debts, and no further trust is declared, it is
taken to be for that purpose only and no other, and the
(a) Post, Part IV. ' Fraudulent (c) See Manning t. GUI, L. B. 13
Conveyances.' Eq. 485 ; 4.1 L. J. C. 736 ; MaigJi
(b) Suffuenin v. Baseley, 2 W. & v. Kaye, L. B. 7 Ch. 469 ; 41 L. J.
T. L. C. 504 ; Hall v. Hall, L. E. C. 567 ; Colquhoun v. Courienay,
8 Ch. 430 ; 42 L. J. C. 444, where 43 L. J. C. 338 ; see ante, p. 133.
see as to the presumption of fraud {d) 1 Sanders on Uses, 327 ; ante,
arising from a voluntary conveyance p. 107; 2 Atk. 150, Lloyd v.
being made without a power of re- Spillet.
vocation.
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136 PAET I. CHAP. IV. TRUSTS AND EQUITABLE ESTATES.
Resulting trust
from declaration
which fails of
effect.
Precatory de-
darations.
unexhausted beneficial interest results to tlie heir or
passes to the residuary devisee ; but if the land be de-
vised merely subject to a particular charge, as a charge
of debts, the unexhausted beneficial interest remains
with the devisee. Difficulty often occurs in construing
wills in this respect, because, from the universally
voluntary nature of devises, absence of consideration
affords no guide to the intention, as it does in a con-
veyance inter vivos (a).
So, where the declaration of trust extends to the
whole interest, but is void or incapable of taking
effect or in the event fails of effect wholly or partially,
there is a resulting trust for the grantor or his represen-
tatives (&). But if a conveyance, though voluntary, be
accompanied with a declaration, which is construed as
precatory only, and which therefore fails of legal effect
only as not intended to amount to an obligatory trust,
the beneficial interest rests in the grantee, and there is
no resulting trust (c).
Trusts raised / Trusts may be raised without a conveyance of the
ance of the legal legal estate, by express declaration of trust ; — a complete
ciarati'onof declaration of trust made by the owner of the legal
estate is as efiicient to raise the trust as if made upon a
transfer of the legal estate ; the trust is raised by force
of the declaration, and does not require any considera-
tion to support it by way of contract {d) . " A declara-
tion of trust is considered in a court of equity, as equiva-
lent to a transfer of the legal interest in the court of
law j and if the transaction by which the trust is created
is complete, it will not be disturbed for want of con-
Voluntary de-
claration
(a) 1 Jarman Wills, 502 ; see King
f. Venison, 1 V. & B. 260.
(b) 1 Sanders on Usea, 331 ; ante,
p. 135 ; and see the like doctrine
applied to devises, 1 Jarman Wills,
502, 506 ; as to trusts failing from
uncertainty of expression, see 1
Jarman, 333.
(c) Sarding t. Olyn, 1 Atk. 469 ;
see Wood v. Cox, 2 M. & Cr. 684 ;
1 Jarman Wills, 344 ; as the effect
of precatory expressions in wiUs, see
ante, p. 132.
[d) 1 White V. Tudor, L. C, 3rd
ed., 238, notes to Mlison v. Ellison ;
Lewin on Trusts, c. vi. p. 65, 4th ed.
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SECT. H. THE CREATION OF TETISTS. 137
sideration " (a) . But if voluntary^ it may be void against
purchasers or creditors upon the same principles as a
conveyance of the legal estate (&).
Any contract or agreement concerning an interest in Trusts raised by
landj which a court of equity would decree to be specifi-
cally performed, creates a trust or equitable estate to the
extent of the interest contracted for. Thus, under a
valid contract of sale of land the vendor becomes a
trustee for the purchaser for the performance of the con-
tract according to its terms and conditions] (c) .
A contract satisfying the statutory requirements of contract operat.
a bargain and sale, as being by deed indented and in- LnlTaie!''^^™
rolled, might raise a use executed by the statute and at
once convey a legal estate ; " but," it has been remarked,
" even if those requisites were observed a contract could
rarely so operate, for, as it ordinarily contemplates a
future conveyance, to be preceded by an investigation
of the title, its executory nature would negative that
operation, no less than it prevents the vendor standing
in the simple relation of a bare trustee to his cestui que
trust." "It raises a qualified trust in favour of the
purchaser " — a trust for specific performance according
to the terms of the contract (d).
Q An agreement without consideration or voluntary Voluntary agree
agreement to transfer an estate or interest is not en-
forced in equity, and therefore raises no trust (e) . Nor
does it have any greater effect in raising a trust when
made in form of a covenant under seal, or in favour of
a wife or child or other relation (/) ; herein differing from
(a) Per Lord Langdale, M. R., Bright, 1 Jac. & W. 494, 501 ;
Collinson t. Patriclc, 2 Keen, 123. Trotter t. Watson, L. R. 4 C. P.
(fi) Ante, -g.l^i:. 434,450; M'Creight v. Foster, L.
(c) See Legard v. Bodges, 1 Ves. K. 5 Ch. 604, 610 ; 5 H. L. 321.
jun. 477. M'Creight v. Foster, L. (e) 1 W. & T. L. C. 255, notes to
E. 5 Ch. 604 ; 8. C. nom. Shaw t. Ellison v. Sllison.
Foster, L. E. 5 H. L. 321. (/) lb. 256 ; Lewin on Trusts, 62,
{d) 1 Hayes Cony. 96 ; 1 Sanders 63, 4th ed. ; Jefferys t. Jefferys, Cr.
on tXaes, 114 ; as to the tvust arising & Ph. 138 ; Dillon v. Coppin, 4 M.
upon a contract of sale see Wall t. & Cr. 647.
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138 PART I. CHAP. IV. TRUSTS AND EQUITABLE ESTATES.
a covenant to stand seised to uses, which raised a use
upon a good consideration, i. e., in favour of a wife or
blood relation, without any valuable consideration to
support it. An intended marriage is considered as a
valuable conrsideration in support of an agreement, and
for the purpose of raising a use or trustf (»). •
Imperfect gift. The Same principles apply to a gift or voluntary con-
veyance, if imperfect ; equity will not assist or enforce
it, and therefore no trust is raised in favour of the
donee (b).
Voluntary de- The distinction between a voluntary declaration of
claration of trust , , n i ,
distinguished, trust and a voluntary agreement to convey or an imper-
fect gift, the former being sufficient to raise a trust and
the latter not, has been further explained as follows : —
" A declaration of trust purports to be and is in form
and substance a complete transaction, and the court
need not look beyond the declaration of trust itself or
inquire into its origin ; — whereas an agreement or
attempt to assign is in form and nature incomplete,
and the origin of the transaction must be inquired into
by the court ; and where there is no consideration, the
court, upon its general principles, cannot complete what
it finds imperfect" (c). It may be added that by a
declaration of trust the owner of the property intends
to constitute himself a trustee ; but in making an
agreement or an attempt to convey he has no such inten-
(o) Q-ilbert on Uses, 47 ; Fremoult volunteera all whose claims had not
V. i>edire, 1 P. Wms. 429 ; ante, the support of a really valuable
p. 110. The doctrines of equity with consideration ; and for a volunteer
respect to voluntary agreements equity would not do more than
have been thus stated : — " If the administer a trust regularly con-
intention was suilered to rest in con- stituted." 1 Hayes Conv. 102.
tract, then a substantial considera- (i) 1 W. & T. L. C. 243, notes to
tion as money or money's worth or Ellison v. Ellison ; Antrohus v.
the value of a prospective marriage, Smith, 12 Tes. 39 ; Edwards v.
was requisite to evoke the extra- Jones, 1 M. & Cr. 226.
ordinary aid of equity— evoked in (c) PeryV\gya.m,Y.G.,M'Fadden
order, not merely to execute, but to v. Jenkins, 1 Bare, 462; and see 1
estabUsh the trusts. Between moral W. & T. L. C. 243, 256, in notes to
duty to a wife or child and bounty Ellison v. Ellison. See per Jessel
to a stranger equity no longer made M. E. Richards v. Belhridge, 43 l!
any distinction, but regarded as J. C. 459.
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SECT. in. LIMITATION OF EQUITABLE ESTATES. 139
tiorij and if he becomes so, it is by construction of equity
only (a).
Section III, § 1. Equitable Estates, and § 2. Estate
AND Office of Trustee.
§ 1. Equitable Estates.
Equity follows the law — limitation of equitable estates — rules of
tenure and doctrines peculiar to freehold.
Equitable estates of copyhold follow the custom — are not subject
to fines and incidents of the legal tenancy — lord not bound
by trusts — unless appearing on the rolls — custom to sur-
render upon trusts.
Equitable estates arising from constructive trusts.
Conveyance of equitable estates — writing required by the
Statute of Frauds — equitable estates of copyhold.
Disposition by will and descent of equitable estates.
In the regulation of trusts, equity, in general, follows Equity foUows
the law ; except where the different nature of the juris-
diction excludes any analogy (&).
Accordingly in the declaration of the trust or bene- The limitation of
n • T • I in T ' I I • ^11 1 1 II equitable estates.
ncial interest the hmitations ot the legal estate are
followed. The same estates are allowed and the same
language is generally used and receives the same con-
struction as at law. Thus, the equitable estate may be
limited in fee simple or in tail, for a term of life or for
years, ia possession and in remainder (c) .
It was formerly the practice for the court of chancery, practice of stat.
in a case of doubtful construction of the limitations of opfnion^of 'court
an equitable estate, to send the case to a court of com-
mon law, with the question stated as if it had arisen
(ffi) See Antrolus v. Smith, 12 (o) Sanders on Uses, 269 ; 2 Ves.
Ves. S9; Sdwards v. Jones, l'M..& sen. 655,- Garthv, Baldwin; Wright ,
Cr. 226 ; and see Lewiu on Trusts, v. Fearson, 1 Eden, 119; Burgess
u. vi. p. 55, 56, 4th ed. T. Wheate, 1 Eden, 223, cited ante,
(I) per'Lond^M.&ns&eXAfin Burgess p. 126 ; ib. p.250, perL. Northing-
v. Wheate, 1 Eden, 223 ; cited onie, ton j Butler's note to Co. Lit. 290
p. 126. i, s. xiv.
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140 PART I. CHAP. IV. TRUSTS AND EQUITABLE ESTATES.
upon an instrument operating at law^ for the opinion of
the court of law as to the construction of the words of
the instrument ; and where the question could not be so
moulded, the assistance of some of the judges might be
called in. But even where a question as to the con-
struction of an instrument operating at law arose in a
suit in chancery, it was fully competent to the court to
The practice decide it upon its own authority {a). The Chancery
Amendment Act, 15 c. 16 Yict. c. 86, s. 61, put an end
to the practice of directing a case to be stated for the
opinion of a court of law, giving the Court of Chancery
full power to determine any questions of law necessary
to be decided previously to the decision of the equitable
question at issue.
EvaeB of tenure But the Tules of tenure have no application to the
tirafto equitable equitable estate ; for the trustee is equally recognised to
be the legal tenant, bound by the daties of tenure, in
Doctrines pecu- equity as at law. So, also, the legal doctrines concern-
Uar to freehold . ^ ^ . . ... °
have no appiioa- mg the seisiu, rcquirmg the tenancy to be always lull,
and excluding all future or shifting limitations except by
way of remainder, as they are peculiar to the quality
of freehold, have no application to the equitable estate ;
and an equitable estate may be limited to arise at a
future time, or upon future or contingent events, or by
appointment under a power, with all the freedom of
springing and shifting uses, and in some respects even
with greater freedom (i) .
Equitable Umita- Upou the Same principle that equity follows the law,
hoWsfoiiowthe a declaration of trust of copyholds, as to the estates
admissible, the limitation of estates, and construction of
the limitations, follows and is regulated by the custom
of the manor. Accordingly, the equitable interest can-
, not be Limited for an estate tail in manors which have
(a) 1 Spence, Eq. Jur. 517 ; see p. Ill ; and see per Cranworth, L.
per Bajley, J., Houston r. Hughes, C. 26 L. J. C. 444, in Eoddam v .
6 B. & 0. 420; 11 Simons, 489, Morley.
Blundell t. Gladstone ; see ante, (i) Ante, pp. 112, 113.
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SECT. III. LTMITATION OF EQUITABLE ESTATES. 141
no special custom that the legal tenancy may be en-
tailed (a).
But the equitable estate in copyholds is independent of Trust estate not
the claims of the lord incident to the legal tenure ; as aVotiier inol'
fineSj fees, heriots, escheat, forfeiture and the like (b) . tenancy.
If a surrender is made upon express trusts, the lord The lord's rights
is not bound to notice the trusts or to enter them upon by^ trusts unless
the court rolls ; nor is he bound by notice of any trusts rou"^ ™^™
which do not appear upon the rolls (c). If a sur-
render upon terms expressing or referring to trusts be
accepted and enrolled, the lord may be bound by the
trusts as against his own rights; and in case of an
escheat or forfeiture of the tenancy, he would then hold
as trustee, and might be compelled to regrant according
to the trusts (<£) ; but he would not be liable, as for a
breach of trust, in respect of any merely ministerial acts
required of him as lord (e). It seems that there may
be a custom in a manor to surrender lands upon trusts
declared in the surrender (/).
Equitable estates arising from constructive trusts with- EcjuitaWe estates
out any express declaration follow the intention of the structfve toust.
parties or are regulated by the circumstances of the case.
Thus, a contract for the sale of land without expressing
the interest intended is construed as referring to and
importing the whole interest of the vendor, which he is
therefore bound to convey ; and the contract may thus
create an equitable estate in fee simple without any
technical words of limitation [g) . So, a resulting trust
carries all the equitable estate undisposed of, without
any words of limitation {h) .
(a) Fallen v. Middleton, 9 Mod. M. 97.
483 ; Seriyen, 68, 400. (e) Seriyen on Cop. 405.
{b) R. V. Hendon, 2 T. R. 484 ; 1 (/) Snoolc y. Soutlwood, 5 A. &
Strange, 454, Peachy f. Duke of E. 239.
Somerset. iff) See ante, p. 137 ; Bower v.
(c) Peaoliy v. Dulte of Somerset, Cooper, 2 Hare, 408.
supra. (A) Ante, p. 135.
id) Weaver y. Maule, 2 Euas. &
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142 PART I. CHAP. IV. TEUSTS AND EQUITABLE ESTATES.
Conveyance of In the transfer of equitable estates and interests by
equitable estates. . ...,,.
conveyance inter vivos, it is tne ordinary practice to use
the same formal assurances as are required in law for the
corresponding legal interests, as a deed of grant, or release,
etc., which are taken in equity to have the same effect upon
the equitable estate as they would have in law, if the
estate were legal ; but such formal assurances are not
absolutely necessary. Any instrument which expresses
an intention to transfer the beneficial ownership to
another is effective in equity; with a few exceptional
occasions, as in the case of a tenant in tail or a married
woman, who are required to employ the same formalities
as at law (a) .
writingregniped By the Statute of Prauds, 29 Car. II. 2, c. 3, s. 9, " all
by Statute of , • j p i i n -i inn
Frauds. grants or assignments oi any trust or confidence shall be
in writing signed by the party granting or assigning the
same.'^
Equitable estate Equitable estates and interests in copyholds may be
pastel withont Created and assigned without surrender or admittance,
aStanoe? 01 any of the forms appropriate to the legal tenancy,
and without any other formality than is required for
trusts in general (b). So, the equitable estate might
have been devised without a surrender to the use of
the will, before such surrenders were dispensed with by
Equitable estate Statute (c). But by the Pines and Eecoveries Act, 3 & 4
surrender. ^ Will. IV. c. 74, s. 50, a disposition of copyhold land by a
tenant in tail, whose estate shall be merely an estate in
equity, may be made either by surrender, or by a deed
as therein provided (see sect. 50-53).
Devise of Equitable estates are devisable by will with the forms
equitable estate. ^gq^.^g^ for making a vahd will [d). In case of in-
(a) See 1 Hayes Couv. 98, 127 ; (o) Tuffnell v. Tage, 2 Atk. 37 ;
1 Sanders on Uses, 342 ; Carpenter see ante, p. 84.
T. Carpenter, 1 Vern. 440 ; North (d) 1 Sanders, 271 ; 1 Vict. c.
T. Champernown, 2 Oh. Ca. 78, per 26, s. 2 ; post, Part IV. ' Disposi-
Nottingham, L. C. tion by Will.'
(i) See ante p. 72.
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SECT. III. ESTATE AUD OFFICE OF TRUSTEE. 143
testacy an equitable estate of inheritance descends to Descent of
tlie heir according to the legal rules of descent, in-
cluding the variations of special customs to which the
land is subject; while an equitable estate for a term of
years or chattel interest passes to the executor or
administrator as personal estate (a).
§ 2. Estate and Office of Teustee.
Estate of trustee — trust follows the estate.
Purchaser for value without notice — purchaser without value —
purchaser with notice.
Purchase under trust for sale — power of trustee to give receipts —
statutory power.
Power to appoint new trustees — jurisdiction of Court of Chancery
to supply the want of trustees — statutory power of Court to
appoint new trustees — statutory power without the aid of
the court.
Liabihty of trustee to account — remuneration for time and services
— expenses — employment of agents — indemnity.
Liabihty for breach of trust or neghgence — default of agent —
default of co-trustee.
Profits of trust — purchase of trust property by trustee — purchase
of incumbrance — renewal of lease by trustee — purchase from
cestui que trust — persons in fiduciary position.
The landj remaining at law the property and at the Estate of trustee.
disposal of the trustee^ is subject, in his hands, to all the
incidents of legal ownership. It passes by his convey-
ance or devise, or descends to his heir (6).
But the trust or equitable title is, for the most part. The trust foUows
independent of the casualties affecting the legal owner- " ^^^ '* * *'
ship, and, as a general rule, follows and attaches upon
the land through all the devolutions of the legal title. All
persons who take through or under the trustee, as his
grantee, (except a purchaser for value without notice of
(a) 1 Sanders, 270 ; ante, p. 86. (i) Lewiu on Trusts, 170, 4th ed.
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144 PART I. CHAP. IV. TRUSTS AND EQUITABLE ESTATES.
of the trust,) devisee, heir, executor or administrator, are
equally bound by the trust (a).
Also creditors of the trustee, obtaining execution
against the property held in trust in exercise of their
legal right, would be restrained in equity, or would them-
selves be declared to be trustees (6). So a trustee in
bankruptcy has no claim against property held by the
bankrupt upon trusts (c).
Piircliaser for
Talue without
notice of the
trust.
An exception occurs with a purchaser acquiring the
legal estate from the trustee for a valuable consideration
and without notice of the trust. The trust is thereby
displaced and extinguished as to the land ; for the pur-
chaser, in such case, has an equal equity with the former
equitable owner, and having the legal estate is allowed
to retain it, according to the maxim, " in cequali jure
melior est conditio possidentis." The former equitable
owner is left to his claim against the trustee personally for
the breach of trust in parting with the trust property {d} .
The purchaser for value without notice can convey a
'Sout^' good title, discharged of the trust, even to a purchaser
with notice, except to the trustee who committed the
breach of trust; in whose hands the land, though pur-
chased for value, would be restored to the trust, in order
to meet his original breach of trust (e) .
A purchaser, or person acquiring the trust property
from a trustee, without giving any value or consideration
for it, as by a voluntary gift or devise, is charged with
the trust and all equities affecting the property to the
same extent as the trustee from whom he took, whether
he had notice of the trust or not (/) .
Purchaser with
notice from pur-
chiser
notice.
Parchaaer with-
out value.
(a) Lewin, 185.
(b) 1 Sanders on Uses, 351 ; Lewin,
186, 556.
(o) See Kitchen t. libetson, L.
E. 17 Eq. 46, 49.
{d) 1 Sanders, 320, 350 ; Lewin,
557 ; as to the remedy for the breach
of trust see ib. 588. See post, Part
II. Chap. II. Sect. VI. The trustee
may also be liable as tor a misde-
meanor for a fraudulent sale of the
trust property, by the Fraudulent
Trustees Punishment Act, 20 &21
Vict. c. 54.
(e) Ib.
(/) 1 Sanders, 319 ; Lewin, 556 ;
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SECT. III. § 2. ESTATE AND OFFICE OF TRUSTEE. 145
A purchaser taking the trust property from a trustee Purchaser with
with notice of the trusty though he paid full value for it,
is subject to the trust; but if he paid value, it will be
presumed that he had no notice, and the onus of proving
notice will lie upon the party alleging it against him {a).
Notice received before paying the purchase money is suffi-
cient to charge a purchaser with the trust, though he had
no notice at the time of contracting for the purchase (&).
Where the property is sold and conveyed by the trus- Purchase under
tee in execution of the trust, a purchaser with notice is
so far bound by the trust, according to the general rule,
that he becomes responsible for the sale being a proper
one, and for the proper application of the purchase money ;
upon the principle that the cestui que trust, as being the
equitable owner, alone can discharge him. But an ex- impUed power
ception is made with trusts for general purposes, which fo/purehaa?''
the purchaser has no means of inquiring into, as a trust "'°°°''"
to sell for the payment of debts generally, or for the
payment of debts and legacies, or other kinds of trust
which imply the power of selling the property discharged
of the trust. Trusts for the payment of specified debts,
or of legacies only, are within the general rule (c) .
Hence trusts requiring a sale or disposal of the pro- ^^ipress power
perty, in order to facilitate the execution of the trust, are '° ^™ '■«'"''?'•
usually framed with an express power of giving receipts
to the purchaser, and discharging him from the obhga-
tion of seeing to the proper application of the purchase
1 Co. 121 h ; Marlow v. Smith, 2 P. Tounille t. Nash, 3 P. Wms. 307.
Wms. 200 ; Chant v. Mills, 2 V. & (c) Lewin, 307, 309, 313 ; Elliott
B. 306. T. Merriman, 2 Atk. 4 ; S. C. 1 W.
(a) 1 Sanders, 319 ; Lewin, 557, & T. L. C. 51, see notes, ib. p. 58 ,
the Statute of Limitations will run in and see post, p. 275. A trust
his favour, which it will not in the authorising a sale for the purpose
case of an express trustee. Ib. 560 ; of re-investing implies a power in
post, Part IV. Chap. YI. ' Statutes the trustee to receive the purchase
of Limitation.' money and discharge the purchaser.
(i) Wigg v. TFigg, 1 Atk. 382 ; Locke v. Lomas, 5 D. & S. 326 ; 21
Hardingham v. Nicholls, 3 Atk. 304; L. J. C. 503.
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146 PART I. CHAP. IV. TRUSTS AND EQIHTABLE ESTATES.
money. Tlie purchaser is then discharged from all re-
sponsibility upon payment of the money to the trustees^
and obtaining their receipts ; for the equitable owners
claiming under the trust are bound by its terms and con-
ditions. Such a clause, however, does not exempt the
purchaser from the consequences of the power of sale not
being duly exercised, upon a proper occasion and in a
proper manner [a) ; and it may happen that notwith-
standing such clause, the power is made conditional, as
to its due execution, upon the proper application of the
money (&).
stattttory power I* is uow providcd generally by statute 23 & 24 Vict.
to give reeeipte. ^ j^g^ ^^ord Crauworth's Act,) s. 29, that " the receipts in
writing of any trustees or trustee for any money payable
to them or him by reason or in exercise of any trusts or
powers reposed or vested in them or him shall be suffi-
cient discharges for the money therein expressed to be
received, and shall effectually exonerate the persons
paying such money from seeing to the application thereof,
or from being answerable for any loss or misapplication
thereof." This Act extends only to instruments executed
after the passing of the Act (s. 34) ; and the instrument
may negative or vary its operation (s. 32) . Powers of sale
expressly given to trustees by any instrument may be
exercised according to the provisions of sections 1-10
of the same Act, unless those provisions are negatived or
varied by the instrument (c) .
(a) Rede f. Oakes, 4 D. J. & S. provision would not protect him
505 ; 34 L. J. C. 145 ; Dance t. against the consequences of actual
Goldingham, 42 L. J. 0. 777 ; L. notice ol an improper or ii-regular
E. 8 Ch. 902. sale. 1 Prideaux Couv. 434, 7th
(6) Doe V. Martin, 4 T. E. 39 ; ed. ; Jenkins v. Jones, 2 Giff. 99.
Sougham v. Sandt/s, 2 Sim. 95 ; see (c) As to the effect of these provi-
2 Sugden Powers, 478. In mort- sions see 1 Prideaux Conv. 461-465,
gages, in order to faoUitate the 7th ed. ; the receipt clause may now
remedy, it is usual to provide farther be safely disper sed with, 2 Prideaux,
in express terms that a purchaser 180. See the previous Act of Lord
shall not be affected by the power St. Leonards, 22 & 23 Yiot. c 35, a.
of sale not being properly exercised 23, enacting to the like effect, but
as agamst the mortgagor, or by any extending only to trust moneys
irregularity in the sale ; but such a arising from sales and mortgages.
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SECT. III. § 2. ESTATE AND OFFICE OF TEUSTEE. 147
Power is usually given to trustees to convey the pro- power to appoint
, , , , . • f* ,1 ^^^ ti'uatees.
perty to new trustees as occasion requires tor the purpose
of continuing the trust : such power being generally
made exercisable with the consent of the cestui que
trust. In the absence of such express power there is no
general power in the trustees to transfer the property
and delegate the trust [a) .
But the cestui que trust is entitled to have, at all times, jurisdiction of
proper trustees to hold the estate and support the trust, chancery to
-^ _, .... supply the want
and the Court of Chancery has a general jurisdiction to of tmstpea
execute trusts, and order conveyances of the trust
property, which wiU be exercised as occasion requires.
It being a maxim of equity that " a trust shall not fail
for want of a trustee," the Court will supply the want of
them when necessary (6).
The appointment of new trustees upon occasions of statutory power
diflBculty has been facilitated by statute. By the appoint new
Trustee Act, 1850, 13 & 14 Vict. c. 60, s. 32, it is enacted *™''"'°'
" that whenever it shall be expedient to appoint a new
trustee, or new trustees, and it shall be found inexpedient,
difficult, or impracticable so to do without the assistance
of the Court of Chancery, it shall be lawful for the said
Court of Chancery to make an order appointing a new
trustee or new trustees, either in substitution for, or in
addition to any existing trustee or trustees," — and, by
the act to extend the above Act, 15 & 16 Vict. c. 55, s. 9,
" whether there be any existing trustee or not at the time
of making such order." The Court may also make an
order vesting the lands in the new trustees, which shall
have the same effect as a conveyance made by the former
trustees for the same purpose (c).
The Court will not, in general, exercise the power given
by this enactment, where there is an existing power of
(a) Lewin, 192, 4,20, 434. (e) 13 & 14 Vict. o. 60, s, 34; as
(J) lb ; Lewin, 535, 547 ; see to the application of these enact-
Bennet v. Davis, 2 P. Wms. 316 ; ments, see Lewin on Trusts, 684 ;
Brown v. Siggs, 8 Ves. 570 ; Davin Chitty's Statutes.
Trusts, L. E. 12 Eq. 214.
l2
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148 PAET I. CHAP. IV. TEUSTS AND EQUITABLE ESTATES.
appointing new trustees, wMoh is capable of exercise (a).
— The court may appoint a new trustee in place of a trustee
residing abroad, without his consent (b) ; or in place of a
bankrupt trustee (c). — The Court may enlarge the number
of trustees originally appointed (d) ; and where a trustee
wishes to retire, the Court may appoint the continuing
trustees to be soletrastees (e).
The Court in appointing new trustees has regard to the
wishes of the person who created the trust, as appearing
in the instrument creating it, also to the interests of all
the cestui que trusts, and to the proper execution of the
trust (/). As a general rule, the Court will not appoint
a tenant for life of the equitable estate, although such an
appointment is perfectly valid (g).
statutory power By the 23 & 24 Vict. c. 145, (Lord Cranworth's Act,)
trusteeswithOTt s. 27, a general statutory power of appointing new
trustees and of transferring to them all the powers and
property of the trust, without the aid of the Court, is
given in the terms there contaiHed. The Act applies
only to instruments executed after the passing of the
Act, audits application maybe negatived or varied by the
instrument creating the trust (ss. 32, 34).
the aid of the
Court.
Trustee bound
to account.
Claim for time
and services.
A trustee may be compelled to give an account
of the execution of the trust [h). He is not allowed to
charge any remuneration for giving his time or ser-
vices, — a rule which extends to all persons fiUing a
fiduciary character, as executors, and the like ; notwith-
standing he may have rendered the services in a profes-
sional capacity, as a solicitor. But the trust may expressly
(a) Hodson's Settlement, 9 Hare,
118; 20 L. J. C. 551.
(b) Bignold's Settlement, L. E. 7
Ch. Ap. 223 ; 41 L. J. C. 235 ; see
re Blanchard, 3 D. F. & J. 131 ;
30 L. J. C. 516.
(6) Coombes t. Brookes, 41 L. J.
C. 114; see Bankruptcy Act, 1869,
=.117.
{d) Tunstall's Will, 4 D. & Sm.
421.
(e) Stokes Trust, L. R. 13 Eq.
333.
(/) Re Tempest, L. R. 1 Ch. 485.
{g) Forster^. Abraham, L. R. 17
Eq. 351.
(A) Lewin, 448.
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SECT. III. § 2. ESTATE AND OFFICE OF TEUSTEE. 149
direct the allowance of a remuneration for time and
services, professional or otherwise [a).
A trustee may charge the expenses actually incurred claim for ei-
by him in the protection and maintenance of the trust ^^'"^''
property and in the execution of the trust ; — and he may of agents, etc.
charge the payment of agents employed on proper
occasions, as bailifis, collectors of rents, solicitors, ac-
countants, and the like (b). He has a lien upon the
trust property for the amount of his expenses ; but
agents employed by him have no claim except against
him personally (c).
A trustee is, in general, entitled to be indemnified by ciaim to ia-
his cestui que trust against any loss or liability arising in *™" ^'
the proper execution of the trust [d).
A trustee is chargeable with loss occasioned by breach Liability for
of trust or by negligence ; and a trustee is bound to the or negUgeDce.
same care on behalf of his cestui que trust as he would
take on behalf of himself (e).
A trustee is, in general, liable for the default, fraud, or Default of agent
negligence of agents employed by him (/). But an ex-
ception is made with bankers, solicitors and other like
professional agents employed of necessity and in the
ordinary and regular course of business, and without any
personal negligence in the trustee {g).
But one of joint trustees is not chargeable with the Liability for de-
'' ° fault of 00-
trnstee.
{a) 1 Sanders, 373 ; Lewin, 406- deaux, Convey. 180.
409 ; JloUriSon v. Pett, 3 P. Wms. (e) Lewin, 224 ; Jones v. Lewis,
251 ; 2 W. & T. L. C. 219, and see 2 Ves. sen. 240 ; Massey v. Banner,
notes lb. ; BrougMon v. Broughton, 1 J. & W. 241.
5 I). M. & G. 160 ; 25 L. J. C. 250. (/) Sutton v. Wilders, L. R. 12
(h) 1 Sand. 374; Lewin, 411, 412. Eq. 373; 41 L. J. C. 30 ; Budge y.
(c) Lewin, 414, 416. Oummow, L, R. 7 Ch. 719 ; 41 L.
{d) Lewin, 417; see James v. J. C. 520.
May, 42 L. J. C. 802, 804 ; L. E. (^) Lewin, 194 ; Massey r.
6 H. L. 328. It was formerly usual Banner, supra ; Clough v. Bond, .'i
to insert in settlements an express M. A C. 490 ; Johnston v. Newton,
provision for the indemnity and re- 11 Hare, 160; 22 L. J. C. 1039;
imbursement of trustees, but it is Sutton v. Wilders, supra, p. 377 ;
now rendered unnecessary by the 22 Re Bird, L. R. 16 Eq. 203.
& 23 Vict. 0. 35, 3. 31. See 2 Pri-
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150 PART 1. CHAP. IV. TRUSTS AMD EQUITABLE ESTATBS.
neglect or default of another. Each is bound to join in
all acts in execution of the trusts, and therefore upon a
joint receipt he can be charged only with so much of the
trust property or its produce as has come to his hands ;
unless fraud or neghgence can be charged against him
personally (a).
Trustee mufit
account for pro-
fits of trust.
Profits made by
use of trust pro-
perty.
Purchase of
trust property
by trustee.
It is a general principle of equity that a trustee shall
not acquire to himself any profit from the trust. What-
ever profit or benefit may accrue from the trust or trust
property is impressed with the same trust, and must be
accounted for to the cestui que trust (b).
Accordingly, a trustee who employs the trust property
for any business or purpose of his own, while he is
liable for all losses, may be compelled to account to the
cestui que trust for all the profits actually made by such
use of the property (c) ; nor can he set off such profits
against loss upon other portions of the trust funds for
which he is responsible (d) .
Upon the same principle if a trustee for sale purchase
the trust property for himself, (unless by leave of the
Court,) the sale may be set aside at the suit of the cestui
que trust (e) . " The Court will set aside every sale out
of Court to a trustee, and will further fix him with the
price he proposed to give in the event of the property not
fetching more upon a resale " (/) . If he has resold at
an advance, he may be compelled to account for the excess
above what he himself gave {g) .
(a) 1 Sanders, 375 ; Lewin, 200.
(i) Lewin, 211 ; Webb t. Earl of
Shaftesbury, 7 Tee. 488 ; Sugden t.
Crossland, 3 Sm. & G. 192 ; 25 L.
J. C. 563.
(c) 2 W. & T. L. C. 233, in notea
to Robmson t. Pett ; Lewin, 213 ;
Docker v. Somes, 2 M. & K. 655 ;
see Burdich v. Oarrick, L. E. 5 Ch.
233 ; Vyse v. Poster; L. K. 8 Ch.
309, 333 ; 42 L. J. C. 245, 251 ;
, Knox V. Gye, L. B. 5 H. L. 656 ;
cases of partnership assets retained
in busiaess after a dissolution of
partnership.
(d) Wills V. OresTiam, 2 Drew.
258 ; 23 L. J. C. 667.
(e) 1 Sanders, 362 ; Lewin, 335 ;
Fox V. MacTcreth, 2 Bro. C. C. 400 ;
1 W. & T. L. C. 104.
(/) Tennant v. Trenehard, L. E.
4 Ch. 537, 546 ; as to the terms on
which the sale will be set aside, see
Lewin, 340.
[g) Fox Y . Machreth, supra ;
Lewin, 343.
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SECT. III. § 2. ESTATE AND OFFICE OF TEUSTEE. 151
So, if a trustee buy in an incumbrance or cbarge upon Purchase of in-
the trust property for less than is due upon it, he will be trustee.
deemed to hold it as trustee, with a lien or charge for
his own benefit only to the extent of his purchase
money (a).
Upon the same principle the trustee of a renewable Eenewai of lease
leasehold who takes a renewal in his own name, wiU be
compelled to hold it upon the trusts of the former
lease (b) . A tenant for life, though not bound to renew
leaseholds, if he does, is considered as a trustee, and
holds the renewed interest upon the trusts of the settle-
ment (c).
A trustee may purchase the interest of his cestui que Puroiiase from
trust ; but the burden of proving the fairness of the
transaction, if it be called in question, lies upon him,
which if he fail in doing, the sale may be set aside (d) .
The doctrines above stated as to trustees apply generally parsons in fldu-
to all persons standing in a fiduciary position relatively to ^
the person by or on behalf of whom the property is sold,
as executors, solicitors, or agents (e). But a tenant
for life is not in a fiduciary position relatively to the
remainderman, as regards a purchase from their trustees
under a power of sale ; although his own consent be re-
quired for an exercise of the power (/). And a mort-
gagee may buy from the mortgagor or from a prior
mortgagee (g).
(a) Lewin, 212. 2 Bro. 0. C. 248.
(i) Keech v. Sandford, Cas. Ch. (d) Lewin, 337 ; Luff v. Lord,
61 ; 1 W. & T. L. C. 39 ; as to the 34 Beav. 220 ; Gray t. Warner, 42
duty of trustees to renew leaseholds, L. J. C. 556 ; L. B. 16 Eq. 577.
see Lewin 270 ; as to the apportion- (e) Lewin, 339 ; 1 W. & T. L. C.
ment of the costs of the renewal 143, notes to Fox v. Mackreth ; see
amongst the beneficial owners, see Guest v. Smyths, L. E. 5 Ch. 551.
lb. 277 ; Bradford v. Brownjohn, (/) Howard v. Bucane, T. & R.
L. E. 3 Ch. 711 ; re Wood' s Estate, 81; Bicconson t. Talbot, L. E. 6
L. E. 10 Eq. 572. See the statutory Ch. 32.
powers of renewal given by Lord {g) Knight v. Ma/rjorib
Cranworth's Act, 28 & 24 Vic. M.a.c.&,Gr.W;Kirkwoodv.Thomp-
c. 145, 83. 8, 9, and 23 & 24. Vict. son, 34 L. J. C. 305, 501 ; but see
0. 124, ss. 35-38. Ford v. Olden, L. E. 3 Eq. 461 j
[c) Lewin, 270 ; Stone r. Theed, 36 L. J. C. 651.
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152
PAET. 11. ESTATES IN LAND.
PART II.
ESTATES IN LAND.
Chapteb I. The Limitation of Estates as to
quantity.
II. The Limitation of Future Estates.
Estates in land,
— as to quantity,
— as to time of
commencement.
Property in land is divided into estates or interests
measured by the quantity or duration of the use and
enjoyment ; and such estates^, in regard to the time of
commencement^ may be either in possession or future.
Accordingly this part is divided into two chapters
treating respectively, — of the limitation of estates as to
quantity or duration, — of the limitation of future
estates (a).
The limitation of
estates.
Distinction be-
tween words of
limitation and
words of pur-
chase.
Estates are defined and ascertained by the terms of
limitation in which they are legally expressed and con-
veyed. — " It is the province of a hmitation to mark the
period or event for the commencement, and the time of
continuance or duration of an estate, either by years,
lives, or the series of heirs ; also the determinable
qualities of an estate ; as for twenty-one years, if A.
should so long live," etc. (6).
The use of words in limiting or defining an estate
requires to be carefully distinguished in practice from the
use of words in appropriating the estate to the purchaser,
as the person is commonly called to whom the estate is
(o) 8ee ante, Introduction, p. 9. (i) Preston's Shepp. Touch. 117.
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ESTATES IN LAND. 153
destined. Many words, as " heirs/^ " issue," " children,"
etc., are capable of a double import, as words of limitation
and words of purchase ; and they are often used ambi-
guously, especially in wUls. The rules of construction
occasioned by such cases of ambiguity form a considerable
part of the law of limitation of estates, and will be found
in the proper places in the following pages.
The word purchase {■perqtdsitio) is applied in law to any Meaning of
lawful mode of acquiring property by the person's own
act or agreement, as distinguished from acquisition by act
of law, as descent, escheat and the like. A purchase in
the above sense includes acquisition not only under a
contract of sale for a valuable consideration, but also by
gift or without consideration, and by devise (a).
The various estates which may be limited or created in
land may be conveniently treated in the order of their
magnitude or duration, and accordingly will form the
subjects of the sections in which the first chapter of this
part is divided.
But the terms of limitation vary in construction and variations of
effect as applied under the different systems of common
law and customary law, of uses executed by the statute
and trusts administered in equity. They also vary with
the occasion of use, as employed in contracts, conveyances
inter vivos, and wills. Therefore, to complete the view
of estates, it is necessary to collect the rules and doctrines
of limitation as they appear in the above systems and as
they are applied in different instruments.
The common law of freehold tenure is adopted, gene- standard rule
rally, as the standard rule of limitation and construction, law.
and is followed in the other systems of estates, but with the
modifications, if any, allowed or required by the quality of
(a) Lit. s. 12 ; Co. Lit. 18 S ; 2 of the term discussed in Askew t.
Blackst. Com. 241 ; see the meaning Rooth, L. E. 17 Bq. 426.
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154
PABT. II. ESTATES IN LAND.
the estate and the occasion of application; and upon
this principle the contents of the following sections are
for the most part arranged. The rules there laid down
may be considered of general application^ unless qualified
by the context^ or unless some exception or modification
be expressly noticed (a).
(a) As to customary estates, see uses, ante, p. Ill ; as to equitable
ante, p. 80 ; as to limitations of estates, ante, p. 139.
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SHOT. I. FEE SIMPLE. 155
CHAPTER I.
THE LIMITATION OP ESTATES AS TO
QUANTITY.
Section I. Eee simple.
II. Fee taU.
III., Estates for Ufa.
IV. Estates for years.
V. Tenancy at will.
VI. Conditional limitations and conditions.
VII. Equitable estates and interests in land.
Section I. Fee Simple.
§ 1. The limitation of a fee simple in conveyances.
§ 2. The limitation of a fee simple in wills.
§ 1. The Limitation op a pee simple in conveyances.
Fee simple — Kmitatiou to " heirs '' necessary to pass a fee — excep-
tions to the rule.
Rule in Shelley's case.
Limitation to " heirs " as purchasers — imports fee simple — de-
scendible from ancestor — limitation to heirs of grantor.
Meaning of "heir" as word of purchase — heir not ascertained
until death of ancestor — presumptively means heir at law —
" heir male " — " heir now living."
A fee simple is tlie largest estate known to the law. Fee simple
The term fee here signifies inheritance^ an estate that is
heritable or descends to heirs ; and simple, that it descends
to the heirs general, without any restriction of the course
of inheritance (a).
In conveyances at common law, a fee simple is limited
(a) Lit. s. 1, 11 ; Co. Lit. lh,2a; 2 Blaokst. Com. 106 ; ante, p. 83.
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156
PAET. II. CHAP. I. THE LIMITATION OP ESTATES.
Limitatinn to
" heirs ' ' neces-
sary to pass a
fee.
to A. or hisheirs.
to A. and his
"heir."
Eioeptiona to
the rule.
Exceptions by
special castom.
in the terms " to A. and to his heirs/' the technical limi-
tation to the " heirs " being necessary to make a fee or
estate of inheritance. A conveyance " to A./' or " to A.
for ever," or " to A. and his assigns for ever," or the
like, without the limitation " to his heirs," gives only an
estate for life, for want of the words of inheritance (a).
So, a grant to A. or his heirs conveys to A. only an
estate for life (&) ; but a grant to A. or his heirs, to hold
to him and his heirs is a fee (c) .
A grant to A. and to his " heir," would, it seems, give a
fee simple, the word ' heir,' though in the singular num-
ber, being construed as nomen coUectivum, including the
heir and his heirs {d).
Some apparent exceptions may be found to the rule
that a Hmitation to " heirs" is necessary to pass a fee, —
as where the word " heirs " is included in the limitation
by reference to another instrument containing it, — or by
reference to a former limitation in the same instrument,
as by the phrase in forma prcedictd (e).
Exceptions to the rule occur with copyholds in some
manors where by special custom equivalent expres-
sions are used ; thus the words sequels in right, sibi et
suis, sibi et assignatis, or to him and his, are in some
(a) See ante, p. 34 ; Lit. ss. 1,
283, 465, 468. 469 ; Co. Lit. 9 a,
20 a. " For if a, man purchase
lands by these words, to have and
to hold to him for ever ; or by these
words, to have and to hold to him
and his assigns for ever ; in these
two cases he hath but an estate for
term of life, for that there lack
these words ' his heirs,' which only
make an estate of inheritance in all
feoffments and grants." Lit. s. 1.
(b) Co. Lit. 8 5 ;. 5 Co. 112 a,
Mallory's Case.
(c) 1 Tes. sen. 411, Wright t.
Wright ; being construed according
to the habendum^ see posiy Part IV.
Chap. I. ' Conveyances.'
{d) Hargraye's note (4) to Co.
Lit. 8 b ; Ambl. 457, per Eyre, C.
J., commenting on Co. Lit. 8 b,
22 a.
(e) Co. Lit. 20 b ; also in releases
of certain kinds to a person already
seised in fee, as by one joint tenant
to another, see post. Part IV. Chap.
I. ' Conyeyance.' In partitions
and exchanges which do not alter
or affect the title, see post, Part V.
Chap. I. ' Joint tenancy.' In grants
to corporate bodies and their suc-
cessors, having perpetual succession,
see post, Part V. Chap. II. ' Corpo-
rations.' And in some other cases
now obsolete. Co. Lit. 9 *. The
word " heirs " as a word of purchase
imports a fee without adding, and to
their heirs. See post, p. 157.
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SECT. I. § 1. FEB SIMPLE IN CONVEYANCES. 157
instances tlie customary form of limiting an inheritance
in copyhold (a).
The limitation " to A. for life " and the limitation " to EaieiD sheiiej's
A." being equivalent^ a limitation "to A. for life and
afterwards to his heirs," or " with remainder to his
heirSj" or any like expression importing that after the
decease of A. his heirs are to take according to the rules
of inheritance, is construed as equivalent to the limita-
tion "to A. and to his heirs/' and conveys to A. an
estate in fee simple. This is the simplest application
of the rule in Shelley's case (fe).
The word " heirs " or " heir " may be used, not as a Limitation to
word of limitation of estate, but as a word of purchase chasers.
or designation of the purchaser ; as, where a limitation
is made to the " heirs " of a person without any pre-
ceding estate being given to the ancestor to which the
word can be referred as a term of limitation, it must be
taken as a term of purchase (o) .
The construction of the limitations "to A. and to his Limitation to a.
heirs" or "to A. for life with remainder to his heirs " being dead.
or to the like effect, is not altered by the fact of A. being
dead at the time of making the limitations ; they import
a fee simple in A., and are then merely void of effect
by reason of his non-existence, and his heirs take
nothing [d).
The word " heirs " used as a word of purchase, " imports Limitation to
an estate in fee simple without any superadded words of a fee simple
T-. 1 -I • i^T ^f 1 1 ■ -] without further
limitation. According to (Joke, — " where the remainder limitation.
is limited to the right heirs of B. it need not be said, and
to their heirs ; for being plurally limited, it includeth a
fee simple, yet it resteth but in one by purchase " (e) .
(a) 4 Co. 29 h ; SoriTen on Cop. (e) See aboTe ; Co. Lit 10 a ;
99 ; see ante, p. 80. see Cholmondeley v. Clinton, 2 Mer.
(4) Ante, p. 34 ; the rule will be 171.
more fuUy stated and explained in (d) 1 P. "Wrna. 397, 400, in Oood-
treating of remainders, see post, right v. Wright.
Chap. II. Sect. I. (e) Co. Lit. 10 a.
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158 PAET. II. CHAP. 1. THE LIMITATION OV ESTATES.
The word ' heir ' in the singular, as a designation of
the purchaser, has not the same effect in a deed and
requires further words of limitation to pass the fee (a).
Descent to be By the Inheritance Act, 3 & 4 Will. IV. c. 106, s. 4, it
am°e°tor.°'"*''° is enacted " that when any person shall have acquired
any land by purchase under a limitation to the heirs of
any of his ancestors, contained ia an assurance executed
after 31 December, 1833, — such land shall descend, and
the descent thereof shall be traced as if the ancestor
named in such limitation had been the purchaser of such
land (&).
Limitation to -^ psrsou could uot by any common law assurance
beirs of grantor, j^^-^q j^jg q^^ j^gjp ^ purchaser J the limitation of a
remainder to his own heirs was inoperative, and he re-
mained entitled as of his former estate. By the statute
3 & 4 Will. IV. c. 106, s. 3, such limitation (in any assur-
ance executed after 31 December, 1833) has the effect
of vesting the estate in him as a purchaser and not as
his former estate (c) .
Meaning of heir The designation of a person as " heir " is necessarily
'SiZT. ° ^"'' uncertain until the death of the ancestor J for there can
Heir not be uo hcir to a living person ; as expressed in the maxim,
ascertained until , . , - / 7\
death of anoea- nemo Bst iKBres vvventis [dj.
Heirpresump- It prcsumptively means the heir at law, and not the
h"ir at^an^ customary heir, even where the land conveyed is subject
to gavelkind or other customary rule of descent (e).
Heir qualified by Additional words of description may further particu-
Heir male. lariso the heir intended as purchaser, as heir male, under
which designation in a deed, it seems, the purchaser
must answer the condition of being the very heir and a
{a) a M. & Cr. 387, Chambers v. (d) Co. Lit. 8 b, 22 b.
Taylor, but in a will, seepost, p. 160. (e) Co. Lit. 10 a ; ante, p. 25 ;
(b) See post, p. 173 ; and see post, so in devises to the lieir, Thorpe v.
Part IV. Cliap. III. ' Descent.' Owen, 2 S. & G. 90 ; 23 L. J. C.
(c) See ante, p. 52 ; as to uses 286 ; Sladenjv. Sladen, 2 T. & H.
limited to the heir of the grantor, 369 ; 31 L. J. C. 775 ; and see
see cmte, p. 115, and see post, Hawkins on Wills, 168 ; 2 Jarman
Chap. II. Sect. II. ' Future Uses.' on Wills, 1.
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SECT. I. § 2. FEE SIMPLE IN WILLS. 159
male ; so with a limitation to an heir* female. Thus, under
a hmitation by deed to the "heir female " of A., if A.
die leaving a son and a daughter, the son cannot take be-
cause, though heir, he is not female, nor can the daughter
take because, though female, she is not heir {a) . The addi- Heir now living,
tional description may, however, qualify the meaning of
the word 'heir,^ as in the designation of ' heir now living,'
which in the life of the ancestor can only mean the heir
then apparent or presumptive {h). The purchaser under
such restrictive descriptions of heir will take only an
estate for life unless there be further words of limitation
to give him the fee (c) .
§ 2. Limitation of Feb Simple in Wills.
Devise to " heirs " as word of limitation.
Eule in Shelley's case applied to wills.
Derise to " heirs " as devisees — imports fee simple — descendible
from ancestor — devise to testator's own heir.
Meaning of " heir," as designation of devisee — " heir " with addi-
tional description — " heir " qualified by description.
Devise without words of limitation under the Wills Act, passes
fee simple — not under the Wills Act, passes estate for life,
unless contrary intention appear.
Devise without words of limitation, passing fee simple by ap-
parent intention — devise of estate, property, etc. — in fee
simple, for ever, etc. — devise of power of disposition — fee
simple implied from devise over — implied from charge
on devisee.
Devise to trustees passes fee simple, unless definite estate
Umited — estate limited by purposes of the trust.
A devise " to A. and to his heirs " receives the same Devise to
construction as a limitation in Hke terms in a deed, and of iimitatiun,
(a) Co. Lit. 24 5; Hargrave's of the body," see ^os<, p. 173.
note (3) ib. ; Co. Lit. 164 a ; Har- (S) Chambers r. Taylor, 2 My. &
grave's note (2) ib. ; as to the ex- Or. 376 ; James v. Richardson, 1
pression "heir male" in a will, see Vent. 334; 2 ib. 311.
fast, p. 163, 176 ; as to " heir male (e) Ohamhers v. Taylor, supra.
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160
PAET II. CHAP. I. THE LIMITATION OF ESTATES.
to A. and bis
heir.
to A. or his
lieirs.
to A. and his
heirs during
their lives.
confers a fee simple (a). A devise to A. and to his
"heir" (in the singular) has the like effectj the word
heir being construed as nomen collecHvum to include
the heirs of such heir (b) .
A devise '^to A. or his heirs" is read as "to A.
and his heirs/' and gives a fee simple to A., and no
substitutional gift to his heirs ; consequently, upon the
death of A. in the lifetime of the testator the devise
would lapse, and the heirs would take nothing (c) .
A devise " to A. and his heirs/ during their lives "
creates a fee simple, the words " during their lives " ex-
pressing merely the fact that the enjoyment of an estate
of inheritance can only last during life {d).
Rule in Shelley's
case.
The rule in Shelley's case applies to limitations in
wills ; accordingly, if a devise be made to A. for life,
and be followed by a devise by way of remainder to the
heirs of A., the word " heirs ■" is construed as a word
of limitation, and not as a designation of the devisee,
and is referred to the estate of the ancestor (e).
DeTise to
" heirs" as
dcTiseea.
Imports fee
simple.
The words " heir " or " heirs " may be used as a word
of purchase designating the devisee ; as where there is
no previous devise to the ancestor to which it can be re-
ferred as a term of limitation (/).
A devise to the " heirs " of A. or to the " heir " of A.
(in the singular) confers a fee simple without further
words of limitation ; " heir " being generally construed in
a will as nomen collectlvum embodying bhe heir and his
heirs {g).
(a) Ante, p. 156.
(b) 2 Jarman on Wills, 2 ; ante,
p. 156.
(o) 1 Jarman, 452 ; Hawkins, 180 ;
see Read v. Snell, 2 Atk. 64.2;
Wright v. Wriglit, 1 Ves. sen. 409 ;
Greenwayv. Qreenway, 2 D. P'. &J.
128; 29 L. i. C. 601.
id) Doe T. Steiilaie, 12 East, 515 ;
and see Sugo v. Williams, 41 L. J.
C. 661 ; L. R. 14 Eq. 224.
(e) Seeante,-p. 34, 157 ; Fearne, C.
K. 186 ; see further as to the applica-
tion of the rule to wills, post. Chap.
II. Sect. III. ' Future Devises.' 2
Jarman on Wills, 241.
(/) See ante, p. 157.
iff) Ante, p. 157 ; 2 Jarman on
Wills, 2.
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SECT. I. § 2. FEE SIMPLE IN WILLS. 161
The statute 3 & 4 Will. IV. c. 106^ s. 4, enacts, to the Descendible from
same effect as above stated with deeds, " that when any
person shall have acquired any land by purchase under a
limitation to the heirs of any of his ancestors, or under any
limitation having the same effect, contained in a will of
any testator who shall depart this life after 31st December,
1833, — such land shall descend, and the descent thereof
shall be traced as if the ancestor named in such limitation
had been the purchaser of such land " (a) .
A devise to the testator's own heir or heirs of land Devise to testa-
which the heir would have taken by descent, was con-
sidered at common law to be merely descriptive of his
title by descent, and the heir took the land in fee simple
by descent and not as devisee. But by the statute 3 & 4 Heir takes as
Will. IV. c. 106 (the Inheritance Act), s. 3, it was enacted
" that when any land shall have been devised by any
testator who shall die after the 31st December, 1833, to
the heir or to the person who shall be heir of such testa-
tor, such heir shall be considered to have acquired the
la.nd as a devisee and not by descent " (b) .
The word " heir " as used in a will to designate the Meaning of
devisee, is to be construed, in general, according to its natfngthe ^°'^'
strict technical meaning as the person ascertained upon
the death of the ancestor to take an inheritance of free-
hold tenure by the rules of common law ; and that, though
(a) Ante, p. 158 ; and see as to rely upon his title by descent, see
this enactment, ^osi, p. 172. Doe v. Smyth, 6 B. & C. 112;
(i) "A leading principle which the Bickley v. Bickley, L. R. 4 Eq. 216.
authorities seem clearly to establish " The legal import of a limitation
is that whenever a devise gives to by will to the heirs or right heirs
the heir the same estate in quality generally, (as distinguished from a
as he would have by descent, he devise to the individual heir,) of the
shall take by the latter, which is the testator, which does not appear to
title most favoured by the law ; and be altered by the Act, is equivalent
that merely charging the estate with to a declaration of intestacy as re-
debts or legacies wUl not break the gards the estate to which it applies."
descent." Hargrave's note (2) to 1 Hayes Conv. 318, 5th ed. ; it has
Co. Lit. 12 4 ; 1 Jarman on "Wills, the negative effect of excluding it
67 ; Doe V. Timmis, 1 B. & Aid. from a residuary devise. lb. p.
530. Whethr under the new law 315 ; Robinson v. Knight, 2 Eden,
the heir can disclaim the devise and 155.
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162
PAET II. CHAP, I. THE LIMITATION OF ESTATES.
Heir witli ad-
ditional deacripi.
Heir qualiiied
by addiWonal
description.
Heir male.
the land devised be of customary tenure with a different
rule of descent (a).
The word " heir " may be used to designate the devisee
with some additional description, and in such case also
the general rule is that the word " heir " is to be construed
in its strict legal sense, unless a clear intention to the
contrary be manifested in the will : — Thus, a devise to the
testator's " heir of his name " means the very heir, as
well as of the name, and the devisee must satisfy the
double description (6). So, a devise "to the right heirs
of me (the testator) my son excepted," was construed as
requiring the devisee to be the very heir of the testator
and not his son, which, whilst the son was living, was
impossible, and the devise was held void (c) .
But the strict meaning of the word " heir," as a desig-
nation of the devisee, may be qualified by the additional
words of description according to the manifest intention ;
as in the case of a devise to the " heir now living " of a
person, which must be taken to mean the heir apparent
or presumptive [d) . So, a devise to the heirs of a woman,
"as if she had continued sole and unmarried," excludes
the lineal heirs (e) . And a testator may by the context
of his will, expressly name or impliedly point out the
person whom he intends as devisee under the designation
of heir ; and such intention must prevail (/) .
Upon the same principle of conforming the construction
to the intention, the words " heir male " or " heirs male "
(a) See ante, p. 158; 2 Jarmali
on WUls, 1, 21.
(i) Counden, v. OlerTce, Hob. 29,
see Hargrave's note (3) to Co. Lit.
24 b ; TFrighton y. Macaulay, 14
M. &W. 214, see per Parke, B. ib.
231 ; and see Pearce v. Vincent^ 2
M. & E. 800 ; 2 Eeen, 230 ; as to
the constructions which may be put
upon the word " name " in such
devises, see 2 Jarman on Wills, 61.
(e) OoodtHle v. Pugh, Fearne, C.
R. App. 573 ; 3 Bro. P. C. Toml.
454i ; 3 Mer. 348, described as " an
exti'aordinary decision," in which
"we trace but very faintly the
anxiety generally imputed to judicial
expositors of wUls, v,t res magis
valeat quam pereat.^* 2 Jarman on
Wills, 21.
(d) James v. Siohardson, 1 Tent.
334; 2 Ib. 311; Chambers v.
Taylor, 2 M. & Cr. 376 ; ante,
p. 159.
(e) Krookman v. Smith, L. R. 6
Ex. 291 ; 7 Ib. 271 ; 40 L. 3. Bx.
161 ; 41 Ib. 114.
ur autre vie — for several
lives — for joint lives — for lives of the tenant and others.
Limitation of estates for life — grant to A. without words of
limitation — to A. for life without expressing whose life —
lease for several lives — for joint lives.
Devise of land without words of limitation, under the Wills Act —
in wills not under the Wills Act — devise for life by im-
plication.
Occupancy of estate pur autre me — limitation of estate pur autre
vie to special occupant — to the heirs — to the heirs of the
body — to the executor or administrator — occupancy by
statute.
Occupancy of copyholds — special occupant by designation — by
custom — by statute.
Discovery of death of persons on whose lives estates depend —
presumption of death.
An estate for life is limited for the term of the life Estate for life
of tenant, — pur
either of the tenant himself or of another person. In autre me.
the former case the tenant is commonly called tenant for
life ; in the latter case he is distinguished as tenant pur
autre vie (c).
{a) Foslrook\.Fosbrooh,'h.'R.S 657; 30 L. J. 0. 935; Lamle v.
Ch. 93 ; see Mannox v. Greener, L. Eames, L. E. 6 Ch. Ap. 597 ; Burt
E. 14 Eq. 456. v. Sellyar, 41 L. J. C. 430 ; L. E.
(i) See 2 Jarman, 25 ; Hawkins, 14 Eq. 160, 164.
90; Lucas v. Ooldsmid, 2,9 Beav. (c) Lit. s. 56.
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190
PAET II. CHAP. T. THE LIMITATION OF ESTATES.
For lives of
tenant himself
and others.
For several An Gstate may be limited for tlie lives of several per-
lives. • j.'l j.l_
sons named in the grant or lease, to continue until tne
For joint Uves. death of the survivor. — An estate limited for the pint
lives of several persons continues only until the death of
him who dies first (a).
An estate may be limited for the lives of the tenant
himself and of another or others, and is then, in respect
of the other life or lives, an estate jpur autre vie. Coke
specifies this as a third branch, in addition to the two
branches into which Littleton, as above, divides tenant
for life, viz., into tenant for term of his own life and into
tenant for term of another man's life. '^To this,''' he
says, " may be added a third, viz., into an estate both for
term ,of his own life, and for term of another man's life.
As if a lease be made to A. to have to him for term of
his own life and the lives of B. and C, for the lessee in
this case hath but one freehold, which hath this limita-
tion, during his own life and during the lives of two
others. And herein is a diversity to be observed between
several estates in several degrees, and one estate with
several limitations. For, in the first, an estate for a
man's own life is higher than for another man's Ufe, but
in the second it is not " {b) .
Doctrine that According to the technical doctrine here referred to,
person's own life that as between several estates an estate for a man's own
is greater than ,.„.-,, - ^ - »t/.
for life of lite IS higher than lor another man s Ufe, an estate pur
another. . ° . . . , - -, '^
autre vie is extinguished or merged by surrender to a
tenant for his own life ; so a lease to a person for the
life of another with remainder to the same person for his
own life operates to merge the prior limitation, and is a
lease for his own life only and not for several lives (c).
But this doctrine, as Coke says above, does not prevent
the creation of one estate in a person with the several
connected limitations, both for his own life and the lives
(a) See Brudnel's Case, 5 Co.
9 a.
(b) Co. Lit. 41 i.
(c) 11 Co. 83 b, Bowles' Case ;
and see post. Part IV. Chap. IV.
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SECT. III. ESTATES FOE LIFE. 191
of others; and if he dies before the other persons on
whose lives the estate depends, the estate continues, as
in the ordinary case of an estate ^itr autre vie (a).
A Efrant or lease of land at. common law, in a form Limitation oj
P estate for life —
sufScient to pass a freehold estate, made to a person grant to a. with-
■*■ _ out words of
without words of limitation, as " to A." or " to A. for limitation.
ever," or " to A. and his assigns for ever," gives only an
estate for life ; the limitation " to his heirs " being neces-
sary to make an estate of inheritance (&) . A limitation
in the above terms may be followed by a limitation of the
remainder to B., or to B. and his heirs ; and if there be
no subsequent limitation, the reversion is left in the
grantor (c).
If " A., tenant in fee simple, makes a lease of lands Limitation for
TIT -r»p n T p • t ^® without ex-
to D. to have and to hold to B. tor term of hfe, without pressing for
. , Till T -t whose life.
mentionmg for whose life it shall be, it shall be deemed
for term of the life of the lessee, for it shall be taken
most strongly against the lessor, and, as hath been said,
an estate for a man^s own life is higher than for the life
of another. But if tenant in tail make such a lease By tenant in
without expressing for whose life, this shall be taken but
for the life of the lessor; for when the construction of
any act is left to the law, the law will never so construe
it as to work a wrong " ; and tenant in tail cannot lawfully
make a lease beyond the term of his own life, unless he
{a) Basse's Case, supra ; Dale's of that peculiar limitation known as
Case, Cro. Eliz. 182. special occupancy." Per curiam,
"For all other purposes," Chatjield v. Bercktoldt, L. R. 7
(than the appKoation of the above Ch. 192, 196 ; 41 L. J. 0. 255 ;
technical doctrine,) " an estate as to occupancy, see post, p. 193.
given to A. for his own life and the (J) See ante, p. 156 ; " If one
Uves of others (probably the very (seised in fee) grant lands or tene-
commouest form of all) was exactly ments, reversions, remainders, rents,
the same as an estate given to him advowsous, commons, or the like,
for the lives of others only. If in and express or limit no estate, the
either case he died before the expi- lessee or grantee (due ceremonies
ration of the term, the estate con- requisite by law being performed)
tiuued, and was liable, when no hath an estate for life. The same
special occupant was named, to the law is of a declaration of a use."
singular common law incident of Co. Lit. 42 a, 183 a ; Lit. s. 283.
general occupancy and was capable (c) See ante, p. 40.
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192
PAET II. CHAP. I. THE LIMITATION OF ESTATES.
By tenant for
life.
Lease for seTeral
lives.
For joint lires.
execute a disentailing assurance, under which he may-
dispose of the land for an estate in fee simple absolute or
for any less estate [a).
For the like reason, " if tenant for life make a lease
generally, this shall be ,taken by construction of law an
estate for his own life that made the lease ; for if it
should be a lease for the life of the lessee, it should be a
wrong to him in the reversion " (&) .
A lease to A. during the lives of B. and C. continues
during the life of the survivor, without express limitation
to that effect ; — so a lease to A. and B. during their Hves
continues during the life of the survivor. And there-
fore an estate for joint lives must be expressly so
limited (c).
De™e without By the Wills Act, 1 Vict. c. 26, s. 28, which does not
words of limita- ., .__ t i p -i t
tion, under the extend to any Will made before 1st Januarv, 1838, it is
Wills Act. '' J> >
enacted " that where any real estate shall be devised to
any person without any words of limitation, such devise
shall be construed to pass the fee simple, or other the
whole estate or interest which the testator had power to
dispose of by will in such real estate, unless a contrary
intention appear by the will " [d).
In wills not under In wiUs made before 1st January, 1838, to which the
the Wills Act. , , , n , , T 1 ■ „ , -,
above Act does not extend, a devise of land without words
of limitation follows the rule of law for the construction
of conveyances, and -primA facie creates an estate for life
only. But in wills various modes of expressing the inten-
tion are allowed to supply the want of technical words of
limitation, and to extend the devise to an estate of
inheritance, according to certain rules of construction,
(a) Co. Lit. 42 a, 183 a ; see wliioh is so to be understood that
ante, p. 39.
{h) Co. Lit. 183 o; "It is a
maxim in law, that every man's
grant shall be taken by construction
of law most forcible against him-
self. Queelibet concessio fortissime
contra donatorem interprelanda est ;
no wrong be thereby done ; for it is
another maxim in law, quod legis
constructio nan facit injuriam."
(c) 5 Co. 9 a, Srudnel's Case,
{d) See ante, p. 163.
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SECT. III. ESTATES FOE LIFE. 193
which have been already noticed in treating of devises in
fee simple (a).
If a devise be made^ after the death of A., to B. who De-rise&riife
is the heir at law of the testator^ and the estate until the ^ ""^ ""' '™'
death of A. is not disposed of by residuary devise or
otherwise^, A. takes an estate for life by implication ; such
implication being necessary to effectuate the devise to the
heir in the manner expressed^ that is, not until the death
of A. But a devise^ after the death of A., to B.^ if B. be
not the testator's heir^ raises no such implication (b).
A term, created pur autre vie may continue beyond the Occupancy of
life of the tenant himself by reason of his dying before TiJ^ "P'"'"'"^
the person or persons on whose life or lives the term
depends ; and if the term be limited to him for his own
life only^ and no provision be made in the limitation of
it for the destination of the land in the event of the term
continuing beyond his life^ it was deemed at the common
law to be vacant, and he who first entered became entitled
to hold the land, as tenant under the lease, for the residue
of the term. Such tenant was called an occupant, because
his title was by his first occupation (c) .
An occupancy may be prevented by an express limita- Limitation to
T ... special occupant,
tion covering the vacancy. As by limitmg the estate to —to the teirs.
the tenant, and " to his heirs " during the life of the
(a) See ante, p. 164. and is in law called an occupant
{b) 1 Jarman, 465, where see the (occupans), because his title is by
doctrine followed out in detail. The his first occupation. And so if
same implication arises upon a tenant for his own life grant over
devise to the residuary devisee after his estate to another, if the grantee
the death of A. lb. 474 ; and see dieth, there shall be an occupant."
Hawkins, 178 ; see the lite implioa- Co. Lit. 41 b. " There can be
tion of an estate tail, ante, p. 182. no occupant of anything lying in
(e) " If the lessee dieth living grant ; " lb. Such things being in-
cestui que vie, (that is, he for whose capable of possession, see ante, p.
life the lease was made,) he that 52; but there may be a special
first entereth shall hold the land occupant of such things by designa-
during that other man's life, and he tion in the grant or under the
that 80 entereth is tenant pur autre statute providing against occupancy.
vie, and shall be punished for waste Co. Lit. 388 a; as of a rent charge,
as tenant pur autre vie and subject JBearpark v. Hutchinson, 7 Bing.
to the payment of the rent reserved, 178.
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194 PAET II. CHAP. I. THE LIMITATION OF ESTATES.
cestui que vie, in which case it is heritable while it lasts^
like an estate in fee simple. An estate so limited has
been called a descendible freehold {a). A devise to
trustees and their heirs is sometimes impliedly restricted
to a descendible freehold pur autre vie, by reason of the
trust being restricted to the life [b] .
To the heirs of It may also be limited, like an estate tail, " to the
* ° ° ''■ heirs of his body ;" it is then heritable by the issue, and
is called a quasi' entail (c) . — It may also be limited to the
To eiecutor or tenant and his " executors or administrators," and it then
administrator, j • / 7\ mi i •
devolves upon the personal representative {aj. — ine heir
or representative thus taking by the terms of the limita-
tion is called a special occupant, as being the occupant
specially designated.
The case of general occupancy, where there is no limi-
tation to a special occupant, is now supplied by statute.
By the Wills Act, 1 Vict. c. 26, (repealing but substan-
tially re-enacting the statutes 29 Car. II. c. 3, s. 12, and
14 Geo. II. c. 20, which previously enacted to nearly the
same effect,) the general power of disposition by will
thereby given is expressly extended "to estates pur autre
vie, whether there shall or shall not be any special occu-
pant thereof" (section 3). — And it is enacted by section
6, " that in case there shall be no special occupant of any
estate pur autre vie, whether freehold or customary free-
hold, tenant right, customary or copyhold, or of any other
tenure, and whether a corporeal or incorporeal heredita-
(«) Co. Lit. 41 b ; Lit. s. 739 ; will ; or if he hath ah-eady an estate
10 Co. 98 a, Seymor's Case ; im- for another man's life without tliese
properly so called, see per Eeuyon, words, then it were good for him to
C. J. Doe V. Luxton, 6 T. R. 291 ; assign his estate to divers men and
per Eldon, L. C. Mipley v. Water- their heirs during the life of the
worth, 1 Ves. 437. Coke observes— cestui que vie." Co. Lit. 41 h.
" It were good to prevent the incer- (i) Baker v. Parson, 42 L. J. C.
taintyofthe estate of the occupant to 228; see ante, p. 1G7.
add these words (to have and to hold (c) Zow v. Burron, 3 P. Wms.
to him and his heirs during the life 262 ; Fearne, C. E. 495.
of the cestui que vie), and this shall (d) See Atkinson v. Baker, 4 T.
prevent the occupant, and jet the R. 229; RipJey v. Waterworth, 7
lessee may assign it to whom he Ves. 448.
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SECT. III. ESTATES POE LIFE. 195
ment, it shall go to the executor or administrator of the
party that had the estate thereof by virtue of the grant ;
and if the same shall come to the executor or admini-
strator either by reason of a special occupancy or by virtue
of this Act, it shall be assets in his hands, and shall go and
be applied and distributed in the same manner as the
personal estate of the testator or intestate " {a) .
This enactment applies to equitable estates j9Mr autre vie,
notwithstanding the legal estate be vested in trustees and
their heirs (&) . — An estate for the Mves of the lessee and
others is an estate pur autre vie within the statute (c). —
The estate passing to the executor or administrator by
special occupancy or under the Act, being made assets
applicable in the same manner as personal estate, is there-
by rendered liable to legacy duty, but is not made personal
estate fpr the purpose of following the person and domicil
of the deceased tenant; it is immovable property as
regards jurisdiction, notwithstanding his domicil be
foreign {d).
There could be no general occupant of a copyhold or ocoupanoy of
customary tenancy ; because the freehold title remaining ""^'^ °
in. the lord precluded a vacancy, and the lord became de
facto occupant (e).
But a special occupant may be expressly designated in spedai occu-
the grant or surrender, to the exclusion of the occupancy ^*°''
of the lord; as by extending the estate "to the heirs." —
And by special custom, in the absence of limitation, the
heir or devisee or the cestid que vie may be entitled as
special occupant (/).
(a) As to this enactment, see Bur- (e) HargraTe's note (2) to Co.
ton on Eeal Property, (735) ; Doe Lit. 59 b ; Zouch v. Forse, 7
V. Lewis, 9 M. & W. 662 ; Ripley Bast, 186 ; Doe v. Scott, 4 B & C.
V. Waterworth, 7 Ves. 425. 706.
(J) Reynolds v. Wright, 25 Beav. (/) Scriven on Cop. 51 ; Doe v.
100; 30 L. J". 0. 381. Martin, 2 W. Bl. 1148 ; Might v.
(c) Chatfield v. BercMoldt, L. B. Bawden, 3 East, 260 ; Doe v. God-
7 Ch. 192 ; 41 L. J. C. 155. dard, 1 B. & C. 522 ; Doe t. Scott.
(d) Chatfield y . BercMoldt, supra. supra ; see Jecms v. Cooi; 27 L. J,
o2
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196
PART II. CHAP. I. THE LIMITATION OF ESTATES.
By statute. The statute 1 Vict. c. 26, s. 6, is expressly extended to
lands of customary and copyhold tenure, and under that
statute, if there be no special occupant, the estate will go
to the executor or administrator of the tenant to be
applied and distributed as personal estate (a). The
former statutes of 29 Car. II and 14 Geo. II, for which
the above statute was substituted were construed not to
extend to copyholds ; because by so extending them they
would have prejudiced the rights of the lord (6) . The
special occupant by custom or under the statute must be
admitted and pay a fine (c) .
Discovery of
the deaths of
persons on
whose lives
estates depend.
Presumption of
death.
In order to prevent frauds by the concealment of the
deaths of persons on whose Uves estates depend, a statute
6 Anne, c.l8, provides that a person claiming a remainder,
reversion, or expectancy, after the death of any person
may obtain an order of the Court of Chancery for the
production of such person, and upon failure to produce
such person, may enter upon the land as if such person
were dead (d).
Proof that a person has been absent and not heard of
for seven years raises a presumption of his death, but no
presumption as to the time of his death. The ordinary
presumption of life continues in the absence of any evi-
dence respectiug it (e) .
C. 202, where the cestuis que vie were
held to be entitled by the custom in
succession for life estates.
(a) See ante, p. 194.
(S) Zouch V. Forse, 7 East, 186 ;
see ante, p. 78.
(c) Co. Cop. a. 56; Scriyen, 351.
(d) See 2 Blaokst. Com. 177 ; and
see 18 & 19 Car. II. c. 11, in the
Statutes, revised ed.
(e) Taylor on Evidence, 198, 5th
ed. ; see PhenSs Trusts, L. B. 5
Ch. 139; Lewes' Trusts, L. E.
6 Ch. 356: re Walker, L. E.
7 Ch. 120; i. g. Nicholls, 41 L.
J. Prob. 88 ; Beaaney's Trusts, 38
L. J. C. 159; E. V. Lumley, L. E
C. C. 196.
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SECT. IV. ESTATES FOE YEAES. 197
Section IV. Estates foe Ybaes.
Estate for years — " term '' — " lease " — requisites of lease — parol
Limitation of term, as to duration — certainty required — lease for
successive periods — ^lease " from year to year " — notice to
determine — implied tenancies from year to year.
Limitation of term, to A. and to his executors — to A. and to his
heirs — to A. and to the heirs of his body.
Lease with covenant for renevral — covenant runs with the land —
condition of observing covenants, etc., in the lease.
Chattel interests of uncertain duration.
An estate for years is an estate limited by a certain Estate for yeara.
term or duration of time. An estate for a term of half
a year, or for a quarter of a year^ or for a smaller por-
tion of a year^ as being for a term certain in time^, is
classed in law with an estate for a term of years^ and is
subject^ in general, to the like rules and incidents (a).
The word "term" may be used to signify not only "Term."
the limits of time, but also the estate and interest that
passes for that time ; and it is a question of construction
in which sense the word is to be understood (b).
The grant of an estate for years is commonly called a "Lease.-
lease or demise, the words " grant," " demise," and
"let," being commonly used, though any words ex-
pressing the intention to transfer the possession for a
certain time are sufficient (c) .
(a) Lit. ss. 58, 67 ; Co. Lit. 54 Wright v. CartwrigM, 1 Burr. 282,
h. A tenant from week to week 284. " The word term referred to
or for any less time than a year is time has the same meaning with
not a "tenant for any term of years" certainty-»-wherefore such a limita-
within the statute 4 Geo. II. o. 28, s. tion of years as hath certainty in it
1, which gives an action for double may well be called a term, and a
value against such tenant holding lease containing such time shall be
over after the determination of the good." Plowden, 273.
term. Lloyd v. Rosbee, 2 Camp. (c) Co. Lit. 45 b ; Bacon's Abr.
453 ; see Wilkinson v. Mall, 3 Bing. Lease, (K) ; Shepp. Touch, by
N. C. 508. Preston, 272 ; see Doe v. Day, 2 Q.
(J) Co. Lit. 45 I ; Sector of B. 147, 152.
on's case, 1 Co. 153 a ;
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198 PAET II. CHAP. I. THE LIMITATION OF ESTATES.
Meaning ofiease. The term " leasG " is applied also to the grant of an
grant, etc. ^^^^^^ ^^^ ^.^^^ ^^^ ^^^^ ,, ^^^^ „ -^ ^ general term,
though used also in a special sense as applying to estates
and rights in land which lie in grant in contrast to those
which lie in livery. The term " feoffment " was used
generally to denote a transfer of the seisin or immediate
freehold estate; but it was applied also in a special sense to
a transfer for an estate in fee simple ; and the term " gift "
to an estate in fee tail ; — the corresponding terms applied
to the parties heing feoffor a.nd feoffee, — donor and donee,
— lessor and lessee (a).
Leases reqaired All leases (excepting Icases not exceeding three years
emwntmg. ^^^^ ^^^ making and at a rent of two-thirds at least of
the value) are required by the Statute of Frauds (29
Car. II. c. 3, s 1, 2) to be in writing ; and by the statute
8 & 9 Vict. c. 106, s. 3, (with the same exception,) they
By deed. must be by deed. — An instrument which is void as a
lease by reason of not being in the form of a deed may
operate as an agreement for a lease, if capable of that
construction, both at law and in equity (&).
Parol lease. A parol Icaso withiu the above exception, when per-
fected as an estate by the entry of the lessee, is valid as
a lease, and imparts all the rights and remedies incident
to such lease, notwithstanding the 4th section of the
above Statute of Frauds, which requires a contract or
sale of any interest in or concerning land to be in writing
duly signed ; but as a mere contract giving an interesse
termini only, if the lessee refuses to effectuate it by
entry, no action can be brought upon it (c) .
(a) Lit. s. 57 ; see ante, pp. 46, (c) Strafford v. Hdge, 1 C. & J.
53 ; Shepp. Touch. 228. 391 ; see ante p. 44. As to what
(b) See ante, p. 49 ; post Part are contracts relating to an interest
IT. Chap. I. ' Conveyances '; see in land within the Statute of Frauds,
Parker v. Taswell, 2 D. G-. & J. see Leake on Contracts, p. 131. The
559 ; 27 L. J. C. 812 ; Bondv. Sos- following oases may be noticed as
ling, 1 B. & S. 371 ; 30 L. J. Q. B. connected with the subject of te-
227; Mollasowv. Leon,'? H & N. nancies.— A contract for the exolu-
73 ; 31 L. J. Ex. 96 ; Tidey v. sive possession of a specific part of a
Mollett, 16 C. B. N. S. 298 ; 33 L. house or premises, as the ordinary
J. C, P. 236, per Erie, C. J. contract for lodgings, is within the
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SECT. IV. ESTATES FOB YEAES. 199
The term may be limited, as to duratiorij by a certain Limitation of
,. ■,! ■ -If ^^ -r\ term, as to dura-
time either m express terms or by reierence, — 'l^ortion.
regularly in every lease for years the term must have a
certain beginning and a cerbain end — yet if by reference
to a certainty it may be made certain it sufficeth, quia id
certum est quod, certum reddi potest. For example, if A.
leaseth his land to B. for so many years as B. hath in
the manor of Dale, and B. hath then a term in the
manor of Dale for ten years, this is a good lease by A.
to B. of the land of A. for ten years." — " So, if a lease be
made to another during the minority of J. G., and he is
of the age of ten years, now this is a good lease for
eleven years, if J. Gr. shall as long live " (a) .
" It is here to be understood that the years must be certainty re-
certain, when the lease is to take effect in interest or
possession. For before it takes effect in interest or
possession, it may depend upon an uncertainty." — " For
example, if A. seised of land in fee grant to B. that
when B. pays to A. twenty shillings, from thenceforth
he shall have the land for twenty-one years, and after
B. pays the twenty shillings, this is a good lease for
twenty-one years from thenceforth." — So, "if a man
maketh a lease to J. S. for so many years as J. N. shall
name, this at the beginning is uncertain ; but when
J. N. hath named the years, then it is a good lease for
so many years (&) .
4tli section of the Statute of Frauds, tain an action of trespass or any
and unless validated as a parol lease action depending on possession. lb.
under the 2nd section, must be evi- As to what constitutes a tenancy or
denced by writing signed. Siraf- occupation for the purpose of rating,
ford V. idge, supra. But a con- see S. t. Smith, 3 E. & E. 383 ; 30
tract for mere permission to reside L. J. M. V4 ; see Soads v. Trump-
or use premises, or a specifio part ington, L. E. 6 Q. B. 56 ; 40 L. J.
of premises, not involving the ex- M. 35 ; R. v. St. George's Union,
elusive possession, as a contract for 41 L. J. M. 30 ; Allan v. Liverpool,
board and lodging in the house of L. R. 9 Q. B. 180 ; 43 L. J. M. 69.
another, is not within the 4th section. (a) Co. Lit. 45 S ; 6 Co. 35 i,
Wright v. Stavert, 2 E. & E. 721 ; Bishop of Bath's Case ; 3 Co. 19 b,
29 L. ,T. Q. B. 161. In the latter BorastorCs Case; Plowden, 273, Say
case the landlord retains the legal v. Smith ; Plowden, 520.
possession, and the person entitled (5) Co. Lit. 45 6 ; 6 Co. 35 J,
under such contract cannot main- Bishop of Bath's Case, and it seems
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200
PABT II. CHAP. I. THE LIMITATION OF ESTATES.
A lease for so many years as a person may live is a
freehold estate by reason of the uncertainty of the
term (a). But if "a man maketh a lease for twenty-one
years if J. S. live so long, this is a good lease for years,
and yet is certain in uncertainty " ; it has a certain limit
notwithstanding the uncertainty of reaching it (&) .
A lease may be limited to continue for successive
periods at the option of one or other of the parties : —
Lease for Bucces. as for a term of 7, 14, or 21 years, which continues for
w, or 21 years, thoso succossive pcriods, unlcss the option to determine
it at the end of one of the periods is duly exercised;
and such option rests presumptively with the lessee, if
no intention to the contrary be expressed (c).
A lease " from year to year " is a term for one year
certain, continuing for successive years, unless due notice
have been given to determine it at the end of the first
or any subsequent year {d) . A lease " for one year, and
so on from year to year," is a term for two years certain,
continuing for successive years, unless due notice have
been given to determine it (e) .
The notice required by law to determine a tenancy
from year to year, in the absence of agreement to the
contrary, must be given half a year before the expiration
of the current year of the tenancy (/) ; and a tenancy
from year to year is determinable by either party giving
the proper notice {g). Where the term is determined
Lease "from
year to year."
Notice required
to determine
tenancy.
that if the number of years be
named after the commencement of
the lease (in the life of the lessor) ,
the lease will be made good ex post
facto. lb.
(a) Co. Lit. 42 a, 45 ^ ; and
see Plowden, 522.
(6) Co. Lit. 45 b. This is a term
of years with a conditional limita-
tion, as to which, ^eepost, p. 220.
(c) Boe T. Dixon, 9 Bast, 15 ;
Dann t. Spurrier, 3 B. & P. 399 ;
see Powell v. Smith, L. R. 14 Eq.
85 ; 41 L. J. C. 734.
(d) Boe V. Smaridge, 1 Q. B, 957.
(e) Benn v. Cartivright, 4 East,
29 ; Johnstone v. Sudlestone, 4 B.
& C. 922 ; Doe Y. Green, 9 A. & E.
658.
(/•) Butler's note (1) to Co. Lit.
270 b; Right v. Barbg, 1 T. K.
159 ; Doe v. Dobell, 1 Q. B. 806 ;
see Bridges v. Potts, 17 C. B. N.
S. 314; 33 L.J. C. P. 338; as to
the service of notice, see Tankam v.
Nicholson, L. R. 5 H. L. 561.
ig) Boe T. Browne, 8 East, 165 ;
see S. 0. 14 Ves. 156 ; King's
Leaseholds, L. K. 16 Eq. 521 ; see
post, p. 206.
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SECT. IT. ESTATES FOE YEAES. 201
by force of an express limitatioiij the lease itself supplies
sufficient notice ; botli parties are equally apprised of
the determination of the term^ and no further notice is
required (a).
A general letting, without express limitation of the implied teuan-
term, at a fixed yearly rent, though it be payable half- to year— from a
1 1 • T TT general letting at
yearly or quarterly, impliedly creates a term or tenancy ftsed rent.
from year to year (6) ; — and the payment of such a rent Erom payment
in respect of a tenancy, is primd fade evidence of a
tenancy from year to year, with the usual incidents of
such a tenancy (c) .
A tenancy from year to year is, in general, implied Under an agree-
•' •' ■' n T ^ ment for a lease.
from the payment and acceptance of a yearly rent under
an agreement for a lease not amountiug to an actual
demise (d) ; but mere occupation, without payment of the
rent, wiU not raise the same implication (e) . — A tenancy .After expiration
from year to year would also be implied from the pay-
ment of rent by the tenant in respect of a continued occu-
pation after the expiration of a lease (/) ; but a continued
occupation or holding oyer alone is not sufficient to imply
a tenancy {g).
The tenancy thus implied will include all the terms of Terms of im-
• 1 1-1 TIT plied tenancy
the agreement or preyious lease which are applicable to from year to
such a tenancy, as conditions of re-entry, stipulations as
to notice, etc. Qi) : — thus, it will expire without notice at
the end of the term limited in the agreement {%) ; and
(o) RyU v. Darly, supra. (/) Doe v. Weller, 7 T. E. 478 ;
(S) Richardson t. Lmigridge, 4 Bishop v. Hoioard, 2 B. & C. 100 ;
Taunt. 128, 131 ; BoeY. Wood, 14, Doe v. Dolell, 1 Q. B. 806; see
M. & W. 682, 687. Buckworth ,. Sinvpson, 1 C. M. &
(c) Doe V. Watts, 7 T. E. 83 ; E. 834.
Doe V. Crago, 6 C. B. 90, 98. {g) 8 M. & W. 575, Waritiff v.
(d) Knight v. Benett, 8 Bing. 361 ; King ; as to the remedies of the
Cox T. Bent, 5 Bing. 185 ; Chapman landlord in such case, see 4
T. Towner, 6 M. & W. 100 ; Brayth- Geo. II. o. 28, a. 1, Bullen & L.
wayte v. SitchcocTc, 10 M. & W. Preo. PI. 215.
494. (A) Doe v. Powell, 5 B. & 0. 312 ;
(e) Waring y: King, 8 M. & W. Doe v. Amey, 12 A. & B. 476; Doe
571 ; Anderson y. Midland Ry. Co. v. Bell, 5 T.' E. 471.
3 E & E. 614 ; 30 L. J. Q. B. 94 ; (i) Tress v. Savage, 4 B, & B.
see ' Tenancy at will,' post, p. 208. 36 ; 23 L. J. Q. B. 339.
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202 PAET II. CHAP. I. THE LIMITATION OP ESTATES.
a stipulation that the tenant shall paint in the last year
of the term limited will apply, if the tenancy so long con-
tinues (a). — The same implications will arise from an
agreement or lease, although it be void, as such, by
reason of not satisfying the requirements of the Statute
of Frauds, or not being under seal as required by the
statute 8 & 9 Vict. o. 106, s. 3 (5).
Express terms An cxprcss Stipulation to a different effect ezcludes
tion. the implication of a tenancy from year to year, as where
it is expressly agreed that the tenancy shall be determi-
nable at will (c) . — " So long as both parties shall please "
is, it seems, consistent with a tenancy from year to
year {d) .
Limitation of A Icaso for ycars is sometimes limited in the form " to
to his executors. A. and to his cxecutors and administrators," in analogy
with the limitation of an estate of inheritance " to A. and
to his heirs." But the additional words of limitation in this
case are quite superfluous ; they merely denote the rule
of law respecting the devolution of the term, as personal
estate, which would apply without the addition of those
words (e). If a lease be made to a person for life, with
remainder to his executors for a term of years, the term
of years rests in the lessee himself as well as if it had
been limited to him and to his executors (/) .
To A. and to his If a leasc be made to a man and " to his heirs " for a
term of years, it will pass as personal estate, to the
executor of the lessee and not to the heir ; the limitation
(a) Martin v. Smith, L. K. 9 Ex. see Sastings Union t. St. James,
50 ; 43 L. J. Ex. 42. Clerkenwell, L. E. 1 Q. B. 38 ; 35,
(*) See ante, p. 198 ; Doe v. Bell, L. J. M. 65.
5 T. E. 471 ; Clayton t. Blakey, 8 (e) Ante, p. 33, 45 ; Shepp.
T. R. 3 ; Martin v. Smith, supra. Touch, by Preston, 76.
(c) Richardson v. Langridge, 4 (/) Co. Lit. 54 h, by analogy with
Taunt. 128; Doe t. Cox, 11 Q. B. the rule in Shelley's Case; see post,
122 ; Finhorm. Sonster, 8 Ex. 763; Chap. II. Sect. 1 ; see 1 Sugden on
Morton v. Woods, L. E. 4 Q. B. 293 ; Powers, 80, 7th ed. ; WeU v. Sad-
38 L. J. Q. B. 81. ler, 42 L. J. C. 498 ; L. E, 8 Ch.
(d) Doe V. Cox, supra, per Cole- 419.
ridge, J. j Doe t. Davies, 7 Ex. 89 ;
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heirs.
SECT. IV. ESTATES FOB TEAES. 203
to the heirSj being wholly inapplicable to personal estate^
is rejected (a).
If a lease be made to a man and " to the heirs of his To a. and to the
1 n )) p n / • 1 1*1 lieirs of his body.
body tor a term of years (or m any other terms which
expressly or impliedly would raise an estate tail in the
inheritance) J the whole term vests absolutely in the im-
mediate donee in tail (fo). — And it is the same with
bequests by will : " where personal estate (including
terms of years of whatever duration) is bequeathed in
language which^ if applied to real estate, would create an
estate tail, it vests absolutely in the person who would be
the immediate donee in tail, and consequently devolves
at his death to his personal representative and not to his
heir in tail " (c) .
A term of years maybe attended with the right of Lease with cove-
renewal by virtue of a covenant inserted in the lease to
that effect. — A covenant to renew a lease, with all the
covenants and articles contained in it, does not import
that the renewed lease shall contain a covenant for
renewal ; but the covenant may in express terms give
the right of perpetual renewal of successive leases (d) . —
A covenant for renewal runs with the land in favour of covenant for
assignees of the lease, and against grantees of the rever- ^thThe w.
sion (e).
(a) Lit. s. 740 ; Co. Lit. 46 b ; default of iseue." Feame, C. R.
Shepp. Touch, by Preston, 76. supra.
[b) Feame, C. E. 461 ; "WiU. Ex. (c) 2 Jarmau on Wills, 489, and
565 (d) ; and see Loviess Case, 10 see the cases there cited.
Co. 87 5, there commented upon; (d) IgguldetiY. Mat/, '7 Tia.st,237 ;
Bromcker y. Bagot, 1 Mer. 271 ; 2 B. & P. N. E. 449 ; 9 Ves. 325 ;
Lord Verulam t. Bathurst, 13 Sim. Hare t. Bnrges, 4 E. & J. 45 ; 27
374. " A term or personal estate L. J. C. 86.
cannot be entailed ; for where a (c) Shelburne v. Biddulph, 6 Bro.
term or other personal estate is P. C. 363 ; 1 B. & Aid. 11, Vernon
limited to one in tail, it is an abso- v. Smith ; 12 East, 469, Soe t.
lute and complete disposition of the Samlet/ ; Simpson v. Clayton, 4
whole term to him and his execu- Bing. N. C. 758, 780. As to
tors ; he may dispose of it as he covenants running with the land, see
pleases; if he does not dispose of it Leake on Contracts, ch. vi s. 2.
it goes to his executors and not to As to the renewal of a lease by a
his issue ; and it does not revert for trustee, see ante, p. 151.
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204 PAET II. CHAP. I. THE LIMITATION OF ESTATES.
Renewal
conditional upon
obaervance of
covenant .
The covenant for renewal may be expressed to be
conditional upon the observance by the lessee of all his
covenants in the lease, and then by breach of the cove-
nants his right of renewal will be forfeited. Equity will
not relieve the lessee in such case ; nor will equity relieve
the lessee in case of neglect to renew within the appointed
time, unless caused by fraud of the lessor, or unavoidable
accident, or ignorance {a).
Chattel interests
of uncertain
duration.
Devise for pay-
ment of debts.
To executors.
Some estates, the duration of which is measured by the
raising of money or by the satisfaction of debts out of
the profits of the land, although uncertain in duration,
yet being of the nature of chattel interests, iu that
respect, may be classed with estates for years. — " As if
a man devise land to his executors for payment of his
debts, and until his debts be paid; in this case the
executors have but a chattel, — for if they should have it
for their lives, then by their death their estate should
cease, and the debts unpaid ; but being a chattel, it shall
go to the executors of executors for the payment of the
debts " (b) . — So, a devise to trustees without words of
limitation, to pay debts or legacies or to raise a sum of
money for portions or the hke, in wUls made before 1st
January, 1838 (to which the Wills Act does not extend),
might be construed to pass an indefinite term or chattel
interest only (c).
Devise to trustee But uow by the WiUs Act, 1 Vict. c. 26, s. 30, apply-
or executor . .
under the Wills ing to wiUs made on or after 1st January, 1838, it is
enacted " that where any real estate shall be devised to
any trustee or executor, such devise shall be construed to
pass the fee simple or other the whole estate or iaterest
To trustees.
(a) Barries v. Bryant, 4 Buss.
89; Job r. Banister, 2 Z. & J. 374;
26 L. J. C. 125.
(i) Co. Lit. 42 a; see Corbet's
Case, 4 Co. 81 i ; 8 Co. 96 a, Man-
ning's Case, vphere Coke adds, " If
such an estate be made by grant or
conTeyance at common law, the law
will adjudge it an estate of free-
hold." lb.
(c) 2 Jarman on Wills, 218;
Hawkins on Wills, 148 ; see 1 P.
Wms. 509, 518, Carter v. Bamar-
diston ; 1 Eden, 119, 123, Wright t.
Pearson.
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SECT. IV. ESTATES FOE TEAKS. 205
which the testator had power to dispose of by will in
such real estate, unless a definite term of years, absolute
or determinable, or an estate of freehold, shall thereby be
given to him expressly or by implication'" (a).
A grant of a rent out of land with a clause entitling Eight of entry
the grantee, if the rent be in arrear, to enter or take the rent,
profits until the arrears be satisfied, gives, upon entry,
a chattel interest, though of uncertain duration {b).
Tenant by elegit holds the land until the debt is satisfied, Tenant by
and has a chattel interest and no freehold (c).
So, in former times when such securities were in use, Tenant by sta-
the estates of tenant by statute merchant and tenant by and statute*
statute staple were considered merely as chattel interests. ' "^ °'
These from their uncertain nature ought to have been
considered as freehold ; but being a security provided
for personal debts, to which the executor is entitled, the
law thus directed their succession, that the security should
be vested in him to whom the debts, if recovered, would
belong (d).
(a) Seea«a»is v. Wad-
on doing any act to deprive herself dington, 7 M. & Gr. 37; Fernie v.
oftherentsandprofitswasheldtobe Scott, L. R. 7 C. P. 202; 41 L. J
determined by her marriage without C. P. 20.
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SECT. VI. § 1. COMDITIONAL LIMITATIONS. 221
the time and not the interest (a). A lease for so many-
years as A. shall live, not being limited by any certain
period, is not an estate for years, but a freehold or an
estate for life (fe). — An estate for 100 years, if A. and B.
shall so long live, determines upon the death of either
of them; but an estate for the lives of A. and B. con-
tinues until the death of the survivor (c) .
A lease during the minority of A. is a lease for the Lease during
number of years A. wants of twenty-one, if he shall so long
live (d).
An estate for years certain may be made determinable Term deter-
by notice to be given by either party (e) ; but a lease fojr ^tce." ^
so long as the lessee pleases to continue tenant, being
otherwise unrestricted, is an estate for life terminable at
the will of the lessee (/) .
A proviso for cesser is often applied to long terms of years pro-riso for the
created for various purposes, with the object and effect of terms." '"" ^
making the terms to cease when the purposes of their
creation have been satisfied. The terms referred to are
used for the purpose of securing the payment of sums
of money, as debts upon mortgage, or the sums to be
raised for the jointures of widows and the portions of
children in family settlements. The term is vested in
trustees upon trust to raise and pay the charges imposed,
and, subject thereto, upon trust for the owners of all other
estates in the land in the order of their limitation, or, as
it is called, upon trust to attend the inlieritance.
A term settled in this manner does not interfere with
the beneficial ownership of the land until the occa-
sion of the charge arises, and it then affords the ready
means of raising the sum charged by an actual receipt
(o) Co. Lit. 45 *; Rector of (dy 6 Co.35 b,Bp. of Bath's Case ;
Chedington's Case, 1 Co. 153 a ; Plowd. 273 ; see Borasion's Case, 3
Wright T. CartwrigM, 1 Burr. Co. 19 a.
282 ; see ante, p. 197. (e) See ante, p. 200 ; Doe v.
{I) Co. Lit. 45 b ; ante, p. 200. Baher, 8 Taunt. 241 ; 2 Moore,
(c) 5 Co. 9 5, Brudnel's Case ; see 189.
ante, p. 192. (/) See ante, p. 207, 220.
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222' PART II. CHAP. I. THE LIMITATION OP ESTATES.
Satisfied terms
attendant upon
the inheritance.
Cesser of satis-
fied terms by
statute.
Assignment of
satisfied terms
to protect pur-
chaser.
of the rents and profits, or, if necessary, by a sale or
mortgage. The efficacy of the term for this purpose by
reason of the length, which is sometimes extended to
500 or 1000 years, is equivalent to the fee simple, while,
being only a chattel interest, it in no way interferes with
the limitation, transfer, or devolution of the freehold
subject to the term.
Formerly, if there were no express proviso for cesser
upon the purposes of the term being satisfied, the term,
unless exhausted by those purposes, and unless surren-
dered to the tenant of the freehold (and after lapse of
time such a surrender might be presumed), continued as
attendant upon the inheritance, and entitled the imme-
diate freeholder to the beneficial interest; and if not
expressly declared to be attendant in its original crea-
tion, it became so by construction of equity (a).
But the term is now disposed of by the statute 8 &
9 Vict. c. 112, which enacts by sect. 2, "that every term
of years now subsisting or hereafter to be created, be-
coming satisfied after 31st December, 1845, and which
either by express declaration or by construction of law, shall
after that day become attendant upon the inheritance or
reversion of any lands, shall immediately upon the same be-
coming so attendant absolutely cease and determine " (b).
Sect. 1 of the statute provided in like manner for the
the cesser of terms which upon the 31st December,
1845, were attendant upon the inheritance, except as to
the protection to which any person might then be en-
titled to therefrom. The protection in question was
obtained by a purchaser or mortgagee of the in-
heritance procuring an assignment of the term to be
made to a trustee on his behalf, instead of taking
an assignment to himself whereby it would become
(a) 1 Sanders on Uses, 292-29V ;
as ■ to presumed surrenders, see
Burton, Comp. (914).
(b) See Anderson v. Pignet, L.
B. 11 Eq. 329 ; lb. 8 Ch. Ap. 180,
42 L. J. C. 310, as to what con-
stitutes a satisfied term within the
Act.
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SECT. VI. § 2. CONDITIONS. 223
merged and cease. He had then the protection of the
prior title of the term against any intervening dealings
with the inheritance of which he had no notice (a).
§ 2 Conditions.
Condition — distinguished from conditional limitation — words of
limitation — words of condition.
Condition annexed to freehold — operates by entry or claim.
Condition annexed to leasehold — requires no entry unless so
stipulated — construction of conditions in leases.
Condition can be reserved only to the grantor and his heirs —
was not assignable at common law — distinction as to the
reversion upon a conditional limitation.
Waiver of condition — cannot be retracted — cannot operate after
avoidance — effect of writ in ejectment as election to
avoid.
Effect of condition in avoiding the estate — effect upon mesne
estate and charges — upon remainders and ulterior limita-
tions.
Conditions implied in tenure — expressed in the grant — effect of
the statute quia empfores.
Conditions in mortgages at common law — equity of redemption
— proviso for redemption.
Conditions in leases for payment of rent — for performance
of covenants.
A condition, strictly so caUedj differs in operation condition ais.
from a conditional limitation. An estate upon condition cmSitlona/"™
is not void, but voidable only by entry or claim under
the condition ; and unless the right of avoidance is
exercised the estate continues. A conditional limitation
determines the estate ipso facto by mere force of the
terms, leaving, in the case of particular estates, the next
vested remainder, or the reversion, to take effect in
immediate possession (b) .
(a) Willmghby v. WillougUy, 1 Ves. 246, 270.
T. E. 763; GoodtitleY.Jones,TJl. (6) Co. Lit. 214 I; Plowden,
E.. 47 ; Wynn v. Williams, 5 Ves. 242 ; Newis v. Lark, [Scotastica' s
130 ; Maundrell v. Maundrell, 10 Case,) Plowd. 408 ; Shepp. Touch.
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Distinction in
tion
224 PART II. CHAP. I. THE LIMITATION OP ESTATES.
Hence it may be observed that a condition annexed to
an estate with a conditional limitation, purporting to
defeat the estate in the same event which determines it
by the express limitation, would be superfluous and void
as regards that estate ; " for if a gift in tail be made to
a man and to the heirs of his body, and if he die with-
out heirs of his body, that then the donor and his heirs
shall re-enter, this is a void condition " [a) .
The distinction in construction is said to lie in the
construction, -^gj-jj^g uged, — between words of limitation and words of
condition. But it seems that the distinction carrying
with it so great a difference in operation, must depend
rather upon the intention and efi'ect than upon the exact
letter of the words (6).
Words of limita- Apt words of limitation are: — "durante, as durante
viduitate or durante vita, etc.— dum, as duin sola fuerit,
— dimimodo, as dmninodo solveret talem redditum, —
quamdiu, as quamdiu se hene gesserit, quamdiu the grantor
shall be dwelling upon the manor, — and so by these
words, donee, quousque, usque ad, tamdiu, iiMcungiie " (c).
Words of con- Words of Condition are, siib conditione, proviso, ita
quod, si contingat, etc. {d) . And " it is to be observed
that many words in a will do make a condition in law,
that make no condition in a deed ■'■' (e) .
by Preston, Ch. vi. As to the (o) Co. Lit. 234 J, 235 a ; 10 Co.
acceleration of the remainder, see 41 h, Portington' s Case.
Lambard v. Peach, i Drew. 553 ; (d) Lit. ss. 328-331; 10' Co. 42
28 L. J. C. 569 ; a remainder which 5 ; 8 B. & C. 315, Doe v. Watt.
is contingent at the time the con- " Conditions annexed to estates are
ditional limitation takes effect, fails sometimes so placed and confounded
alto2;ether. Johnson v. Foulds, L. amongst covenants ; sometimes so
E. 5 Eq. 268 ; 37 L. J. C. 260. ambiguously drawn; and at all times
[a) Co. Lit. 224 I ; and see Plow- hare in their drawing, when deeds
den, 33 ; Shepp. Touch, by Preston, etc. are prepared by unsiilful per-
127. But a condition, it will be sons, so much affinity with litnita-
seen, may have a more extensive tions, that it is hard to discern and
effect than a conditional limitation, distinguish them." Shepp. Touch,
by defeating all the estates in re- by Preston, 121 ; and see the rules
mainder limited under the same for distinguishing and construing
feoffment or grant, see post, p. 230. conditions there stated.
(4) 10 Co. 41 I, Portington's {e) Co. Lit. 236 b ; and see 1
Case ; Shepp. Touch, by Preston, p. Jarman on "WUls, 796.
121 ; 1 Sanders on Uses, 151.
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dition.
SECT. VI. § 2. CONDITIONS. 225
There is a difference in the operation of a condition Condition an-
annexed to a freehold, and a condition annexed to a lease requires re-
fer years, arising from the difference in quality of those
estates. A freehold estate commencing, at common law,
by livery cannot be divested under a condition without a
resumption of the seisin by entry, hence the condition,
though expressly worded that upon a certain act or event
the estate shall cease and be void, imports only that a
right of entry is given to avoid it ; the estate does not
become ipso facto void under the condition, but voidable
only by entry (a).
" Regularly, when any man will take advantage of a Or claim,
condition, if he may enter he must enter, and when he
cannot enter he must make a claim, and the reason is,
for that a freehold and inheritance shall not cease with-
out entry or claim " (6) .
The claim above referred to applies to things which
do not lie in livery and of which there can be no entry
or possession. Thus, " of a reversion or remainder, of a
rent or common or the like there must be a claim be-
fore the estate be revested in the grantor by force of
the condition, and that claim must be made upon the
land. A fortiori, in case of a feoffment which passeth
by livery of seisin, there must be a re-entry by force of
the condition before the estate be void " (c) .
(a) Lit. s. 351 ; Co. Lit. 214 5; (c) Co. Lit. 218 a ; in the case of
3 Co. 65 a, Pennant's Case ; 8 Co. a rent charge out of the grantor's
95 i, Manning's Case ; 1 Wma. own land upon condition, if the
Saund. 287 d, notes to Duppa v. condition be broken, the grantor
Mayo. being in possession need make no
(b) Co. Lit. 218 a. Again it is claim upon the land ; the law will
said that " an estate of freehold adjudge the rent void without any
cannot begin nor end without claim. lb. The statute enacting
ceremony." Co. Lit. 214 h. But that corporeal hereditaments shall
the expression ' cease ' or ' end ' in now lie in grant applies in terms
these passages is used with reference only " as regards the conveyance
only to the defeasance of a freehold of the immediate freehold," and
estate under a condition ; for a free- though it dispenses with livery to
hold may cease or end ipso facto commence an estate of freehold,
under a conditional limitation by it does not aifect the rule requiring
the terms of its creation. See Co. an actual entry to revest the freehold
Lit. lb. i ante, p. 219. ■ under a condition. See ante, p. 51.
Q
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226
PART II. CHAP. I. THE LIMITATION OF ESTATES.
Condition an.
nexed to lease
for years does
not require
entry unjeps so
stipulated.
Conditions re-
quiring re-entry.
" A lease for years may begin without ceremony, and
so may end without ceremony," being at common law
a mere matter of contract. Therefore a condition to
defeat it does not require an actual entry, unless ex-
pressly stipulated for. Where the condition is worded
simply that in a certain event the lease shall cease or be
void, without further requiring in terms that the lessor
shall re-enter, the lease may become void ipso facto with-
out entry, according to the condition, as in the case of
a conditional limitation {a).
The following are some examples of the construction
of conditions in leases in this respect : — Upon a lease
for sixty years to A. with a proviso that, if A. should
die within the sixty years, it shall be lawful for the lessor
to enter, the lease is not determined by the death of A.,
but becomes determinable by re-entry upon his death
by the express terms of the condition (&). A proviso
in a lease that in a certain event " the term shall cease
and be void, and it shall be lawful for the lessor to re-
enter" is construed to render the lease voidable only
by actual entry ; because if the lease were construed to
be void ipso facto without such entry, the latter part of
the clause would have no effect (c) . But this construc-
tion does not apply where the right of re-entry is
expressed to be given upon an antecedent notice, for in
such case there is no necessity for an actual re-entry,
the election of the lessor to resume possession being
effectually made by the notice {d) .
A proviso for the avoidance of a lease for years on
109, 130.
(d) Liddy v. Kennedy, L. E. 5 H.
L. 134, see per L. Westbury ; in
that, case the lease contained a clause
declaring that it should he lawful
for the lessor " upon giving three
months' previous notice in writing
of an intention to resume possession,
to enter," and it was held that there
was no necessity for an actual entry
after the notice in order to maintain
ejectment.
(a) Co. Lit. 214 4 ; 1 Wms.
Saund. 287 d ; per Bailey, J., 12
East, 448, Fenn v. Smart; per
Littledale, J., Rolertu v. Davey, 4
B.&Ad. 664, 671; Doe v. Baker,
8 Taunt. 241 ; 2 Moore, 189 ; see
Liddy v. Kennedy, L. K. 5 H. L,
134, 151, 154.
{b) Bishop of Bath's Case, 6 Co.
34 b.
(c) Arnsby v. Woodward, 6 B. &
C. 519 ; see Bowser y. Colby, 1 Hare,
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SECT. VI. § 2. CONDITIONS. 227
non-payment of rent, breach of covenant, or other default condition avoid-
11111 • j_/» ^°^ lease on de-
01 the Jessee, although there be no requu-ement oi entry, fault of lessee,
I'i? J? 1 makes it voidable
IS construed to render it voidable only m favour oi the only.
lessor, who must give notice or do some other act show-
ing his intention to avoid it ; it does not enable the lessee
to put an end to the lease by his own default [a).
" In a lease for years no precise form of words is construction of
1 T, . Ti • CO • , 'p '1^ conditioDsin
necessary to make a condition, it is suihcieut it it appear leases.
that the words used were intended to have the effect of
creating a condition. They must be the words of the
landlord because he is to impose the condition" (6) . — "And proviso operat.
so it is if a man by indenture letteth lands for years, pro- tion.
vided always, and it is covenanted and agreed between the
said parties, that the lessee shall not alien, and it was ad-
judged that this was a condition by force of the proviso,
and a covenant by force of the other words " (c) . — And it
is laid down as " a general rule that where a proviso is
that the lessee shall perform or not perform a thing, and
no penalty to it, this is a condition, otherwise it would
be void ; but if a penalty is annexed, it is otherwise •'■' [d).
A condition can be reserved in a conveyance at common condition can be
law only to the grantor or lessor of the estate and to tte grantor Ld
his heirs, and to no other person (e). If a devise be
made by will upon condition, the heir of the testator
would be entitled to enter upon breach of the condi-
tion (/). A condition may be reserved upon a convey-
ance in fee simple, leaving no reversion; or upon an
assignment of a term of years, leaving no reversion {g).
(a) ]iede\. Farrj&yi.&B. 121; and conditioned" that the lessee
Doe V. Bancks, 4 B. & Aid. 401 ; should not assign, etc., and held to
Soberts t. Davey, 4 B. & Ad. 664; be a condition, and not merely a
Jones V. Carter, 15 M. & W. 718, covenant.
725 ; see 1 Smith's L. C. 19, 3rd (d) Doe t. Watt, 8 B & C. 316,
ed. notes to Dumpor's Case ; 1 Wms. and see the cases there cited.
Saund. 287 d, n (m). (e) Lit. s. 347; Co. Lit. 214 a,
(b) Doe V. Watt, 8 B. & C. 308, 379 a ; Perkins, ss. 830, 831.
315. (/) See Doe t. Fearson, 6 East,
(c) Co. Lit. 203 b ; Doe v. Watt, 173.
supra, where it was "stipulated (§') Lit. a. 325 ; Co. Lit. 202 a,
q2
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Condition not
assignable at
common law.
tation.
228 PAET II. CHAP. I. THE LIMITATION OV ESTATES.
A condition was not assignable at common law^ either
with or without a reversion ; but it was made to pass with
a reversion in certain cases by 32 Hen. VIII, c. o4 (a) ;
and by 8 & 9 Vict. c. 106, s. 6, "a right of entry,
whether immediate or future, and whether vested or con-
tingent, may be disposed of by deed" (6).
Distinction as to Hence arosc a diversity, as stated by Coke, " between
cStSnidS- a condition that requireth a re-entry, and a limitation
that ipso facto determineth the estate without any entry.
Of this first sort no stranger shall take any advantage,
as hath been said. But of limitations it is otherwise.
As if a man make a lease quousque, that is, until J. S.
come from Eome, the lessor grant the reversion over to
a stranger; J. S. comes from Eome, the grantee shall
take advantage of it and enter, because the estate by
express limitation of it was determined. So it is if a
man make a lease to a woman quamdiu casta vixerit, or
if a man make a lease to a widow,* si tamdiu in purd
viduitate viveret. So it is if a man make a lease for 100
years if the lessee live so long, the lessor grants over the
reversion, the lessee dies, the grantee may enter, causd
qua supra " (c) .
Waiver of con-
dition.
The forfeiture under a condition is waived and dis-
pensed with, if the grantor or lessor, after having know-
ledge of the grounds of forfeiture, does any act unequivo-
cally affirming the continuance of the estate or tenancy ;
as by accepting, suing for, or claiming rent subsequently
accruing due {d). Distraining for rent may have the
same effect of affirming the tenancy, because it is only
202 J ; Doe v. Bateman, 2 B. & Aid.
168.
(a) Ab to this statute and when
it applies, see post, Part IV. Chap.
I., and see BuUen & L. Prec. PI.
207, 3rd ed.
(b) See anie, p. 59 ; and see post,
Part IV. Chap. I.
(c) Co. Lit. 214 6 ; 3 Co. 65 a,
Pennant's Case ; 8 Co. 95 h, Man-
ning's Case.
(d) Co. Lit. 211 b; Pennant's
Case, 3 Co. 64 a ; Doe v. Birch, 1
M. & W. 402; Doe v. Pritchard,
5 B. & Ad. 765 ; Dendy t. Nicholl,
4 C. B. N. S. 376 ; 27 L. J. C. P.
220 ; notes to Dumpor's Case, 1
Smith, L. C. 30, 6th ed.
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SECT. VI. § 2. CONDITIONS. 229
justifiable during the continuance of the tenancy or (by
the statute 8 Anne^ c. 14, s. 6,) within six months after
its determination (a).
Such acts of waiver of the forfeiture operate as an cannot be re-
1 • T -I'll T tracted.
election not to avoid the estate, which when once made
and duly expressed cannot be retracted; according to
the maxim " quod semel placuit in electionibus amflius
displicere non potest " (b). But they operate only upon
past breaches or forfeitures ; and if the condition be a
continuing one, a subsequent breach will again entitle
the grantor or lessor to re-enter (c).
On the other hand, where the election is duly made by Waiver cannot
, operate after
entry or otherwise to avoid the estate, or where it be- avoidance oi the
. ,. . ... estate.
comes ipso facto void under the condition or limitation,
no acceptance of rent or other act of waiver can after-
wards revive or continue it (d) . But such acts may be
evidence of a new tenancy (e) .
The service of a writ of ejectment, by treating the Effect of ejeot-
. , ment as election
tenant as a trespasser, operates as a conclusive election to avoid,
to avoid a lease, and it may be referred back to the
earliest breach or ground of forfeiture upon which the
plaintiff relies in support of the action. It therefore
precludes the lessor from suing for subsequent rent or
subsequent breaches under the lease. And, on' the other
hand, it prevents any subsequent act, as distraining for or
accepting the rent in arrear, from operating as a waiver of
the forfeiture upon which the ejectment is founded (f).
(a) Ward v. Day, 4 B & S. 337 ; 23 & 24 Vict. u. 38, =. 6, cited
33 L. J. Q. B. 3 ; Ghrimwood t. post, p. 241.
.s, L. E. 7 C. P. 360 ; 41 L. J. 0. (d) Co. Lit. 215 o ; 3 Co. 64 b,
P. 239 ; Bee Cox v. Leigh, L. K. 9 Q. Pennant's Case ; "a confirmation
B. 333 ; 43 L. J. Q. B. 123. may make a voidable or defeasible
(i) See Croft t. Lumley, 6 H. L. estate good, but it cannot work upon
C. 785 ; 27 L. J. Q. B. 321, per an estate that is void in law." Co.
Bramwell, B., adopted in CLough v. Lit. 295 b.
London Sf N. W. Ry. Co., 41 L. J. (e) See Blyth v. Dennett, 13 C.
Ex. 17, 23 ; Ward v. Day, 33 L. J. B. 178 ; 22 L. J. C. P. 79.
Q. B. 3, 254 ; 5 B. &S. 359. (/) Jones v. Carter, 15 M. & W.
(c) Doev. Peck, 1 B. & Ad. 428; 718 ; Grimwood v. Moss, L. E. 7.
Boe V. Qiadwin, 6 Q. B. 953 ; Doe C. P. 360, 41 L. J. C. P. 239 ;
V. Jones, 5 Ex. 498 ; see the statute Coleman v. Portiury, L. B. 7. Q.
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230 PAET II. CHAP. I. THE LIMITATION OF ESTATES.
Condition avoids A Condition avoids the estate to which it is annexed^ and
revest8''it'iQ'tiie revcsts the original estate of the grantor or lessor so far
grantor. ^^ ^^^ circumstances permit (a). " Regularly it is true
that he that entereth for a condition broken shall be
seised in his first estate, or of that estate which he had at
the time of the estate made upon condition, but yet this
faileth in many cases : — 1. In respect of impossibility, —
2. In respect of necessity, — 3. In respect of some col-
lateral qualities " (fe) .
But the right of action remains on covenants in a lease
for arrears of rent or breaches committed before re-entry ;
and it was so held notwithstanding the proviso expressed
that the lessor upon re-entry should have the premises
again "as if the indenture of lease had never been
made " (c) .
A condition, like a conditional limitation, must in
general defeat or determine the whole estate to which it
is annexed. It cannot avoid the estate in part only, and
continue it in part. Thus a proviso for the cesser of an
estate tail, during the life of the tenant in tail only, is
repugnant and void {d) .
A condition also avoids all mesne estates and incum-
brances created out of or charged upon the estate (e).
But conditions implied in law, as the conditions of tenure,
do not afl'ect the estates and incumbrances created before
the act of forfeiture (/) .
At common law if the land be limited for a particular
estate with remainders, subject to a condition, the re-
entry defeats all the estates in remainder, as being de-
Cannot avoid it
in part only.
Avoids mpsne
estates and
charges.
Avoids estates
in remainder.
E. 344; 41 L.J. Q.B. 98, where it was
held that the particulars of breaches
given in the action did not operate
as an admission of the tenancy at
the various times of those breaches,
but left it open to the plain tiif to
rely on any of them.
(as) Lit. 8. 325.
(i) Co. Lit. 202 a, and see the in-
stances there given.
(c) Bartshome v. Watson, 4 Bing.
N. C. 178.
{d) 1 Co. 85 b, 86 i, Corbet's
Case ; ante, p. 218.
(e) Perkins, s. 840 ; see Mayovfs
Case, 1 Co. 146 I.
(J) Co. Lit. 233 b, where see the
distinction as to conditions by
statute ; 1 Co. 67 a, Archer's Case ;
Perkins, s. 844 ; pot, p. 231.
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SECT. VI. § 2. CONDITIONS. 231
pendent upon the seisin of the particular estate (a).
But where a particular estate is limited subject to a con-
ditioUj and a remainder is limited over independently of
that condition, as the entry would defeat the remainder,
the condition, unless it can be construed as a limitation
determining the preceding estate without entry so as to
support the remainder, is repugnant and void (&).
A condition of re-entry has no effect upon springing Does not avoid
uses and executory devises which operate in substitution and executory
of the estate to which the condition is annexed ; for these
limitations arise quite independently of the preceding-
estate (c).
At common law the services and duties of the tenure conditions im-
T t T , ' n ^ 1 • PI plied in tenure.
constituted an imphed condition oi the continuance ot the
estate ; a refusal of the services or a denial of the tenure
was visitable with forfeiture, and entitled the lord or re-
versioner to re-enter and resume possession. — Other con- conditions ex-
ditions might be annexed in express terms to the grant grant,
of an estate with the like effect of giving to the grantor
or his heirs the right to re-enter and resume possession
upon breach of the condition [d).
By the common law, it was a condition in law annexed condition in
to the estate of tenant for life or for years or other par- tortious conrey-
ticular estate^ that if he made a tortious alienation of the
seisin it was a forfeiture of his estate, and the reversioner
or remainder man might enter ; so if he claimed a greater
estate in a court of record. But conveyances have no
longer any tortious operation (e). Entry was necessary
(a) Plowd. 412, in Nmois v. condition may be annexed to the
Lark ; and see Lit. s. 723 ; 1 San- particular estate only without affect-
ders on Uses, 152 ; see ante, p. 46. ingthe remainder. JFarren v. Lee,
{b) Pearne, C. K. by Butier,"270 ; Dyer, 126 b.
10 Co. 40 5, in Partington's Case; (c) See a»/e, p.68, 112.
Shepp. Touch, by Preston, 120, 121, {d) Lit. s. 325, 378; Butler's
see Kinnersley y. Williamson, 39 L. note (1) to Co. Lit. 201 a ; Co. Lit.
J. C. 788, -where it was held that a 233 h. Butler's note to Fearne, C.
remainderman has no equity to com- R. p. 382. Perkins, s. 722.
pel the tenant for life to perform a (e) See ante, p. 57, 58 ; Co. Lit.
condition. In a devise by will a 233 i.
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232 PART II. CHAP. I. THE LIMITATION OF ESTATES.
on the part of the lessor to avoid the estate, whether it
was a freehold or leasehold, in respect of the conditions
implied in the tenure (a).
Express condi- The right of entry for breach of the conditions implied
by statute ySa in the tenure could not be reserved upon an alienation in
' "'' fee after the statute quia emptores, for that statute pro-
hibited the creation of a sub-tenure and the grantee held
only of the chief lord of the fee ; but a right of entry
upon positive conditions expressed in the grant, may be
reserved to the grantor and his heirs notwithstanding the
statute quia emptores (b) .
Condition in Bxpress conditions of re-entry were employed at com-
Mmufonlaw. mon law in mortgages of land. The mortgagor conveyed
the land to the mortgagee by feoffment, or other appro-
priate legal assurance, upon condition that if he paid at a
certain day the amount of the debt he might re-enter and
resume his former estate (c) .
Eqnity of re- On failure to perform the condition by payment at the
demption. . J r J
day appomted, the estate of the mortgagee became absolute
and indefeasible at law; but the Court of Chancery, re-
garding the transaction merely as a pledge of the land for
the debt, allowedto the mortgagor a right or equity of re-
demption by payment of the debt and interest at any
time, and compelled the mortgagee thereupon to recon-
vey the land ; giving the mortgagee at the same time
the right of foreclosure, that is, of applying to the court
to bar the equity of redemption in default of payment by
an appointed day [d].
(a) Fenn v. Smart, 12 Bast, 451. contract is in this court considered
(b) Lit. s. 325 ; see ante, p. 18, a mere loan of money, secured by
227 ; Doe T. Bateman, 2 B. & Aid. a pledge of the estate. But that is
168, 170. a doctrine, upon which this court
(e) Lit. ss. 332, 333. acts against what is the prima facie
(d) " This court says, that though import of the terms of the agree-
the money ia not paid at the time ment itself ; which does not import
stipulated, if paid with interest at atlaw, that, once a mortgage, always
the time a re-conveyance is de- a mortgage; but equity says that."
manded, there shall be a i-e-convey- Per Eldon, L. C, 7 Ves. 273, in
ance ; upon this ground, that the Seton t. Sladc
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SECT. YI. § 2. CONDITIONS. 233
A modern mortgage recognises the equitable view of Proviso for re-
tlie transaction by substituting for tbe condition of re-
entry an express proviso for redemption^ imposing a trust
to reconvey on payment of the debt and interest (a) .
A condition of re-entry is frequently applied to secure Conditions in
T'TT-jjij_i leases for pay-
the payment or rents reserved^ m addition to the other ment of rent.
remedies by action or distress (6) . At common law a
condition of re-entry simply " if the rent be in arrear "
implies several subordinate oonditionSj which must be
strictly complied with at all points in order to maintain a
forfeiture and re-entry. These may be summed up in the Demand neoes-
T in 1 _n 1 ^^^y ^^ common
requirement that a demand must be first made oi the law.
precise sum due, and at the exact time and place required
by law under the various circumstances of the case (c).
The strict compliance with these requirements was re- statute enaiung
laxed in some cases by statute 4 Geo. II. c. 28, s. 2, re- out demand or
enacted by 15 & 16 Vict. o. 76, (the C.L.P Act, 1852,) "'*"'^'
s. 210, in the following terms : — "In all cases between
landlord and tenant, as often as it shall happen that one
half-year's rent shall be in arrear, and the landlord or
lessor, to whom the same is due, hath right by law to re-
enter for the non-payment thereof, such landlord or lessor
shall and may, without any formal demand or re-entry,
serve a writ in ejectment for the recovery of the demised
premises ; [the statute proceeds to provide a substituted
service ;] and in case of judgment against the defendant
for non-appearance, if it shall be made to appear to the
court where the said action is depending, by afiSdavit, or
be proved upon the trial in case the defendant appears,
that half-a-year's rent was due before the said writ was
served, and that no suilioient distress was to be found on
the demised premises countervailing the arrears then due.
{d) See ' Mortgages,' posi, p. 278. requisites of a demand and the
(4) Lit. ss. 325, 326, 347 ; Co. Lit. mode of making it and the reasons
lb. for it; and seel Wms. Saund. 286
(c) See Co. Lit. 201 b, as to the 6, u (16).
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234 PART II. CHAP. I. THE LIMITATION OP ESTATES.
Condition ex-
pressly Btipulaf-
ing for demand,
etc.
Conditions for
performance of
cQvenanta.
Remedy for
past rent and
breaches of cove,
nant.
and that the lessor had power to re-enter, then and in
every such case the lessor shall recover judgment and
execution in the same manner as if the rent in arrear
had been legally demanded and a re-entry made."
If the condition of re-entry expressly provides for the
time and manner of demanding the rent, or adds any
other conditions precedent to the right of re-entry, such
express provisions may supersede the implied conditions
of the common law, and must be duly complied with (a).
A condition of re-entry is also used for securing the
due performance of covenants in leases, by giving a right
of re-entry upon a breach of covenant, as with covenants
to repair and to insure, covenants respecting the mode of
occupying and using the premises and the like. — " Where
the proviso for re-entry uses apt words, the power of
re-entry may be just as well reserved for breaking a
negative covenant, as for not performing a positive
one " (5) . — " An assignee of such an estate takes it sub-
ject to the condition and liable to be divested by the breach
of it. It is immaterial in this respect whether the condi-
tion is for the performance of some covenant which
touches the land and runs with it, or one which is whoUy
collateral. Upon the breach of either species of covenant,
the estate ceases when the lessor chooses to take advan-
tage of his right of re-entry" (c). — The entry for a
forfeiture does not bar the remedy for the rent in arrear
or breach occasioning the forfeiture, or for previous rent
or breaches, under the covenants or contract contained in
the lease (d).
(cs) Phillips T. Bridge, L. E. 9
C. P. 13 ; 43 L. J. C. P. 13, and
see the cases tliere cited upon the
construction of such conditions. As
to the construction and application
of the statute, see Chitty's Statutes ;
Day's C. L. P. Acts ; 1 Wms. Saund.
287 a.
(b) Per Blackburn, J., L. R. 6 Q.
B. 648, in Wadham t. Postmaster
General, and see as to such cove-
nants, lb. Toleman v. Fortiury,
L. R. 7 Q. B. 344 ; 41 L. J. Q,. B. 98.
(c) Per curiam. Doe v. Pech, 1
B. & Ad. 428, 436, as to the right
of the assignee of the lessor to the
benefit of conditions, see ante, p. 228 ;
post. Part IV. Chap. I.
{d) Hartshorne v. Watson, 4
Bing. N. C. 178 ; see Price t. Wor-
wood, 4 H. & N. 512 ; 28 L. J. Ex.
329.
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SECT. VI. § 3. CONSTEUCTION OP CONDITIONS. 235
§ 3. CONSTBUCTION AND APPLICATION OP CONDITIONS.
Illegal and impossible conditions void — examples.
Conditions void for uncertainty.
Conditions void as repugnant to the estate limited.
Construction of conditions — conditions construed as subsequent
rather than precedent — construed strictly in favour of
vesting, and against divesting — condition of re-entry con-
strued strictly as to the person.
Conditions determined by licence — statute restricting licence to
speci6c act — waiver of breach restricted to specific instance.
Relief against conditions — at law — in equity — under the Judica-
ture Act.
There remain to be noticed in this sub-section some
rules and doctrines of law relating to conditions generallyj
and the construction and application of conditions.
Conditions which in their matter or object are illegal lUegai and im-
•11 • n T • , • TT ' n 1 1 possible condi-
or impossible^ are void and inoperative. Hencej li the tions are void,
condition be precedent, that is, if the estate be limited
to arise upon such a condition, both the condition and
the estate are void; if the condition be subsequent, that
is, if the estate be determinable upon such a condition,
whether as a conditional limitation or as a condition of
re-entry, the condition only is void, and the estate good
and absolute. And the same rules apply whether the
condition be illegal or impossible at the time of limiting
the estate, or whether it become so afterwards (a).
Conditions operating in restraint of marriage supply Examples,—
1 TTn •i'j. T J jy conditions in
some examples : — Where a giit was made to a woman tor restraint of
life, with a gift over if she married, it was held that '^'^^'"^^^■
the condition, operating in restraint of marriage, was
illegal, and the gift over void, and consequently the
prior gift remained absolute notwithstanding marriage.
{a) Co. Lit. 206 a, b ; 218 a ; Jarman on Wills, 805, 807 : see
Perkins, ss. 722, 735 ; Shepp. Roundell v. Currer, 2 Bro. C. C.
Touch, by Preston, 132, 133; 1 67,73.
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236 PAET II. CHAP. I. THE LIMITATION OW ESTATES.
But a limitation to a person until marriage is valid an
cannot be enlarged by reason of its operating in restraii
of marriage; for in such case there is nothing to giv
an interest beyond the marriage (a). A devise to A. fc
life, if she continued unmarried, but if she married wit
the consent of certain persons, she should have the estat
as if she had continued unmarried, was construed to be
life estate, subject to the condition subsequent deter
mining the estate if she married in the lifetime of thi
persons without their consent ; which condition becami
impossible by the death of those persons, and the estati
for life became absolute (b).
other examples. Lands were devised by will for estates tail to the heiri
male of the body of A. with a proviso that if A. shoulc
die without having acquired-the title of Duke or Marquii
of B. to him and the heirs male of his body, the estates
so devised should cease and be void ; it was held that the
proviso was a condition subsequent and was void as being
contrary to public policy, and that consequently the
estates were absolute (c). — Where a devise was made
upon condition that the devisee should convey part of the
devised estate to a charity, the condition was held illegal
and void and the devise absolute (d). — A devise to A,
was conditioned to be void if he should refuse upon
request to convey an estate to B., the testator having
subsequently to the making of his will rendered the
condition impossible by himself purchasing the estate,
the devise was held to be absolute (e).
(a) Morley v. Eennoldson, 2 Hare, Bro. C. 0. 431 ; 2 W. & T. L. C.
570, 580, where the V. C. Wigram 125, as to conditions in restraint oi
said, " If you suppose the case of a marriage. See ante, p. 219.
gift of a certain interest, and that (i) Aislabie v. Rice, 3 Madd.
interest sought to be abridged by 256.
a condition, you may strike out the (c) Egerton v. Brownlow, 23 L.
condition and leave the original gift J. C. 348, in H. L.
in operation ; but if the gift is until (d) Poor v. Miall, 6 Madd. 32.
marriage, and no longer, there is (e) Walker v. Walker, 29 L. J.
nothing to carry the gift beyond tlie C. 856 ; see Middlelon v. Windrop,
marriage." See Scott t. Tyler, 2 L. R. 16 Bq. 212 ; 42 L. J. C. 555.
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SECT. VI. § 3. CONSTKtICTlON OS CONDITIONS. 237
If a condition is so expressed that it is impossible to Condition void
ascertain with certainty the event or contingency upon
which the estate is to arise or be defeated^ it is equivalent
to being impossible and is equally inoperative (a). So
alsOj if it be expressed with such uncertainty that it is
impossible to say what is the effect intended as to the
destination of the property ; as where an estate in fee or
an estate tail is limited to cease and go over as if the
tenant were dead (6). And it is said that if there be a
limitation over which does not meet the event on which
a previous estate is to cease, there is, in general, not suffi-
cient certainty to determine the previous estate before
the limitation over takes effect (c).
So, if the condition be in the event uncertain, it is
inoperative ; thus " if a lease be made to a man and a
woman for their lives upon condition that which of them
two shall first marry, that one shall have the fee, and they
intermarry, neither of them shall have the fee, for the
uncertainty" (d).
A condition annexed to an estate which is repugnant conditions re-
to the estate limited is void. Thus, a condition that f Se""" "^*
tenant in fee simple or tenant in tail shall not alien the aiiS™*^"""
land is repugnant and void, because the power of aliena-
tion is an inseparable incident of such estates (e). So
a condition annexed to an estate purporting to dispose of
it in case of intestacy is repugnant to an absolute interest
and void (/). A condition that if a devisee take any
(a) Sheppard's Touch, by Pres- Trusts, supra,
ton, 128 ; Fearne, C. R. 255, Fil- (d) Co. Lit. 218 a.
lingham-v. Bromley, Turn. & Euss. (e) Lit. 8. 360; Co. Lit. 223 a,
530 ; Doe v. Carew, 2 Q. B. 317 ; 224 a ; 6 Co. 41 u, Mildmay's Case ;
Clavering v Mlison, 25 L. J. C. Portington's Case, 10 Co. 36, aee
274, 278, per Kindersley, V.C., see post. Part IV. Chap. I. ' Restraint
S C. 26 L. J. C. 335 ; 29 lb. 761. of AHenation.'
(I) Catts Trusts, 33 L. J. C. 495 ; (/) Holmes-i. Godson, 8 D. M. &
lee ante, ^. 218. G. 152; 25 J. L. C. 317; so an
(c) Fer Turner, T.C. Soci/ord absolute gift with a gift over of so
V. Sachmcbn, 21 L. J. C. 511, much as shall not be disposed of.
adopted by Wood, V. C. in Catts Ferry y. Merritt, L. E. 18 Eq. 153.
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238 FAUI II. CHAP. 1. -THE LIMITATION OF ESTATES.
Condition
against taking
tLe profits.
proceedings at law or in equity his estate shall go ova
was held repugnant and void (a) .
A condition annexed to an estate in fee simple or fe
tail that the tenant shall not take the profits of the lani
is repugnant and void (fe). So, a condition that the lan(
shall be let for ever at a definite rent (c) .
Construction of
conditions.
Condition con-
strued as subse-
quent rather
than precedent.
It is a general principle of construction that conditioni
are not favoured, that is to say, limitations of estates ii
terms importing conditions are to be construed generaUi
in favour of vested and indefeasible estates {d) .
Hence the rule that a condition annexed to an estate ii
to be construed as a condition subsequent rather thai
precedent. — " Conditions are either precedent or subse
quent ; in other words, either the performance of them is
made to ]precede the vesting of an estate, or the non-per'
formance to determine an estate antecedently vested
But though the distinction between these two classes o:
cases is sufficiently obvious in its consequences, yet it is
often difficult, from the ambiguity and vagueness of thf
language of the will, to ascertain whether the one or the
other is in the testator's contemplation. On questions oJ
this nature general propositions aJBford but little assist-
ance in dealing with particular cases of difficulty " (e).
Hence also, words of contingency are referred, il
{a) Rhodes v. Muswell Sill Land
Co. 29 BeaT. 560 ; 30 L. J. C. 509.
" There are three manner of con-
ditions in fait, which are not good,
Tiz. conditions against the law, con-
ditions repugnant, and conditions
impossible." Perkins, s. 722.
(J) Co. Lit. 206 b; Perkins, =.
731 ; Sheppard Touch, by Preston,
131.
(c) Att. Gen. y. Catharine Ball,
Jae. 395 ; see Tibhetts y. Tibbetts,
19 Ves. 656.
(d) This principle of construction
finds its chief application in con-
struing future limitations ; as re-
mainders which are to be taken as
vested rather than contingent, and
executory limitations and devises
which are to be taken as referring
to the time of possession rather
than the vesting of the interest,
see post. Chap. II. Sect. I, III.
(e) 1 Jarman on Wills, 796, and
see the instances of construction
there given. Hawkins on Wills,
237 ; see Egerton v. Sroumlow, 23
L. J. C. 348 ; Woodhottse v. Mer-
rick, 1 K. & J. 352 ; 24 L. J. C.
649 : Yates v. University College,
L. E. 8 Ch. 454; 42 L. J. C.
566.
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SECT. VI. § 3. CONSTBtrCTION OF CONDITIONS. 239
possiblej to the limitation over; thus^ a devise to A., "if Words of con.
he should live to attain twenty-one/' or " when he to the limitation
attains twenty-one," with a devise over in case he should
die before attaining that age, is construed as giving to
A. an immediate vested estate, subject to be divested by
the devise over taking effect upon his death under
twenty-one (a).
Hence also the rule that a condition precedent is con- Conditions con-
strued strictly in favour of vesting the estate ; and that favour of vesting
T . 1 . T • 7 • T ^^^ against
a condition subsequent is construed smcUy against di- divesting,
vesting the estate. — " Provisoes and conditions which go
in destruction and defeasance of estates are odious in law
and shall be taken strictly ; for, conditio heneficialis quce
statum construit, benigne secundum verborum intentionem
est interpretanda ; odiosa autem guce statum destruit,
stride secundum verborum proprietatem est accipienda" (b).
Upon the above principles of construction a condition Condition of re-
of re-entry reserved to a grantor or lessor, without any tended to Mrs
express extension to heirs, executors, etc., is restricted tioned.™™'
to the person of the grantor or lessor, and the heir or
executor cannot take advantage of it (c). — And for analo- Burden of prov-
gous reasons in an action of ejectment founded on a ™^ "' °' '^'^"'
condition of re-entry, the burden of proving aU the
circumstances divesting the estate, though involving
negative matter, is cast by law upon the person main-
taiuing the forfeiture (d) .
(a) Edwards v. Hammond, 1 B. Radford y. Willis, L. E. 7 Ch. 7 ;
& P. N. U, 324 n ; see Hawkins on 41 L. J. C. 19, where a devise to an
Wills, 240 ; Bromfield v. Crowder, unmarried woman for life, with re-
1 Bos. & P. N. R. 313 ; Doe v. maiuder to her husband, with a
Moore, 14 Bast, 601 ; Fhipps v. devise over if she died unmarried,
Ackers, 9 CI. & F. 591. See Price was construed to vest the remainder
V. Sail, L. B.. 5 Eq. 399, 37 L. J". C. indefeasibly in her first husband
191 ; and see post. Chap. II. Sect. although he died before her ; and
III. ' Executory Devise. the devise over was construed to
(6) 8 Co. 90 *, Fraunces' Case ; take effect only if she never had been
Co, Lit. 218 a, 219 h ; Sheppard married.
Touch, by Preston, 133 ; Glaver- (c) Shepp. Touch. 133.
ing V. Ellison, 25 L. J. C. \d) Doe v. Whitehead, 8 A. & E.
274, 278 ; 29 lb. 761 ; Kiallmark 571 ; Toleman v. Portbiiry, L. E. 5
V. Kiallmark, 26 L. J. C. 1 ; Q. B. 288 ; 6 lb. 245 ; 7 lb. 344.
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240 PAKT II. CHAP. I. THE LIMITATION OP ESTATES.
Condition According to the same principles a condition of
StdeteSed entry in a lease upon assignment witliout licence i
y icence. ^^^^ ^^ ^^^ common law not to be apportionable ; an(
licence once given dispensed with the condition a]
gether, so that no subsequent alienation without licei
could break the condition or give cause of entry to
lessor. And a licence given to assign to one particn
person or in one particular instance had the same effi
in dispensation and determination of the condition^ ai
licence given to assign generally (a).
Effect of licence But in this instance the Legislature has interfered
statute. correct the construction^ and by the statute 22 &
Yict. c. 35j s. 1, it is enacted generally that "where £
licence to do any act which without such licence wo
create a forfeiture^ or give a right to re-enter^ unde:
condition or power reserved in any lease heretof
granted or to be hereafter granted^, shall at any ti
after the passing of this Act be given to any lessee
his assigns^ every such licence shall^ unless otherw
expressed^ extend only to the permission actually giv
or to any specific breach of any proviso or covenant mi
or to be made, or to the actual assignment, underlea
or other matter thereby specifically authorized to be do
but not so as to prevent any proceeding for any sub
quent breach (unless otherwise specified in such licenc<
— and the condition or right of re-entry shall be and
main in all respects as if such licence had not been giv
except in respect of the particular matter authori;
to be done." Section 2, restricts in like manner
operation of a licence to assign or underlet or do £
other act given to one of several lessees, or given in
spect of part of the property.
Waiver re- A waivor of a broach of the condition agai
specific instance assignment had the same effect as a licence in dispen
or 'brs&cli
waived. tion of the condition altogether {b) ■ and to meet tl
{a) Bumpor's Case, 4 Co. 119 ; 1 v. Macpherson, 14 Ves. 173.
Smith L. C. 3rd ed. 15 ; Brummel {b) 5 Taunt. 257, Lloyd v. Cr<
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SECT. VI. § 3. CONSTBUCTION OF CONDITIONS. 241
and other cases of a Kke kindj it was enacted by the
statute 23 & 24 Vict. c. 38 (Lord St. Leonards' Act),
s. 6, that an actual waiver of the benefit of any cove-
nant or condition in any lease proved to have taken
place after the passing of the Act in any one particular
instance " shall not be assumed or deemed to extend to
any instance or any breach of covenant or condition other
than that instance or breach of covenant or condition to
which sTich waiver shall specially relate ; nor to be a
general waiver of the benefit of any such covenant or
condition, unless an intention to that effect shall appear."
The courts of law have been invested by various Relief against
... T p conditions at
statutes With a summary jurisdiction to grant relief upon law.
equitable principles against forfeitures for conditions
broken : — in the case of mortgages by 7 Geo. III. c. 20,
re-enacted by the Common Law Procedure Act, 1852,
(15 & 16 Vict. c. 76,) s. 219 {a) j— in the case of for-
feiture for non-payment of rent by the C. L. P. Act,
1852, s. 212, and the C. L. P. Act, 1860, (23 & 24 Vict.
c. 126,) s. 1 j (h) — and in some cases of forfeiture for breach
of covenants or conditions to insure against fire, by the
C. L. P. Act, 1860, ss. 2, 3 (c).
The courts of equity exercise an original jurisdiction EeUef in equity.
iu some cases to relieve against forfeiture at law for con-
ditions broken upon the principle of compensation : — thus
in mortgages equity relieves against a forfeiture at law
by giving the equity of redemption {d) ; — and in case
of forfeiture for non-payment of rent the court will
relieve, subject to the requirements of the statute (e).
But the jurisdiction is exercised only in cases which
admit of compensation; and the courts of equity will
give no relief against forfeitures arising from breach of
(a) See Day's C. L. P. Acts, 3rd (e) 4 Geo. II. c. 28 ; 15 & 16 Vict.
ed.p. 172. c. 76, B. 210, 211; see Bowser v.
(J) See lb. p. 295. Colley, 1 Hare, 109 ; and notes to
(e) See lb. p. 296. Teaehy v. Dvke of Somerset, 2 "W".
{d) See ante, p. 232. & T. L. C. 992, 3rd ed.
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242 PAET II. CHAP. I. THE LIMITATION OF ESTATES.
The Judicature
Act.
a condition not to assign without licence, or from breach
of a covenant to repair, or to insure against fire, or the
like specific matters (a). Courts of equity have now
power to relieve against forfeiture for breach of covenant
or condition to insure against fire, where no loss has
happened, in cases of accident or mistake, but sub-
ject to certain conditions, by the statute 22 & 23
Vict. c. 35, ss. 4-8 (6).
The courts of equity have, in general, no jurisdiction
to relieve against conditions imposed by a testator iu
his will ; thus it was held that a gift was divested under
a condition, though the person to whom it was given
was not informed of the condition in time to comply
with it (c).
The distinction between Courts of Law and Courts
of Equity in regard to relief against forfeitures will
be merged and cease by the provisions of the Su-
preme Court of Judicature Act, 1873, (36 & 37 Vict.
0. 66, s. 24,) under which such relief will be afforded
in all cases as has hitherto been given by the Court of
Chancery.
(a) Green v. Bridges, 4 Sim. 96 ;
Gregory /. Wilson, 9 Hare, 683 ;
see notes to Peachy v. Duie of
Somerset, 2 W. & T. L. C. 992,
3rd ed.
(b) See Page t. Bennett, 2 Giff.
117 ; 29 L. J. C. 398.
(c) Sodges' Legacy, L. K. 16 Eq.
92 ; 42 L. J. C. 452 ; Powell t.
Mawle, L. E. 18 Eq. 243; see
Dawson v. Dawson, 8 Sim. 346 ;
HavjTces v. Baldwin, 9 Sim. 355 ;
V. Robinson, 3 Mer. 7.
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SECT. VII. EQUITABLE ESTATES AND INTERESTS IN LAND. 243
Section VII. Equitable Estates and interests in
LAND.
§ 1. — Equitable estates corresponding to legal estates.
§ 2. — Trusts for conversion.
§ 3. — Charges of money upon land.
§ 4. — Mortgages.
§ 5. — Equitable estates and interests arising out of contracts of
sals.
§ 1. Equitable estates corresponding to legal
estates.
Equitable estates corresponding to legal estates — created by
express limitation — by construction of equity.
Executory trusts — exceptional construction of the limitations —
examples in marriage articles — in wills.
Equitable rights to property arising from fraud, mistake, etc.
distinguished from equitable estates.
Equitable estates and interests either correspond with
legal estates or are of kinds peculiar to equity, having no
analogy in law. The former are treated in the first sub-
section of this section ; the latter form the matter of the
following sub-sections.
Equitable estates which correspond with legal estates Equitable
'■ , . '■ . ° estates correa-
comprise estates m fee simple and fee tail, estates for terms ponding to legal
estates.
of life and for terms of years, in strict analogy to the legal
estates already described. They are created either by ex-
press limitation or by construction of equity, — either by
declared or by constructive trust (a).
In the express limitation of equitable estates corre- Arising by ex-
T. .,111,, n .1 j_.j ji press limitation,
spondmg with legal estates, as regards the quantity oi
estate, equity, in general, follows the law; the same
terms of limitation are used, and receive the same con-
struction as in limiting estates at law (fe) .
(a) See ante, pp. 131, 139. (b) Ante, p. 139.
R 2
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244
PAET II. CHAP. I. THE LIMITATION OP ESTATES.
Ariaing by con-
Btruction of
equity.
Bat the rules of limitation apply only to express
declarations of trust, and have no application to those
equitable estates, which, though corresponding with legal
estates, arise by construction of equity. Such are the
constructive trusts or equitable estates and interests based
upon the payment of the consideration of a purchase, —
or which arise from a mere contract to purchase, — or
resulting trusts which arise upon a legal conveyance not
disposing of the whole equitable interest, or failing in
effect to dispose of it (a).
Trusts and equitable estates thus arising are, for the
most part, measured and limited by the legal estates and
interests on which they are imposed. Thus, the equit-
able estate attributed to the payment of a consideration
is co-extensive with the legal estate to which it is referred ;
— so a resulting trust includes the whole undisposed of
estate to which it applies ; — so by a contract of sale which
equity would specifically enforce the purchaser may ac-
quire an equitable estate in fee or other the whole
interest which the vendor contracts to sell without any
technical limitation (&).
Executory
trusts.
Executory trusts are special or active trusts directing
the trustee to settle or dispose of the land for the estates
and interests required by the trust ; they are so called
because they have to be executed by a deed conveying
the land for the estates and limitations intended, as dis-
tinguished from trusts directing the trustee to hold the
property upon trusts then executed, in the sense of being
then perfectly limited and defined. Executory trusts are
fulfilled and discharged by the execution of a deed in
conformity with the directions of the trust (c) .
(a) See ante, pp. 133, 135.
(6) lb. ; 1 Co. 100 b ; see Bower
T. Cooper, 2 Hare, 408.
(c) Fearne, C. R. 136-148; 1
Sanders on Uses, 310; 1 Spence,
Eq. Jur. 525; 2 lb. 130; Lord
Olenorchy v. Bosville, 1 White &,
T. L, C. 1 ; West T. Lord Holmes-
dale, L. R. 4 H. L. 543 ; 39 L. J.
G. 505 ; see per Eldon, L.C., as to
the inaccuracy of the expressions,
executory and executed trusts, 1 J.
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SECT. VII. §1. EQUITABLE ESTATES. 245
Executory trusts are here distinguislied, as regards the constraction of
T'l,' j?ji 1 ~i ' , , ' p ,• 1 the limitations
nmitation or estates^ by admitting oi an exceptional con- m executory
struction of the limitations expressed. They are often
expressed in compendious terms by way of instructions
for the limitations directed to be made, without setting
out the limitations at length, as by directing or agreeing
that property shall be settled ''in strict settlement,"
" entailed," settled " with usual or proper powers," or
the like; in which cases the construction consists in
developing the limitations involved in such expressions in
the form best suited to carry out the general intention of
the trust (a) .
And even where an executory trust is expressed in Tecimicai terms
technical terms of limitation, the terms are not neces-
sarily construed with the same strictness as is applied to
ordinary legal limitations; but, having regard to the
directory character of the trust, the technical meaning is
held subordinate to the general object required to be
carried out (b).
Upon this principle the Court refuses to apply the rule
ia Shelley's case to the limitations of an executory settle-
ment, expressing that the estate is to be settled on the
parent for life with remainder to the issue or heirs of the
body, (which, if construed by that rule, would give the
parent an estate tail, with absolute control over the pro-
perty,) if it appear to be an object of the settlement to
& W. 570, in Jervoise v. VuJce to how far the hmitations expressed
Northumberland. The word " direc- by way of executory trust are to be
tory " has been suggested instead of taken as final or as admitting con-
" executory." See 2 Spence, Eq. structiTS modification, see the
Jur. 131. observations of Lord St. Leonards
{a) See the notes to Lord Glen- in Egerton v. Brownlow, 23 L. J.
orchy v. Bosville, 1 W. & T. L. C. C. 348, 406 ; and see 2 Spence, Eq.
18 ; Stanley v. ColtJiurst, L. E. 10 Jur. 130 ; trusts which are not
Eq. 259; 39 L. J. C. 650; Loch declared as executory cannot be
~ ~ , L. B. 4. Bq. 122 ; Ma- so treated by reason of the added
grath v. Morehead, L. E. 12 Eq. words " as near thereto as the rules
491 ; 41 L. J. C. 120 ; Mwnt v. of law and equity wiU permit." See
Glynes, 41 L. J. G. 639 ; as to the Christie v. Gosling, L. E. 1 H. L.
construction of executory trusts in 279 ; 35 L. J. C. 667 ; Harrington
wills, see 2 Jarman on WiUs, 252. v. Harrington, L. R. 5 H. L. 87,
(6) 1 W. & T. L. 0. 21, 26 ; as 107 ; 40 L J. C. 716.
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246 PART II. CHAP. I. THE LIMITATION OF ESTATES.
secure a provision to the issue ; for the application of the
rule would defeat that object (a).
Execntory trusts Instancos of oxecutorj trusts occur in marriage articles,
aS™''^° agreeing that a settlement shall be made upon an intended
marriage (&). A covenant in marriage articles by the
intended husband " to settle an estate upon his issue " of
the marriage, was construed to require successive estates
tail to the children of the marriage after a life estate in
the husband, but not to admit of portions for younger
children (c).
Executory trusts Instances of executory trusts occur also in wills leaving
property to trustees with dnections for future settle-
ment (d) . In a recent case, a will directed property to be
settled "in a course of entail to correspond" to the
limitations of a peerage, which limitations were to a per-
son and the heirs male of his body, importing, as applied
to land, an estate taU male ; the Court decreed the settle-
ment to be made to the person for life with remainders to
his sons successively in tail male, upon the ground that
as the peerage was inalienable, and the intention was that
the property should follow the peerage, such limitations
would more nearly correspond in effect with the limitation
of the peerage than a limitation in the identical terms,
which would give him an estate tail, and thereby enable
him to defeat the settlement (e) .
Equitable rights It seems nocessarv here to notice, for the purpose of
to property . • -, • ii -ii £^ r
arising from distmguishmg them, those equitable rights to the re-
fraud, etc.
(a) Fearne, C. E. 90, 114 ; 2 (cQ 1 W. & T. L. C. 26, notes to
Jarman on "Wills, 252 ; 2 Spence, Glenorchy v. Bosville ; 2 Jai-man on
Eq. Jur. 130, where see as to the Wills, 252 ; 2 Spence, Eq. Jur. 130.
distinction between marriage articles (e) West v. Molmesdale, L. E. 4
and wills in regard to the object of H. L. 543 ; 40 L. J. C. 795 ; see
proTiding for issue. Stonor v. another recent example in Thomp-
Ciiru>en,5 Sim. 264. son v. Fisher, L. R. 10 Eq. 207;
(J) 1 W. & T. L. C. 21, notes to and see cases of executory trusts of
Glenorchy v. Bosville, 2 Spence, personalty to be settled by re-
Eq. Jur. 130 ference to settlements of realty. 1
(c) Grier v. Grier, L. E. 5 H. L. W. & T. L. C. 25, 32,
688.
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SECT. VII. §1. EQUITABLE ESTATES. 247
coveiy of property wHcli are not founded in any trust,
strictly so called, either express or constructive. Such
rights arise where the legal estate is acquired or retained
Tinder circumstances against conscience and equity, which
a court of equity will redress ; — as the right to cancel a
conveyance obtained by fraud and have a re-conveyance,
— the right to correct mistakes, and the Uke.
" The jurisdiction of the Court of Chancery in regard DistiDgaished
to specific property, ranges itself under two great heads estates.
or divisions ; — in the cases which range themselves under
the first division, the Court recognises and preserves a
legal estate or title, as well as an equitable title; indeed,
iu most cases, the legal estate or interest has been devised
or conveyed to the person in whom it is vested expressly
for the purposes of the trust, and the legal title is only
so far interfered with as to make it subservient to the
enjoyment of the co-existent equitable interests, — the
cases which range themselves under the second division,
are those in which the legal title has not been conveyed
to the party in whom it is vested by way of trust, but
has been acquired, or is retained against conscience and
equity; and the equitable doctrines which govern this
branch of the jurisdiction are put in force for the purpose
of having the legal title to the property transferred to the
person who, according to honesty and conscience, in the
view of the Court of Chancery, is entitled to the property.
There is no object to be attained, as iu the cases which
come under the first division, which requires that the
legal estate shall be kept outstanding : the claimant seeks
to enforce an equitable rigid, not to secure an equitable
estate : so that the doctrine of constructive trusts is
applied in these cases only for the purpose of efi!ecting
an immediate transfer of the beneficial interest to the
person who is entitled in equity to the legal interest " (a).
The rights here referred to form an important branch The remedial
.... . - jurisdiction of
of the remedial jurisdiction of equity, giving specific re- equity.
{a) 2 Speuce, Equitable Jur. 1, 2.
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248 PAET II. CHAP. I. THE LIMITATION 01? ESTATES.
dress in cases of fraud, mistake, and the like, upon equit-
able principles ; but they do not enter into the scope of
the present work, which is restricted to the substantive
law and does not refer to the occasions and remedies of
infringements or wrongs further than may be sometimes
necessary or useful to do so for the purpose of explana-
tion (a).
§ 2. Trusts foe Conversion.
Trusts for conversion — of land into money — of money into
land.
Absolute conversion — conditional conversion — discretion of
trustees.
Eesulting interest under a conversion by deed is personal estate —
where the whole interest results there is no conversion.
Proceeds of conversion by will, undisposed of, results to the heir
— when included in residuary bequest — in residuary devise
— heir takes the proceeds as personalty, unless conversion
unnecessary.
Election against conversion — election by owner of share — by
tenant in tail — what constitutes election.
Conversion of real estate of partnership.
Estates and in- In this and the following sub-sections are treated those
terests peculiar .,it .. t-j_ j.'i n i-i
to equity. equitable estates and interests m land which are pecu-
liar to equity, not only in respect of the mode of creatirig
them, but also in respect of the kind and quality of the in-
terest, and which have no correspondence with legal
estates (b).
TcrBion.
Trusts for con- By the equitable doctrine of conversion, concisely
stated as follows, — "money directed to be employed
in the purchase of land, and land directed to be sold and
turned into money are to be considered as that species
of property into which they are directed to be con-
verted ; and this in whatever manner the direction is
given ; whether by will, by way of contract, marriage
(a) See ante, p. 135. (J) See ante, p. 243.
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SECT. VIl. § 2. TKUSTS TOE CONVERSION. 249
articles^ settlement, or otherwise j and whetlier the
money is actually deposited or only covenanted to
be paid, whether the land is actually conveyed or only
agreed to be conveyed. The owner of the fund, or the con-
tracting parties, may make land money or money land " («).
Thus by means of a trust to sell land and convert it conversion of
into money, the equitable interest becomes immediately, ™ " ° money.
and though the land remains unsold, personal estate. It
is subject to the rules of limitation, and of transmission
and distribution proper to that class of property (&) .
So, a trust to lay out money in the purchase of land conversion of
has an immediate effect in equity, although the trust '
remains unexecuted, in converting the beneficial interest
into real estate. It becomes capable of all the estates
and limitations, is subject to the same incidents, and is
transmissible according to the same rules as an equitable
estate in land (c) . Trusts for conversion of money into
land belong to the law of personal property, and are there-
fore not here further noticed.
money into land.
The conversion takes effect according to the terms Absolute con.
prescribed in the trust. If the trust is in terms absolute
the conversion takes effect from the execution of the
deed declaring the trust [d), — or, if created by will, from
the death of the testator (e).
If the trust is discretionary, or to be executed at a conditional con-
future date, or with the consent of certain parties, or
upon certain other events and conditions, there is no
conversion until and except so far as the discretion is
properly exercised, or the time has elapsed, or the re-
quired consents have been given, or other conditions
{a) Per Sewell, M. E.,in Fletcher 358 ; 7 lb. 140, 142.
T. Ashlumer,! Bro. C. & C. 497; 1 (d) Griffiths v. Rickett, 1 Hare,
W. & T. L. C. 741 ; as to contracts 299 ; Clarke v. Franklin, 4 K. & J.
of sale, see^os^, p. 306. 257 ; 27 L. J. C. 567.
{b) lb. (e) Beauclerh v. Mead, 2 Atk.
(o) Fletcher v. Ashiurner, supra ; 167 ; Ward v. Arch, 15 Sim. 389 ;
and see 1 Sanders on "Uses, 298, Rolmson v. Rotinson, 19 Beav.
800; 1 Jarman on Wills, 524; see 495. See Spencers. Wilson, li. 'R.
re Se Laticey, L. R. 4 Ex. 345, 352, 16 Bq. 501 ; 42 L. J. C. 754.
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250 PAET II. OHAP. I. THE LIMITATION OF ESTATES.
Oonversion at
discretion of
trustees.
Kesulting in-
terest xinder a
conversion by
deed.
satisfied ; and the beneficiaries until the conversion take
the property in its actual state (a) .
The conversion may be absolute and immediate, as to
the disposition of the property, but with a discretion in
the trustees as to the time of selling (&). The court
will not control a discretion given to trustees for the pur-
pose of conversion (c).
Where a deed conveys land upon an absolute trust for
conversion, for purposes which do not extend to the
whole proceeds, or which partially fail of effect, the
undisposed of interest in the proceeds results to the
grantor according to the general doctrine of resulting
trusts {d). But the deed operates as a conversion from
the time of execution, and the resulting interest in the
grantor is afiected with the converted quality of personal
estate, and therefore in case of his death, though before
the execution of the trusts, it passes to his executor as
personal estate and not to his heir (e). And in such
case it is immaterial that the deed be made revocable,
if it has not in fact been revoked (/) .
{a) 1 W. & T. L. C. 758, in notes
to Fletcher v. Ashbiirner ; Townley
v. Bedioell, 14 Ves. 591 ; Walter v.
Maunde, 19 Ves. 424 ; Bourne v.
Bourne, 2 Hare, 35 ; liiitson's
Estate, L. R. 7 Eq. 326 ; Atwell t.
Atwell, L. K. 13 Eq. 23 ; 41 L. J.
G. 23. As to conversion at option
of a purchaser, see post, p. 307.
(b) Flint V. Warren, 16 Simon,
127 ; Robinson v. Robinson, 19
Beav. 495 ; Miller y. Miller, L. E.
13 Eq. 263 ; 41 L. J. C. 291.
(c) See 1 W. & T. L. C. 758,
notes to Fletcher v. Ashburner.
(d) See ante, p. 135.
(e) See 1 W. & T. L. C. 802, notes
to Aolcroyd t. Smithson ; Hewitt v.
Wright, 1 Bro. C. 0. 86; Van v.
Barnefi, 19 Ves. 102 ; Griffith, v.
Ricketts, 7 Hare, 299; Glarhe v.
Franklin, 4 K. & J. 257 ; 27 L. J.
C. 567. "If the avithor of the
deed impresses upon his real estate
the character of personalty, that,
as between his real and personal
rei^resentatives, makes it personal
and not real estate from the deliveiy
of the deed, and consequently at
the time of his death. The deed
thus altering the actual character of
the property, is, so to speak, equiva-
lent to a gift of the expectancy of
the heir-at-law to the personal estate
of the author of the deed. — And
there is no principle on which the
court, as between the real and per-
sonal representatives, (between whom
there is confessedly no equity,)
should not be governed by the simple
effect of the deed in deciding to
which of the two claimants the
siu'plus belongs." Fer Wigram,
V.C., Griffiths V. RicTcetts, supra.
{/) Griffith V. Ricketts, supra.
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SECT. VII. § 2. TEUSTS EOE CONVERSION. 251
If however the whole purpose of the conversion were where whole in-
to fail altogether, the direction for conversion would be no conversion,
taken to fail with it ; the trust would not attach, and
the property would result to the grantor in its original
quality of real estate (a) .
Different considerations arise under a will as to the des- Undisposed of
PI T IP nn p proceeds of con-
tmation oi the undisposed ot proceeds oi a trust for conver- version by mil,
mi -n T •! 1 T 1 p 1 passes to heir.
sion. The will does not operate until the death of the testa-
tor, and whatever is deemed real estate at the time of his
death pri7nd facie belongs to his heir. A trust for conver-
sion may alter the character of the property which he takes
as heir, but unless it be given away to some other person
his title as heir will prevail. The conversion is presumed to
be for the purposes of the will only and no further, and
implies no gift or preference of the next of kin ; " the
heir is excluded, not by the direction to convert, but by
the disposition of the converted property, and so far
only as that disposition extends " (b) .
Accordingly, where a testator devised real estate upon Conversion is for
• • ^ PI T - 1 1 *^^ purpose of
trust for conversion, with the further direction that the the wiii only.
proceeds of the real estate should be " part of the personal
estate," it was held that the heir was entitled to the
surplus proceeds after satisf3n[ng all the purposes of the
will (c). — And where the will declared that the proceeds of
(a) See 7 Vea. 435, Ripley v. although the trusts of the will may
Waterworth ; Clarke v. Franklin, oblige him to take it as personal
supra. estate and not as real estate." Per
(5) 1 Jarman on WiUs, 553; Wigram,"V. C, in Grijiih v. Ricketts,
Jckroyd v. Smithson, \ Bro. C. C. 7 Hare, 311 ; and see 1 Jarman on
503; 1 W. & T. L. C. 783, notes, Wills, 558. Conversely, if personal
lb.; Jessopp v. Watson, IM. &K. estate be bequeathed upon trust for
665 ; Eyre v. Marsden, 2 Keen, conversion into land, any interest
564 ; Spencer v. Wilson, 42 L. J. undisposed of or disposed of in a
C. 754; L. E. 16 Eq. 501. "A manner which fails results to the
contemporaneous declaration that next of kin of the testator and not
his real estate shall be turned into to his heir. Simmons v. Fill, h. K.
personalty may alter the character 8 Ch. 978 ; 43 L. J. C. 267.
of the property which the heir-at- (e) Gordomr.Jtkinson,].I)eG.&
law takes, but unless it he given S. 478 ; Flint v. IFarren, 16 Simon,
away from the heir, there is no 124, where the V. C. said, " As it
reason why he should not take it, is not given away, there is nothing
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252
PAET II. CHAP. I. THE LIMITATION OF ESTATES.
Proceeds of
conTersion do
not pass under
residuary be-
quest.
the conversion should be " a fund of personal and not of
real estate, for which purpose such proceeds or any part
thereof shall not in any event lapse or result for tbe
benefit of the heir at law/' it was held that there was no
implied gift to the next of kin, and therefore the pro-
ceeds undisposed of by the will must result to the heir.
Such expressions, it was said, excluded the heir only for
the purposes of the will ; and that an intention to exclude
the heir altogether would be void of effect without a gift
to some one else (a).
The conversion being presumptively for the purposes
expressed in the will only, the undisposed of proceeds of
a trust for conversion will not, in general, pass under a
general or residuary bequest of the personal estate. But
Unless expressly if the trust for convcrsion be accompanied with a direc-
included in the .ii nin -it p
personalty. tiou that the procoeds shall be considered as "part oi
the personal estate," or any equivalent direction blending
the funds, it will then be included in a residuary
bequest {b). Accordingly, where the testator, after
giving all his real and personal estate to trustees to
convert into money for the purpose of paying certain
legacies, etc., directed his trustees to hold " the residue
of his said personal estate so converted into money "
upon trust for certain persons, it was held that the
residuary clause included all the proceeds of the real
estate and gave it away from the heir (c).
Proceeds of A general or residuary devise will include the proceeds
nnde/residuary of a trust for couvcrsion which the testator does not
express himself as disposing of otherwise. In wills made
before 1st Jan. 1838, (to which the Wills Act does not
extend,) a residuary devise is construed with reference
to take it from the heir, and I am
bound to say that the heir is en-
titled to it."
(a) Fitch V. W^er, 6 Hare, 145 ;
HoMnson v. Zondon Hospital, 10
Hare, 19 ; 22 L. J. 0. 754. See
a trust for conversion with bequest
of the proceeds to the personal
representatiyes. Holloway v. Rad-
cliffe, 23 Beay. 163 ; 26 L. J. C. 401.
(J>) 1 Jarman on Wills. 562, 566 ;
JByam v. Munton, 1 Buss. & M,
503.
(e) Spencer v. Wilson, L. R. 16
Eq. 501; 43 L. J. C. 754; see
MutloiD T. Bigg, L. K. 18 Bq. 246.
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SECT. VII. § 2. TRUSTS FOE CONVERSION.
263
only to the property of the testator at the time of making
Ms will and is restricted to such specific estates and
interests as the will does not purport to dispose of; con-
sequently under such wills the estates and interests
comprised in dispositions which fail in effect by lapse or
otherwise are not included in a residuary devise, but
result to the heir. — But by the Wills Act, 1 Vict. c. 26,
s. 25, it is enacted, " that unless a contrary intention
shaU appear by the will, such real estate or interest
therein, as shall be comprised, or intended to be com-
prised, in any devise in such will contained, which shall
fail, or be void, by reason of the death of the devisee in
the lifetime of the testator, or by reason of such devise
being contrary to law, or otherwise incapable of taking
efi'ect, shall be included in the residuary devise (if any)
contained in such will^^ {a).
If a sale is obligatory or necessary for the purposes of Heir or residuary
the trust, this interest in the proceeds comes to the heir proceeds as
or the residuary devisee in. its converted quality of
personal estate and is transmissible accordingly ; but, if
a sale is not obhgatory or necessary, he takes it as real
estate descendible to his heirs. Nor will an actual sale,
if unnecessarily made, alter the quality of the property
for the purpose of transmission {b) .
(0) Carter t. Saswell, 26 L. J.
C. 576 ; 3 Jur. W. S. 788 ; see 1
Jarmau on WiUa, 587 ; 1 W. & T.
Ii. C. 811, notes to Ackroyd v.
Smitjison, and see post. Part IV.
Chap. II. ' Disposition by Will.'
(1) Smith V. Claxton, 4 Madd.
484 ; Jessopf v. Watson, 1 My. &
K. 865 ; 1 W. & T. L. 0. 801, notes
to Aehroyd v. Smithson ; 1 Jarman
on Wills, 568. As to a sale by
order of Court, see Steed v. Preece,
L. E. 18 Bq. 192. The liability to
probate duty follows, in general,
the doctrine of conversion, although
the heir become entitled, and
although the land remain unsold.
Att.-Gen. v. Lomas, L. E. 9 Ex. 29 ;
43 L. J. Es. 32; Att.-Qen. v.
; H. L. C. 243 ; 30 L.
J. Ex. 379 ; as to legacy duty see
Forbes v. Steven, L. E. 10 Eq. 178
39 L. J. C. 485 ; and as to succes
sion duty see De Lancet's Succession.
L. E. 4 Ex. 345, 7 lb. 140 ; 38 L. X
Ex. 193 ; 39 lb. 76 ; and see the Suc^
cession Duty Act, 16 & 17 Vict, o,
51, 8. 29. — In Att.-Gen. v. Lomas
supra, the law was stated with the
concuri'ence of the court, that " If
the land remains unconrerted at the
time when the heir who takes an un-
disposed of interest in it dies, and
if there is nothing in the will making
it necessary to convert it, it is taken
as land, and devolves according to
the rules governing the descent of
real estate ; but when there is a
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254 PART II. CHAP. I. THE LIMITATION OF ESTATES.
Election against The person becomina' absolutely entitled to the
converBion. i « n , r
beneficial interest in the property under a trust tor con-
version may interpose to prevent the actual conversion
and elect to take the property in its existing state. This
doctrine has been stated as follows : — " A court of equity
inquires^ for whose benefit the trust was created, and
determines that those who are the objects of the trust
have the interest in the thing which is the subject of it ;
and therefore, where money is given to be laid out in
land which is to be conveyed to A., though there is no
gift of the money to him, yet in equity it is his, and he
may elect not to have it laid out ; so, on the other hand,
where land is given upon trust to sell, and to pay the,
produce to A., though no interest in the land is expressly
given to him, in equity he is the owner, and the trustee
must convey as he shall direct. If there are also other
purposes, for which it is to be sold, still he is entitled to
the surplus of the price, as the equitable owner subject
to those purposes ; and if he provides for them, he may
keep the estate unsold" (a)
Election by A pcrsoD entitled to a share only in the proceeds of
owner of snare ,, ipiin lip • i
of proceeds. the Sale 01 land under a trust tor conversion cannot
alone, and without the consent of the persons entitled
to the other shares, elect to take his share as real estate, or
prevent the sale either as to a specific part of the land or
as to an undivided share ; for by so doing he would afiect
the sale of the other part or shares (6). But a person
entitled to a share in money directed to be laid out in
legal obligation to sell, and the pro- direction of the will, the crown is
ceeds are to form a portion of a entitled to both probate and legacy
joint and single fund for the pur- duty by virtue of the character so
poses of the will, then whatever impressed on the property."
may be the condition of the pro- (a) Per Grant, M. E., 17 Tes.
perty, at the time of the death of 104, Fearson v. Lane ; and see 1 W.
the heir taking the undisposed of & T. L. C. 776, in notes to Fletcher
interest, it is, both for the purpose y. Asklurner.
of devolution and for the purpose of (6) Trower v. KnigMley, 6 Madd.
probate duty, to be considered as 134; fibZ^ojtio!/ v.iJadcfejfe, 23Beav.
money. — When the character of the 163; 26 L. J. 0.401. 1 Jarman
property is changed by the positive on Wills, 536.
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SECT. VII. § 2. TEUSTS FOE CONVEESION. 255
landj may, in general, elect to take Ms share in money
leaving tlie trust to operate upon the balance only (a) .
A tenant in tail under a trust for conversion of money Election by
• iiT •xiTij.*j_ j_i n tenant in tail.
mto land may acquire the absolute mterest by means of
a disentailing assurance and elect to take the money (6).
Where land has been taken under the compulsory powers
of a railway company, and the purchase money paid into
court, the money in the hands of the court is considered
as impressed with the trusts and quality of the land;
taut the money may be paid out to a tenant in tail with-
out his executing a disentailing deed (c).
The election against conversion may be made by ex- whatconstitntes
press declaration of the intention to take the property
in its existing state, or by acts from which the court
would presume such intention ; and slight circumstances
are sufficient to raise the presumption of an election [d] .
Taking possession of the estates and of the title deeds
by the person who had become absolute owner was held
to be an election to take the property as land and to put
an end to the trust for conversion (e). — Devising the
property as land is an election to transmit it in that
form (/). — So, bequeathing a sum as money, which is
under trust for conversion into land, iises it with the cha-
racter of personalty {g).
But the testator in such cases must refer to the
property and show his intention to determine its quality ;
money impressed with a trust for conversion into land will
not pass under a general bequest of personalty. " It is
not the actual state of the fund but the state in which
{a) Seelet) v. Jago, 1 P. Wms. {d) 1 W. & T. L. 0. 779, in notes
389 ; Walker v. Denn, 2 Ves. Jun. ix) Fletcher v. Ashburner, and the
170. cases there cited ; 1 Jarman on Wills,
(J) Pearson t. Lane, 17 Ves. 534.
101 ; and see 3 & 4 Will. IV. c. 74, (c) Davies T. Ashford, 15 Sim.
s. 71 i post, Part IT. Chap. I. 42.
(c) Re Sow, L. R. 17. Eq. 300 ; (f) Sharp t. St Sauveur, L. E.
43 L. J. C. 347 ; see Stewarfs 7 Ch. 343 ; 41 L. J. C. 576.
Trusts, 1 S. & G-. 33 ; 22 L. J. C. {g) Fulieney t. Darlington, 1
369. As to a sale by order of Court, Bro. C. C. 235 ; see Lucas v. Jones,
see Steed t. Preece, L. K. 18 Eq. 192. L. E. 4 Eq. 73 ; 36 L. J. C. 602.
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256 PAET II. CHAP. I. THE LIMITATION OF ESTATES.
it ouglit to be wliich governs the case, unless some act
be done declaratory of the intention that it should be
changed" (a).
Conversion of A common application of the doctrine of conTersion
partnership. occurs with land becoming part of a partnership pro-
perty. The contract of partnership imports, in the
absence of stipulation to the contrary, an agreement that
upon a dissolution all the property shall be sold for the pur-
pose (after liquidating the partnership debts) of division
between the partners in their respective shares. Hence
land under such agreement for sale, as being partnership
property, is considered in equity as regards the interests
of the partners, to be personal estate; and upon the
death of a partner his share will pass to his personal
representative and not to his heir (&).
But it is competent for the partners to agree that the
land, though used for partnership purposes, should be
held by them specifically as real estate, and that there
should be no conversion, and they may settle the land
accordingly ; the share or estate of the deceased partner
(a) Gillies v. Longlands, 4 D. & — Then any real property which
S. 372 ; 20 L. J. C. 441. Steioart's has become the property of the
n-usts,l S. & G-. 32; 22 L.J. C. partnership becomes, by force of the
369. partnership contract, converted into
(6) 1 W. & T. L. C. 162, 174, in personalty ; and that not merely
notes to Lake v. Gibson, and Lake as between the partners to the
Y.Craddock; Dixon on Partnership, extent of discharging the partner-
p. 68 ; 1 Lindley on Partn. 667, ship debts, but as between the real
2nd ed. ; Waferer v. Waterer, L. and personal representatives of any
B. 15 Eq. 402; " The principle is deceased partner." Per Kindersley,
that on the dissolution of the part- V.C, in Larby v. Darby, 3 Drew,
nership all the property belonging 495, 503 ; 25 L. J. C. 371, adopted
to the partnership shall he sold and by the com-t in L. R. 4 Ch. 609,
the proceeds of the sale, after dis- Steward v. Ulakeway, and in L. K.
chargmg all the partnership debts 10 Eq. 188, Forbes v. Steven. — The
and liabilities, shall be divided share of a deceased partner in the
among the partners, aoeordiug to real assets of the partnership is
their respective shares in the capital. liable to probate and legacy duty as
That is the general rule ; it requires personal estate. Forbes v. Steven,
no special stipulation ; it is inherent L. R. 10 Eq. 178 ; 39 L. J. C. 485.
in the very contract of partnership.
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SECT. VII. § 3. CHARGES OP MONEY UPON LAND. 257
will then be transmissible to his heir^ or according to
the form of the settlement (a).
§ 3. Charges op Money upon Land.
Charges of money for portions — debts — legacies — mortgages.
Charge of debts by deed — trust for debtor — for creditors.
Charge of debts by will — implied from general direction to pay
debts.
Charge of debts creates equitable assets — distinction between
legal and equitable assets — creditors having priority agaius t
legal assets postponed in equity.
Land formerly not assets unless charged by will — remedies
for specialty debts binding the heirs — extended against
devisees.
Land not charged by will made equitable assets by 3 & 4
Will. TV. e. 104 — priority of specialty debts^abolished
by 32 & 33 Vict. c. 46— effect of 3 & 4 Will. IV. c. 104, in
charging the land.
Specific devise exonerates land as against the heir or residuary
devisee — charge upon specific real estate in exoneration of
residue.
Charge of debts upon real in exoneration of personal estate —
charge upon mixed fund rateably — preferential charges
not binding against creditors.
Charge of legacies on real estate — in aid of personal estate — on
real and personal estate rateably — on real estate exclusively
— as against devisees — charge of legacies implied from
residuary gift.
Interest upon charges — of debts — of legacies.
Power to raise charges — statutory power in devisee or
executor.
Power to raise charge by sale or mortgage — by " rents & profits "
— charges of annuities.
Power to discharge by receipts — express — implied — power in
executors — statutory power in trustees.
Under the general doctrine of conversion^ land may charges of
1 . n ■ 1 r • • • c "loriey upon
be impressed with a trust for raising a certain sum oi land.
(a) steward v. Blalcetoay, supra ; supra. In which case also the
Custance v. BradsTiaw, 4 Hare, 315, property will not be liable to pro-
as explained in Forhes v. Steven, bate or legacy duty.
S
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258
PART II. CHAP. I. THE LIMITATION OF ESTATES.
Pot portions.
For debts and
legacies.
Mortgages.
money, or a sum required for certain specified purposes.
Such, a charge operates as a conversion and alienation
pro tanto ; but it does not interfere with, the Hmitation and
disposal of the land, as real estate, subject to the charge.
Charges of this kind are used to provide portions for
children in family settlements made on marriage. The
ordinary mode of making the charge for this purpose is
by vesting a long term of years in trustees upon trust
to raise the intended portions or charges, when required,
by sale or mortgage or by receipt of the rents and
profits (a). The law of portions relates chiefly to the
times of vesting and payment, that is, to the limitation
of portions as future interests, and therefore belongs
more appropriately to the next chapter on " The limita-
tion of Future Estates" (&).
Charges of money upon land are also used for the
payment of debts ; and they may be created for this
purpose by deed or by will ; — they are also of common
use in wills for the payment of legacies. Mortgages
also are a special form of charge in common use for
securing debts upon land. — These forms of charges will
here be considered (c) .
charge of debts
— by deed.
Trust for
grantor.
Trust for credi-
tors.
A deed conveying land to a trustee for the payment
of the debts of the grantor, to which the creditors are
not parties, does not alone raise a trust for the creditors.
It creates an agency or trust on behalf of the grantor
himself only, which is voluntary and revocable [d) . But
if communicated to the creditors and assented to by
(a) 2 Hayes Cony. 61 ; 2 Prideaus
Conv. 281; 2 Spence, Eq. Jur.
390 ; see ante, p. 221.
(5) See post, Chap. II. Sect. VI ;
where see also as to the doctrine of
satisfaction of portions hy advance-
ment before the time of payment.
(c) See §.4. ' Mortgages," post,
p. 278.
(d) 1 W. & T. L. C. 333, notes to
lEllison V. SlUson ; Garrard v.
Lord Lauderdale, 3 Sim. 1 ; Wal-
wyn T. Coutts, 3 Mer. 707 ; Acton
V. Woodgate, 2 M. & K. 495 ; see
Griffith Y. Sicketts, 7 Hare, 299 ;
19 L. J. C. 100 ; GUgg v. Hees, 41
L. J. C. 243 ; L. K. 7 Ch. 71.
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SECT. VII. § 3. CHARGES OF MONET UPON LAND. 259
them, it may then create a valid trust in their
favour (a).
"A voluntary conveyance of property upon trust to
pay creditors^ not parties to the transaction, has been
very reasonably held to create a trust for the author of
the deed, and not for his creditors. — On the other hand,
it is equally clear that a voluntary conveyance of property
to trustees upon trust for a third party, may create an
indefeasible trust in favour of that party. The difference
in principle between the two classes of cases is marked
and obvious ; biit to decide to which of the two classes
a given trust deed belongs is often a task of difficulty ;
it depends upon the intention of the author of the deed,
to be collected from the deed itself, and such surrounding
circumstances as may be admissible in aid of the inter-
pretation of the deed " (6) .
A charge of debts may be created by will by a devise charge of debts
of the land upon express trust for payment of debts, or
by a mere charge of the debts upon certain land or
upon all the real estate of the testator, whether devised
or left to descend (c).
A general direction in a will that the testator's debts implied from
shall be paid is an implied charge in equity upon all the to pay debts.
real estate of the testator, unless a clear intention ap-
pear of restricting such direction to a particular fund ;
as is held to appear by a direction to the executor to pay
the debts, which presumptively applies only to the
assets taken by the executor, and the property, if any,
devised to him {d).
(a) See lb. ; Sarland v. Sinks, tion, upon which a Court of Equity
15 Q. B. 713. will fasten, and by Tirtue of which
(J) Fer Wigram, V.C., Oriffith v. will draw out of the mass going to
Sickeits, 7 Hare, 299, 308 ; and see the heir or to others that quantum
2 Spence, Eq. Jur. 58, 350; see lb. of interest, which will be sufficient
348 on ' Trust deeds for payment of for the debts " Per Eldon, L. C,
debts.' 7 Ves. 323, Bailey v. Bhins.
(c) " A mere charge is no legal {d) 2 Jarman on WiUs, e. 45 ;
interest ; it is not a devise to any Hawkins on Wills, 282 ; 2 Spence,
one but that declaration of inten- Eq. Jur. 320; 2 W. & T. L. C.
S 2
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260
PAET II. CHAP. I. THE LIMITATION OF ESTATES.
Charge of debts A dcvise of land for payment of debts, or a general
oreseaequia ^ ^^^^^^ ^^ debts renders the land affected equitable
assets ; which, as distinguished from legal assets ad-
ministered by the executor to the creditors in order of
legal priority, are administered amongst all creditors
equally, whether creditors by judgment, specialty or
simple contract, those creditors only having priority,
who, like mortgagees, have specific charges upon the
land independently of the will {a). — Though the same
person may be executor as well as trustee for payment
of debts, the trust of the land is to be administered iu
the latter capacity only, and the debts paid equally
according to the rule of equity, and not according to
their legal priority {b).
It may be observed that the personal estate of the
deceased, including all the estate which passes to the
executor by right of his office, and known as legal assets,
is the fund primarily charged with debts both at law
and in equity, and is administered in the same order in
equity as at law (c).
The distinction between legal and equitable assets
depends upon the nature of the remedy of the creditor
against the estate, not upon the nature of the remedy of
Legal assets.
Distinction
between legal
and equitable
assets.
114, notes to SiVc v. Prime ; Clifford
V. Lewis, 6 Madd. 33 ; Wrigley y.
Sykes, 21 Beav. 337; 25 L. J. 0.
458 ; Cook v. Dawson, 3 D. I'. & J.
127; 30 L. J. C. 311, 359. So,
" The words ' after payment of nay
debts ' mean, that he will not give
anything until his debts are paid.
He could not help paying liis debts
out of his personal estate ; therefore,
to giye those words any effect they
must charge the real estate. Where-
ever a testator says lie wills that his
debts shall be paid, that will ride
over every disposition, either as
against his heir-at-law or devisee
and the words ' after my debts paid '
mean the same thing." Per Arden,
M. E. Shallcross v. Finden, 3 Ves.
733
(a) 2 W. & T. L. C. 119, 123,
notes to ^Ik v. Prime ; Bailey v.
Ekim, 1 Ves. 319 ; Shiphard v.
Lutwidge, 8 Ves. 26.
(6) Silk Y. Prime, 2 W. & T. L.
C. 95, and notes, lb. Clay v.
rFillis, IB. & C. 364; Parker T.
May, 9 B. & C. 489 ; as executor he
cannot retain for his own debt out
of the proceeds of the land, as he
can out of the legal assets. Pain v.
Sadler, supra.
(c) Wms. Ex. 4.th ed. 848 ; 5th
ed. 890, where see as to the priority
of debts or order of payment in ad-
ministering legal assets. But as to
debts charged upon land by way of
mortgage, the law has been altered
by Locke King's Act, 17 & 18 Vict,
c. 113, and the land bo charged
is made primarily Uable. See post,
p. 287.
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SECT. VII. § 3. CHARGES OF MONEY UPON LAND. 261
tte eseoutor on behalf of tlie estate. Thus^ whatever pro-
perty the personal representative can recover vwtute officii,
though by means of a suit in equity only, is included in
the legal assets ; which the creditor can charge against
him by proceeding in a court of law. And whatever can-
not be reached through the executor, but is available to
the creditor by means of proceedings in equity only, con-
stitutes equitable assets (a).
Accordingly a charge of money upon land, being per-
sonal estate, is recoverable by the executor virtute officii,
though in equity only, and is administered as legal
assets (&). — " The portions of younger children charged on
the family estate are generally only recoverable in equity,
but they are certainly legal, not equitable assets." — " So
money due to a mortgagee in fee, where the mortgagee is
not a creditor by covenant or otherwise, and where there-
fore there is no legal remedy" (c). — So, the equity of
redemption in a mortgage of chattels real {d). — And the
purchase money of land under a contract of sale not com-
pleted at the vendor's death constitutes legal assets,
though recoverable only by suit in equity, the remedy on
the contract at law being merely for damages (e). "
In the administration of legal assets a creditor may in Priority at law
some cases obtain a preference ; thus, the executor may equity,
pay one creditor before another of equal degree ; also the
executor may retain for his own debt. But, in case of
a deficiency of assets, the creditor who has obtained such
preference is not allowed any claim against equitable
assets until the other creditors have been brought to
equality with him by payment of their debts to a propor-
tionate amount (/) .
(a) Coofe T. Gregson, 3 Drew. 547, v . Gregson, supra.
25L. J. C. Y06; AU.-Oen.x. Brun- (e) See Att.-Gen. v. Brunning,
ning, 8 H. L. 0. 243, 30 L. J. Ex. supra.
379. (/) 2 W. & T. L. C. 123, notes to
(6) Coolc V. Gregson, 3 Drew, 547 ; Silk v. Prime ; Soames t. Rohinson,
25 L. J. C. 706. 1 M. & K. 500 ; Earl Vane y. Rig-
(e) Per L. Cranworfch', Alt- Gen. den, L. E. 5 Ch. 663 ; 39 L. J. C.
T. Brnuning, 8 H. L. C. 243, 30 L. 797 ; Bain v. Sadler, L. E. 12 Eq.
J. Ex. 379. 570 ; 40 L. J. C. 491. On the
{d) Per Kindersley, V. C. Cook . principle of marshalling the assets,
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262 PABT II. CHAP. I. THE LIMITATION OP ESTATES.
Land formerly The real estate of a deceased person, until a recent
charged by will. Statute, was not chargeable with his debts unless he had
charged it by will ; except debts by specialty in which
the heirs were bound.
Specialty debts Creditors by specialty binding the heirs had a remedy
binding the heir. . , , . -"^ , •' ° /. i /. i n
against the heir, to the extent or value ot the ireehold
lands descended, by the common law. This remedy was
extended to lands devised, by the statute of fraudulent
devises, 13 & 14 W. & M. (1691), c. 14, re-enacted with
slight alteration by 1 Will. IV. c. 47. These statutes
enact that all devises and dispositions by will, as against
creditors by specialty binding the heirs, shall be deemed
fraudulent and void. Express exception is made of devises
and dispositions for the raising or payment of debts ;
but such dispositions are within the exception only so
far as they are effectual at law or in equity {a).
Remedy of The remedy at common law and under the statutes was
at law. by personal action against the heir, or the heir and
devisee, entitling the specialty creditor to have the
lands of the ancestor extended in execution, or to have
In equity. oxecution for the value of the lands, if aliened (6) . And
in equity the creditor might obtain a sale of the land,
with an account of past rents and profits, as an auxiliary
remedy instead of taking them in execution; but the
specialty debts did not otherwise operate as a charge upon
the lands (c).
land, not The statuto 3 & 4 Will. IV. c. 104, (Sir J. RomiUy^s
mnlfaaslum' -^ct, 1833), euacts that "when any person shall die
tntet'&^wm seised of or entitled to any estate or interest in lands,
tenements or hereditaments, corporeal or incorporeal, or
other real estate, whether freehold, customary-hold, or
see post, Chap. II. Sect. VI. The 323 ; Sughes v. Dolben, 2 Bro. C.
Supreme Court of Judicature Act, C. 614.
(36 & 37 Vict. c. 66,) b. 25, (11) (6) 2 Wms. Saund. V, 8, notes
may, perhaps, be considered as to Jeffreson \. Morton.
operating upon the variance be- (e) Seton on Decrees, 119, 2nd
tween the rules of equity and the ed. ; see Micliardson v. Horton, 7
rules of common law with reference Beav. 112 ; Morley v. Murley, 5 D.
to the administration of assets. M. & d. 610 ; 25 L. J. C. 1 ; Rod-
(a) See Sailey v. Hkins, 7 Ves. ham v. Morley, 26 L. J. C. 438.
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IV. c. 104.
SECT. VII. § 3. CHAEGES OP MONEY UPON LAND. 263
copyholdj whicli he shall not by his last will have charged
with or devised subject to the payment of his debts, the
same shall be assets to be administered in courts of
equity for the payment of the just debts of such person,
as well debts due on simple contract as on specialty ; and
that the heir or heirs at law, customary heir or heirs,
devisee or devisees of such debtor shall be hable to all
the same suits in equity at the suit of any of the
creditors of such debtor, whether creditors by simple con-
tract or by specialty, as the heir or heirs at law, devisee
or devisees of any person or persons who died seised of
freehold estates was or were before the passing of this
Act liable to in respect of such freehold estates at the
suit of creditors by specialty in which the heirs were
bound : provided that in the administration of assets by priority of
courts of equity under and by virtue of this Act, all credi- ^5^°'*"^ '^**'-
tors by specialty in which the heirs are bound shall be
paid the full amount of the debts due to them before any
of the creditors by simple contract or by specialty in
which the heirs are not bound shall be paid any part of
their demands" (a).
The statute gives the specialty creditor where the heirs
are bound the same priority as to copyhold lands, as in
the case of freeholds, though copyholds were not before
chargeable in the hands of the heir (6).
The priority reserved in the proviso to specialty debts Priority of
binding the heirs, together with the priority generally of abolished.
specialty debts in the administration of assets at law and
in equity, is taken away by the recent statute 32 & 33
Vict. c. 46, enacting as follows : — " In the administration
of the estates of every person who shall die on or after
1st Jan., 1870, no debt or liability of such person shall be
entitled to any priority or preference by reason merely
that the same is secured by or arises under a bond, deed,
(a) Eeal estate had been made all debts by 47 Geo. III. c. 74.
assets in bankruptcy (then applying (h) Surrell t. Smith, L. R. 9 Eq.
only to traders) for the payment of 443 ; 39 L. J. C. 544.
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264 PABT II. CHAP. 1. THE LIMITATION OF ESTATES.
or instrument under sealj or is otherwise made or con-
stituted a specialty debt ; but all creditors of such per-
son, as well specialty as simple contract, shall be treated
as standing in equal degree, and be paid accordingly
out of the assets of such deceased person, whether such
assets are legal or equitable" (a).
Bflect of 3 & 4 The remedy of the creditor against the real estate under
Sa^iiigth^' the statute 3 &-4 Will. IV. is by action or suit against
the heir or heir and devisee personally, or by suit for
administration of the deceased^s estate. There is other-
wise no charge or lien upon the land, and the heir may
sell the land discharged of debts even to a purchaser
with notice that they are unpaid, as the heir may be
obliged to sell in order to provide for the debts, and where
there are debts the purchaser is not bound to see to the
application of the purchase money in payment of them ;
but a purchaser from the heir with notice that the sale
was made for the purpose of defeating creditors, instead
of paying them, might become chargeable as a partici-
pator in the fraud [b] . — The personal representative
does not, by force of the Act or otherwise, represent
the creditors in respect of the real estate, and cannot
maintaia a suit to administer it ; the creditors only can
do so (c).
As againat the But as agaiust the heir or devisee the land is charged
to the amount of the debts ; they take no beneficial
heir or devisee.
(a) A judgment obtained against 112, where a settlement of the land
the administrator, though for a upon the marriage of the heir, was
simple contract debt of the intestate, supported against a specialty credi-
is not within the enactment and re- tor of the ancestor ; and see Fimm
tains its priority, nor does it require t. Insall, 1 Mac. & G-. 449 ; Kin-
registration under the statute 23, & derley v. Jeruis, 22 Beav. 1 ; 25 L.
24 Vict, c. 38, s. 3, which applies J. C. 538, and cases there cited. 2
only to judgments obtained against White & T. L. C. 116, notes to Silk
the deceased in his lifetime, in order t. Frime. See post, pp. 275, 276.
to give the admiuistrator the means (c) Tuhly v. Tuhhy, 2 Coll. C. C.
of obtaining notice. Williams v. 136 ; Catley v. Sampson, 33 Beay.
Williams, L. E. 15 Eq. 270 ; 42 L. 551 ; 34 L. J. C. 96 ; but see Carter
.1. C. 158 ; Jennings t. Eigby, 33 v. Sanders, 2 Drew. 248 ; 23 L. J.
EeaT. 198; 33 L. J. C. 149. C. 679 ; and see ante, p. 261.
(i) Richardson v. Eorton, 7 Beav.
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SECT. VII. § 3. CHAEGES OP MONEY UPON LAND. 265
interest except subject to and after payment of the debts
of the ancestor or testator ; consequently a merely equita-
able disposition or charge made by the heir or devisee
takes effect only upon his beneficial interest and is post-
poned to the claim of the creditors (a) .
It is the general rule as between heir and devisee, that Specific ae™e
the lands descended are to be applied first in payment a8°ag1dn8t\eS.
of the debts of the testator, unless a contrary intention
appear by the will ; a specific devise is taken as exone-
ratiug that land as against the land left to descend [b) .
A specific devise also exonerates the land devised as And residuary
against the land passing by residuary devise («).
A general charge of debts upon all the real estate is charge upon
taken to import no intention of altering this rule; but if estate taTi
a testator devises specific land for payment of his debts, ™aidue?'' °
or otherwise shows the intention of appropriating specific
real estate for that purpose, the fund so created must bear
the charge in exoneration of the residue of the real
estate whether devised or left to descend {d).
(a) Kinderley v. Jenis, supra, c. 26, s. 24 making tl»e will speak
holding that judgment creditors of from the death of the testator in-
the heir are postponed to simple stead of the date of the will, has
contract creditors of the ancestor. made no diiference in this respect.
Carter t. Sanders, 2 Drew. 248 ; 23 Sensman v. Fryer, L. E. 3 Ch.
L, J. C. 679, holding that an equit- 420 ; 37 L. J. C. 97 ; CHhUns v.
able mortgagee by deposit of deeds Hyden, L. R. 7 Eq. 371 ; 38 L. J.
from the heir was postponed to the C. 377.
creditors of the ancestor. Pimm v. {d) " The true question is, whether
Insall, 1 Mao. & Gr. 449, holding the testator meant only to behave
that a covenant by the heir on mar- honestly, which is all a general
riage to settle the land is postponed. charge imports, or whether, beyond
(b) Savies v. Topp, 1 Bro. C. 0. that honest conduct in creating a
524 ; Donne v. Lewis, 2 Bro. C. C. general charge for the security of
257; see Waterhouse v. Clout, 41 his creditors, to create also a par-
L. J. C. 223. ticular fund for payment of his
(e) -BroJoMore T. Jawramce, L. B. 6. debts." — "Upon 3avies t. Topp,
Eq. 1 ; Lancejield v. Iggulden, L. E. Donne v. Lewis, and many other
17 Eq. 556 ; 43 L. J. (J. 570. This is cases, followed by the late case of
attributableto the intention imputed Sarmoodv. Oglander, the rule must
to a devise expressed in specific terms be considered settled, that, whatever
relatively to a general or residuary niay be the ordinary application, if
devise ; lb. ; Tombs v. HoeJi, 2 Coll. there be a real fund created for dis-
490. As regards the land comprised charge of debts, that will be to be
in it, a residuary devise is also applied first, when the question
specific; and the Wills Act, 1 Vict. arises between the heir and devisee,
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366 PABT II. CHAP. I. THE LIMITATION" OF ESTATES.
In a recent case a testator devised all his real estate to
trustees to be disposed of according to the directions of
his will. He directed them to pay all his debts, and then
devised specifically certain estates leaving the rest un-
disposed of, which descended to his heir. It was held
that the debts were charged rateably upon the devised
and descended estates (a).
Lapsed deviae. A lapsed devise descending to the heir bears only the
same charge of debts as if the devisee had survived, as
against the residue of the estate (6).
Charge of debts A charge of debts upon the real estate presumptively
oneration of per- makes it sccondarily liable, only in case the personal es-
tate, which is the primary fund, should prove to be in-
sufficient. But a testator may make the real estate
primarily liable, in exoneration of the personal estate,
as between his real and personal representatives, by
expressing a clear intention to that effect in his will (c) . —
Thus, a direction that certain debts should be exclusively
and in the first instance borne by and paid out of a certain
portion of the real estate was held to exonerate not only
the residue of the real estate but also the personalty [d).
A direction to sell and convert the real estate, either
either as to estatiis, whioh the devisor estates is a very unreasonable rule,
had at the time, or which were ac- and that the court would not foUow
quired afterwards." Fer Eldon, L. it unless it was bound to do so."
C, 8 Ves. 304, Milnes v. Slater ; (J) FisJier v. Fisher, 2 Keen, 610 ;
and seeder Bldon.L. C, 8 Ves. 125, Wood v. Ordish, 3 S. & G. 125;
Harmood v. Oglander; and see the Peacock v. Peacock, 34 L. J. C. 315 ;
order of administering assets stated Hyves v. Ryves, L. R. 11 Eq 539 •
in 2 W. & T. L. C. 120, notes to 40 L. J. C. 252.
Silk V. Prime. (c) 2 Jarman on Wills, 564 ;
[a) Stead v. Sardaker, L. E,. 15 Hawkins on Wills, 287 ; 1 W. & T.
Eq. 175 ; 42 L. J. C. 317. It seems L. C. 580, notes to Duke of Ancaster
difficult to reconcile this case with Y.Mayer; Tait y. Lord Northwick,
the admitted construction that a 4 Ves. 816 ; Brydges v. Phillips, 6
general charge of debts on all the Ves. 567 ; Bootle v. Blundell, 1
real estate does not affect the relative Mer. 193 ; see per James, L. J. in
incidence of the charge. But the Allan v. Q-ott, L. R. 7 Ch. 442 ; 41
Vice- Chancellor Malins said, " That L. J. C. 571.
the rule that descended estates are [d) Forrest v. Prescott, L. R. 10
liable for the payment of debts in Eq. 545.
priority to the specifically devised
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SECT. VII. § -3. CHAESES OP MONET UPON LAND. 267
absolute or discretionaryj for the purpose of creating a charge on mirad
mixed fund with, the personalty to provide for debts and
liabilities, charges the real and personal estates rateably,
in proportion to the relative values (a) . A mere gift of
the real and personal estate together for the payment of
debts, without providing for the conversion of the realty
or otherwise showing the intention of creating a mixed
fund, does not charge them rateably, and the personalty
retains the primary liability according to the ordinary
rule (b).
Such preferential distributions of the charge of debts Creditors not
operate onlv as between the real and personal representa- ferentiai cLrges
-,-,-. f ■ ■ 1 1 -n 1 1 of debts.
tives and the benenciaries under the will ; they have no
effect against the claims of creditors duly preferred
against the assets in general (c). — But if the creditor be unless in default.
in default, as in not coming in under a decree, he may be
compelled to adopt the distribution according to the
will {d).
If a pecuniary legacy is given generally, the ordinary charge of
rule and presumption is that the personal estate is the estate!'
exclusive fund for the payment ; and if the personal estate
proves deficient, that alone is no ground for charging the
deficiency either wholly or rateably upon the real estate.
— Only if the personal estate is exhausted by debts, the
pecuniary legatee may stand in the place of the.creditors,
and to that extent charge the lands descended ; but he
has no such right as against lands specifically devised, nor
against a residuary devisee (e).
(a) 2 Jarman on Wills, 549; Euss. 130; Greig v. Somerville, 1
Hawkins on Wills, 290 ; Roierts v. Euss. & M. 338.
Walker, 1 E. & M. 752 ; Allan v. (e) Mirehonse v. Scaife, a M. &
Gott, L. K. 7 Ch. 439 ; 41 L. J. C. Cr. 695 ; Collins t. Leivis, L. E. 8
5yi_ Eq. 708; Dtigdale t. Dugdale, L.
(6) BougUon v. BougMon, 1 H. E. 14 Eq. 234 ; 41 L. J. C. 565 ;
L C 406 - Tench v. CTieese, 6 D. M. explaining Hensman v. Fryer, L. E.
& G-. 453, explained in Allan v. 3 Ch. Ap. 420 ; 37 L. J. C. 97,
Gott, supra. where it was held that upon a
(c) Davies v. Nicholson, 2 D. & deficiency of the personal estate a
J. 693 ; 27 L. J. C. 719. legatee and the residuary deyisee
(d) 'Gillespie y. Alexander, 3 must contribute rateably to the
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268
PART II. CHAP. I. THE LIMITATION OP ESTATES.
On real and
personal estate
rateably.
Charge of If the real estate be also charged with the legacy, the
estate in aid of presumption IS that it is made secondarily liable, only in
case the personal estate, which is the primary fund,
should be insufficient (a). Where a legacy is thus
charged upon the real estate, the insufficiency of
the personalty, and consequent amount of charge, ia
prima facie to be determined at the death of the
testator, and the land is not charged with a deficiency
subsequently arising by the default of the executor (&) .
But where the devisee of the real estate was also executor,
the land was held charged with a deficiency caused by
his default (c).
The real and personal estate may be charged with the
payment of pecuniary legacies rateably by a sufficient
expression of intention to that effect in the wiU ; as by
the testator creating a mixed fund of the real and per-
sonal estate out of which the legacies are directed to be
paid (d).
A pecuniary legacy may be charged upon real estate
exclusively ; for it has no existence but by the will and
must come out of the fund the testator points out, unhke
debts which have a separate and independent claim by
operation of law (e). Thus the devise of an estate upon
trust to pay a certain sum to a person, or to pay certain,
legacies, charges such legacies exclusively upon that
estate (/) . So, a direction that legacies shall be paid out
of a certain estate, or out of the real estate generally, as
distinguished from a charge of the legacies upon the real
estate, creates an exclusive charge {g).
41 L. J. C.
On real estate
exclusively.
debts. The above ia an application
of the principle of marshalling assets,
see 2 W. & T. L. C. 83, notes to
Aldrich v. Cooper, and see post,
Chap. II. Sect. TI.
(a) Dames V. Ashford, 15 Sim. 42;
see Poole v. Heron, 42 L. J. G. 348.
{b) Richardson v. Morton, L. B.
13 Eq. 123 ; 41 L. J. C. 8.
(o) Eoward v. Chaffer, 2 B. & S.
236 ; 32 L. J. C. 686.
{S) See ante, p. 267 ; Allan v.
Oott, L. E. 7 Ch. 439 :
571.
(e) See per Grant, M. E., 6 Tes.
571, Brydges v. Phillips ; per Shad-
well, T. C, 11 Sim. 227, Jones v.
Hmce.
(/) Spnnoay v. Q-lynn, 9 Ves.
483 ; White v. Vitty, 2 Euss. 484.
{y) Heath v. Heath, 2 P. Wms.
366 ; Amesbury v. Broton, 1 Ves.
sen. 482; Savies v. Ashford, 15
Sim. 42.
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SECT. VII. § 3. CHARGES OF MONET UPON LAND. 269
The nature of the legacy may also show the intention
of charging it exclusively or primarily upon the real
estate. As where a testator charged his real estate with
sums for his children and directed that interest should be
raised out of the real estate for their maintenancOj it was
held that the sums were intended to be raised only in the
same manner (a). So a bequest of an annuity charged
upon an estate with a power of distress, was held to
charge the land primarily, if not exclusively {b).
A general charge of pecuniary legacies on the real as against
. I/O deviseea.
estate is presumed not to be intended to extend to land
specifically devised (c). But where a charge is made of
debts and legacies combined, the same general terms wiU.
charge both upon all the real estate, including estates
specifically devised {d).
Where legacies are given generally and followed by a charge of
gift of the residue of the real and personal estate, the from 'gift of
legacies are taken to be charged upon the real and
personal estate as one fund (e) . But where there is also
a specific devise of real estate, the residue, as to the real
estate, may be intended with reference to such devise,
and only as to the personal estate with reference to the
legacies (/).
An equitable charge upon land carries interest at the interest upon
rate of four^ec cent., in the absence of any special trust" ^^^'
or direction concerning interest [g) : — as a deposit or
{a) Jones ■) See notes to JEUiot v. Merri-
man, 1 W. & T. L. C. 79-85, where
the conclusion drawn from the oases
is thus stated : — " that where there
is a general charge of debts upon
real estate, the executors have in
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SECT. VII. § 3. CHARGES OF MONET TJPON LAND. 273
that his debts should be paid and afterwards devised a
specific estate to a devisee charged with debts, it was
held that the dcArise superseded the general charge, and
that the devisee could give a good title and a good dis-
charge to a moT-tgagee without the executors joining {a) .
A general charge upon land or a trust to raise money, power to raise
not prescribing any particular mode of raising it, in or mortgage.*
general, authorises a sale. And "a power to sell im-
plies a power to mortgage, which is a conditional sale ;
for it would be most injurious to the owners of estates
charged, if the trustee could effect the object of his trust
only by selling the estate " (6) . A power to mortgage
imports a mortgage with a power of sale (c). But a
trust requiring an absolute sale and conversion of the
property, and not merely the raising of a charge, does
not authorise a mortgage {d) .
A charge upon or trust to raise money by " the rents By rents and
and profits " of land is not, in general, restricted to ^'^°
the annual rents and profits, and will authorise a sale
or mortgage of the land (e) . A trust to raise a charge
eguiti/ an implied power to sell it, fine them to the receipts of the rents
and they alone can give a valid re- as profits as they accrue, the Court
ceipt for the purchase money ; but in order to obtain the end intended
as they do not take by implication by raising the money, has by a libe-
a legal power to sell, and cannot ral construction of these words,
therefore convey the legal estate, taken them to amount to a direc-
{Doe V. Hughes, 6 Ex. 223,) the tion to sell, and as a devise of the
persons in whom it is vested (if it rents and profits will at law pass
be not already in the executors by the land, the raising by rents and
devise or otherwise) must concur profits is the same as raising by
with them in the conveyance." sale." Per Hardwicke, L. C, 1 Atk.
(a) Corser v. CartwrigM, 1. E. 506, Oreen v. Belcher ; Ambl. 95,
8 Ch. 971. Oihson v. Rogers ; Allan v. Back-
(b) Per Cottenham, L. C, 4 M. house, 2 Y. & B. 65 ; and see per
& Cr. 268, Pall y. RarHs. Eldon, L. C, 1 Mer. 232, Bootle v.
(e) Cruilcshauk v. JDiiffin, 41 L. Blundell. " By a grant of the profits
J. C. 317. of land at law the whole land doth
{d) StrougUll v. Anstey, 1 D. M. pass, for what is the land but the
& G. 635 ; 22 L. J. C. 130. profits." Co. Lit. 4 i. So a devise
(e) " In general, where money is of " the rents and profits " of land
directed to be raised by rents and is equivalent to a devise of the land
profits, unless there are other words itself 2 Jarman on Wills, 534;
to restrain the meaning and to con- Hawkins on Wills, 120.
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274 PART II. CHAP. I. THE LIMITATI6N O'F ESTATES.
Charge 9 of
luiauLties.
out of rents and profits by leasing ■ for lives at the
accustomed rent was lield to be restricted to that mode
of raising the charge and not to authorise a sale or
mortgage (a).
Where an annuity is charged upon land^ with legal
powers of distress and entry, the Court of Chancery will
not in general give the additional remedies of a sale or
mortgage or the appointment of a receiver ; the annui-
tant may distrain, or may enter and take the rents and
profits until the arrears are satisfied (b). But if the
land be insufficient, or where the land is not in settle-
ment, it seems that a sale may be decreed (c) .
An annuity may be charged generally upon the land,
or upon the annual profits only, without resort to the
land ; also in the latter case it may be charged upon the
profits of the current year only, without any continuing
charge for arrears, or arrears may also continue charged
upon the annual profits. The incidence of the charge
in these respects depends upon the construction of the
instrument creating the annuity, and the remedies
against the land are restricted accordingly {d).
Power to dis-
charge by re-
ceipt.
The persons entitled to charges on land or the money
to be raised under trusts for sale are the equitable
owners of the land pro tanto ; and therefore, as a general
rule, they alone are empowered to give receipts for the
money and discharge the land, though the trustee as the
legal owner may convey the legal estate. Consequently,
a purchaser of land subject to charges must pay the
(a) Ivy V. Oilhert, 2 P. Wms. 13 ;
Mills V. Banks, 3 P. Wms. 1 ; and
see as to the restricted construction
of a charge on profits, Wilson t.
Hallileij, 1 K.uss. and M. 590;
Playters v. AhhoU, 2 M. & K. 110.
(5) Graves v. Hicks, 11 Sim. 551 ;
Sotlory T. Leaver, L. R. 9 Eq. 22 ;
40 L. J. C. 398 ; Taylor v. Taylor,
L. R. 17 Eq. 325 ; 43 T;. J, C. 314.
Kelsei) T, ^elsey, L. E. 17 Kq.
495.
(c) Sorton x. Hall, L. K. 17 Eq.
437 ; Cupit V. Jackson, 13 Price,
721, explained in Graves v. Sicks,
11 Sim. 554.
(rf) See notes to Ashhurner v.
Macguire, 2 W. & T. L. C. 262 ;
Birch V. Sherratt, L. E. 2 Eq. 644 ;
36 L. J. C. 925 ; BootTi v. Coulton,
L. R. 5 Ch. 684 ; 39 L. J". C. 622;
Taylor T. Taylor, supra.
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SECT. VII. § 3. CHARGES OE MONET UPON LAND. 275
purchase money to tlie persons entitled to the charges^ or
see that it is rightly applied in paying them ; otherwise
•the land may remain subject to the charges in his
hand {a).
But the trust creating the charge may expressly Express,
or impliedly empower the trustee to give receipts
to the purchaser, which shall relieve him from seeing
to the application of the money ; and an express clause
to that effect is commonly inserted in trusts conferring
powers to raise money by sale or mortgage (6) .
The power to give receipts, if no express power be implied in
T'TTp ,1 Pill charge to paj
given, may be implied from the purpose oi the trust or debts.
charge according to the following rules : — If the trust
or charge be created for the payment of debts generally,
a purchaser is not bound to see that the purchase money
is rightly applied ; by reason of the indefinite nature of
the trust or charge, which the purchaser is unable to
ascertain (c).
If the trust or charge be for the payment of specified charRetopay
or scheduled debts to certain creditors, the general rule
prevails, and the purchaser is bound to see that the
money is rightly applied (d). And so also if the trust or or legacies,
charge be for the payment of legacies to certain
persons (e).
If the trust or charge be for the payment of debts and charge to pay
legacies, the purchaser is not bound to see to the applica- legacies,
tion of the purchase money, for the debts are indefinite
and take priority of the legacies. And it seems that it
is not material in such case that the purchaser knows that
there are no debts, or that all the debts have been paid,
leaving the legacies as the only charge ; for the implied
(a) See ante, p. 143 ; notes to v. Harris, 4 M. & Cr. 264 ; Lewin
Ellioi V. Merriman, 1 "W. & T. L. on Trustees, 312', 4th ed.
C. 58 ; 2 Spence, Eq. Jur. 880. {d) 1 W. & T. L. C. 58, notes to
(J) Ih. ; see ante, p. 145. Elliot t. Mernman ; Lewin, 313.
(c) Blliot V. Merriman, 1. W. & (e) lb. ; per Lyndliurst, L. C, 3
T. L. C. 51 ; notes lb. p. 58 ; Sail M- & K. 630, Johnson v. Kennet,
t2
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276 PART II. CHAP. T. THE LIMITATION OP ESTATES.
power to give receipts arises upon the construction of the
will, independently of the circumstances (a).
Effect of 3 &i The statute 3 & 4 Will. IV. c. 104, making the real
estate of a deceased person assets for the payment of all
his debts as against the heir or devisee, does not create a
charge of the debts upon the land, so as to exempt a
purchaser from seeing to the application of his purchase
money in payment of legacies or other specific charges (&) .
Sale for purposes If the trust directs an immediate sale for purposes not
not ascertained. . t,i ,'iiji • -tt
immediately ascertainable, there is an implied power m
the trustee to give receipts, and which is independent of
subsequent events (c). So where the proceeds of the
sale are payable to infants who are not capable of signing
receipts (cZ). So where it is required that the trustees
should hold the proceeds for the purposes of the trust (e) ;
or should re-invest the proceeds (/).
Notice of breach In all cases, though there be a power in the trustees
selling the land to give receipts to the purchaser, if the
purchaser have notice that the sale is made improperly or
for the purpose of misapplying the money, he may
become chargeable as participating in the breach of
trust ((/).
Power in excca- Bxecutors take the personal estate of the testator,
ceipts. ^ ' ' including the leaseholds and chattels real, virtute officii,
with an absolute power of sale or mortgage for the pay-
ment of debts and the general purposes of the wiU ; and
(a) 1 W. & T. L. C. 59-64 ; (e) Balfonr v. Welland, 16 Yes.
Johnson v. Kennet, 3 M. & K. 624 ; 151 ; Lewin, 310.
Fortes v. Peacock, 1 Phill. 717; {d) Sovjarsbt/ v. Laci/, 4 Madd.
Mand v. Eland, 4 M. & Cr. 420 ; 142 ; Lavender t. Stanton, 6 Madd.
Page v. Adam, 4 Beav. 269, the 46 ; aliter if not payable until ina-
aame rule applies if the legacies are jority, Dickenson v. Dickenson, 3
in the form of annuities ; Stroughill Bro. C. C. 19.
T. Anstey, 1 D. M. & Gr. 635 ; 22 L. (e) Do-ran y. Tl'iltsUre, 3 Swanst.
J. C. 130 ; but see per Kindersley, 699.
V. C, in Howard t. Chaffer, 2 Dr. (/) Dock v. Lomas, 5 De G. & S.
& S. 236 ; 32 L. J. C, 701, as to the 329 ; 21 L. J. C. 503.
effect of notice of payment of the (g) Stroughill v. Anstey, supra ;
debts. Howard v. Chaffer, supra ; Dance
(b) See Horn v. Horn, 2 S. & S. v. Goldingham, L. B. 8 Ch. 902 ; 42
448 ; and see ante, p. 264, Jj- J. C, 777 ; and see ante, p. 146,
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SECT. VII. § 3. CHARGES OF MONET tJPON LAND. 277
a purcliaser or mortgagee from the executor is not bound
to see to the application of the money (a) . But if the Notice that aaie
sale or mortgage is a fraud upon the estate, or made for
the purpose of misapplying the money, to the knowledge
of the purchaser or mortgagee, as a sale or mortgage to
a creditor of the executor for his own debt, the person so
acquiring the assets will be chargeable with the full value
to the creditors and legatees (6) .
A general power of giving receipts in discharge is now statutory power
-, . Ill 1-1 *o gi^^ receipts.
vested m trustees by statute, thereby supplymg the want
of an express receipt clause in the instrument creating
the charge or trust. The statute 23 & 24 Vict. c. 145
(Lord Cranworth^s Act) s. 29, enacts that " the receipts statutory power
, . . ■*■ in trustee to give
m writing of any trustees or trustee, for any money pay- receipt,
able to them or him by reason or in exercise of any trusts
or powers reposed or vested in them or him, shall be
sufficient discharges for the money therein expressed to
be received, and shall effectually exonerate the persons
paying such money from seeing to the application thereof,
or from being answerable for any loss or misapplication
thereof."
The power thereby conferred may be varied or altogether
excluded by the terms of the instrument. And it extends
only to persons entitled or acting under a deed, will or
other instrument executed after the passing of the act (c).
A like power to discharge by receipts was given by the
22 & 23 Vict. c. 35, s. 23, but not in such general terms.
(a) Notes to Elliot v. Merriman, son, 7 Ves. 152 ; McLeod v. Drum-
supra, p. 73 ; Lewin, p. 339. mond, 17 Ves. 152 ; 1 Cox, 145.
(h) lb. ; Lewin, 331 ; Scott v. (c) Sections 32, 34 ; see ante, p.
Tyler, 2 Diok. 725 ; Hill v. Simp- 146.
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278 PAET II. OSAP. I. THE LIMITATION OV ESTATES.
§ 4. MOETGAGBS.
Mortgage by conveyance with proviso for redemption — redemp-
tion — foreclosure — power of sale — covenant to pay debt and
interest.
Mortgage by conveyance upon trust for sale.
Equity of redemption of mortgage in fee — of mortgage of term
of years — special reservation of in mortgage deed — surplus
proceeds of sale under the mortgage.
Liability of the personal estate for the mortgage debt — Locie
King's Act mating the land primarily liable — Act to explain
" contrary intention " in will.
Mortgagor in possession at law — tenant under mortgagor— rede-
mise to mortgagor — distress for rent or interest.
Charge of mortgagee for the debt — legal estate of the mortgagee
— devise by mortgagee— transfer of legal estate by vesting
order — by personal representative of mortgagee.
Mortgagee in possession bound to account — annual rests — costs of
repair, etc. — insm-anoe.
Distinction between a mortgagee and a trustee.
Equitable mortgage by deposit of deeds —agreement as to the
deposit — remedy of equitable mortgagee.
Equitable mortgage by agreement without deposit.
Mortgage of copyholds — of leaseholds — of equitable estates and
interests — notice to the trustee.
Mortgage by A mortgage is a charge upon laud created for
proviso for re- the sccurity of mouey leut. The ordinary form of a
mortgage is by an absolute conveyance at law to the
mortgagee ; subject to an express proviso for redemption,
being in efifect a declaration of trustj that upon payment
of the debt and interest at an appointed day, the mort-
gagee shall reconvey to the mortgagor (a) .
Eedemption. The mortgagor is not restricted in redemption by the
express terms of the proviso. The time therein appointed
(a) See Butler's note (1) to Co. conveyance upon condition at com-
Lit. 205 a ; Hayes on Convey, v. mou law, and the equity of redemp-
2, p. 119, n (109), 5th ed. As to tion arising after forfeiture, see
the earlier form of a mortgage by ante, p. 232.
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SECT. VII. § 4. MORTGAGES. 279
for payment is not considered in equity as being material
or, as it is said, of the essence of the contract, further
than as fixing a day before which the money is not due or
payable ; and redemption may be made and a reconvey-
ance demanded at any time afterwards. For it is a
principle of equity that a mortgage cannot by any terms
of agreement therein be made irredeemable (a) ; and parol
evidence is admissible to show that a conveyance was in-
tended as a security only (5) .
But if the mortgagor allow the time appointed for Notice to re-
payment to pass, he must give six months' notice before
he can redeem ; and if he do not then exercise his right,
he must renew the notice ; or he may pay six months' in-
terest in lieu of notice (c) . But a mortgagee suing for
payment of the debt dispenses with notice, and is not
entitled to any interest in lieu of it (d) .
If the mortgagee refuse the tender of payment at the Mortgagee re-
expiration of the notice, the amount tendered being sufli- liabuffoTcos'ts
cient, he will be liable for the costs of a suit for re- ° "^^ ""^ '°"''
demption (e).
If an action be brought by the mortgagee for the debt Ecdemption at
or an action of ejectment for the land, the Courts of ™ ysiioe-
common law have a summary jurisdiction by statute to
stay proceedings and compel a reconveyance, on payment
of the principal, interest, and costs (/) . — By the Supreme
Court of Judicature Act, 36 & 37 Vict. c. 66, s. 24, the
courts thereby constituted will have full power to give
effect to every equitable ground of relief or defence to
(a) Howard v. Harris, 1 Vern. (e) Harmer v. Priestly, 16 Bear.
190 ; 2 W. & T. L. C. 947 ; per 569 ; 22 L. J. C. 1041. As to
Eldon, L. C, 7 Vea. 273 in Seton v. tender by a stranger or by a person
Slade ; see Williams v. Omen, 5 My. having a partial interest only in the
& Cr. 303. equity of redemption, see Pearce v.
(6) See ante, p. 133 ; and see Morris, L. E. 8 Eq. 217 ; 5 Ch.
Coote on Mortgages, ch. iii. 3rd 227 ; 39 L. J. 0. 342.
ed. {/) 7 Geo. II. o. 20 ; C. L. P.
(c) Bay V. Say, 31 Beav. 270 ; Act, 1852, 15 & 16 Tict. c. 76, s.
31 L. J. C. 806 ; see Cruihshank v. 219 ; see Day's Common Law
DuJJin, 41 L. J. C. 317, 320. Proeed. Acts. Bourton t. Williams,
{d) Letts V. Hutehins, L. B. 13 L. E. 9 Eq. 297 ; 5 Ch. 655 ; 39 L.
Eq. 176. J. C. 800.
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280 PABT il. CfiAP, I. THE LIMITATION 0* ESTATES.
Foreclosure.
Charge realised
by sale, not
foreclosure.
whioli the mortgagor may be entitled against tlie claim of
tlie mortgagee.
The mortgagee^ on the other hand, after default in
payment may file a bill of foreclosure, under which it may
be decreed that an account be taken of what is due to
him for principal, interest and costs, and that in default
of payment within six months the mortgagor be foreclosed
or barred of his equity of redemption ; and upon default
in payment under such decree the mortgagee may obtain
a final order of foreclosure, and his title is then complete
in equity as well as at law (a) .
"If there is a charge simpUciter, and not a mortgage,
or an agreement for a mortgage, then the right of the
parties having such a charge is a sale and not fore-
closure" (&)
Power of sale.
It is usual in a mortgage deed to give to the mortgagee
an express power of sale, with a declaration of trust,
as to the proceeds, to pay the sum due for debt, interest
and costs, and as to the surplus for the mortgagor. The
power of sale prevails over the equity of redemption and
enables the mortgagee to make a good title to a purchaser
in equity, as well as under his legal title, without pro-
ceeding to foreclose or any other application to the court.
It is therefore, in general, a more convenient remedy ;
but it does not supersede or affect the remedy of fore-
closure (c). A power to mortgage imports a mortgage
with a power of sale (d).
The power of sale is usually made absolute as to time
(a) Seton on Decrees, 187, 2d
ed. ; the time for payment may be
enlarged, ib. ; 2 W. & T. L. C.
961, m notes to Howard v. Harris ;
the title by foreclosure dates from
the final order and not from the
decree. Thompson y. Grant, 4
Madd. 438.
(J) Fer Hatherley, L. C, in
Tennant v. Trenchard, 38 L. J. C.
661 ; L. E. 4 Ch. 542 ; see Mat-
tliews T. &oodday, 31 L. J.C. 282 ;
and see ante, p. 273.
(c) Wayne t. Hanliam, 9 Hare,
62 ; 20 L. J. 0. 530.
{d) Chawner's Will, L. K. 8 Eq.
569 ; 38 L. my,'L.C.,m.Holroyd
post, Chap. II. Sect. TI, ' Priority v. Marshall, 33 L. J. C. 198 ; 10
of Equitable Estates '; andPartJY. H. L. C. 191 ; where the same prin-
Chap. I. ' Assignment of Equitable ciple was extended to after-acquired
Estates.' property.
(b) Sugden's T. & P. 175, 14th (c) See SadUy v. London BanTc
ed. ; see M'Creight v. Foster, L. o/5co«a»rf, 3 De G. J. & S. 63.
E. 5 Ch. 604 J 39 L. J. C. 792 ;
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Sect. vii. § 5. contracts or sAle. 303
contract would be bound by the same equity or trust for
performance as the vendor (a).
Equity regards the property under contract for sale as Equitable estate
if the contract were carried out according to its terms. ° ^"° '"^''
Land which ought to have been conveyed is regarded as
the property of the purchaser ; who may thus acquire
the equitable estate in fee simple or other interest con-
tracted for by virtue of the contract without any tech-
nical limitation (&). Any subsequent deterioration or
improvement of the property primd facie accrues to the
purchaser, as owner ; as a loss by fire, according to the
maxim "damnum ex casu sentit dominus" (c).
Accordingly, the vendor remaining in possession after vendor in pos-
the time appointed for the completion of the contract is, account for rents
in general, bound to account to the purchaser for the "" ^'^°
rents and profits actually received, or which with proper
management he ought to have received, and he may be
charged with an occupation rent ; he may also be made
liable for deterioration and dilapidation caused by his
own negligence. But he is entitled to credit for all
proper expenditure in maintaining the property in a
proper condition ; and he is entitled to interest on the
purchase money while it remains due and unpaid (d) .
If the purchase money or any part of it remains un- Lien of vendor
paid after conveyance, the vendor has an equitable lien ohasomoney!'™"
or charge upon the land conveyed for the amount, and
the purchaser holds the land subject to such lien ; unless
(as) Barnes v. Wood, L. K. 8 Eq. 605.
424. ; 38 L. J. 0. 683. See ante, {d) Dyer v. Sargrave, 10 Ves.
p. 143. 505 ; Sherwin v. ShaJcespeare, 5 D.
(4) Treatise of Equity by Fon- M. & G. 517 ; 23 L. J. C. 898 ;
blanque, ch. 6, s. 9, see ante, p. Thomas v. Suxton, L. E. 8 Eq.
141 ; Bower r. Cooper, 2 Hare 408. 120; 38 L. J. C. 709 ; Phillips t.
(c) Paine v. Metier, 6 Ves. 349 ; Silvester, L. E. 8 Ch. 173 ; 42 L.
see Dart, V. & P. 596, 3rd ed. So J. C. 225. He is in a position
the purchaser of a Ufe annuity bears analogous to a person holding pos-
the loss caused by the death hap- session of land on which he has se-
pening after the time for completion. curity, per Selborne, L. C, ih. See
Kenney v. WenJiam, 6 Madd. 355. ante, p. 295.
See Jackson v. Lever, 3 Bro. 0. C.
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304 PAET II, CHAP, i. THE LIMITATION Ol' ESTATES,
Discharge of
lien by taking
other security.
Payment by
annuities.
it be excluded by the express terms or manifest intention
of the contract (a).
The lien for unpaid purchase money, under the general
rule, may be discharged by the vendor taking other
security, at the time of the purchase or afterwards, in
substitution for it. " The question is then not merely
upon the fact whether a security was taken, but it de-
pends upon the circumstance of each case whether the
court is to infer that the lien was intended to be reserved,
or that credit was given, and exclusively given, to theperson
from whom the other security was taken " (b) . — Accord-
ingly the lien is not lost by the vendor merely taking abend
or note or a real security for the purchase money ; or by
his taking a security for payment at a future day (c).
Where the consideration for the sale is to be paid in
the form of an annuity for life or lives, though the hen
is not necessarily excluded, yet the presumption is
against any intention to create a permanent charge on
the estate for the periodical payments during the con-
tinuance of the annuity ; and the vendor is presump-
tively entitled only to the bond, covenant, or security
for the annuity provided in the contract (d).
(a) The doctrine of lien for un-
paid purchase money is thus stated
by Eldon, L. C.:—" Where the
vendor conTeys, without more,
though the consideration is upon
the face of the instrument expressed
to be paid, and by a receipt en-
dorsed upon the bact, if it is the
simple case of a conTeyance, the
money, or part of it, not being paid,
— upon the doctrine of this Court,
which when it is settled, has the
effect of contract, though perhaps
no actual contract has taken place,
a lien shall prevail ; in the one case
for the whole consideration ; in the
other, for thnt part of the money
which was not paid.— The lien
exists, unless an intention, and a
manifest intention, that it shall not
exist appears." 15 Yes. 337, in
Mackreth v. Symmons ; and see per
Cranworth, L. C, Dixon v. Gayfere,
1 D. & J. 655 ,■ 27 L. J. C. 148 ;
per Bacon, V. C, re Albert Ins. Co.
L. E. 11 Eq. 164, 179 ; 40 L. J. C.
166, 171.
(jb) Per Eldon, L. C, 15 Tes.
350, Mackreth v. Symmonds; and
see notes to that case in 1 W. &
T. L. 0. 284-292, 3rd ed.
(c) Mackreth v. Summons, supra ;
Dixon V. Gayfere, supra ; Winter v.
Zord Anson, 3 Euss. 488 ; Sugden
V. & P. 862, 11th ed.
(d) Per Eldon, L. C, 15 Ves.
351, Mackreth v. Symmons; Dixon
V. Gayfere, 1 D. cfc F. 655 ; 27 L. J.
C. l48. In the case of purchase
money, the purchaser could free the
estate at any time by payment of a
gross sum, but where it was an an-
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SECT. VII. § 5. CONTRACTS OF SALE. 305
The lien extends to lands taken by a railway company Lien under com-
under the compulsory powers of purchase given by the
Lands Clauses Act; — and the deposit required to be
made and the bond to be given under the Act, as security
for the purchase money of the land taken, does not dis-
charge the lien of the vendor (a)
The lien for unpaid purchase money charges the land, Lien against
not only as against the purchaser himself, but also as with notice,
against a subsequent purchaser from him (except a pur-
chaser for value without notice that the money was un-
paid) ; " for there is no difference between this species
of lien and other equities by which third persons having
notice are bound " (fe) .
Upon the like principle, upon payment of a deposit or Lien of pur-
purchase money before conveyance, the purchaser primd posit or pur-
/• ■ ■ T f ^ 111-1 <=IittBe money
fame acquires a lien for the amount upon the land in the paid before eon-
*! . . veyance.
hands of the vendor, in the event of the contract being
subsequently rescinded, or failing without any default on
his part (c).
The claim to a return of the deposit stipulated to be claim to deposit
paid by the contract of sale may be expressly provided tract,
for in certain events by the terms of the contract ; and if
nuity for lives the court should be C. 385. The operation of a oon-
slow to hold that the Tender could tract of sale in equity being " that
say the estate was inalienable so the ownership is transferred subject
long as any of the annuitants are to the payment of the purchase
aliTe. Per Cranworth, L. C. liid. money, every portion of the pur-
(a) Walker v. Ware ^ Bunting- chase money paid in pursuance of
ford Ry. Co. L. R. 1 Eq. 195 ; 35 the contract is a part performance
L. J. C. 94i; Wing v. Tottenham Sf of the contract, and to the extent of
Bampstead Ry. Co. L. R. 3 Ch. the purchase money so paid does in
?40 ; 37 L. J. C. 654 ; Uunno v. equity finally transfer to the pur-
Isle of Wight Ry. Co. L. K. 5 Ch. chaser the ownership of a corre-
414 ; 39 L. J. C. 522. spending portion of the estate."
(J) Per Eldon, L. C, 15 Ves. 350, Per Westbury, L. C. lb. See Abe-
Maekreth v. Symmonds ; see ante, raman Iron Works v. Wiekens, L.
p. 143. Rice v. Rice, 2 Drew. 73. E. 4 Ch. Ap. 101, 109 ; where
(c) Wythes V. Lee, S Drew. 396; it was held that a subpurchaser
25 L. J. C. 177 ; notes to Maekreth might establish a lien for purchase
v. Symmonds, supra, 293 ; Rose v. money advanced to the extent of
Watson, 10 H. L. 0, 672 ; 33 L. J. the lien of th? original purchaser,
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306 PAET II. CHAP. I. THE LIMITATION OF ESTATES.
Jurisdiction of
Court to order
return of de-
posit.
Dpon rescission the Contract so provide it may be forfeited (a). Where
the contract is rescinded by agreement, the claim to the
deposit must be referred to the terms of that agreement ;
and if the rescission be unconditional, no claim can be
made for a return (b).
Where a contract is rescinded by the court on the
ground of fraud, misrepresentation, or any like cause, it
is within the jurisdiction of the court to order the
deposit to be returned, and to declare it to be a hen
upon the land, with interest (c). On a sale made by
order of the court, which failed by reason of the bank-
ruptcy of the purchaser and the refusal of his assignees
to complete, an order was made by the court declaring
the deposit to be forfeited, although the conditions of
sale contained no provision as to forfeiture {d) .
The lien charges the land as against a subsequent
purchaser or mortgagee from the vendor having notice
of the payments made (e) .
Lien as against
purchaser with
notice.
ConTersion by
contract of sale.
Of the land into
money.
A contract of sale of which a court of equity would
decree specific performance further operates in equity
as a conversion, according to the terms of the contract, of
the land into money on the part of the vendor, and of the
amount of purchase money into the land on the part of
the purchaser (/).
The right of the vendor to the performance of the
contract, or payment of the purchase money is personal
estate ; and if he die before completion it devolves
upon his personal representative who may enforce it by
(a) Beavan v. M'Donnell, 9 Ex,
309 ; Palmer v. Temple, 9 A. & E
508 ; Hinton v. SparTces, L. E. 3
C. P. 161; 37 L. J. C. P. 81
Casson v. Soierts, 31 Beav. 613
32 L. J. C. 105.
(b) See Lee v. Page. 30 L. J. C,
857 ; Grimman v. Legge, 8 B. & C,
324
(c) Torranpe j. Bolton, Jj. R. 14
Eq. 124 ; 8 Ch. 118 ; 41 L. J. 0.
643 ; as to the claim for interest,
see ante, p. 269.
(d) Depree v. BedhorougTi, 4 Giff.
479 ; 33 L. J. C. 134.
(c) Watson v. Mose, 10 H. L. C.
672 ; see ante, p. 143, 305.
(/) 1 W. & T. L. C. 754, in notes
to Fletcher v. Aslihurner ', as to
ConTersion, see ante, p. 248,
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SECT. VII. § 5. CONTBACTS OF SALE. 307
suit for specific performance against the purchaser ; in
which suit theheir at law or devisee of the legal estate must
be joined, and may be compelled to execute a conveyance [a) .
The conversion depends upon the contract. If the converaion abao-
,.. ^ , n • , ITT 11 liite at death of
contract is such as a court oi equity would decree to be vendor.
specifically performed against the vendor at the time of
his death, the conversion is then absolute as between his
real and personal representatives. And it is immaterial
that afterwards the contract is not in fact completed ; —
as where it was properly abandoned by the purchaser
by reason of not being able to get the conveyance exe-
cuted by parties on whom the legal estate devolved {b) ; —
or where the purchaser subsequently lost his right to
specific performance by delay (c) .
If at the time of the death of the vendor the contract Future and
is in terms future or conditional as to completion, the veraion.
conversion is not absolute until the time has elapsed or
the condition has been fulfilled. Thus, if the contract
appoints a future day for completion, before which the
vendor dies, the rents accruing between his death and
the day appointed remain part of his real estate passing
to his heir or devisee, and not to his executor {d). So, conTeraion at
if the contract gives the purchaser a future option, as in chaa™.
the case of a lease for years with an option to the
lessee to purchase at any time during or at the expira-
tion of the term, the conversion takes efiect only from
the time of the purchaser exercising his option, and the
land in the meantime descends to the heir or passes to
the devisee (e).
(a) Farrar v. Winterton, 5 Beav. should be sold for payment of tes-
1 ; Roberts v. Marchant, 1 Hare, tator's debts.
547 J Soddel v. Pagh, 33 Beav. (e) Curre v. Bowyer, 5 Beav. 6
489. The amount of the purchase n., in which case it was held that
money is legal assets in the hands the estate belonged to the next of
of the executor and liable to probate kin.
duty. Ait.- Gem. v. Brunning, 8 H. {d) Shadforth v. Temple, 10 Sim.
L. C. 243 ; 30 L. J. C. 379 ; see 184 ; Lumsden v. Fraser, 12 Sim.
anu, p. 261. 263 ; see Watts v. Watts, L. R. 17
(6) Tebbott v. Voules, 6 Sim. 40; Eq. 217 ; 43 L. J. C. 77.
in which case it was decreed, witli (e) Laioes v. Bennett, 1 Cox, 167 ;
consent of the heir, that the estate Townley v. Bedwell, 14 Ves. 591 ;
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308 PAET II. CHAP. I. THE LIMITATION OF ESTATES.
Deviae of land
revoked by con-
tract of sale.
No conversion If the Contract is such that a court of equity would
unless specific . .„ ^ , i •
performance can not give the purchaser specific periormance there is no
be enforced. & . n ,n ■, • n • r. ,-, j
conversionj and the heir or devisee oi the vendor may
retain the land (a). But in a case where the heir of the
vendor adopted a parol contract which he might have
repudiated as not satisfying the requirements of the
Statute of Frauds, and completed the sale, it was held
that the purchase money was personal estate and be-
longed to the next of kin (&) .
Accordingly, a devise of the land is revoked, as to the
beneficial interest by a subsequent contract to sell it,
though not completed at the testator's death ; and the
devise will not apply to the purchase money, or to the
Ken of the vendor upon the land which is merely a
security for the purchase money (c). If the contract is
conditional upon an option in the purchaser, the devise
takes effect only until the exercise of the option, and is
then revoked in favour of the personal representative (3) .
So also, if the completion of the contract is postponed
to a future time, the devise operates until the time of
completion (e).
A devise of land, after a contract of sale made which
is not completed at the testator^'s death, operates, like a
devise of land of which the testator is only trustee, in
Devise of land
under contract
for sale.
Collingwood v. Mow, 26 L. J. C.
649 ; 3 Jur. N. S. 785. See Weed-
ing V. Weeding, IJ. & H. 424 ; 30
L. J. C. 680.
{a) See Roierts v. Marchant, 1
Hare, 547, for which reason the
heir or devisee must be joined in a
suit against the purchaser, though
the legal estate be outstanding, as
the purchaser is entitled to have
the contract established against
them.
(S) Frayne v. Taylor, 33 L. J.
C. 228.
(c) TeUoU V. Voules, 6 Sim. 40 ;
Moor V. Eaislecic, 12 Sim. 123 ;
Farrar v. Earl of Winterion, 1
Beav. 1, where L. Langdale, M. E.,
speaking of a testatrix who after de-
vising an estate had contracted to
sell it, said : — " In equity she had
alienated the land, and instead of
her beneficial interest in the land,
she had acquired a title to the pur-
chase money. What was really hers
in right and equity was, not the
land but the money, of which alone
she had a right to dispose." And
he therefore held that the devisees
took no beneficial interest. The
devise in such case is not extended
by the Wills Act 1 Vict. c. 26, ».
23. lb. Seepo*!!, Part IV. Chap.
11. ' Wills.'
{d) Weeding v. Weeding, 1 J. &
H. 424 ; 30 L. J. C. 680.
(e) See Waffs v. Watfs, L. R.
17 Eq. 217 ; 43 L, J. C. 77.
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Sect. tii. § 5. conteacts ot sale. 309
conyeying the legal estate only, unless the intention to
pass the purchase money by it appear in the will [a) .
A statutory notice by a company to take lands under comersion by
, 1 ■ 1 r T T J. T ±^ compulsory sale,
tneir compulsory powers ot purchase has not alone the
effect of a contract of sale by way of equitable conver-
sion (6) ; but when followed by a contract settling the
price and terms of sale, the conversion in equity is com-
plete from the date appointed for the completion of the
sale (c).
The contract operates on the part of the purchaser as conyeraion of
a conversion of his personal estate to the amount of the money into the
purchase money into the land, according to the terms of
the contract; and if he die before completion his heir
or devisee becomes entitledto have the purchase completed
as against the personal representative and the purchase
money paid out of the personal estate {d) .
The conversion in favour of the heir or devisee depends Depends upon
. „ . the liability of
upon whether the contract IS such as a court of equity the puroiiaser to
^ _ . J. ./ specific perform-
would specifically enforce against the purchaser (e). ance.
{a) Wall V. Sright, 1 J. & W. 274, in Seion v. Slade ; and 10 Ves.
494 ; Knollys y. Shepherd, ib. 499 ; 614, in Broome v. Monck. As to
Drant v. Vause, 1 Y. & C. 0. 580 ; when a devise of land includes land
Emuss y. Smith, 2 D. & S. 722 ; see contracted to be purchased, see
Hawkins on Wills, 38 ; and see Hawkins on Wills, 38.
Lowry's Will, L. E.. 15 Eq. 78 ; (e) " As between the heir and
42 L. J. 0. 509. the personal representatives, Lacon
(4) Hayties v. Haynes, 1 Dr. & v. Mertins, 3 Atk. 1, Buclemaster r.
Sm. 426 ; 30 L. J. C. 578. Harrop, 7 Ves. 341, and other cases,
(c) Ex p. Hwmkins, 13 Sim. 569 ; established the general principle,
re Manchester v. SauthportRy. Co., that whatever is the state of liability
19 Beav. 365 ; re Lowry's Will, of the party himself to take at his
supra ; Watts v. Watts, L. E. death must be the state of liability
17 Eq. 217 ; 43 L. J. 0. 77, in to be considered upon questions
such case the sale is enforced and between those representing him after
the conversion effected under the his death." Fer Eldon, L. C, 10
compulsory powers, and not under Ves. 607, in Broome v. Monck ;
the jurisdiction of the court over Qarfiett v. Acton, 28 Beav. 333.—
the specific performance of con- Although the purchaser might have
tracts ; and therefore it is not ne- waived objections, as to title or
cessary that there should be a con- otherwise, the court cannot specu-
tract evidenced according to the late upon what he would or would
requirements of the Statute of not have done; "but the inquiry
Frauds. must be, whether at his death a
[A) See per Eldon, L. 0., 7 Ves. contract existed by which he was
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310 PAET II. CHAP. I. THE LIMITATION OF ESTATES.
wterepnr. If th© purchaser was liable for specific performance of
apeemiperform- the Contract at his death, his heir or devisee becomes en-
^'"'°" titled to the benefit of it ; and this right is not affected
by the vendor becoming discharged by subsequent cir-
cumstances, as by an unreasonable delay on the part of
the purchaser's representatives caused by the state of
his affairs ; — or by the vendor electing to rescind the con-
tract under the conditions of sale instead of complying
with certain requirements as to the title ; — in such cases
the heir retains the right of having the purchase money
raised for his benefit out of the personal estate, subject
to the modification introduced by the statute 30 & 81
Vict. c. 69, hereafter mentioned (a) .
Where par- If the Contract be such that the purchaser could not
for^speefflc per/ be Compelled to specific performance, there is no con-
ormance. yersiou of the purchaso money in favour of heir or de-
visee, and he acquires no right against the personal
estate, either to have the contract completed or to be
paid the amount of purchase money : as where the con-
tract, as against the purchaser, did not satisfy the re-
quirements of the Statute of Frauds (&) ; — or where the
vendor could not make a good title (c) ; — so, if the
purchaser has an option to complete, which he has not
exercised before his death, his real representative takes
nothing {d).
Porchase money By the statute 30 & 31 Vict. 0. 69, (explaining Locke
mSy'ul'ol: King's Act, 17 & 18 Vict. c. 113,) the latter Act is ex-
by a te°utor.^^ tended " to any lien for unpaid purchase money upon any
lands or hereditaments purchased by a testator." And
by Locke King's Act, the land or hereditaments so
charged are made as between the different persons claim-
bound, and which he could be com- (J) Btickmaster v . Harrop, 7
pelled to perform ; " per Grant, M. Ves. 341.
E., 7 Ves. 344, in Buokmaster v. (e) Broome v. Monck, 10 Ves.
Sarrop. 597.
{a) Whittaher v. Whittaker, 4 [d) Earl Radnor v. Shafto, 11
Bro. 0. 0. 30 s Hudson t. Cooke, Ves. 448.
L. E. 13 Eq. 417 ; 41 L. J. C. 306.
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Sl!CT. VII. § 5. CONTRACTS OF SALE. 311
ing througli or under the testator primarily liable to tlie
payment^ and the heir or devisee is disentitled to having
the debt discharged or satisfied out of the personal
estate, unless the testator shall have signified a contrary
or other intention. — The above enactment mentions the
case of a testator only, and is not extended to the estate
of a person dying intestate [a).
(a) Mudson v. Coohe, 41 L. J. C. t. Harding, 41 L. J. C. 523 ; L. K.
306 ; L. E. 13 Eq. 417 ; Harding 13 Eq. 493.
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312
CHAPTEE II.
THE LIMITATION OP FUTUEE ESTATES.
Section I. The limitation of futvire estates at common law.
II. Future Uses.
III. Future Devises.
rv. Powers.
V. The Eules against Perpetuities and Accumula-
tions.
VI. Future Equitable Estates and Interests.
The present chapter treats of the limitation of estates
in regard to the time of commencement, that is to say,
as commencing at a future time, whether as regards the
coming into possession or the vesting in interest (a).
The limitations of future estates may be distinguished
primarily according to the sources of the law to which
they are to be referred : — at the common law, by way of re-
version and remainder ; — under the Statute of Uses, admit-
ting, besides the future limitations of the common law,
springing or shifting uses ; — and in wills, admitting
executory devises; — these form respectively the subjects
of the first three sections of this chapter.
Powers may also be distinguished as a special mode iu
which future estates, whether by way of use or under
wills, may be limited and created; they are treated
separately in the fourth section.
The Rule against perpetuities by which the limitation
of future estates is restricted forms the subject of the
fifth section ; together with the law restricting the accu-
mulation of rents and profits.
(a) See ante, pp. 9, 152.
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SECT. I. § 1. EEVEESIONS. 313
There will then remain to be treated in the sixth and
last section the doctrines of equity by which future
equitable estates and interests, whether created by ex-
press declaration or constructive trusts, are regulated and
ranked in order of priority.
Section I. The Limitation of Futuee Estates at
Common Law.
§ 1. Eeversions.
§ 2. Eemainders.
§ 3. Contingent remainders.
§ 4. Kule in Shelley's case.
§ 1. Eeteesions.
Rule that freehold cannot be limited in futuro — reversion and
remainders of freehold.
Reversion in fee upon creation of particular estate — limitation
of reversion to the grantor or his heirs void at common law
— creates title by purchase under statute 3 & 4 Will. IV.
0. 106.
Reversion in particular estate upon creation of less estate — in
estate tail — in estate for Ufe — in term of years upon under-
Tenure of particular estate to reversion.
It was a principle of the common law that the seisin Estate of free-
■*■ ^ , told cannot be
or freehold could never be put m abeyance: that there limited to com-
mence in futuro,
must always be a present tenant to answer to the re-
quirements of tenure. Whence the rule that an estate
of freehold cannot be limited to commence at a future
time (a).
But the freehold may be distributed into a particular EeverBion and
remainder of
estate and reversion or' remamders ; and the reversion or freehold,
remainders, though vested in interest, are deferred or
future estates in regard to the possession. Moreover, a Contingent re-
remainder may be limited upon a contingency so as to
(a) See ante, p. 47.
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copyliolda.
311 PART II. CHAP. II. IHE LIMITATION Ol' FUTURE ESTATES.
defer also tlie vesting until the determination of tlie
particular estate^ consistently with the rule that the
freehold shall not be in abeyance, as the tenancy is fuU
during the continuance of the particular estate (a). Re-
versions and Eemainders, vested and contingent, as the
future estates admissible at common law, form the sub-
ject of this section, and as supplementary to the treat-
ment of remainders, the doctrines of limitation embodied
in and connected with the rule in Shelley's case, have to
be considered. Accordingly, these matters form the
subjects of the several subsections.
Lease may bo It may here be observed that leases and limitations of
SVearftooom. torms of yoars, which deal with the possession only and
menae inju uro. ^^^ -^v^ith the freehold interest, may be made to com-
mence in possession at a future time, giving merely an
interesse termini or right to have the possession when
the time arrives, but no estate in the land (&) .
Future uses of Also, the Umitations of estates of copyhold or custo-
mary tenure are independent of the freehold; for the
freehold remains vested in the lord. Hence under that
tenure future estates, though freehold as to quantity,
may be limited to arise independently of any preceding
estate ; and if a surrender be made to such future uses,
the lord is bound to admit the surrenderee when the use
becomes vested in interest (c) .
Eefersion in fee If tenant in fee simple convey the land to a person
particular estate, for a particular estate only, as for an estate tail, or for
term of life, or of years, there remains in him and his
heirs an estate expectant, as to the possession, upon the
determination of the particular estate. This estate is
called the reversion, because the land then reverts or
returns in possession to him or to his heirs [d).
An express limitation of the reversion to the grantor
(a) See ante, p. 48. (c) See ante, p. 82.
(I) Co. Lit. 45 h ; see ante, pp. 50, \d) Co. Lit. 22 S ; 142 S ; 183 b ;
199 ; Doe v. Walker, 5 B. & C. 111. Plowden, 196 ; see ante, p. 40.
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SECT. I. § 1. KEVEESIONS. 315
or to his heirs was void of effect at common law ; for it Express Umita-
merely stated the legal result of the creation of the
particular estate out of his original estate, leaving the
residue or reversion in him by the same title as be-
fore {a).
But by the statute 3 & 4 Will. IV. c. 106, (the In- Makes the gran.
, ■' ,... tor a purchaser
heritance Act,) s. 3, under a limitation by any assurance ^y statute,
(executed after 31st December, 1883,) to the person or
to the heirs of the person who shall thereby have con-
veyed the same land, " such person shall be considered
to have acquired the land as a purchaser by virtue of
such assurance, and shall not be considered to be entitled
thereto as his former estate or part thereof."
By the effect of the statute the grantor " takes, under
his own assurance, as if the estate were to him and his
heirs of the gift of a stranger ; and where he creates a par-
ticular estate, limiting the expectant fee to himself and
his heirs, or, without naming himself as an object, to his
heirs, he takes the fee, for the purposes of descent at least,
not as a reversioner, but as a remainderman. But where,
on a conveyance at the common law creating particular
estates only, the fee tacitly remains in the grantor, his
former estate is preserved (&)." — It may be observed that
if the effect of the statute were to convert the reversion into
a remainder by force of the limitation for all purposes, the
tenure of the particular estate to the reversioner would
be destroyed, and the incidents of the reversion, such as
rent and services, would be lost (c).
In like manner, if the tenant of a particular estate EeTersion in
,T T T n 1 j_j_ii ■ T ri_ particular estate.
convey the land for a less estate, he has a reversion left
in himself; — thus tenant in tail, by a disentailing assur- Estate tail.
ance, may dispose of the lands entailed in fee simple or
for any less estate ; and if he make a disposition for a
less estate, the reversion remains in him and is subject
(a) See ante, p. 52 ; Co. Lit. 22 and see post. Part IV. Chap. III.
b ; Bingham's Case, 2 Co. 91 a. ' Descent.'
(i) 1 Hayes Convey. 317, 5th ed.; (e) See ante, p. 42.
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316 PART II. CHAP. II. THE LIMITATION 0* PtTTUEE ESTATES.
Estate for life.
Eeversion iu
term of years
upon under-
to the entail, unless it be wholly barred by the same
assurance (a). If tenant in tail lease for life or for years
at common law, without a disentailing assurance or any
other special or statutory power in that behalf, he has a
reversion ; but such lease is valid only during his life and
is voidable at his death by the heir in tail [b) .
So, tenant for life may make a lease for years, and,
however long the term of years may be, as it is not
coextensive with the freehold, there is a reversion in the
lessor (c). But such lease, unless made under a special
or statutory power, is valid only during the continuance
of the lessor's estate, and is avoided by his death.
If tenant for term of years make an underlease for a
shorter term, by however small an interval of time, he
has the reversion for that interval left in him (d) . An
underlease for a shorter term, " if the underlessee shall
so long live," leaves a reversion expectant on the de-
termination of the sub-term either by lapse of time or
by the death of the underlessee (e). — An underlease for
the whole term, or for a greater term, operates as an
assignment and leaves no reversion ; it carries with it all
the rights and liabilities incident to the term and leaves
none of the incidents of a reversion (/). If tenant
for term of years convey the land to another for an estate
for life or in tail at common law, the whole term passes
and there is no reversion {g) .
(a) 3 & 4 Will. IV. c. 74, as.
15, 21 ; see ante, p. 40.
(b) Co. Lit. 45" i, 46 J ; Lit. s.
606 ; see ante, p. 191 ; and see post.
Part IV. Chap. I. ' Disposition by
Tenant in tail.'
(e) " In the eye of the law any
estate for life, being an estate of
freehold, is an higher and greater
estate than a lease for years, though
it be for a tliousand or more." Co.
Lit. 46 a ; Earl Derby t. Taylor, \
East, 502 ; and see post. Part IV.
Chap. I. ' Disposition by Tenant
for life.'
{A) See HolfordY. Hatch, Dougl.
183 ; Farmenter v. Webber, 8
Taunt. 593 ; Baker v. Qostling, 1
Bing. N. C. 19.
(e) See ante p. 220 ; WrigM v.
Cartwrighf, 1 Burr. 282.
(/) Hicks T. Downing, 1 L.
Eaym. 99 ; 2 Salk. 10 ; Wollaston
T. Hakewill, 3 M. & G. 297 ; Beau-
mont T. Marquis of Salisburj/, 19
BeaT. 198 ; 24 L. J. C. 94 ; Bea/rd-
man v. Wilson, L. R. 4 C. P. 57 j
38 L.J. C. P. 91.
{g) Plowden, 520 ; 1 Burr. 284,
Wright v. CartvyrigM ; see Butt's
Case, 7 Co. 23 a ; Fearne, C. R. 461;
Wms. Ex. 565 (d); post p. 320.
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SECT. I. § 2. EEMAINDEKS. 317
The grant of a particular estate^ leaving a reversion in Tenure of par-
the grantor^ creates a tenure between the tenant of the reversion.
particular estate and the reversioner. This tenure is not
within the statute of Quia emptor es, for that statute ex-
tends only to alienations in fee sinple^ preventing any-
new tenure arising upon such alienations. Hence rent Kent service,
reserved upon such a grant of a particular estate is of
the nature of rent service, and is attended at common
law with the remedy of distress (a). And a grant of Grant of rever-
the reversion impliedly carries with it all the incidents incidents of
of the tenure, as the rent service, if any, unless there be
an express exception of such incidents in the grant (&) .
§ 2. Remaindees.
Remainder — must follow immediately on the particular estate —
must wait the determination of the particular estate — must
he created at same time with the particular estate.
Remainder cannot be limited after fee simple — remainder after
fee tail— after base fee — after lease for years.
Remainders in particular estates — terms of years.
Tenure of particular estate and remainder.
If tenant in fee simple convey a particular estate in Eemainder.
the land to one person, and at the same time another
estate, to commence in possession immediately upon the
expiration of the particular estate, to another person, the
latter estate is called, relatively to the prior particular
estate, a remainder (c).
Thus, if tenant in fee simple grant to A. for life, and Examples,
after the determination of that estate to B. for life, the
estate of B. is a remainder relatively to the estate of A.
So, if the grant be made to A. for life, and after the
(a) Lit. ss. 19, 214, 215, 216 ; {I) Lit. ss. 228, 229,. 572 ; Co.
Co. Lit. 23 a, 143 a, 151 b ; and Lit. 143 a.
see ante,-$.i2. (c) Co. Lit. 49a, ]43oj anie,^Al.
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318 PART II. CHAP. II. THE LIMITATION OF PUTUEE ESTATES.
determination of that estate to B. and to his heirSj B. has
a remainder in fee. In the former example there is a
reversion in fee in the grantor ; in the latter the whole
SacoeBsive re- fee is disposed of and there is no reversion. — In like
mainders, ^ . ^ -, . -. . -,
manner, several remainders may be created successively
in the same land, either leaving a reversion or with an
ultimate remainder in fee.
Eemainder must If a grant be made to A. for life, and after the lapse of a
d°iateTy™par. day after his death to B. for life or in fee, the limitation to B.
ticular estate. . , • t i -±1 j
IS not a remainder, because it does not commence m pos-
session immediately on the determination of the particular
estate ; it is a limitation of a freehold estate to commence
infuturo, which in a common law conveyance is void, and
the reversion of A.'s estate remains in the grantor (a).
Eemainder must Also a limitation which is to take effect in defeasance
■wait the determi- « t .. -iij • , • /.,i i
nation of par- 01 a preceding estate, without waiting tor the regular
determination of that estate according to the terms of
its limitation, is not a remainder ; and such a limitation
is void at common law (6). But the preceding particular
estate may be made determinable by a conditional limita-
tion, and the estate limited to take effect in possession
immediately upon its determination, whether that happen
under the conditional limitation or by the expiration of
the full term of limitation, is a remainder (c).
Remainder must The particular estate and the remainder must be created
be created at , .■ i • ■ l r- -c
same time with at the Same time by one conveyance or instrument ; tor it
the particular estate be first created, leaving the reversion
in the grantor, any subsequent disposition can be effected
particular estate.
{a) Ante, p. 46 ; Plowden, 25 way of remainder which was sup-
h ; Fearne, C. E. 307, 398, as to ported by the Uvery made of the
such limitations of uses and in wills, particular estate, ante p. 46 ; and
see post, pp. 355, 363. though a freehold estate might be
(S) Fearne, 0. K. 14, 261, 274 ; made voidable upon a condition by
Plowden, 24 ; though it may be entry, yet the right of entry could
effectually made by way of shifting be reserved only to the grantor and
use or executory devise, see^osi pp. his heirs, and not to a stranger ;
350, 361. At common law the seisin nor was it transferrable. Ante, p.
or possession of the freehold could 223.
not be made to pass over from one (c) See ante, p. 217.
to another without Uvery, except by
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SECT. I. § 2. REMAINDEES. 319
only by grant or assignment of the reversion ; whicli is
not thereby changed into a remainder, but still retains its
character of a reversion, to which the tenure of the particu-
lar estate is incident (a) .
No remainder can be limited in expectancy upon an Kemamder can-
estate in fee simple, that being the largest estate allowed after fee simple.
by law ; nor is any reversion left in the grantor after the
grant of such an estate. Upon the death of a tenant in
fee simple, without having devised his estate by will, and
without leaving heirs, the land passes by escheat to the
next superior lord (7)).
An estate in fee tail, beings a particular estate since Eemainder after
T, , . ,.,,... . . -, fee tail.
the statute De doms, admits of limitations m remainder
expectant upon its determination (c) . — An estate tail at After fee simple
common law was a fee simple conditional, and did not
admit of any remainder or reversion expectant upon it ;
and such is the case still with limitations in tail of in-
heritances not within the statute De donis, as with copy-
holds in manors in which there is no custom of entail (d) .
If tenant in tail alienate the land by an assurance Remainder after
. . ., - . base fee.
which is effectual as against the issue m tail, but is not
effectual to bar the estates in reversion or remainder,
(which was formerly the case with a fine, and may still
be the case with a disentailing assurance under the Fines
and Recoveries Act, 3 & 4 Will. IV. c. 74,) a base fee is
created determinable by the failure of the issue in tail of
the original tenant ; when the reversion or remainder, un-
less barred by subsequent proceedings, takes effect in
possession. A base fee may thus co-exist with a reversion
or remainder by matter ex post facto, though it cannot be
so limited by original grant (e) .
(a) See Fearne, 0. R. 302 ; Plow- t. Buckley, 2 Ves. sen. 170 ; Doe v.
den, 25 ; ante p. 43. Simpson, 3 M. & G. 929 ;
(5) See ante, p. 4,1 ; Tilhurgh v. (e) See ante, p. 40 ; Co. Lit. 18
Barhut, 1 Ves. sen. 89 ; Ware v. a. A like result may be produced
Cann, 10 B. & C. 433. by a power in a settlement which
(c) See ante, p. 41. may be operative over an estate
{d) See ante p. 81. Barl Stafford tail, but extingiiished as to the re-
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320 PART II. CHAP. II. THE LIMITATION OP FUTURE ESTATES.
Eemainder after
term of years.
If a lease for years be made in possession^ and at tlie
same time the freehold be limited, the limitation of the
freehold is subject to the term of years, but is not a re-
mainder strictly so called ; for the lease for years does
not interfere with or affect the limitation of the freehold
title. The limitation of the freehold takes immediate
effect, as regards the seisin or legal possession, though
it is commonly described as in remainder, as regards the
de facto possession, which is deferred until the expiration
of the term of years (a). Hence a limitation subject to
a term of years, as it deals with the immediate free-
hold, cannot be made upon a contingency, but must give
a vested estate (6).
Bemainders in
particular
estates.
Term of years
does not admit
of remainder.
Underlease of
term.
Tenant of a particular estate of freehold may, in
general, convey the land for a less estate with remainder
over (c).
A term of years, being personal estate, does not admit
of limitation, at common law, into a particular estate and
remainder {d) . — If tenant for term of years assign the
term to a person for life, it operates as an absolute assign-
ment of the whole term ; however long the term may be
(e) . — Tenant for term of years may make an underlease
for a less number of years, thereby creating a new term
in the underlessee with the reversion of the original term
in himself; and he may make a further underlease to
another person commencing at the expiration of the prior
one (/). Where a lease was made to A. for ninety-nine
years, if he should so long live, and if he should die
within the term, the remainder thereof to B. for the resi-
mainders. See Jones t Winwood,
3 M. & W. 653 ; 10 Sim. 150 ; 1
Sanders on Uses, 171, 4th ed. See
as to barring the remainders, 37 &
38 Vict. u. 57, ». 6.
(a) See ante, pp. 44, 49,
(J) See ante, p. 49 ; post, p. 326.
(c) See ante, ' Eeversion,' p.
315 ; Low V. Burron, 3 P. "W'ms.
262 ; Fearne, C. R. 495, and see
post, Part IV. Chap. I. ' Disposi-
tion by Tenant for Life.'
(d) See ante, p. 7 ; Hargrave's
note (5) to Co. Lit. 20 a ; Fearne,
C. R. by Butler, 402, 567.
(e) Co. Lit. 46 a ; Plowden,
520 ; ante, p. 316.
(/) See ante, p. 316.
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SECT. 1. § 2. EEMAINDEES. 32l
due of the ternij it was construed as a lease to B. for so
many of ninety-nine years as should be unexpired at the
death of A. ; the word term being construed, for the pur-
pose of supporting the limitation, to mean the time or
number of years mentioned (a).
By means of an executory bequest in a will a term may Executory be-
be bequeathed to a person, with a bequest over to anothei", '^"'^'^ ° ^™'
to take effect upon the death of the former or other
specified event ; the effect of which is to divest the term
primarily vested in the first legatee {b). — Also, by vesting Fatore trusts of
the term in a trustee, the trust or equitable estate may
be disposed of with the same freedom and according to
the same rules of limitation as executory bequests in
wiUs (c).
Upon the grant of a particular estate with remainder Tenure of parti-
or remainders, leaving a reversion in the grantor, the re- remainder.
lation of tenure is created between the successive tenants
of, the particular estate and remainders and the rever-
sioner. But if the ultimate remainder is granted in fee
leaving no reversion, no new tenure is created, and the
tenants in succession hold of the chief lord by the statute
oiQuia emptores {d) . There is no tenure between the tenant
of the particular estate and the remainderman ; for the
one does not derive title from the other, but both from
the same source.
(a) Wright v, Cartwright, 1 Burr. in WrigTit v. CartwrigM. — " No
282. remainders can be limited in real
(J) "The old oases held 'tliattliere and personal chattels ; every future
could be noremainderoraVihstitvition bequest of which, therefore, whether
of a term after an estate for life by preceded by a partial gift or not,
deed or will.'- — There was no ^ar&M- is in its nature executory." 1 Jar-
far estate. The gift of a term (like man on Wills, 793. As to execu-
any other chattel) for an hour, was tory devises, see post, p. 360.
good for ever.— Such limitations (c) Hargrave's note (5) to Co.
were soon allowed to be created by Lit. 20 a ; Pearne, C. E. 470 ; Mas-
will : and the old objections were re- singberd v. Ash, 1 Verii. 234, 304.
movedbychangiugthenamefromre- (d) See a«^e, p. 42; Lit. s. 215,
mainders to executory devises ;" per 216 ; 2 Inst. 505.
Lord Mansfield, C. J., 1 Burr. 284,
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322 PAET II. CHAP. II. THE LIMITATION OF FUTtTEE ESTATES.
§ 3. CONTINQENT EeMAINDEES.
Vested remainder — contingent remainder — distinction of contin-
gency as to the person and as to the interest — examples.
Contingent remainder must be supported by a particular estate of
freehold.
Contingent remainder must vest before or at the determination of
the particular estate — exception as to posthumous child.
Contingent remainder tates effect notwithstanding the forfeiture
or merger of the particular estate — effect of forfeitiu-e or
merger — trustees to preserve contingent remainders.
Contingent remainder of copyholds.
Eemainder to unborn child — remainder to child of unborn child
— strict settlement — Cy pres doctrine of construction of wills.
Contingent remainder for life or in tail with vested remainder —
alternative contingent remainders in fee— contingent re-
mainder in fee with vested remainder.
Construction of remainders as vested or contingent — words of
contingency referred to possession rather than vesting —
remainder construed to vest as soon as possible — remainder ■
to class, aa children — remainder to ohildi'en who shall attain
twenty-one.
A remainder whicli is certain as to the owner and
absolute as to his estate or interest is a vested remainder ;
the remainderman is presently invested with a portion
of the seisin or freehold, the whole fee being divided
into a particular estate and remainder or remainders (a) .
Contingent ro- But a remainder may be limited to a person not yet
ascertained, or to a certain person upon a condition pre-
cedent which may not happen until after the determina-
tion of the particular estate ; and whilst such uncertainty
lasts, as to the person or the interest, it is described as a
contingent remainder. — A contingent remainder becomes
changed into a vested remainder by the owner becoming
certain or the condition happening during the continu-
ance of the particular estate (6).
(a) See ante, pp. 45, 48. (6) See ante, pp. 48, 214.
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mainder.
SECT. I. § 3. CONTINGENT BEMAINDEES. 323
According to Fearne, — " A contingent remainder is a
remainder limited so as to depend on an event or condi-
tion wMcli may never happen or be performed^ or whicli
may not happen or be performed till after the determina-
tion of the preceding estate" (a). — And, as he afterwards
explains, — " It is not the uncertainty of ever taking
effect in possession that makes a remainder contingent ;
for to that every remainder for life or in tail is and must
be liable ; as the remainderman may die or die without
issue before the death of the tenant for life. The present
capacity of taking effect in possession, if the possession
were to become vacant, and not the certainty that the
possession will become vacant before the estate limited
in remainder determines, universally distinguishes .a
vested remainder from one that is contingent (6) .
Fearne distinguishes four sorts of contingent re- ciassiflcation of
mainders which may be shortly exhibited in the follow- mainalre. '^
ing scheme : — Remainders limited, 1. Upon an uncertain
event, which also determines the particular estate by
conditional limitation; — 2. Upon an uncertain event,
which does not affect the particular estate ; — 3. Upon a
certain event which may not happen until after the de-
termination of the particular estate ; — 4. To a person not
ascertained or not in being (c) .
But " all contingent remainders appear to be so far Reducible under
reducible under one head, that they depend for their
vesting on the happening of an event, which, by possi-
bility, may not happen during the continuance of the
preceding estate, or at the instant of its determina-
tion" [d).
A distinction, however, is to be observed between the
uncertainty as to the person in the last sort ; and the
(a) Fearne, 0. K. 3. (c) Fearne, C. E. 5.
(5) Fearne, C. E. 216 ; per Willes {d) Butler's note (g) to Fearne,
C. J., 3 Atk. 138, SmitTi v. Pach- C. E. 9 ; and see Hayes Cony .
Mrst; per Eldon C. J., 2 B & App. VI. 3, p. 553, 5th ed.
P. 296, Doe v. Seudamore.
t2
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324 PAKT II. CHAP. II. THE LIMITATION OF FUTTJEl! ESTATES.
Distinction be- Uncertainty of some event not concerning the person
tween coutin- -i^, />i i i • i • r
gency of owner, m the first three of the above sorts, which is oi prac-
terest. tical importance ; for remainders of the former kind,
which are limited in contingency as to the person are,
by the nature of the limitation, inalienable, and, there-
fore, tend to a perpetuity (a) .
Examples. The various forms of contingent remainders may be
conveniently explained or illustrated by some examples :
To A. for life, re- — If land be limited (as is common in settlements) to
of A. A. for life, with remainder to the first and every other
son of A. successively in tail, A. as yet having no son,
the remainder is contingent until a son be bom to A. in
To A. for ufe, re- whom the remainder may vest. — So if it be limited to A.
mainder tochil-' . i-in
dren Hring at his for liftj. With remainder to such children as he shall leave
decease.
at his decease, the remainder is contingent during the Ufe
of A. (&.)
To A. for Ufe, re- If land be limited to A. for life, with remainder to the
ofB. heirs of B., the remainder is contingent during the joint
lives of JB. and A. ; for there can be no heir of B. until
his death, which may not happen during the life of A (c) .
— If the ancestor take an estate of freehold by the same
conveyance, the limitation to his heirs is not a contingent
remainder to the heir, but is referred to the estate of the
ancestor by the rule in Shelley's case, to be considered
hereafter (d) . — In the above examples the remainder is
limited to a person or persons not ascertained.
(a) See post, p. 333. The dia- terminable upon the same eontin-
tinction wa3 pointed out by Willes gency as in Pearne's first sort.
C. J., in Smith v. Packhurst, 3 Atk. (J) See Doe t. SopMnson, 5 Q.
139 :— " That all contingent re- B. 228, 230 ; and see Price v. Sail,
mainders may be reduced to two L. E. 5 Eq. 399 ; 37 L. J. C. 191.
heads ; first, where a remainder is (e) Co. Lit. 378 a ; Archer's Case,
limited to a person not in being, Co. 66 * ; 3 Co. 20 a, Boraston's
and who may possibly never exist; Case; Challoner Y.Bowyer,%'LeoTi.
and jecoM£^?y, where a remainder de- 70; Perkins, 3. 52; see Doe v.
pends upon a contingency collateral Briggs, 16 East, 406, 413. As to
to the continuance of the particular the construction of limitations to
estate." The second head, is, per- heirs, see ante, pp. 158, 161.
haps, not quite accurately expressed, (d) See ante, p. 157 ; post,
as the particular estate may be de- p. 342.
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SECT. I. § 3. CONTINGENT EEMAINDEES. 325
If land be limited to A. for life, with remainder, if B. To a. for life,
survive A., to B. in fee, the remainder is made con- B."urviTOA., to
tingent upon the death of A., B. surviving, upon which
event the remainder vests in interest and takes effect in
possession at the same time (a). — A limitation to A. for
life, with remainder, if B. survive A., to B. for life,
gives a vested remainder, for the terms of contingency
merely express the uncertainty of B/s interest taking
effect in possession (&). — If land be limited to A. for To a. for ufs,
life, with remainder upon the death of B. to C, the re- deathof^Brto^c.
mainder is contingent upon B. dying in the lifetime of
A (c) . — So to A, for life and after his death to the chil-
dren of B., if he leave any him surviving [d).
If land be limited to A. for life with I'emainder, if he ToA.foriifo,
die without leaving issue at his death, to B., the re- die without leav-
-, . , - ing issue,
mamder is contingent upon that event. — In the case
of a devise to A. for life, and upon failure of issue of A.
indefinitely, to B., A. would take an estate tail by impli-
cation and B. a vested remainder expectant upon the
estate tail (e).
So, if land be limited to A. in tail and if A. die with- To a. in tail, re.
out leaving issue at his death to B., the limitation to B. die without leav-
is a remainder contingent upon the death of A. without
leaving issue, an event which at the same time determines
the particular estate (/) . A like limitation over after a
limitation to A. in fee would operate to divest the fee and
would not be a remainder; it would be void at common
(a) Doe T. Smdamore, 2 B. & P. without leaving issue," and the like,
289. by the statute 1 Vict. c. 26, apply-
(J) See ante, p. 323; Bolton v. ing to wills since 1837 ; but it may be
Bolton, ii. E. 5 Ex. 145 ; 39 L. J. obseryed that under this construc-
Ex. 89. tion, if A. leave issue, though the
(c) 3 Co. 20 a, Boraston's Case ; contingent remainder of B. fails,
Pollex. 54, Weale t. Lower. the issue take nothing, because the
((i) Price ¥. Sail, L. K. 5 Eq. estate of A. is not extended to an
399 ; 87 L. J. C. 191. estate tail. 1 Jarman on Wills,
(e) See ante, p. 182. The re- 490, 497.
stricted construction of failure of (/) Butler's note to Eearne, C.
issue at death is now put upon all E. 7 ; see Doe v. JSlvey, 4 Bast,
ambiguous phrases in wills, such as 313.
" dying without issue," " dying
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326 PAET II. CHAP. II. THE LIMITATION OF FUTUEE ESTATES.
laWj but might be good as a stifting use or as an execu-
tory devise (a). — So if land be limited to A. in tail male,
and if he die without issue to B., the remainder to B.
is contingent upon the failure of issue general con-
curring with the failure of issue male^ whereby the par-
ticular estate is determined [b) . So if land be limited
to A. in tail, and if he die under twenty-one and without
issue to B., the remainder is contingent upon the deter-
mination of the estate tail by death without issue under
twenty- one, and if A. attain that age, though he die
without issue it fails (c).
contmgctit ro- The principle of the common law that the seisin of the
h'a'^ a^pSScuiar freehold can never be in abeyance, but must always be
estate of free- j. i • j j, • i. • _l ^
hold. vested m some determinate person imposes two rules
upon the limitation and operation of contingent re-
mainders : — The first of which rules is that a contingent
remainder of freehold must always have a particular
vested estate of freehold to support it {d).
Limitation of A Icaso for a term of years does not interfere with the
wYth "ematnder limitation or vestiug at the same time of the freehold
estate, subject to the term, as it deals only with the de
facto possession. Therefore, if land be limited to A, for
a term of years, with remainder to B. for life or in fee, the
limitation to B. is a remainder only in regard to the de
facto possession ; but as regards the seisin of the free-
hold it is an immediately vested estate (e) . And if the
remainder to B. were limited upon a contingency, as if
he should survive A., the limitation would purport to dis-
pose of the freehold in future leaving it in abeyance until
the contingency occurred; it would, therefore, be void
at common law, and the next limitation of the freehold
(a) Seepost, pp. 352, 361. Ves. sen. 243, where in like limita-
(V) Cole V. Sewell, 4 Dr. & W. tions " and " was read " or." See
1 ; 2 H. L. C. 186. post, p. 861.
(c) Qrey v. Pearson, 6 H. L. 0. (d) Fearne, C. R. c. iii. p. 281 ;
61 ; 26 L. J. C. 473 ; dissenting see ante, p. 50.
from Brownsword t, JUdwards, 2 (e) See ante, pp. 44, 49, 320.
of freehold.
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SECT. I. § 3. CONTINGENT EEMAINDEES. 327
(if any), or the reversion of the lessor would take im-
mediate effect {a).
So also, if land be limited to A. for years with re- to a, for years
mainder to the heirs of A., the limitation to the heirs of to teiTof a"
A. is void, as of a freehold in futuro (b). — But if limita-
tions be made to A. for years, with remainder to B. for life
or in tail, with remainder to the heirs of A., there is a
vested freehold in B. which will support the contingent
remainder. So a limitation to A. for years, with re-
mainder to B. during the life of A., with remainder to
the heirs of A., would be a good limitation of the ultimate
remainder, there being a vested freehold in B. to support
it during the period of contingency (c).
If land be limited to A. for twenty-one years, if he To a. for years,
shall so long live, with remainder, after the death of A., lonJ'iiTC, re°
to B., such remainder is contingent, because the death of death of a. to b.
A. may not happen until after the expiration of the par-
ticular estate ; it is therefore void for want of a preceding
freehold to support it (d). — If the remainder in such
case were limited " after the determination of the term "
instead of after the death of A. ; so as to take effect
whether the term determined by lapse of time or by the
death of A., it would be good as a vested estate. — And constmotiou
in some cases of a limitation to A. for a term of years, years is greater
.n-. ITT 1 T •! .T r than probable
II he should so long live, with remainder over after the nfe of a.
death of A., where the term of years was so great as
to render the chance of A. outliving the term inconsider-
able, the remainder has been construed, in favour of the
intention, as if limited after the determination of the
term, and has been held good as limiting a vested estate.
This construction is reached either by rejecting the words
" after the death of A." as repugnant, or by applying the
(a) See ante p. 49. (e) See Egerton t. Brownlom, 23
(S) Co. Lit. 217 «; 3 Co. 20 a, L. J. C. 348 ; 4 H. L. 0. 1.
Boraston's Case ; Qoodright v. {d) Fearne, C. E. 8 ; 3 Co. 20 a,
Cornish, 1 Salk. 226, boraston's Case,
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328 PART II. CHAP, 11. THE LIMITATION OP FDTTJEE ESTATES.
additional words " or other sooner determination of the
term " (a).
Contingent re. The othor rulo resulting from the principle above
^TbefoS^or at stated is, — That a contingent remainder must become
tionofthepar- vested during the continustnoe of the particular estate or
at the instant of its determination. If not then vestedj
it fails altogether^ and the next limitation takes immediate
effect [b).
Examples, For example, if land be limited to A. for life or in tail
with remainder to the heir of B., and A, die or die with-
out issue before B., there is no person then ascertained
as heir of B. to take the remainder and it becomes void
of effect (c) . — Where land was devised to A. for life, and
after his death to the children of B., if he left any him
surviving, and A. died in the lifetime of B., the contingent
remainder to B.-'s children failed {d). — So if land be
limited to A. for life, remainder to B. for years, remaiuder
to the heir of B., the contingent remainder to the heir is
defeated by the death of A., and consequent determina-
tion of the particular estate of freehold, before the death
of B. and ascertainment of the heir (e).
It is sufficient that the remainder become vested at the
instant of the determination of the particular estate (/).
— Thus if land be limited to A. during the life of B. with
remainder to the right heirs of B., the death of B. de-
termines the particular estate and at the same time vests
the remainder by ascertaining the heir (g). — So, if land
be limited to A. and B. for their joint lives with re-
(a) Pearne, C. R. 21 ; Napper v. 248 ; Doe v. Morgan, 3 T. E. 763.
Sanders, Hut. 119 ; see Benning y. (d) Price t. Hall, L. K. 5 Eq.
Erabazon, 2 Lev. 45 ; Beverley v. 399 ; 37 L. J. C. 191.
Beverley, 2 Veru. 131 ; Ooodtitle (e) Doe v. Morgan, supra ; and
T. BurtensTiaw, Fearne, C. R. App. see Hole v. Escott, 2 Keen, 444 ; 4
I ; Sugden's note to Gilbert on M. & Cr. 187, the marginal note
Uses, p. 170. in the latter report does not state
(6) Fearne, C. B.., ch. iv. p. the limitations correctly.
3 07 (/) Fearne, C. R. 310.
(c) Co. Lit. 378 a ; Jenkins, (g) Co. Lit. 298 a.
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SECT. I. § 3. CONTINGENT EEMAINDEES. 329
mainder to the survivor (a). — Or if land be limited to A.
and B. during their joint lives, with remainder to the
heirs of him who shall die first (&). — So to A. in tail,
and if he die without issue leaving at his death, to
B (c).
An esception to the rule occurs in favour of posthumous Eieeption as to
children. It is enacted by the statute 10 & 11 Will. III. ffidre^"""
c. 16, that where any estate is settled in remainder to
children, any posthumous child may take in the same
manner as if born in the lifetime of the father.
This statute is declaratory of the law, for it is a general
rule that a child in ventre sa mere, who is afterwards
born, is to be considered as in existence for its benefit,
as for the purpose of inheriting, or of taking by purchase
or by devise under the description of a child or even of
a child " born ; " and so also for the purpose of prevent-
ing a gift over dependent upon its non-existence from
operating to deprive it of property {d).
But a posthumous child taking a remainder under the
statute becomes entitled to the intermediate rents and
profits of the lands settled from the determination of
the particular estate (e). A child in ventre sa mere be-
coming entitled by descent or by devise in defeasance of
the estate of an heir or residuary devisee is not entitled
to the intermediate rents accrued due before the
birth (/).
By the statute 8 & 9 Vict. c. 106, s. 8, it was enacted contingent re-
... . p mainder may
that a contmgent remainder existmg at any time after take effect not-
. withstanding de-
the 31st December, 1844, shall be capable of taking termination of
particular estate
by forfeiture, etc.
(a) Pearne, C. E. 9 ; Doe v. Tom- hentur quoties de ipsorum commodo
kinson, 2 M. & S. 165. agitur," see per Westbury, L. C, in
(S) Co. Lit. 378 h. Blasson v. Blasson, 2 D. J. & S.
(c) See ante, p. 325. 665 ; 34 L. J. C. 1.8.
{d) Butler's note (3) to Co. Lit. (e) Basset v. Basset, 3 Atk.
298 a ; Blackburn t. Stables, 2 V. 203.
& B. 369 ; Pearce v. Carrington, L. (/) Bichards v. BicTiards, Johns.
E. 8 Oh. 969 ; 42 L. J. C. 900 ; V54 ; 29 L. J. C. 836 ; re Mowlem,
" Mctione Juris pro jam natis Aa- 43 L. J. C. 353 ; L. E. 18 Eq. 9.
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330 PART II. CHAP. II. THE LIMITATION OF FDTtfEE ESTATES,
effect notwithstanding the determination, by forfeiture,
surrender, or merger, of any preceding estate of free-
hold, in the same manner, in all respects, as if such
determination had not happened."
Contingent re- Bcfore this enactment contingent remainders were
stroyedby'for- liable to fail by the determination, by forfeiture,
feituve, surren- t p , , -, . , • i , ,
der, or merger Surrender, or merger, oi the preceding particular estate
estate. of freehold before it had reached its prescribed term
of limitation ; and these means might be employed
for the purpose of defeating and destroying contingent
remainders.
A tenant for life might effect a forfeiture at common
law, to the extinguishment of his own estate and the
consequent destruction of contingent remainders ex-
pectant upon it, by making a, feoffment in fee (a) ; also
by levying a fine or suffering a recovery (6)
A tenant for life might also destroy the contingent
remainders expectant upon his estate by surrendering
his estate to the next vested estate in remainder (c) ; or
by acquiring to himself by purchase the next vested
estate in remainder {d) ; by which means his estate
which supported the remainders would become merged
and extinguished. And a merger might also be effected,
and the contingent remainders destroyed by the union
of the particular estate and the next vested remainder
by conveyance to a third person (e) .
But contingent remainders were not destroyed by
merger, where the inheritance became united to a
devisee of the particular estate by descent from the
testator (/) ; nor where the particular estate and the in-
(«) See ante, p. 57. {e) Egerion^.iIassey,ZC.'S.'S.^.
(b) Doe V. Hoioell, 10 B. & C. 338; and see Feai-ne, C. K., Gh.V.
191 ; Doe V. Gatacre, 5 Bing. N. 0. p. 316 ; as to ' Merger,' see post,
608. Part IV. Chap. IV.
(c) Thompson v. Zeaoh, 2 Salk. (f) Fearne, C. E. 341 ; Archer's
427 ; 2 Vent. 198. Case, 1 Co. 66 ; Plunket v. Solmei;
(d) Pv/refoy v. Rogers, 2 Wma. Eaym. 28, 1 Lev. 11
Saund. 380.
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SECT. I. § 3. CONTINGENT EEMAINDEES. 331
heritance were limited to the same person by tlie con-
veyance which interposed the contingent remainder {a).
Whilst contingent remainders were liable to fail by Trustees to pre-
such premature determination of the particular estate, ?emainders!^^°'
it was the practice, where it was required to settle a
particular estate for life with contingent remainders, (as
is usual in family settlements of land on parents for
life with remainders to their future children,) to limit an
estate to trustees and their heirs by way of remainder
upon the determination of the estate for life by forfeiture
or otherwise in the lifetime of the tenant for life, such
estate to continue during the life of the tenant for
life.
This estate of the trustees, being a vested remainder Estate of tms-
by reason of the possibility of the particular estate for
life determining during the lifetime of the tenant for
life, though uncertain as to ever coming into posses-
sion, was suificient to support the contingent remain-
ders (h) . And it was declared to be held upon trust for Trusts of the
the prior tenant for life and to preserve the contingent
remainders ; therefore any alienation or dealing with the
estate tending to the destruction of the remainders was
a breach of trust for which the trustees were respon-
sible, and which might also affect those claiming title
through them (c). In the absence of an express trust
for preserving contingent remainders, such a trust could
not be implied, even in a will, and the remainders were
destructible without breach of trust (d) .
The limitation to trustees to preserve contingent re- Trustees to pre-
serve contingent
mainders was rendered unnecessary by the above statute, remainders
"^ *' against the regu-
as agcainst the forfeiture, surrender, or merffer of the i'? di^'e™™"*;""
y \ f '-' or the particular
particular estate. But it may still be necessary or ^^t"'®-
(a) Fearne, C. E. 345 ; Bowles's v. Mansell, 2 P. Wins. 678 ; see
Case, 11 Co. 80 a. Biscoe v. Perkins, 1 T. & B. 485 ;
(h) See ante, p. 323. Fearne, C. 3 Mer. 456.
217, 326; Smith T. FacMurst, 3 {d) Collier v. Walters, 43 L.
Atk. 135, Willes, 327. J- C. 216 ; L. B. 17 Eq. 252.
(c) Fearne, C. R. 326 ; Mansell
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332 PART II. CHAP. II. THE LIMITATION OF PUTTJEE ESTATES.
expedient in some cases for preserving contingent re-
mainders against the regular determination of the
particular estate : — as in the case of a settlement on
A. for life, with remainder to the first son of A. who
shall attain twenty- one; to preserve which remainder
the estate of the trustees must be extended to cover
not only the life of A. but the possible minority of a
son after his death (a). — So in case of a limitation to A.
for life with remainder to the heir of B., in which case
the estate of the trustees must be extended to the life of
B. — So where the estate for life is determinable by a
conditional limitation, as where it is subject to a shifting
clause or proviso for cesser in a certain event, there must
be a vested estate in trustees to take effect upon such
determination in order to preserve contingent remainders
until the expiration of the life (5) . — So where it is re-
quired to limit contingent remainders upon a term of
years, a vested estate of freehold must be limited to
support them (c).
Contingent re- A Contingent remainder of copyhold was never liable
holds. to fail by the premature determination of the particular
estate by forfeiture or merger ; because, the freehold
remaining in the lord, the copyhold estate was not sub-
ject to the rules peculiar to the freehold which caused
the failure of contingent remainders, and the lord
was bound to admit to the tenancy according to the
limitations of the surrender. Hence trustees to preserve
contingent remainders were not required or employed in
the settlement of copyholds, as they were in freeholds,
to guard against the like dealings or casualties affecting
the particular estate [d).
(a) See 1 Jarnian on Wills, see further as to the necessity of
787. such limitation, Butler's note (c)
(5) See Lamlarde t. Peach, 4 to Fearne, C. E. 221.
Drew. 553 ; 28 L. J. C. 569. {d) See ante, p. 82 ; Fearne, C. E.
(c) See JEgerton v. Brownlow, 23 319, 320 ; Scriven on Cop. 401,
L. J. C. 348 ; 4 H. L. C. 1 ; and 404, 4th ed.
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SECT. I, § 3. CONTINGENT EEMAINDEES. 333
For tlie same reason a copyhold may be surrendered Must vest before
to the use of a person for an estate, freehold as to of particular
quantity, to commence in futuro or upon a contingency,
without a preceding vested estate to support it. But if
a copyhold be surrendered to uses in the form of a
particular estate with a contingent remainder, the re-
mainder must vest before or at the determination of the
particular estate, according to the rule of common law,
otherwise it cannot take effect as intended by the terms
of limitation (a) . A contingent remainder of copyhold Destroyed by
, , - n ^ ■ L ■ enfranchise-
may also be destroyed by an enirancnisement, conveying ment.
the freehold to the tenant of the particular estate ; for
the consequence is to extinguish that estate and destroy
the tenure (&).
If land be limited to a person for life with remainder Remainder to un-
to his unborn child or children, the land is thereby
rendered inalienable, by reason of the uncertainty as to
the owner, until a child is born in whom the remainder
may vest, or until the life estate is determined without
such child coming into existence ; and if the remainder
were limited to such child for life, it would, on becoming
vested, support a contingent remainder to the child of
such child, which would be inalienable until such latter
child came into existence ; and thus by a series of con-
tingent remainders for life estates to children of succes-
sive generations the land might be settled inalienably
for an indefinite period, if no rule of law intervened to
prevent it (c) .
{a) Scriven ou Cop. 404. dealing with such interest as if
(h) Doe T. Briggs, 16 East, 406 ; vested, which the owner upon the
see ante, p. 97. remainder becoming vested was es-
(e) All contingent remainders topped from contradicting. Contin-
were inalienable by direct convey- gent remainders were made alien-
ance at common law ; but if limited able by deed by the statute 8 & 9
to a certain owner they might be Vict, c 106, s. 6. Fearno, C. R.
released, or devised by Vill, and 366 ; see Crofts v. Middleton, 8 D.
were assignable in equity ; they M. & G-. 192 ; 25 L. J. C. 513 ; and
were also alienable by way of es- see ^o«< Part IV. Chap. I. 'Power
toppel, that is by a fine or deed of Disposition.'
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334 PART II. CHAP. II. THE LIMITATION 0¥ PtJTTJEE ESTATES.
Remainder to Such limitations are restricted by the positive rule of
child is Toid. law that a remainder cannot be limited to the issue of a
person unborn. A remainder may be limited to an unborn
child of a living person, who must come into being during
the continuance of the particular estate, but not to a child
or more remote issue of such child, for the vesting in such
case might be indefinitely postponed (a) .
Accordingly, where land has been limited in a series of
limitations such as follows : — To A. for life, with remain-
der to the first son of A. for life, with remainder to the
first son of the first son of A. for life, and so on, — under
which limitations, if allowed, the successive owners would
be non-existent for an indefinite period, and there would
be no power of dealing with their interests until they
came into being, — such limitations have in all cases been
held void beyond the first generation of unborn issue of
the first tenant for life (b) .
Eemainderto The remainder to the unborn child of a living person
Ufa. may be limited for life or other particular estate ; and the
further remainder may be limited over subject to the re-
striction of the above rule (o).
This rule is said to be derived from Coke's doctrine
(a) " In the case of a limitation of Dnie of Marlborough v. Earl Go-
lands in succession, first to a per- dolphin, 1 Eden, 404, 415.
son in esse, and after his decease to (b) See the hmitations in Sum-
Ma unhorn children, and after- herston v. Sumberston, 1 P. Wms.
wards the children of such unborn 332; Seaward -v. Willock, 5 East,
children, this last remainder is abso- 198 ; Beard ¥. Westcott, 5 Taunt,
lutely void ; and there is no carrying 393 ; 5 B & Aid. 801 ; Brooke v.
the estate to them, but by com- Turner, 2 Bing. N. C. 422 ; Trash
prising them in the extent of the v. Wood, 4 M. & C. 324.
estate limited to their parents, (c) Evans y.Astley,2'S\..'o2,i, per
namely, to the unborn children of Wilmot, C. J. ; per Kenyon, C. J.,
the person in esse ; that is, by giving 8 T. B. 86, in Sat/ v. Coventry, 1
such unborn children of the person East, 452, in Brudenell v. Elwes ;
m esse an estate tail." Fearne, C. Routledge v. Dorril, 2 Ves. jun.
E. 502 ; see Butler's note to Eearne, 357. The dictum of Buller, J.,to the
C. R. 565. Gilbert on Uses, by Sug- contrary, 2 T. E,. 253, in Robinson
den, p. 268; Siigden on Powers, y. Sardcastle ; &\sQ Hayes Y.Sayes,
393, 8th ed. and the authorities 4 Buss. 3lLl, are not law. Sugden
there cited ; 1 Jarman on Wills, 221, on Powers, 393, 8th ed. ; 1 Jarman
239 ; per Lord Kenyon, C. J. on Wills, 239.
Brudenell v. Elwes, 1 East, 442, 452 ;
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SECT. I. § 3. CONTINGENT EEMAINDEES. 335
that the contingency upon which a remainder may be
limited must be a common possibility^ and not a remote
possibility or a possibility upon a possibility ; a doctrine
whichj beyond being the alleged source of this rule, seems
to be of very doubtful meaning and application (a).
Hence it appears that the only mode of providing in a strict settlement
settlement of land for remoter issue than unborn children liJe'itith^rcmlin.
is by including them in the estate limited to their parents^ in tail.
that is, by limiting remainders to the unborn children in
tail, under which their issue will take, if not barred by a
disentailing deed of their ancestor. This form of settle-
ment, namely, to a person for life with remainder to his
children successively in tail, is commonly known as a
" strict settlement " (b) .
The remainder in tail may remain in contingency until Limits of dura-
the death of the tenant for life, and in the case of a post- aetSement.
humous child, during the further period of gestation. If
the tenant in tail be an infant at the death of the tenant
for life, he will not have power to bar his issue until he
has attained full age, and the land may thus be inalien-
able for a further period of twenty-one years. There-
fore the extreme time during which a settlement of
(a) !Fearne, C. R. 250; Butler's tion of a remainder to the child of an
note to Fearne, p. 565 ; see 2 Co. unborn child of a living person, if
51 a ; 10 Co. 50 b ; Co. Lit. 184 a ; expressly restricted to the Ufe of
per Lord St. Leonards, in Cole v. that person and twenty-one years
Sewell, 4 Dr. & War. 1, 32; 12 after, would he good. It would
Jurist, 927 ; 1 Sugden on Powers, also follow that all contingent re-
393, 8th ed. The learned author mainders after a particular estate to
of the work on Perpetuities ad- an unborn person, unless expressly
vanced the doctrine that remain- restricted to the period allowed by
ders are regulated by the same law, would be bad. Lewis on Per-
general rule against perpetuities pet. ch. xvi. and see Supplement,
which is applied to future uses and But the authorities lay down the
trusts and executory devises, namely, rule as stated above, simply that a
that they must be limited to take contingent remainder cannot be
effect withiri a life or lives in being limited to the chUd of an unborn
and twenty-one years after ; and person, without quahfication or
that the above restriction on the addition. The only other restriction
limitation of remainders is merely an being that it must vest pending the
application of the same rule. Ao- particular estate.
cording to this doctrine the Hmita- (6) Fearne, C. E.., 502.
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336 PART II. CHAP. II. TEtB LIMITATION OF PUTUEE ESTATES.
land may remain effectual under common law limitations
is during a life or lives in being at the time of the settle-
ment and twenty-one years afterwards^ with a pos-
sible extension during the gestation of a posthumous
child (a) .
cy pres doctrine Where a will devises in terms to the unborn child of a
of wills. person for lifoj with remainder to the children or issue of
such child, contrary to the above rule of law, but the
will manifests the general intention that the land shall be
descendible to the children and remoter issue in succes-
sion, it is in general construed to give an estate tail in
the unborn child to which, if not barred, his issue may
succeed instead of being absolutely excluded according
to the strict rule of law. Thus, a devise to the unborn
child for life, with remainders to his first and other sons
in succession in tail, with remainder to his daughters in
tail, will create an estate tail in furtherance of the general
intention ; so, if the remainders be confined to the sons
only, it will create an estate tail male. This construction
is founded on what is called the cy pres doctrine of
effectuating the testator^ s general intention «s 7iearly as
possible, where it is impossible to carry it out in the par-
ticular terms expressed (b) .
The cy pres doctrine is not applied where the general
intention appears of creating a succession of life estates
to the issue of the unborn person in perpetuity, and not
a descendible estate in such issue (c). — But words of dis-
tribution amongst the issue, as tenants in common, may
{a) See Butler's note to Fearne, Feame,C.R.204,and the cases there
C. B. 562 ; 2 Prideaux Conr. 179, cited ; Pitt v. Jackson, 2 Bro. C.
7th ed. " The words ' in strict settle- C. 51 ; 8 Ves. jun. 349; Sumler-
ment,' in their ordinary sense, im- ston v. Eumberston, 1 P. Wms.
port estates limited to persons who 332 ; Brooke v. Turner, 2 Bing. N.
arc liying, for Ufe, witli remainder C. 422; Trash v. Wood, 4 M &
in tail to unhorn issue." 1 Beav. Cr. 324.
71, in Douglas v. Congreve ; see (c) 1 Jarman on Wills, 263;
ante, p. 245. Seaward v. Willoch, 5 East, 198 ;
(I) 1 Jarman on Wills, 260 ; Somerville t. Lethhridge, 6 T. E.
Hawkins on Wills, 181 ; Prior on 213 ; see Mortimer v. West, 2 Sim.
Issue, 58 ; see Butler's note to 274.
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SECT. I. § 3. CONTINGENT EEMAINDEES. 337
be rejected in furtherance of the general intention of
giving an estate tail (a) .
It does not apply where the estate of the ancestor is Limits of appu-
limited for a term of years only^ as for a term of ninety- doctrine,
nine years if he shall so long live (6) ; nor does it apply
as to persons born after the date of the will in the testa-
tore's lifetime, though as to others in the same class of
unborn children, to whom and whose issue the devise is
made, it may still apply (c) ; — nor does it apply where
the remainder over is restricted to some only of the issue
of the unborn tenant for life, as a first son only exclusive
of the rest {d) .
It does not apply to personal estate or chattels real (e) ;
and it has never been applied to the construction of
deeds (/).
The doctrine applies to appointments by will under AjjpUed to ap-
, -, ^ . 1 ■ p 1 pointmenta by
powers; and under such appointments There is farther wiu under
1 • 1 n • 1 1 • -I powers.
occasion for applying the doctrine where the remainders
are void, not on the ground of perpetuity, but as being
in excess of the power {g).
The limitation of a contingent remainder, as it Contingent re-
. . mainder for life
conveys no estate, but only a possibility of an estate m or in tail with
•^ _ . ... vested remain-
a future event, does not interfere with the limitation ^ler-
of the freehold subject to the contingency. Thus, a
contingent remainder for life or in tail may be followed
by the limitation of a vested remainder ; and such vested
remainder will give place to the contingent remainder
upon its becoming vested during the continuance of the
particular estate. As if land be limited to A. for life,
(a) put V. Jachson, 2 Bro. C. C. M. & G. 145 ; 22 L. J. C. 313.
51 ; VanderplanlcY. King, 3 Hare, (e) Routledge v. Dorril, 2 Ves.
1 ; see ante, pp. 178, 185. jim. 357.
(S) SomerviUe v. Lethhridge, 6 (/) Brudenell v. JSlwes, 1 East,
T. B. 213 ; Beard t. Westcott, 5 442 ; 7 Ves. 390.
Taunt. 393. (g) Sugden on Powers, 498, Sth
(c) Vanderplank v. King, 3 ed. ; see jposi, p. 418; FittY.Jack-
Hare, 1. son, 2 Bro. C. 0. 51; Griffilh v.
(d) Monypenny v. Dering, 2 D, Harrison 3 Bro, 0. C. 254.
7,
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338 PAET II. CHAP. II. THE LIMITATION OF FUTURE ESTATES.
Contingent re-
mainder in fee.
Alternative con.
tingent remain-
ders in fee.
Contingent re-
mainder in fee
with Tested re-
mainder.
with remainder to his first and other sons successively in
tailj with remainder to B. for life^ with remainder to his
first and other sons successively in tail, with remainder
over {a).
The law is stated by Fearne, with reference to convey-
ances at common law, that " where there is a contingent
limitation in fee absolute, no estate limited afterwards
can be vested " ; but two or more several contingent re-
mainders in fee may be limited as substitutes or alterna-
tives one for the other, so that one only take effect, and
every subsequent limitation be substituted for the former
if it should fail of effect (6) .
But " where a remainder of inheritance is limited in
contingency by way of use, or by devise, the inheritance
in the meantime, if not otherwise disposed of, remains in
the grantor and his heirs, or in the heirs of the testator
until the contingency happens to take it out of them "(c).
And it has further been decided that upon a devise
of a contingent remainder in fee, the fee subject to the
contingency will pass as a vested remainder under the
will by a specific or residuary devise [d).
Limitations
united subject
to intervemng
remainder.
Where the particular estate and ultimate remainder are
limited at the same time to the same person, though they
(a) Fearne, C. E. 222; Chud-
leigh's Case, 1 Co. 120 a.
Qt) Fearne, C. E. 225, 373, and
the oases there cited ; Lodding-
ton T. Kime, 1 Salk. 224; 1 L.
Eayra. 203; Doe v. Elvey,4,'Kast,
313 ; Doe T. Ford, 23 L. J. Q. B. 53.
(c) Fearne, C. E. 351, and cases-
there cited ; Purefoy v. Rogers, 2
Wms. Saund. 380 ; Doe v. Scuda-
more, 2 B & P. 289 ; and in com-
mon law conveyances " there seems
to be no reason why the fee does
not remain in the grantor and his
heirs till the contingency happens."
2 Wms. Saund. 382.
(rf) Eqerton v. Massey, 3 C. B.
N. S, 338; 27 L.J. C. P. 10, and
see JPerceval v, Perceval, L. E. 9
Eq. 386. The case of Egerton v.
Massey seems to render doubtful
the proposition of Fearne above
stated, that where there is a con-
tingent remainder in fee no vested
remainder can he limited. In that
case there was a devise for an
estate for life, with a contingent re-
mainder in fee, and a residuary de-
vise ; and it was held that the
residuary devise passed the vested
remainder in fee, and that conse-
quently by a subsequent union and
merger of the estate for hfe in such
vested remainder, the contingent
remainder was destroyed. Wilhams,
J., there said, " It is clear that the
notion of the fee being in abeyance
cannot now be sustained."
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SECT. I. § 3. CONTINGENT KEMAINDERS. 839
may become united by the doctrine of merger or under
the rule in Shelley's case for most purposes, they do not
exclude intervening contingent remainders from taking
effect upon the happening of the contingency during
the particular estate ; — as if land be limited to A. for life,
with remainder to the first and other sons of A. succes-
sively in tail, with remainder to A. in fee, the limitations
unite in A. until the birth of his first son, when the con-
tingent remainder becomes vested and divides them (a).
So, if there be several contingent remainders, a sub- several
1 . -, T {■ T contingent re-
sequent one, may become vested beiore a preceding one mainders.
but subject to giving place on the preceding one becoming
vested during the particular estate which supports it (b).
Where a contingent remainder is followed by other continEency
limitations a question of construction may arise, whether ^uent'iimita-
the contingency aifects the first estate only or extends to
the subsequent limitation^ (c).
Upon the general principle of construction in favour construction of
f ,1 j_' r 1^ 1. • -\ • 1 ^ remainders as
01 the vesting or estates, a remainder is never construed vested or con-
as contingent if it can be taken as vested. — Words of wS of con-
futurity or contingency are prima facie referred to the to posaession
commencement or duration of the estate in respect of vesting,
possession, and not to the vesting; as in the simple
case of a limitation to A. for life and after his decease to
B., the estate of B. is not contingent upon B. surviving
A., but is an immediately vested remainder {d) .
So, in the case of limitations expressed to be w cZe/awtt Limitations over
., . . in default, for
of, ov for want of, or upon failure of, the objects of prior '"'»."«. «'=■.. of.
limitations, such expressions are primd facie referred to limitation.
the determination or failure of the prior estates limited
and not to the failure of the objects to whom they are
limited, and are commonly employed merely to carry on
the series of limitations in the sense of the word remain-
{a) Fearne, C. R. 36, 222, 345 ; (e) Fearne, C. E. 233 ; 1 Jarman
Bmoles' Case, 11 Co. V9 b ; and see on Wills, 752 ; Doe v. Ford, 23
ante, pp. 380, 331. L. J. Q. B. 53.
{b) Fearne, C. K, 224. {d) See mie, pp. 238, 325.
Z2
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340 PART II. CHAP. II. THE LIMITATION OP FUTURE ESTATES.
der ; — for example, if land be limited to A. for life, and
after his decease to the first and other sons of A. for life
or in tail and in default o/such sons or on failure of such
issae to B., the estate of B. is not contingent upon A.
not having a son or issue, but is a vested remainder ex-
pectant on the determination of the prior estates, by the
death of the sons or failure of issue (a) . — If in such case
the remainder be limited in default of sons or failure of
issue in the lifetime of A. or of B. or other definite
period, it is then contingent upon such events happening
and the consequent determination of the prior estate
within the prescribed period {b).
Devise to widow A strong example of this principle of construction
with de-rise over occurs whcro a testator devises to his widow an estate for
upon marriage, t-p j , ■ i i -i • • -j.! i •
lite' aetermmable upon her marrying again, with a devise
over if she shall marry again ; the devise over is construed
to give a vested remainder expectant upon the determina-
tion of the widow's estate, whether by marriage or death,
and not a remainder contingent only upon her mar-
riage (c) . But a devise to the testator's widow absolutely
for life, with a devise over in the event of marrying again
does not admit of such construction, and the devise
over is not a remainder but an executory devise ; it
cuts short the preceding limitation, and does not foUow
upon it {d).
Eemaiuder con- TJpon the Same principle remainders are construed to
strued to vest as , mi i*p j_n j. t
soon as possible, vest as soou as possiblo ; and II once vested cannot be
divested under the same limitation so as to admit of
another person in substitution of the person in whom it
has vested (e). Thus, a devise to A. for life with re-
(a) See 1 Jarman on Wills, 728, (c) See ante, p. 219 ; 1 Jarman on
and cases there cited ; Hodgson v. Wills, 731 ; Gordon v. Adolphus, 3
Ambrose, 1 Doiigl. 337, " the words Bro. P. C. 306.
for want of such issue mean the {d)Vo,; see post, p. 360; Shej^eld
same thing as after such estate t. Lord Orrery, 3 Atk. 282.
tail." lb. p. 340. (e) Driver T. Frank, 8 M. & S.
(I) See Fearne, C. R. 430 ; see 25, 32, 37 ; Doe v. Perratt, 5 B &
ante, p 335, Q. 48 ; 10 Bing. 198.
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SECT. I. § 3. CONTINGENT EEMAINDEES. 34l
mainder to his second and otter sons successively in tail,
(excepting the first or eldest son,) A. then having no
sons, was held not to give a contingent remainder to such
person as should be the second son of A. at his death,
but to the second son born, living an elder, who took on
his birth an immediately vested and indefeasible re-
mainder (a). — So, an ultimate remainder in a will to the
testator's heir is construed as vesting at the death of the
testator, and not as contingent to the person answering
the description of heir at the determination of the par-
ticular estates {b).
A modification of the above principle of construction Eemajnder to a
. , .-,,..-, , f, ' clasa vesta in all
occurs With a remainder limited to a class oi persons, as ascertained at
-,-, -^.^^ . . determination of
chilaren, grandchildren, issue, brothers and sisters, particular estate.
cousins and the like, which, though vested, as soon as an
object of the limitation can be ascertained, in that object,
admits of other objects participating who become as-
certained before or at the determination of the particular
estate (c). Thus, if land be limited by settlement or
will to A. for Hfe, with remainder to his children, or to
the children of B., the remainder is vested in all the
children in existence when the instrument takes effect,
or it becomes vested as soon as any come into existence ;
(a) Driver v. Frank, supra, and ever, to be particularly noted that
see a like construction in Adams v. this exception does not go to the
Bush, 6 Bing. N. C. 164. extent of postponing till the death
(S) Doe V. Maxey 12 East, 589 ; of A. the period for ascertaining
Wrightson v. Macaulay, 14 M. & W". the persons answering tlie descrip-
214 ; see ante, p. 161. tion, so as to include only those who
(o) " An exception is made to answer the description at the death
this general rule in the case of a be- of A. The children living at the
quest to A. for life, and after A.'s testator's death stiU. take, and they
death to the children of B. ; for in take vested interests transmissible
such case all the children of B. who to their representatives, subject only
come into existence before the death to be divested pro tanto, in order to
of A. are let in to share. But this let in others of the same class who
exception is founded on a special may be born during A.'s life." Per
reason, namely, the desire of the Kindersley, V. C, in Lee v. Lee, 1
Court to let in as many of the Dr. & S. 86 ; 29 L. J. C. V88 ; and
cliildren as possible, upon the as- see Baldtoin v. Mogers, 3D. M. &
sumption that such would be the G-. 649 ; 22 L. J. C. 665 ; Aylwin's
desire of the testator.— It is how- Trusts, h. K. 16 Eq. 585.
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342 PART II. CHAP. II. THE LIMITATION OP PUTITBE ESTATES.
Remainder to
children who
shall attain 31.
but it is subject to divesting fro tanto in favour of other
cMldren as tbey come into existence until the death of
A., when the estate comes into possession^ and no after
born children can participate (a).
If land be limited to A. for life^ with remainder to such
of the children of A. as shall attain twenty-one^ the re-
mainder is contingent upon children attaining twenty-
one in the life of A. and vests in such children only (&).
— In some cases the construction of the contingency as
to age may be such as only to render the estates of the
children defeasible upon not attaining the age (c).
§ 4. The Rule in Shelley's Case.
The Eiule stated — appKcation of the rule — where the remainders
are contingent.
Kemainder to heir as purchaser — remainder to heir with addi-
tional words of limitation.
Estate of freehold in ancestor — estate pur autre vie — estate de-
terminable by conditional limitation — estate for years.
Limitations in separate instruments.
Limitations of estate pur autre vie — of term of years — lease for
life with remainder to executors for term of years.
The rule in
Skelley^a Case
stated.
Limitations in the form of remainders to the heirs, or
to the heirs of the body, or in other terms designating
persons taking in a course of descent^ which taken
alone would create a contingent remainder in the person
answering to such designation, are modified in efiect by
the special rule of law known as the Rule in Shelley's
Case.
This rule, in its simplest form, has been already re-
ferred to ; it may be stated in more general terms as
(a) See 2 Jarman on Wills, 75 ;
Hawkins on WiUs, 71 ; Fearne,
C. R. 312, and cases there cited.
(S) Festing v. Allen, 12 M. & W.
279 ; 5 Hare, 573 ; Holmes v. Pres-
cott, 33 L. J. C. 264 ; Perceval v.
Perceval, L. E.. 9 Eq. 386.
(e) See Browne t. Browne, 3
Sm. & &iif. 568 ; 26 L. J. 0. 635 ;
and see ante, p. 239, pott, p. 367.
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SECT. I. § 4. THE EULE IN SHELLEy's CASE. 343
follows : — If an estate of freehold be limited to a person,
and by the same deed or instrument an estate be limited
in the form of a remainder, whether immediately ex-
pectant on the former estate or after other estates in-
terposed, to " the heirs " or to " the heirs of the body "
of the same person, the words " heirs " or " heirs of the
body " are words of limitation of an estate of inheritance
in the ancestor, and the heirs can take only by descent
and not as purchasers (a).
Thus, limitations in the form, to A. for life and after Application of
his decease to his heirs, or with remainder to his heirs, are
equivalent to the limitation to A. and to his heirs which
denotes a fee simple in A. (&) ; — so a limitation to A. for
life and after his decease to the heirs of his body, is
equivalent to the limitation to A. and to the heirs of his
body, and denotes an estate tail (c) .
And if there be an intermediate estate interposed wiere there are
between the freehold estate and the limitation to the mamdera.
heirs, as 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., the latter limitation vests the remainder in A.,
and is equivalent to a limitation of the remainder in the
terms to A. and to his heirs or to A. and to the heirs of
his body ; and in such cases the heir can take nothing ex-
cept by descent from A. [d).
If the limitations intervening between the preceding intermediate
freehold and the subsequent limitation to the heirs or heirs SSndlr™ '°'
of the body are contingent, they are not destroyed by the
rule ; but, as long as there are no vested remainders in-
tervening, the two limitations are united in the ancestor,
[a) See ante, p. 34 ; 1 Co. 104 a, to Wills, see post, p. 357.
Shelley's Case ; Co. Lit. 22 h, 319 (h) See ante, pp. 157, 160.
h, 376 h; Butler's note (1) to Co. \c) See ante, pp. 171, 176; and
Lit. 376 h ; Hargrave's Law Tracts, see Pearne, C. E.. 28, 29.
551, " Obs. on the Rule in Shelley's {d) Pearne, C. B. 29 ; lb. 76
Case" ; and see Blackstoue's Argu- commenting on Douglas, 506 (note);
ment in Perrin v. Blake, lb. 489 ; Coulson v. Coulson, 2 Atk. 245 ; 2
- C. 1 W. Bl. 672 ; 4 Burr. Str. 1125 ; see Doe v. Welford, 12
A. & E. 61.
2579 ; as to the application of the
rule to Uses, see post, p. 349 ; and
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344 PAET II. CflAP, II. THE LIMITATION 01* FUTtJBE ESTATES.
Contingent re-
mainder to heirs.
subject to admitting the intervening limitations to take
effect, if they become vested during the continuance of
of the preceding freehold [a)
The rule applies, where the remainder is limited to the
heirs or heirs of the body of A. upon a contingency ; as
upon limitations to A. for life, and if A. die before B., to
the heirs of A., — or to A. and B. during their joint hves,
with remainder to the heirs of him who dies first, — in
such case A. takes the contingent remainder in fee, and
the heir takes nothing except by descent (&).
Remainder to
heirs as pur-
chasers.
Heirs with ad-
ditional words
of limitation.
The word " heir," however, may be used in a context
or with an additional description rendering it incapable
of being construed as a word of limitation, as in a limita-
tion to the " heir male " or to the " heir now living " ;
and it must then be taken as a word of purchase giving
a remainder, contingent or vested, to the person so
designated (c).
But the import of the words ' heirs ' or ' heirs of the
body ' as words of limitation within the rule is not
affected by the addition of other words of limitation not
altering the course of descent ; thus, a limitation to A.
for life, with remainder to the heirs male of the body of
A. and the heirs male of the body of such heirs male,
vests an estate tail male in A. by force of the rule ; the
additional words of limitation being construed as de-
claratory only, and not restrictive of the former (d) .
Estate of free- The rulo applies where the ancestor takes any par-
holdinthean- . n n ^ t -i r. tp
cestor,— ticular cstato 01 freehold, as an estate for life, or an estate
imr autre vie, tail (e) — Or an ostato pur autre vie (/). — So, it applies
lie, p. 339 i Fearne, C.
Bowles' Case, 11 Co.
(a) See a
K. 36, 346.
79 i.
(6) Pearne, C. E. 34; Co, Lit.
378 b ; Perkins, s. 387 ; see Crofts
T. Middlefon, 8 D. M. & Q. 192 ;
25 L. J. C. 513.
(c) See ante, pp. 158, 162, 179.
{d) Shelley's Case, 1 Co. 93 ; see
ante, p. 177 ; Wright t. Fearson, 1
Eden, 119.
(e) Lit. 8. 719 ; Co. Lit. 376 5 ;
Goodnght v. Wright, 1 P. "Wms.
397.
(/) Perkins, a. 337 ; Feai-ne, 0.
11.31.
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SECT. I. § 4. THE BULE iN SHILLEt's CASE. 345
though the preceding estate of freehold be determinable Determinable
by a conditional limitation, as an estate during widow-
hood {a).
Accordingly, if there be a limitation to A. during the
life of B.J or to A. during widowhood, with remainder to
the heirs or to the heirs of the body of A., the limita-
tions unite under the rule in A., who takes a fee or fee
tail in possession, notwithstanding the particular estate
of freehold be limited to determine by possibility in the
lifetime of A. ; — and in such cases if there were inter-
mediate remainders interposed between the freehold and
the limitation to the heirs, A. would take a vested re-
mainder in fee or in tail (b) .
But the rule does not apply if the ancestor take only Estate for years
an estate for years and not a freehold estate. The sub-
sequent limitation to his heirs or to his heirs of the body
does not then vest any estate in him, and can operate only
by way of purchase to the heir designated ; because by
the common law a term of years or chattel interest does not
affect the limitation of the freehold title subject to it (c).
In such case if the limitation to the heirs be preceded
by an estate of freehold in another, it may be good as a
contingent remainder to the person answering the de-
scription of heir ; as, if land be limited to A. for years,
with remainder to B. for life, with remainder to the heirs
of A., there is a contingent remainder to the heir of A.,
who will take in the event of A. dying before the deter-
mination of B.'s estate {cT). But if it be not preceded
by an estate of freehold it is wholly void (e) .
The rule does not apply to limitations by separate in- Euie not appUed
, , ^ \ 1 • , i_ f IT -j-i to limitations in
struments ; — as where A. being tenant tor lite, with separate instru-
remainder to the heirs of B., afterwards granted his
(a) See ante, p. 219 ; Curtis v. (c) See ante, p. 49.
Price, 12 Vee. 89. (d) See ante, p. 327 ; Co. Lit.
(S) Fearne, 0. R. 30-34 ; Per- 319 b ; Pearne, C. E. 50, 51 ; Coape
kins, ». 837 ; Curtis v. Price, v. Arnold, 4 D. M. & G. 574.
supra. («) See ante, p. 49.
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346 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES.
estate to B., who thereby became tenant for the life of A.
with remainder to his own heirs, and it was held that
the remainder did not unite with the freehold of B., but
remained to his heir in contingency (a) . So where a father,
seised in fee, settled the land on his son for life, retaining
the reversion in himself, and afterwards by his will,
reciting that he had settled the estate on his son for life,
devised the same after the son's death to the heirs of his
body ; it was held that the estate for life being by one in-
strument and the limitation to the heirs by another could
not unite, and the latter took effect as an executory
devise to the heir (ft). — A will and a codicil or schedule
to it are considered as one instrument within the
rule (c).
An apparent exception to the rule requiring the limita-
tions to be in the same deed or instrument occurs where
uses appointed under powers may be taken as if inserted
in the instrument creating the power (d).
Ettie not appued The rule only applies to the limitations of estates of
to limitations of -i*. tt-j- • ,i -i
estate pur autre inheritance, in limiting estates pur autre me the words
vie.
" heirs," or "heirs of the body," must be construed ac-
cording to the nature of the estate, and become merely
a designation of the person to take as special occupant
in case of a vacancy on the death of the grantee before
the determination of the estate (e) .
Limitations of If a term of year's be limited, by way of trust or execu-
term of years. ^ ... . .
tory bequest, to A. for life with remainder to his heirs
or to the heirs of his body, these words are, in general,
taken as analogous to words of limitRtion and not as
words of purchase, and vest the whole term in
(a) 2 Leon. 7 ; Fearne, C. R. 71. 698. See Coape v. Arnold, 4 D.
(J) Fearne, C. K. 71. Doe r. M. &G. 574; 24 L. J. C. 673.
Fonnereau, Dougl. 48 7, and cases (d) Fearne, C. K.. 74 ; see post,
there cited ; see per Kenyon, C. J., p. 376.
5 T. B. 95, in JSabergJiam v. Vin- (e) See ante. p. 193; Fearne, C.
cent ; S. C. 2 Tes. jun. 204, 235. R. 495 ; Williams T. JeTcyl, 2 Ves.
(c) Hayes v. Foorde, 2W. Bl. sen. 681.
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SECT. I. § 4. THE EtJLE IN SHELLBY^S CASE. 347
A. (a). — Accordingly, if a testator devise real and per-
sonal estate to A. for life and after his death to the heirs
of his body, A. becomes tenant in tail of the real estate
and takes the personal estate absolutely (b) . — So, if the
limitation be to A. for life and after his death to his issue,
A. takes the absolute interest (c) .
But if the limitation over be made to heirs or issue of To heirs, etc.,
a restricted or particular kind or designation, or for par-
ticular estates inconsistent with the import of such words
as words of limitation, or if there be other suflBciently
marked intention that they should take as purchasers,
the rule will not apply; and the limitation to the
heirs or heirs of the body can operate only by way of a
future trust or executory bequest of the term to them
as purchasers (d).
By analogy to the rule in Shelley's case, "If a man tease for life
make a lease for life to one, the remainder to his executors to executors tor
for twenty-one years, the term for years shall vest in him ; °™'' ^''^°'
for even as ancestor and heir are correlativa as to in-
heritance, (as if an estate for life be made to A. the re-
mainder to B. in tail, the remainder to the right heirs of
A., the fee vesteth in A. as it had been limited to him and
his heirs,) even so are the testators and the executors
correlativa as to any chattel. And therefore if a lease for
life be made to the testator, the remainder to his executors
for years, the chattel shall vest in the lessee himself,
as well as if it had been limited to him and his ex-
ecutors " (e).
(a) See ante, p. 202 ; Feame, C. Britton v. Twining, 3 Mer. 176.
E. 490 ; 2 Jarman on Wills, 489, (e) 2 Jarman on Wills, 494 ;
490; TheebridgeY. Kilburn,2'VeB. JU.-&en.Y. BrigJit, 2 Keen 57.
sen. 233 ; Garth v. Baldwin, 2 Ves- {d) 2 Jarman, 497, 498 ; Fearne,
sen. 646 ; Barl Verulam t. Bath- 0. R. 492 ; see ante, pp. 177, 184.
mrst, 13 Sim. 374. (e) Co. Lit. 54 b ; but see Cran-
(b) Garth v. Baldwin, supra, " a mer's Case, 3 Leon. 20 ; Dyer, 309 a,
limitation of personal estate to one where a distinction was made as to
for life and the heirs of his body, limitations in the above form by
Tests absolutely, whether so intend- way of use, and it was held that the
ed by the testator or not." per executor (if any) took by purchase.
Hardwicke, L. 0. lb. p. 661. See The old cases upon the construction
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S48 PART II. CHAP. il. O^HE LIMITATION OJ P0TUED ESTATES.
Remainder to
next of kin.
Accordingly where the trusts of personal estate were
limited to A. for life^ subject to a conditional limitation
determining his estate upon bankruptcy, and after the
death of A. to his executors and administrators, it was
held that A. took the absolute interest, subject only to the
condition (a). The rule also applies, if the remainder
be limited "to the personal representative" of A. (&).
" But there is a great difference between a limitation
to the executors and administrators and a limitation to the
next of kin. The former is, as to personal property, the
same as a limitation to the right heirs, as to real estate ;
but a limitation to the next of kin is like a limitation to
heirs of a particular description, which would not give
the ancestor, having a particular estate, the whole
property in the land. The meaning of 'next of kiri''
must be those who answer the description at the time of
death." Accordingly, the limitation of trusts of per-
sonalty for life with ultimate remainder to the next of kin,
gives an interest for life only, and the next of kin at
death take the interest in remainder (c).
of such limitations are very con-
tradictory ; they are exhaustively
collected and discussed in Williams
on Ex. 584-589, 4th ed. Accord-
ing to Dyer, C. J., in Oranmer's
Case, " If land be leased to A. for
life, the remainder for years to his
heirs, the remainder for years is in
abeyance until the death of the
lessee, and then it shall rest in the
heir as a purchaser."
(a) TTebb v. Sadler, L. R. 8 Ch.
419; 42 L. J. C. 498 ; "A gift to
A. for life, and after his death to his
legal personal representative, ia a
vaUd absolute gift to A." Per
James, L. J. lb. See JVeii v.
Harl of Shaftesimy, 3 M. & E.
599 ; London Chartered IBanlc of
Australia v. Lempriere, L. Er. 4 P.
C. 572 ; 42 L. J. P. C. 49.
(S) Besfs Settlement, 43 L. J. C.
645.
(c) Anderson v. Dawson, 15 Ves.
532, seeper Grant, M. E,. lb. p. 536.
As to a gift to '* executors and ad-
ministrators " meaning to next of
kin, see Palm v. Hills, 1 M. & £.
470 ; Wehh > . Sadler, supra.
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SECT. II. FUTUEB USES. 349
Section II. Pdtuee Uses.
Future uses limited as remainders — application of the rule in
Shelley's case.
Springing and shifting uses — examples of springing uses — examples
of shifting uses.
Resulting use until springing use takes effect— construction of
limitation to the use of the heirs of the body of the
grantor — limitation to the use of the heirs of the body of
another.
Future use after preceding estate construed as a remainder
if possible — limitation which cannot take effect as a re-
mainder.
Future uses limited by way of remainder expectant Future uses
upon a particular estate are reduced by the statute of mainders.
Uses into precisely the same position as common law
limitations in the same terms, and are subject to the rules
of the common law regulating remainders. Accordingly,
in the limitation of uses a contingent remainder of free-
hold requires a particular vested estate of freehold to
support it ; and it must vest before or at the determina-
tion of the particular estate (a) .
The rule in Shelley's case applies to limitations of the Application of
use by way of remamder to heirs or to heirs of the -
body, after a prior limitation of the use for a freehold
estate to the ancestor, in the same manner as it applies
to limitations of the freehold at common law (6). — And
(a) See ante, p. 112; 1 Co. 130 mains in the feoffees." Fearne, 0. E.
a, 135 a, Chudleigh's Case ; Sug- 284.
den's note to Grilbert on Uses, 164 ; (J) See ante, p. 342 ; Bacon on
Sugden on Powers, 34, 8th ed. Uses, 62, Eowe's ed. note (e) ; " If
" Before the statute of Uses, if there A. make a feoffment in fee to the use
had been a feoffment to the use of of B. for life, and after to the use of
A. for years, remainder (of the use) C. for life or in tail, and after to the
in contingency, the contingent use useoftlie right heirs of B., B. hath
would have been good, for the fe- the fee simple in him (in remainder)
offees remained tenants of ttie legal as well where it is by way of limita-
freehold ; but since thac statute it is tion of use, as when it is by act
otherwise, for now no estate re- executed." Co. Lit. 319 J.
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350 PAET II. CHAP. II. THE LIMITATION OP ITJTUKE ESTATES.
the rule in Shelley's case has an extended application to
uses by reason that the ancestor may in certain cases take
a particular estate of freehold by implication without ex-
press limitation (a).
But the application of the rule is confined to future
uses which are limited by way of remainder to arise upon
the determination of the preceding estate, and is not
extended to those uses, presently to be noticed, which
take effect in substitution of the prior use and not as
remainders (&).
Springing and
shiiting uses.
A limitation of the use may be made for a freehold
estate to commence in fiituro, without any preceding
limitation ; also a limitation of the use may be made to
take effect in defeasance or substitution of a preceding
limitation, and not by way of remainder expectant upon
its determination. Such limitations of the freehold at
common law were void as placing the immediate free-
hold in abeyance, or as shifting the freehold without any
act or ceremony ; but as limitations of the'use they were
valid before the statute, and by force of the statute are
executed as legal estates (c).
Uses of .this kind, are called springing or shifting
uses : — The term springing uses being applicable to those
that arise without any preceding limitation of the use ;
— and the term shifting uses being applicable to those
which take effect in substitution or defeasance of other
uses previously limited {d) .
Examples of Bxamples of springing uses occur, — upon a bargain
springing Haes. ^^^ ^^^^ ^^ anothor after seven years (e), or after the
(a) Pi/ius V. MUford, 1 Mod.
159 ; 1 Ventr. 372 ; see post,
p. 353.
(b) Fearne, C. E. 276.
(c) Ante, pp. 47, 113 ; 1 Sanders
on Uses, 136.
(d) Sngdeu's note to Gilbert on
Uses, p. 152 ; Sugden on Powers,
26, 8th ed. Springing or shifting
uses, which are left, to future ap-
pointment, are known as Powers,
and are treated hereafter in a sepa-
rate section. See ante, p. 114 ; and
post, p. «}74.
(e) Bacon on tJses, 63 ; Howe's
note (i), lb.
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SECT. II. FUTUEB USES. 351
death of tke bargainor, or upon any other specified
future event (a). — Also upon a covenant to stand seised
to the use of another after the covenantor's death, or
to the use of the heirs or heirs of the body of another
after his death (&).
So upon a conveyance operating to transfer the legal
estate, with a declaration of the use to A. and his heirs
after four years, or after the death of the grantor, or to
the use of the heirs of A. after the death of A., such
uses are good springing uses (c). But though the uses
are deferred, the conveyance of the seisin to serve the
uses must be immediate, because a freehold cannot be
conveyed in futuro by any mode of conveyance operating
only at common law {d) . '
Examples of shifting uses occur, — if land be conveyed Emmpies of
to the use of A. and his heirs, and if B. should pay him ^^ '"^mentor
a certain sum, then to the use of B. and his heirs; — or ^™"P';3'™™' °'
to the use of A. and his heirs, and if he should not pay
a certain sum of money to B. at an appointed time,
then to the use of B. and his heirs ; — the uses limited to
B. are good shifting uses, which arise and vest in defea-
sance of and substitution for the estate previously vested
in A. (e) .
A common example of shifting uses occurs in marriage on marriage,
settlements, where the uses are declared to the settlor
and his heirs until the marriage, and from and after the
marriage to the uses of the settlement (/) .
Where the uses are declared to A. and his heirs, and q„ f^^ii^^g „f
in case of failure of his issue at his death, or if he should "'""'■
(a) Osman v. Sheafe, 3 Lev. 370 ; Tranmer, 2 Wils. 75.
Parsons v. Mills, 2 Roll. Abr. 786. (e) Sanders on Uses, 144 ; Pearne,
(i) Sanders on Uses, 137 ; pel- C. K. 274.
Hale, C. J., in Pylus v. Mitford, 1 (/) Hayes Cony. 55 n (47).
Mod. 98 ; 1 Ventr. 872 ; Roe T. Where the intended marriage was
Tranmer, 2 Wils. 75. illegal, it was held that the sub-
(e) Dailies v. Speed, Salk. 675 ; sequent limitations did not take
12 Mod. 39, per Holt, 0. J. ; San- effect upon the solemnizjtiou of it.
ders on Uses, 137. Chapman t. Bradley, 33 Bear, 61 ;
(d) See ante, p. 117; Roe r. 33 L. J. 0. 139.
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352 PAET II. CHAP. II. THE LIMITATION OF FUTUEE ESTATES.
die without issue in the lifetime of B., or upon failure of
his issue within any other definite period (not being too
remote), then to other uses, the uses over are good shift-
ing uses defeating the fee previously limited to A. But
a limitation over upon the failure of issue of A. indefi-
nitely would be void for remoteness ; it is therefore con-
strued as restraining the word heirs in the prior limita-
tion to mean the heirs of his body only ; and the
limitation over then takes eS'ect as a remainder after
the estate tail of A. {a).
On snooeeding to Where estates are limited in a settlement with a
o^^er ea a es, £ijj.gQJ;iQjj {;]j^{; {j^ Certain specified events, they shall
cease and go over to the use of other persons ; as if
the tenant in pos'session under the settlement shall be-
come entitled or succeed to some other settled estate, or
title (b) ; — or if he shall refuse or neglect to take the
name and arms of the settlor (c) ; — or if he shall refuse
or neglect to reside upon the estate {d) ; — the limita-
tions over in all such cases operate by way of shifting
uses (e).
Resulting use Whero a future use is limited as a springing use with-
use take^eifeft. 0^^ ^^7 preceding limitation of the use, whether in a
conveyance operating with or without transmutation of
possession, the whole use results to or remains in the
grantor, until the springing use takes effect to displace
it. The springing use thus operates upon the resulting
use in the same manner as a shifting use does upon 'the
preceding limitation (/). The use cannot remain in or
(») See ante, p. 170, 181 ; post, 1 Jarman on Wills, 848.
Sect. V. ' Rule against Perpetui- (d) See Jolmson t. Foulds, L. E.
ties,' p. 445. 5 Eq. 268 ; 37 L. J. 0. 260.
(h) Ante, p. 218 ; 1 Javman on (e) As to provisoes for cesser in
Wills, 780, and cases there cited; snoh oases, see araie, p. 217.
Copf T. Earl Delawarr, L. R. 8 Cli. (/) See ante, p. 107 ; per Holt,
982 ; 42 L. J. C. 870; Mei/rick v. C. J. Davies v. Speed, 2 8alk. 675 ;
Mathias, L. R. 9 Ch. 237 ; 43 L. J. 12 Mod. 39 ; Sueden's note to Gil-
C. 521. bert on Uses, 161 ; Sugden on
(c) Doe V. Tates, 5 B & Aid. S44 Powers, 32, Sth ed.
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SECT. II. PUTUEE USES. 353
result to the grantor for a particular estate only, so tliat
the limitation of the springing use shall operate by way
of remainder (a).
The limitation of the use to the heirs of the body of Construction of
,1 . • , 1 , 1' T • , , • limitation of the
the grantor, without any express preceding limitation use to ths heirs
does not create a springing use ; but there is implied a the grantor,
limitation or restriction of the use in the grantor for life,
which, coalescing with the limitation to the heirs of his
body by the rule in Shelley's case, gives him a vested
estate in tail. This construction was made in a case
where a person seised in fee, covenanted to stand seised
to the use of the heirs of his own body, with remainder
to his own right heirs ; it was held that there was an im-
plied limitation of the use to himself for life, which com-
bining with the limitation to the heirs of his body created
in him a vested estate tail in possession (6) . — So, upon a
feoffment in fee to the use of the heirs of the body of the
grantor, it was held that there was an implied limitation
of the use to the grantor for life, which united with the
limitation of the use to the heirs of the body and gave
an immediate estate tail to the grantor (c).
Upon a conveyance in fee to the use of the heirs of the Limitation of the
body of A. and for want of such issue to the heirs of A., of the body of
it was held that no such limitation of the use for life
could be implied in favour of A., not being the grantor ;
that the limitation of the use to the heirs of the body of
(a) 1 Hayea CoiiTey. App. II. on (c) 1 Sanders on Uses, 137, 138,
the statute of Uses, 2. Where it and authorities cited in note. San-
is concluded, " that by no possi- ders there says that the use results
bility can a particular estate of to the grantor for his life by way of
freehold, in any ease, result to or particular estate, " upon the true
remain in the grantor, or cove- construction of the statute of Uses ;
nantor," p. 465, 5th ed. Howe's that so much of the use as the
note 13V to Bacon on Uses, p. 63 ; grantor has not disposed of, and no
see 1 Sanders on Uses, 139 on the more, results to him." But accord-
same passage of Bacon. ing to the later opinions above
(b) Pyhus T. MitfO'rd, 1 Ventr. stated in note {a), a particular estate
372; 1 Mod. 159; Co. Lit. 22*, cannot remain in the grantor by way
Femoiek t. Mitford ; Fearne, C. oi resulting use, and thei'eiore it muet
R. 41, 48 ; Wills V. Palmer, 5 be created by an implied construe-
Bwrr. 2636, Hon of the limitations.
2a
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354 PART II. CHAP. II. THE LIMITATION OF FUTUEE ESTATES.
A. being limited in presenti and not after the death of
A. was void ; and that the ultimate limitation of the use
to arise after the indefinite failure of issue was void as
being too remote (a).
LimitafcioQ of
future use con-
strued as a re-
mainder if
possible.
Where a future use is limited after a preceding limita-
tion of the use, if the future limitation may take effect as
a remainder, it is to be so taken, and becomes subject, as
a remainder, to the rules of the common law ; and though
in the event it fail as a remainder, it cannot be supported
as a springing use. Thus where a settlement was made
to the use of A. for life with remainder to the use of the
children living at the death of the survivor of A. and B.,
it was held that as, if A. survived, the children would
have taken by way of remainder, the limitation must be
construed as a remainder and not as a springing use, and
therefore, as B. in fact survived, the limitation, being still
in contingency when the particular estate determined by
the death of A., failed altogether (&).
Upon this principle where lands were conveyed in fee
to the use of the grantor for a term of years, if he
should so long live, with remainder to the heirs of his
body, the limitation to the heirs of his body was held
void, as being a contingent remainder to the person
answering that description, without an estate of freehold
to support it (c) .
(a) Bavies v. Speed, Show. P. C.
104; 2 Salk. 675; 12 Mod. 38.
The reports of this case are at vari-
auce and full of errors, consequently
the ahoTO statement of the decision
is rather conjectural. See the re-
marks on this case in Sugden's
Gilbert on Uses, 162; Sugden on
Powers, 33, 8th ed ; 1 Sanders on
Uses, 140 ; Kowe's note (130) to
Bacon on Uses ; and see post, p.
445, ' Bule against Perpetuities.'
(I) lIoU T. Escott, 2 Keen, 444, ;
4 M. & Or. 187 ; the marginal note
ip the latter report does pot state
the limitations correctly. And see
Ooodtitle V. Billlngton, Dougl. 753,
758 ; Carwardine v. Canvardine, 1
Eden, 27 ; Fearne, C. E. 388. But
in the case of Mole t. Escott it was
further decided that a power of ap-
pointing uses, after a use limited for
a particular estate, might be well
executed after the determination of
the particular estate, and the uses
would take effect as springing uses
from the time of appointment, see
post, 'Powers,' p. 376.
(c) See ante, p. 327 ; Adams T.
Savage, 2 Jj. Piaym. 855 ; 2 Salk.
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SECT. £1. FUTUEE USES. 355
Under sucli limitation an estate for tlie life of the
grantor could not be implied, because the express limita-
tion of the use to him for the term of years is inconsistent
with such implication (a).
But where upon a conveyance in fee the uses were Limitation for
limited to A. for a term of years, if the grantor should implied from
so long livOj and after the death of the graiator to the use at his death,
use of others for freehold estates, it was held that the
grantor had an estate for life by implication, in order to
support the future limitations of the freehold as re-
mainders, there being nothing in the express limitation
of the term of years to another person to prevent such
implication (&). So where the uses were limited to A.
for life with remainder to the heirs of the body of the
grantor, it was held that the grantor took a vested estate
tail in remainder, by an implied limitation of the use to
him for life after the deteamination of A.'s life estate (c).
If the fature use, though following a particular estate. Future use
be not limited by way of remainder, nor could take effect take effect as
in any event as a remainder, as if the use be limited to
A. for life, and after his death and one year or one day
to the use of his children or the children of B., it seems
that such future limitation, though void at common law,
might operate effectually as a springing or shifting use {d).
Such limitations are good by way of executory devise (e) .
680. Rawley t. Holland, 22 Vin. [a) lb. ; see the oases cited ante,
Abr. 189. " In these cases it was p. 353, where such implication was
solemnly decided that a use limited made.
by way of remainder shall not be {b) Penhay v. Burrell, 2 Vern.
construed a springing use, although 370 ; 2 Freeman, 235, 258 ; cited
actually void in its creation if not so and explained in Sugden's note to
considered. Upon principle cer- Gilbert on Uses, j.69 ; Sugden on
tainly it would seem that the limi- Powers, 37, 8th ed.
tations to the heirs of the body, in (e) See ante, p. 353 ; Wills v.
these cases, were good springing Palmer, 5 Burr. 2615 ; 2 Bl. 687,
uses, unless indeed it be objected to explained in Feamo, C. R. 44.
them tliat they were limited per (d) See ante, p. 318 ; 1 Spence
verba de prcesenti." Sugden's note Eq. Jur. 482, adopting the opinion
to Gilbert on Uses, 167 ; see ib. p. stated in Hayes Convey. 120,
35, 176 ; Sugden on Powers, 36, 42, 5th ed.
8th ed. ; Eowe's note (130) to Bacon (e) Fearne, C. R. 398 ; 1 Jarmau
on Uses ; 1 Sanders on Uses, 142, on Wills, 780 ; post, p. 363.
2a2
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356 PART II. CHAP. II. THE LIMITATION OP FUTURE ESTATES.
Section III. Future Devises.
Devises by way of remainder — application of the rule in Shelley's
case.
Executory devises.
Executory devise not preceded by estate of freehold — examples —
Freehold subject to the executory devise passes to the heir
or residuary devisee.
Executory devise before determination of preceding estate —
examples —effect in divesting preceding estate.
Executory devise after determination of preceding estate.
Alternative executory devises.
Future devise construed as remainder, if possible — remainder or
executory devise according to events at or after testator's
death.
Devise construed in favour of vesting — vpords of futurity referred
to the possession rather than wisting — words of contingency
referred to divesting rather than vesting — constructions re-
stricting contingency — constructions extending contingency.
Devise to childi-en — to after-born children — future devise to chil-
dren — child in ventre sa mere — illegitimate children.
Eemainders and Future estates and interests in land taking effect under
vises. the power of disposition by will are either by way of re-
mainder as at common law or executory devise; the
latter having been defined as " a limitation by will of a
future estate or interest in land, which cannot, con-
sistently with the rules of law, take effect as a re-
mainder " (a)
Devise of re- A deviso by way of remainder is regulated by the rules
lated as at ' of common law. Accordingly, the devise of a contingent
remainder must vest before or at the determination of the
particular estate ; if it do not so vest, it fails altogether,
and cannot afterwards be supported as an executory
(ffl) 1 Jarman on Wills, 778 ; will, though contrary to the rules
according to Fearne " an executory of limitation in conveyances at corn-
devise is such a limitation of a mon law." Fearne, C. E.. 386;
future estate or interest in lands, as to tlie power of disposition by
as the lavv admits in the pahe of a will, see ante, p. 6S.
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SECT. III. FUTUEE Uetises. 357
devise ; — thus, where a devise was made to A. for life,
with remainder to B. for a term of years if he should so
long live, and after the deaths of A. and B. to the heirs
of the body of B., it was held that the devise over to the
heirs of the body of B., being a contingent remainder,
failed by the death of A. before B., by which event the
preceding freehold estate was determined before the re-
mainder had become vested (a). — So, where the devise
was to A. for life and after his death to the children of
A. who should attain twenty-one, it was held that the
devise to the children failed upon the death of A., leaving
a child who did not attain that age until afterwards (b) ;
and that a devise over if there should be no such child,
being also a contingent remainder, failed under the same
circumstances (c).
The rule in Shelley's case applies to limitations of AppUoation of
• 1 _L 7 • - -n ■ 11 the rule in
remainders to fieirs, etc., m wills in exactly the same Snellen's eaae.
manner as in conveyances at common law ; that is to say,
if a devise be made to a person for an estate of freehold,
with a remainder, either immediately following that
estate or after other intermediate remainders, to the
heirs or heirs of the body of the same person, the word
heirs is taken as a word of limitation and not of purchase,
and the remainder vests in the ancestor, as if limited
to him and to Ms heirs {d).
Accordingly, where land was devised to A. for life,
with remainder to his first and other sons successively in
tail, with remainder to the heirs of A., and A. died in
the lifetime of the testator, it was held that the devise
of the ultimate remainder lapsed and his heir took
nothing, the word heirs being used as a word of limita-
tion and not of purchase (e) .
(a) Doe V. Morgan, 3 T. B. 763. (c) Ferceval y. Ferceval, L. E. 9
CJialloner v. Bowyer, 2 Leon. 70 ; Eq. 386.
see ante, p. 327. {d) See ante, p. 342 ; 2 Jarman
{I) Holmes t. Prescott, 33 L. J. on Wills, 241.
C. 264. (e) Doe t. GoLyear, 11 East, 548 ;
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368 PART II. CHAP. II. THE LIMITATION OP PUTUEE ESTATES.
The rule does not
apply to execu-
tory devises.
The rule is not
The rule has a wider scope in wills than in deeds, be-
cause in wills many words are capable of being used as
equivalents of " heirs " or " heirs of the body/' such as
" issue," " children/' and the like, to which, when so
construed, the rule equally applies (a) . Also in wills the
limitation to the heirs of the body is sometimes im-
phed, as on a devise to A. for life with a devise over
upon failure of heirs of his body (b).
But the rule does not apply to executory devises which
are limited to take effect in substitution or independently
of the preceding estate, and not by way of remainder (c) .
The apphcation of the rule in Shelley's case to wills is
fntMt?o™of ''°° independent of any expressions of intention which do
testator. ^^^ enter into and affect the limitations upon which it
operates. Intention rules and controls the separate
limitations ; but it cannot prevent or reach the legal con-
sequences resulting from the limitations used. Accord-
ingly where the will is construed as intending an estate
of freehold to the ancestor, with a subsequent devise to
his heirs in succession according to the regular course of
descent, whether general or special, the rule applies and
the heirs take only by descent, for the devise to the
heirs cannot otherwise take effect in the course intended.
And where the grounds for the application of the
rule thus exist, no expression of an intention to ex-
clude the rule can prevail. Expressions to the effect
that the ancestor shall take for life only, or for life and
not otherivise, and the like, or express restrictions of his
power of alienation, are immaterial as regards the appli-
cation of the rule, and are inoperative to exclude it [d).
Expressions re-
stricting the
estate of the
ancestor.
GoodrigM v. Wright, 1 P. Wms.
397 ; Hodgson v. Ambrose, Dougl.
336.
(a) See ante, p. 180. Doe f.
Eucastle, 8 C. B. 876.
(b) See ante, pp. 177, 182.
(c) See post, p. 860 ; as is the
case with shifting uses, ante, p. 350.
{d) See Hargrave's " Obs. on the
Eule in Shelley's Case," Tracts,
551 ; Fearne, r;. R. 188-199 ; per
Cockbum, C. J., Jordan v. Adams,
9 C. B. N. S. 483, 497. Coulson v.
Coulson, 2 Atk. 245 ; 2 Str. 1125,
where a devise to trustees inter-
posed between the derise of the
ancestor and the subsequent devise
to the heirs, upon express trust to
preserve the latter as a contingent
remainder, was held not to eiclude
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SECT. III. fuTiTEE Devises. 359
If the devise to the heirs be attended with words of De™e to the
limitation, as a devise to the heirs of the body and to the of'iiiiUtatiOT°'^ '^
heirs of the body of such heirs, or to the heirs of the body
and to their heirs, or to the heirs of the body /or their lives,
the superadded words of limitation, so far as they are
inconsistent with the course of descent imported by the
prior words, are rejected as repugnant, and do not exclude
the application of the rule (a). Thus under a devise to A.
for life, "' with remainder to the heirs of his body in
tail," it was held that A. took an estate tail, and that the
words "in tail" were superfluous [h).
So if the devise to the heirs be accompanied with words with words of
of distribution or other expressions inconsistent with an
esDate by descent, as a devise to the heirs or heirs of the
body in equal shares, or as tenants in common, or in such
shares as the ancestor shall appoint or the like, such ex-
pressions are rejected as repugnant (c).
But if it appear from the context of the will that in Devise to heirs
devising to the heir or heirs of the body the testator does JainS^by'oon-"'''
not use those words in their technical meaning of a
succession of persons in the regular course of descent,
the rule has no application. — Thus, it may appear from
the will that they are used to mean children or sons
only [d) ; — so a devise to the heirs of A., " as if she had
continued sole and unmarried," excludes all the lineal
issue (e) ; — in such cases the conditions of the rule do not
exist, and the persons designated by the word " heirs "
take as devisees.
If the devise over be to the "heir" or " heir of the Devise to "heir"
body " in the singular number with words of limitation limitation.
superadded ; — as to the heir and to the heirs of such
the operation of the rule. And see burn, C. J., Jordan v. Adams, 9 C.
Sodgson t. Amlrose, Dougl. 337 ; B. N. S. 4,98, and the cases there
Pearne, C. R. 167, 174.. cited.
(a) See ante, p. 177, and the {d) Jordan v. Adorns,^ C.'S.'S.
cases there cited. S. 483 ; see ante, pp. 179, 18fi.
(b) Douglas t. Conareve, 1 Beav. (e) Broohman v. Smith, L. R. 6
59. Ex. 291 ; 7 lb, 271 ; 40 L. J. Ex.
(c) See ante, p. 178 ; per Cook- 161.
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hold.
S60 PART II. CHAt. li. TfiE tlMlTATlON OF t'UTUEB ESTATES.
heir (a), — to the heir male and to the heirs of such heir
male, (b), — to the heir male and to the heirs male of the
body of such heir male {c), — to the heir for life (cZ) ; — ^in
all these cases the word heir becomes a word of purchase
and the rule does not apply (e) .
Executory de- An executory devise being the limitation by will of a
future estate or interest in land^ which cannot take effect
as a remainder^ it follows that " every devise of a future
interest which is not preceded by an estate of freehold
created by the same will^ or which, heing so preceded, is
limited to take effect before or after and not at the expira-
tion of such prior estate of freehold is an executory
devise" (/).
Biecutoiy devise Examples of executory devises not preceded by an
estate of free- ostato of freehold occur ; — in a devise to A. to take effect
six months after the death of the testator, or after the
death of any other person living at the testator's death, —
or a devise to A. when he shall attain the age of twenty-
one years, — such devises, though limiting a freehold to
commence in future, are valid (g).
The above devises are executory or future by the ex-
press terms of limitation ; but a devise may also be
executory from the devisee not being ascertained, — as a
devise to the children of A., A. having no child at the
death of the testator, — or a devise to the heirs or heirs
of the body of A. after the death of A. {h).
(a) Clark y. Day, Moov, 593. tingent interest unsupported by any
(S) Chamherlayne T. Chamher- preceding freehold, or any estate
layne, 6 E. & B. 625 ; 25 L. J. Q. after a preceding Tested fee simple,
B. 187, 357. is limited by devise ; such limitation,
(c) Archer's Case, 1 Co. 66 ; Le- as it cannot be good as a remainder,
gate t. Sewell, 1 P. Wms. 87 ; see may take effect as an executory
Hawkins on Wills, 174. devise."
{d) White V. Collins, Com. 289. (g) See ante, p. 68 ; Eearne, 0.
(e) See ante, p. 178. R. 395; 1 Jarman on Wills, 779;
(/) 1 Jarman on Wdls, 778 ; see Doe v. Sutton, 3 B. & P. 643.
ante, p. 356. Compare Fearne, C. (A) See ante, p. 324 ; Jarman on
E. 395, — " Where a future interest Wills, stipra ; Rogers v. Oibson, 1
without a preceding estate, or a con- Ves. sen. 485.
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SECT. in. rUTUEB DEVISES. 361
The devise of a preceding estate not of freehold has Executory devise
no effect upon the construction or operation of an ex- of years,
ecutory devise, which takes effect according to the terms
of limitation, subject only to the term, if it be then
existing. As a devise to A. for a term of years, if he shall
so long live, and after his death to the heirs of the body of
A. ; the limitation to the heirs, which would be void at
common law as a contingent limitation without a vested
freehold estate to support it, is valid as an executory
devise (a).
Where there is an executory devise without any pre- Freehold subject
ceding disposition of the freehold, the inheritance descends dOT^rpasTes
to the heir, and carries with it the intermediate rents and ary deyisee!"' ""
profits until the executory devise takes effect (&) ; or it
may pass under a residuary devise (c) .
Examples of executory devises preceded by a devise of Executory devise
the freehold, but taking effect hefore the expiration of the i^glstS.F"'"' '
preceding estate and therefore divesting that estate, occur :
— upon a devise to A. and his heirs, with a devise over if
he die under twenty-one {d), — upon a devise to A. and Devise over upon
-.,-,. .,, T. -j^i -1. -, , , death under 21,
his heirs, with a devise over ii he die under twenty-one and without
and (or or) without issue (e), — or upon a devise to A. Devise over upon
and his heirs, with a devise over if he die without issue '^"^""^^ °^ ''™'''
(a) See ante, p. 327 ; 1 Jarman on and his heirs, with a devise over
Wills, 779 ; a-ore v. Qore, 2 P. " if he die," ses post, p. 368.
Wms. 27 ; Sa/rris v. Barnes, 4 (e) Right v. Bai/, 16 East, 67.
Burr. 2157 ; 1 Bl. 643. The like " It has been long settled that a de-
hmitation of a springing use is void, vise of real estate to A. and his
see ante, p. 354. heirs, and in case of his death under
(6) See above cases, Fearne, C. twenty-one, or without issue, over,
E. 537. Hopkim v. Hopkins, Oas. the word " or " is construed " and,"
t. Talb, 44 ; Doe v. Sutton, 3 B. & and the estate does not go over to the
P. 643 ; as to intermediate profits, ulterior devisee unless both the
see Hawkins on Wills, p. 45 ; Best specified events happen." This con-
V. Bowmall, 40 Jj J. 0. 160. struction is made in order to provide
(c) Fearne, C. E. 544 ; Stephens for the issue in case of the devisee
V. Stephens, Cas. t. Talb. 228 ; dying under age leaving issue. It
Wealthy v. Bosville, Cas. t. Talb. is not applied after an estate tail. 1
258; Rogers V. Gibson, 1 Ves. sen. Jarman on Wills, 443 ; Hawkins on
485. Wills, 203 ; Mortimer v. Hartley, 6
id) Stephens v. Stephens, Cas. t. Ex. 47 ; see Orey v. Fearson, 6 H. L.
Talb. 228. As to a devise to A. 0. 61 ; 26 L. J.C. 473 ; fflffl^e,p. 326.
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362 PART. II. CHAP. 11. THE LIMITATION OF fUTUEE ESTATES.
Demises with
shifcing clause.
EiFect in divest-
ing preceding
estate.
Divesting; pre-
ceding estate in
part only.
Substitution of
less estate.
living at his deatli, or if his issue fail within any other
definite time^ not being too remote (a) .
So upon a devise to A. for life^ or in tail, with a
clause or proviso that in case A. shall become entitled
to a certain other settled estate, — or in case A. shall
neglect to take the name and arms of the testator, —
or in case he shall neglect to reside upon the land, or
the like, the estate shall go over to B., — the estate then
shifts upon the event specified by executory devise (b).
The devises over in the above cases are good execu-
tory devises, though limitations thus operating to defeat
and shift the preceding freehold are void in conveyances
at common law (c). The only difiei'ence between these
executory devises and those before mentioned as not
preceded by an estate of freehold, is " that in one case
the property shifts, on the happening of the contingency,
from the prior devisee, and in the other, from the heir
of the testator, to the devisee of the executory in-
terest" {d).
The preceding estate is divested by the executory
devise only to the extent of the estate thereby limited.
Thus, if a devise be made in fee, with a devise over in
a certain event to another for life, the prior devise is
divested only to the extent of the life estate ; but if the
executory devise for life were limited to the same de-
visee to whom the fee is originally given, it would seem
to be intended and to be construed as divesting the fee
altogether and substituting a life estate, as where a
testator devised to his daughter in fee, and that if she
married without the consent of a certain person, she
should have an estate for life only (e).
(a) 1 Jarman on "Wills, 780.
See PHer v. Bradley, 3 T. R.
148 ; and see post, p. 446.
(b) See ante, pp. 218,352. 1 Jar-
man on Wills, 780, and cases there
cited ; see Meyrich v. Laws, L. R.
9 Ch. 237 ; 43 L. J. C. 521, as to
the construction of a devise over on
acquiring a settled estate.
(c) See ante, pp. 46, 47.
(rf) 1 Jarman on Wilb, 781.
(e) 1 Jarman on Wills, 782 ;
Wrii/M V. Wright, 1 Ves. sen,
409.
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SECT. III. FUTURE DEVISES. 363
If the executory devise fail of taking effect or be or Devise over
, ■ n r 1 J.1 1 ■ i j> f^'l™g in effect.
become void, irom any cause, as where the objects ot
such devise never come into existence, or where the
event upon which it is Kmited to arise is too remote, or
in fact never happens, or is or becomes impossible, the
preceding estate continues according to its original
limitation or destination (a) ; but if the executory de-
vise fail by lapse, or death of the object before the
testator, all other conditions having been satisfied, the
estate passes to the heir or residuary devisee (6).
A devise over limited to take effect in a specified Effect of devise
I , -I J J • T t • t over as eoudi-
event may operate by construction as a conditional tiouai limitation
limitation of the preceding estate determining it in the estate?" '"'''
event specified, though it fail in effect in carrying the
estate over by way of executory devise (c) .
A devise of a future estate limited to take effect o/iSer Executory deyise
the determination of a preceding estate may operate tion^ifprerad-""
effectually as an executory devise ; — thus upon a devise "^ "" '^ "'
to A. for life, and after his death and one day to B., or
to the children of B., the devise to B. or his children is
a good executory devise, though such a limitation
would be void at common law. A devise to A. for life
and after his death to the children of B., B. as yet having
no child, would be a contingent remainder. — The
freehold, with the intermediate rents and profits, after
the determination of the preceding estate until the
executory devise takes effect, vests in the residuary
devisee, if any, or if not, in the heir [d] .
{a) 1 Jarman on Wills, 783 ; Sugden on Powers, 513. This
Jaohson v. Nolle, 2 Keen, 590 ; see doctrine as applied to a pre-
Broohman v. Smith, L. B. 6 Ex. ceding estate in fee seems open to
291 ; 7 ib. 271 ; 41 L. J. Ex. 114. the objection of creating a fee
(S) 2 Jarman on Wills, 711. simple determinable by conditional
(e) Doe T. Eyre, 5 C. B. 713 ; limitation ; see ante, pp. 36, 217-
Robinson t. Wood, 27 L. J. C. 726, (d) 1 Jarman on Wills, 780 ;
in which case Kindersley V. C, ex- Eearne, C. E. 544 ; Stephens v.
pressed his dissent from the doc- Stephens, Gas. t. Talb. 228. See
trine of Doe v. E^re, but followed ante, p. 47. See as to springing
it as the decision of a court of ap- uses arising after a preceding estate,
peal; and see ante, p. 215, u. (a) ; ante, p. 355.
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364 PAET II. CHAt. II. THE LIMITATION OF FUTUEE ESTATES.
Alternative exe-
cutory devisea.
Several executory devises^ though including the whole
interest^ may be made by way of alternative limitations,
so that any one of them may take effect if the others
preceding it fail ; but upon one of such executory
limitations taking effect and vesting the whole interest
indefeasibly, then all the subsequent limitations become
void and inoperative (a). The limitations may operate
as a remainder, vested or contingent, in one alternative
and as an executory devise in the other (6) .
Future devise
construed aa re-
mainder, if
capable.
Devise to A. in
tail with devise
over on death
vrithout issue.
Devises of future estates are construed as remainders,
if they are capable of that construction, and not as
executory devises ; and when so construed are con-
sequently liable to fail by the determination of the pre-
ceding freehold before they become vested (c).
Thus, if there be a devise to A. in tail with a devise
over, if he die without leaving issue at his death, or upon
failure of his issue within other definite time, the devise
over is a contingent remainder, and not an executory
devise, because the event on which it depends, namely,
the failure of issue, determines the prior estate tail {d). —
Upon a like principle, upon a devise to A. and to his heirs,
with a devise over upon the failure of issue of A. indefi-
nitely, the devise to A. is restricted to an estate tail and
the devise over takes effect as a remainder, and not by
way of executory devise, for as such, being postponed
until an indefinite failure of issue, it would be void for
(a) Fearne, C. R. 514, and the
cases there cited ; see Butler's note,
ib. ; 2 Jarman on Wills, 504 ;
Stephens r. Stephens, Cas. t. Talbot,
228
(J) See Doe v. Challis, 7 H. L.
C. 531 ; 29 L. J. Q. B. 121 ; 18 Q.
B. 231. Doe v. Fonnereau,J)ougl.
487 ; Doe v. Howell, 10 B. &' C.
191.
(c) Purefoy v. Rogers, 2 Wms.
Saund. 388 ; Doe v. Morgan, 3 T.
E. 763, cited ante, p. 357 ; Doe v.
Owens, 1 E. & Ad. 318 ; Crofts t.
Middleton, 8 D. M. & a. 192 ; 25
L. J. C. 513, " for it is well settled,
(and, indeed, has been remarked
as a rule without exception,) that
when a devise is capable, according
to the state of the objects at the
death of the testator, of taking
effect as a remainder, it shall not be
construed to be an executory de-
vise." 1 Jarman on Wills, 778 ;
and see Fearne, C. R. 386, 395, 526.
The same rule applies to futm'e uses,
see ante, p. 354.
{d) See ante, p. 325.
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SECT. III. FUTUEB DEVISES. 365
remoteness (a). So in the case of a devise to A. for
life, with a devise over upon the failure of issue of A. in-
definitely, A. takes aa estate tail by implication, and the
devise over is a remainder (6) .
In accordance with this rule of construction, where a to a. m tail with
devise was made to A. and to the heirs of his body, and die.
" if he die " then over, the devise over was read as " if
he die without issue," and was constraed to be a remain-
der expectant upon the estate tail (c).
As a will takes effect from the death of the testator it Eemainder or
, ,T,-]' 1 ■ 1 • - ■ executory devise
may happen that a devise, which m terms is a contm- according to
« , . events at or after
gent remainder, by reason ol events occurring m the life- testator's death.
time of the testator since the date of the will, becomes
in the result an executory devise. — Thus upon a devise
to A for life with a devise over after his death to the
children of B., the devise over is a contingent remainder
whilst A. lives, and until B. has a child ; but if A. die in
the lifetime of the testator, and B. have no child at the
death of the testator when the will takes effect,
the devise is executory to his future children, as
if originally limited to them without the preceding
estate {d).
And conversely, " a limitation in a will which at the
time of making it could only have operated by way of
executory devise, may by change of circumstances in the
testator's lifetime operate at his death so as to give a
vested estate in possession, or a vested remainder, or a
contingent remainder. — Also " a change of circumstances
(a) See ante, p. 181 ; post, p. 487 36 L. J. C. 573, and cases
445. there cited. As to a devise to A.
(A) See ante, p. 325 ; as to what and his heirs, and if he die or in case
expressions in a will import an in- of his death, then over, see post,
definite failure of issue, and the p. 368.
effect of the statute 1 Vict. c. 26, (d) Hopkins v. Hopkins, Cas. t.
s. 29, in restricting such expressions, Talb. 44; 1 Atk. 581; see Doe v.
see ante, p. 182. Roach, 5 M. & S. 482 ; 3 T. R.
(c) Spalding v. Spalding, Cro. 765, per Kenyon, C. J., in Doe v.
Car. 185 ; cited 1 Jarman on Wills, Morgan; Fearne, C. H. 525; 1
427 ; Fearne, C. E. 420 ; see East- Jarman on Wills, 788.
•mood f. Lockwood, L. E, 3 Eq.
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366 PAET II. CHAP. II. THE LIMITATION OP P0TUEE ESTATES.
after the testator's deaths raay change the character of
a particular limitation^ and make it operate at one time
as a remainder, at another as an executory devise ; and
e converso at one time as an executory devise, at another
as a remainder " (a) .
Devise construed Upon the general principle of construction in favour
ing-wordB of ' of vcstiug estates, words of futurity are referred to the
futurity referred . „ . , , iii i- ••,
to time of pos- time 01 possession rather tnan to tne vesting m interest,
to the vesting. — thus a doviso to A. Until B. shall attain twenty-one, and
luJien B. attains that age, or at or from or after attaining
that age to B. in fee, is construed as giving B an imme-
diately vested estate subject to the term of years in A. ;
and not as an executory devise upon his attaining twenty-
one, which would be the construction if the devise to him
stood alone without the prior interest ; and consequently
if he die before attaining that age the fee descends to his
heir (b).
So, a devise after payment of debts is not executory or
future until the debts are paid, but gives an immediately
vested interest, subject to a charge created for the amount
of the debts (c).
(a) Doe T. Hotvell, 10 B. & C. (no matter what) purpose." lb.
191, 199 ; and see Pearne, C. E. 735. Hawkins on Wills, 237.
506 ; 1 Jarman on Wills, 789. Land Whether the word "if" in the same
was devised to A. for life, with context can be thus construed, see
remainder to hor son in fee, witli a Hawkins, 239. See joer Best, C. J.
devise over, if he died before A., to in Duffield mi ■ -i
person to whom they are given. They are restricted by
any alienation or disposition of that estate inconsistent
with a subsequent exercise of the power ; for the power
cannot be afterwards exercised in derogation of such
alienation. As where an estate is limited to the use of a
person in fee, with a power of revocation and new appoint-
ment;— or where an estate for life is limited to a person
with a power to grant leases in possession ; — in either
case an alienation of the estate restricts the power to the
extent of the alienation, and the power is so far appendant
or appurtenant to the estate (a) . — Powers appendant may
also be extinguished by release (&) .
Powers collateral Powors which do not Operate upon an estate limited to
or m gross. ^j^^ persou to whom they are given, are called collateral
or in gross. They include powers given to a person to
whom an estate is limited, but which enable him to create
such estates only as do not operate upon his own estate ;
also powers given to a person having no estate. — In-
in person having stances of the former kind occur in the case of a tenant
for life, with a power of appointing a jointure to his
widow, which cannot operate until after the determination
of his life estate ; — and in the case of a tenant for life with
a power of appointing after his death to his children. —
Such powers in tenant for life are not, like powers ap-
pendant, affected by a conveyance of his life estate ; be-
cause they do not operate in derogation of the convey-
ance. But they may be released and extinguished by
him (c).
(a) Sugden, 46, 51, 57 ; see Alen:- may happen to live. It would pro-
ander t. Mills, L. B. 6 Ch. 124 ; 40 bably be more correct to say that it
L. J. C. 73. "A leasing power given operates upon that estate, than to
to a tenant for life is usually spoken say it is derived out of it even during
of in our books as a power appen- that period." Opinion of the Judges
dant to the estate of the tenant for in Lonff v- Sankin, Sugden, 899.
life i and it is said that the estate of (i) Sugden, 82.
the lessee is in such case derived out (c) Sugden, 46, 79, 82 ; " Every
of the estate of the tenant for life grantee for life with a power in gross
for such period of the term as he may release or extinguish it." West
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SBOT. IV. § 1. POWERS m CONNECTION WITH ESTATES. 387
Powers in gross in a person having no estate in the in person ha™g
T* 'IT- 1 T-11T 1^^ estate.
land are distingmshed into those which the donee oi the
power may exercise for his own benefit, — and those which
he can exercise for the benefit of others only, without any
benefit to himself. The former partake of the nature of
property or interest, and may therefore be released or
extinguished by the donee of the power. — An instance of Power reseryed
,,-.-,_ ^ .-,.„ upon settlement
this kind 01 power occurs where a person seised m lee of estate,
settles his whole estate upon others, but reserves to him-
self a power of revocation. Such power is a power in
gross and part of his old dominion ; by revocation of the
uses he would be restored to his former ownership ; and
it is therefore capable of being released and extin-
guished (a). — So if the power of revocation be reserved
to the heir of the settlor, because by the revocation the
heir would be restored to the estate (6).
A power in a person having no estate or interest in the Power simply
land which he can exercise for the benefit of others only,
and not of himself, is called a power simply collateral.
As for example, a power given to a stranger to revoke a
settlement and appoint new uses to other persons desig-
nated in the deed. Also powers given to executors to
sell land for the purpose of the will, and powers given to
trustees of settlements to sell, lease, etc. are examples of
powers simply collateral (c). — Powers of this kind give a
bare authority without any property or interest, and are
therefore not capable of being released or extinguished
by the donee of the power ; but only by those persons
for whose benefit they are created [d] .
It may be observed that " a power in gross, and a power
collateral (not simply collateral) is one and the same
thing ; " though the word collateral has been sometimes
V. Berney, 1 Russ. & M. 431 ; Sug- (S) Grange v. Tiving, Bridgm.
den, 88 ; Bickley v. Chiest, 1 Euss. 114.
&M.440. (c) Sugden, 47.
{a) Sugden, 47, 82 ; Co. Lit. 237 {d) Sugden, 47, 49 ; Co. Lit. 237
a; 265 b ; Albany's Case, 1 Co. a 265 J ; Digge's Case, Moor, 605.
110 J.
2 C2
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388 PART II. CHAP. it. THE LIMITATION OP PUltjEE ESTATES.
used as meaning simply coUateral in distinction to powers
in gross (a) .— " This classification of powers is important
only with reference to the ability of the donee to suspend,
extinguish, or merge the power " (b) .
Power appen- The Same power may have different aspects and may be
estates and eoUa- both appendant and collateral with reference to different
others. estates of the donee upon which it operates ; as, if a
settlement be made to A. for life with remainder to B.
for life or in tail, with remainder to A. in fee, and A. be
given a power to jointure his wife or to appoint to his
children after his death, the power is collateral or in
gross as to his life estate, but appendant or appurtenant
as to his remainder in fee. And if he conveyed the fee,
he would remove it from the operation of the power ; but
the power would remain operative over the intermediate
remainder after the death of A. (c).
(a) Sugden, 906. (c) Sugden, 47, 87 ; see cmte,
lb) Sugden, 49. p. 384.
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SECT. IV. § 1. POWEBS DISTINGUISHED AS TO OBJECTS. 389
§§ 3. PowEKS Distinguished^ as to the Objects of the
Power.
General and particular powers.
Powers of appointment to a class — Distributive and exclusive
powers — power of selection from class.
Power to appoint to children — to children living at death of
parent — child in ventre sa mire — power to appoint to " re-
lations.''
Implied gift to children in default of appointment — gift to chil-
dren with power to apportion shares.
Powers are also distinguished, in rearard to the obiects Powers aistin-
, , . . ' guishedastothe
of the power, into general and parhcular or special object,— general
^ . and particular
powers. — A general power authorises an appointment to powers,
any person ; — a particular or special power restricts the
appointment to some person or persons, or class of
persons specified in the creation of the power {a) . — " A
general power is, in regard to the estates which may be
created by force of it, tantamount to a limitation in fee,
not merely because it enables the donee to limit a fee,
which a particular power may also do, but because it
enables him to give the fee to whom he pleases ; he has
an absolute disposing power over the estate." This dis-
tinction of general and particular powers has some im-
portant consequences in the execution of powers (&).
A power of appointment to a class of obiects, as chil- Power of ap-
-, ... ■ T -T 1 r Pointment to
dren, may he distributive amongst all the individuals oi class of objects,
the class, also called a non-exclusive power ; or exclusive,
authorising a selection of one or more to the exclusion of
the rest, according to the terms of the power. — A power Distributive and
ni'iTji exclusive power.
given m the terms, " to all and every the children, or
" to and amongst " or " amongst " the children, or " in
{a) Sugden, 394 ; Butler's note to (J) lb. ; seeposi, p. 407, 416,
Co. Lit. 271 b, III. 4,
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390 PAET II. CHAP. II. THE LIMITATION OF PDTUBE ESTATES.
such shares " as A. shall appoint, requires that all shall
have a share ; the power is distributive only and not ex-
clusive.— A power in the terms, " to such," or " to and
amongst such " or " to one or more " of the children, as
A. shall appoint, imports the power of appointing to some
Power of seiec oxclusively ; the power is distributive and exclusive (a). —
A power in the terms, " to one " of the children, as A.
shall appoint, gives the power of selecting one; it is
exclusive only and not distributive (b).
Power to ap. -A- powcr to appoint to children does not extend
pomt to children, |.Q grandchildren; although the power be expressed
to be to the children " for such estate and subject to
such provisions and limitations as the donee of the
power may direct, limit, or appoint." And under such a
power an appointment to a child for life with remainder
to his children in strict settlement would not be authorised
except as to the appointment to the child, and beyond
that would be void (c). But a deed of appointment in
this form to which the child is an executing party, may
be supported in some cases as operating first as a good
appointment to the child, enabling him to make the settle-
ment intended, and then as a settlement by him (d) .
To children Ut. The powcr of appointment to children may be re-
ing at death of . -,.. , i-tt t-
parent. stricted lu its torms to the children [ivmg at the death of
the parent or some other time, although it be exerciseable
by deed or will, and in such case those children only who
survive are objects of the power (e).
A child in ventre sa mere, who is afterwards born, is
(a) Sugden, 444, and oasea there A devise to the children of A. and
cited ; Qainsford v. Dunn, L. E. 17 their heirs, for such estates as A.
Eq. 405 ; 43 L. J. C. 403. As to should appoint was held to authorise
an illusory execution of a nou-exclu- an appointment to a grandchild,
sive power, see joos^, p. 435, where see Fowler v. Cohere, 21 Beav. 360.
also the statute, 37 & 38 Vict. c. 37. (rf) Sugden, 670 ; see post, p. 420.
(i) Brown v. Sigys, 4 Ves. 708, (e) Sugden, 674, as to the con-
717. struetion of powers in this respect ;
(c) Sugden, 664; Doe v. Welford, and see Kennedy v. Kingston, ^ J. &
12 A. & E. 61 ; Brudenell v. Elwes, W. 431 ; Bielefield v. Record, 2
1 East, 442 ; 7 Ves. 382 ; see Trol- Sim. 354; Swift v. Hwift, 8 Sim,
lope V. Moutledge, 1 D. 4 Sm. 662. 1-68,
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SECT. IV. § 1. POWERS DISTINGUISHED AS TO OBJECTS. 391
considered as existing for tlie purpose of taking by ap- cuumnentreaa
• 111 1 • > i 1 •! T m^re capable of
pomtment under a power to appoint amongst onudren taking,
living at the death of the fatlier {a).
A power to appoint amongst ""relations " is^ in general, power to appoint
construed to mean those capable of taking under the
statute of distributions, even in the case of a devise of
real estate (&).
Where a power of appointment amongst children is implied gift to
T -n 1 1 1 • 1 • -i_i children in de-
given by will, whether exclusive or non-exclusive, witn- tauit of appoint-
out any express gift to the children or others in default
of appointment, there is in general implied a gift to the
children in that event (c). But under such implied gift
those children only can take in default of appointment
who were capable of taking by appointment. So that if
the power be restricted to children living at the death of
the parent, (as where it is exerciseable by will only,) the
surviving children only take in default of appointment,
and those dying in the lifetime of the parent are ex-
cluded (d). — A power to appoint to one only of children
to be selected exclusively of the others would not raise
such implication in favour of all the children or of any
of them (e).
But where there is a gift to children with a power of Gift to children
appropriating the shares in which they are to take, — as, to ^portion shares,
all the children of A. in such shares as A. should appoint
by will, — the children take vested interests by the ex-
press terms of the gift, subject to be divested by the
exercise of the power, and a child dying in the lifetime
{a) Beale T. Seale, 1 P. Wma. C. 17 ; where a gift over in default
244'; Sugden, 673; are^e, pp. 329,372. of appointment was construed aa
(6) Doe T. Over, 1 Taunt. 263 ; meaning in default of children in
Sugden, 653, 657 ; Hawkins on order to admit the implied gift to
Wills, 104. the children.
(o) Sugden, 591 ; 1 Jarman on (d) Sugden, 595 ; WalsJi. y. Wal-
Wills, 485 ; Brown v. Higgs, 8 Ves. linger, 2 Rusa. & M. 78 ; Kenned^/
574 ; Butler v. Grat/, L. E. 5 Ch. 7. Kingston, 2 J. & W. 431 ; see
26; 39 L. J. C. 291 ; Jefferys' PAene's TrMs^i, L. B. 5 Eq. 346.
Trnsts, L. R, 14 Eq. 136 ; 42 L. J. (e) Sugden, 593 ; see ante, p. 390,
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392 PAET H. CHAP. II. THE LIMITATION 01 PUTtJEE ESTATES.
of the parent will remain entitled in default of appoint-
ment, notwithstanding the power, being by will only, is
restricted to those living at the death of the parent (a) .
Where by a settlement a sum of money was charged
for the younger children to be paid in such shares as the
father should appoint and in default of appointment
equally, and the father appointed a certain sum to one of
the children, it was held ihe unappointed portion must
be equally divided amongst all the children including that
one to whom the appointment had been made (b) .
{a) Sugden, 597 ; Casterton v.
Sutherland, 9 Tes. 445 ; Lambert
V. ThwaiUs, L. E,. 2 Eq. 151 ; 35 L.
J. C. 406, and see the eases there
cited and commented on. "The
general principle seems to be this, —
if the instrument itself gives the
property to a class, but gives a power
to A. to appoint in what shares and
in what manner the members of that
class shall take, the property vests,
until the power is exercised, in all
the members of the class, and they
will all take in default of appoint-
ment ; but if the instrument does
not contain a gift of the property to
any class, but only a power to A. to
give it, as he may think fit, among
the members of that class, those
only can take in default of appoint-
ment who might have taken under
an exercise of the power. In that
case the Court implies an intention
to give tlie property in default of ap-
pointment to those only to whom
the donee of the power might give
it." Per Kindersley, V. C, Lam-
bert V. Thwaites, supra.
(b) Walmsley v. Vaughan, 1 D.
& J. 114 ; 26 L. J. C. 503 ; and see
Simpson's Settlement, 4 D. & S. 521 ;
20 L. J. C. 415, where " in default
of appointment " was construed to
mean so far as an appointment should
not extend.
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SECT. IV. § 2. CONSTRUCTION OP POWERS. 393
§ 2. OONSTETICTION OP POWEES.
Oonatruction of Powers as to the Uses and Estates to be ap-
pointed.
Power in general terms extends to fee — power to appoint fee in-
cludes less estates — appointment of a charge — of a sale and
conversion.
DeTise of absolute power of disposition passes the fee — disposi-
tion restricted as to the objects — devise for life with power
over remainder.
Construction of powers as to priority of operation.
The power does notj in generalj limit the uses and Construction of
^ . ^ . powers as to
estates to be appomted, but only gives authority to uses and estates
^'^ ' , ./ o ... to be appointed.
appoint them. Therefore technical words of limitation are
not requiredj even in a deed; and the extent of the
authority, as regards the uses and estates to be appointed
depends upon the intention of the power, collected from
the terms and purpose of its creation (a) .
A power to sell or appoint or dispose of land in general Power in genera
. . , . , . . „ , terms extends to
terms, without any express or implied restriction of the the fee without
■^ ■" ■*■ . , words of limita-
estates to be created, extends to the fee ; it imports the tion.
same power of disposition as the donor of the power
himself had (b). — So a power to appoint or dispose of
land to a particular object or objects, without words of
hmitation, authorises an appointment in fee (c) .
A power to appoint the fee simple or to appoint in Power to appoint
■^ V, . . fee includes
general terms, without restriction as to the nature or lesaer estate.
quality of the estate or interest to be appointed, also
authorises an appointment of any less estate or interest
derivable out of the fee {d).
(ffi) Sugden, 102, 398. 1V6. See E v. Stafford, 7 East,
(i) Sugden, 398 ; Wood v. Sich- 521.
ardson, 4 Beav. 174. (d) Sngden, 408, 412, 837. Cro-
(o) Sugden, 400; Lie/e v. Salt- zier v. Crozier, 3 Dru. & War.,
ingstone, 1 Mod. 189; I Freem. 353.
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394 PART II. CHAP. II. THE LIMITATION OP FUTUEE ESTATES.
Appointment of A power extending to the fee may be well executed
by appointing a charge upon the land in favour of an
object of the power, giving an equitable interest only,
whether with or without a legal term or interest as
Of sale and con- auxiliary to it [a) ; — or by appointing that the land shall
be sold and the proceeds distributed amongst the objects
of the power (&). — So a power of appointment over real
estate, unrestricted as to the estates or interests to be
appointed, may be well executed by appointing a share
to an object of the power and declaring that it shall be
of the nature of personal estate ; and the interest in such
share will be transmissible accordingly (c). — In such
cases, though the appointment may not be formally valid
at law, as where it is made to trustees for sale, (such
trustees not being objects of the power,) it is valid in
equity and will be carried into effect (d) .
Devise of abso- A devise to a person in terms importing that he may
dispo'sitTonpasses dispose of the property at his absolute discretion confers
an estate in fee simple or the entire interest, and not
merely a power ; but this construction does not apply to
a conveyance by deed, in which such form of limitation
would merely confer a power of appointment (e).
(a) Roberts v. Dixall, 2 Eq. Ca. is so generally understood, tliat a
Air. 668 ; Sugden, 405. question rarely arises upon a deed,
(J) Jjong V. Long, 5 Ves. 445, whether a party take an actual es-
wliere the power in terms extended tate or only a power." Sugden,
to charging only, but to an im- 134. " There is an evident diiFer-
limited extent. Kenworthy v. Bate, ence between apower andan absolute
6 Ves. 793; Fowler v. Cohen, 21 right of property ; not so much with
Beav. 360 ; Cowx v. Foster, 1 J. & regard to the party possessing the
H. 30 ; 29 L. J. C. 886. power, as to the party to be affected
(e) Webb T. Sadler, L. R. 8 Ch. by the execution of it. If our at-
419; 42L. J. C. 498. tention is to be confined to the
(d) Sugden, 406. former ei itirely, there is no reason
(e) Sugden, 104; see awie, p. 165; «hy the money he has a right to
re MaxioelVs Will, 24 Beav. 246 ; raise should not be considered his
26 L. J. C. 854. As to a devise to prcjperty, as much as a debt he has
executors or trustees passing the fee a right to recover. Bat the latter
or a power to sell only, see ante, p. can only be charged in the manner
378 ; Sugden, 111. "Technical and to the extent specified at the
words are so essential to the creation creation of the power." Per Grant,
of estates by deed, and their import M..'R.,Solmesy. Coffhill,7 Yes. 605.
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SECT. IV. § 2. CONSTEUCTION OF POWERS. 395
Where the devise is accompanied with expressions re- Disposition re-
stricting the disposition to particular objects, the question the objects,
often arises whether such expressions are obligatory and
create a particular power only in favour of the objects
mentioned. — Where a testator devised to his wife " to be
at her disposal in any way she may think best for the
benefit of herself and family/' it was held that the
property was left to her absolute disposal, and that no
trust or restriction was imposed in favour of the
family (a). — -Where a testator devised all his property to
his wife, her heirs, executors, administrators, and assigns,
for her sole use and benefit, in full confidence that she
would dispose of it for the benefit of all their children,
it was held that a trust was created and that the wife
took an estate for life with a power of appointment
amongst the children (5).
A devise to a person for life expressly, with re- Devise for life
mainder to such persons as he shall by deed or will or remainder' °™'^
otherwise appoint, does not give him the absolute interest ;
although he may acquire it by an exercise of the power
(c) . — So, a devise to a persoa for life, with remainder to
his " assigns " gives him a life estate with a general
power of appointment over the remainder {d) .
Where several powers are given or reserved by the
(a) Lambe v. Fames, L. E. 6 Oh. favour of that opinion." Sugden,
597 ; 40 L. J. C. 447 ; and see Mac- 105, 106. As to precatory expres-
i:ett T. Mackett, L. E.. 14 Eq. 49 ; sions in a will being construed to be
41 L. J. 0. 704 ; Brook v. Brook, obligatory, see ante, p. 132.
3 Sm. & Gif 280. (c) Sugden, 105 ; and the same
(S) Wace T. Mallard, 21 L. J. C. rule apples to personal estate, lb.
355. Curnick r. Ihicier, h. E. 17 See Tomlinson y. Dighton, 1 P.
Eq. 320. In this class of cases it Wms. 1 49 ; 10 Mod. 31 ; Powell's
is sometimes doubtful whether the Trusts, 39 L. J. 0. 188 ; Pennock
devisee takes an estate in fee upon v. Pennock, L. E. 13 -Eq. 144 ; 41
trustoran estate for life with a power L. J. C. 141. See Butler y. Gray,
to dispose of the inheritance. " The L. E. 5 Ch. Ap. 26 ; 39 L. J. 0.
better opinion certainly is that the 291 ; Farington v. Parker, L. E. 4
devise is for life, with a power to Eq. 116, a case of chattela personal,
appoint the inheritance, unless the (rf) Quested v. Michell, 24 L. J.
words of the will clearly negative C. 722 ; see Brookman v. Smith, L.
such a construction, and the au- E. 6 Ex. 291 ; 7 lb. 271 ; 40 L. J.
thorities appear to be greatly in C, 161.
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396 PAET II. CHAP. II. THE LIMITATION OF PUTTJEE ESTATES.
Construction of Same deed or instrument, whicli cannot operate con-
powers as to 1 • -i J? J.1 •
priority of opera. Currently, the question occurs as to the priority oi their
operation. This may be expressly provided for in the
terms of the instrument ; but the usual practice seems to
be to leave it to be determined by construction of law
from the purpose and intention of the powers and the
occasions for their exercise (a) .
Power of sale. A power of Sale and exchange necessarily operates by
its exercise a complete conversion of the subject of
property and, in general, supersedes all the then existing
uses, estates, and powers under the settlement, (except
a lease previously created under a power of leasing,)
and transfers them, so far as they apply, to the property
purchased or taken in exchange (6). — Similarly, a power
of partition shifts all the uses from the undivided moiety
to the specific separate moiety acquired by the parti-
tion (c). — So, a power to raise money for payment of
debts or legacies, in general, takes priority of all beneficial
estates and interests in the property [d) .
Power of leasing. A power of leasing, the purpose of which is the pro-
fitable disposal of the property for the time being in the
interest of all persons beneficially entitled under the
settlement, necessarily operates in priority to all other
powers then subsisting. The execution of a lease under
the power effectually displaces the possession during the
term thereby created and vests it in the lessee, as against
all the estates in the settlement, which it renders re-
versionary in regard to the lease ; and all other powers
subsequently executed operate only upon the rever-
sion (e). — The benefit of the rents, covenants, conditions
and rights of entry under the lease, provided it be made
in accordance with the power, becomes incident to the
(a) Sugden, 488; 1 Sanders on 1 Vea.jun. 499.
Uses, 164 ; Butler's note to Co. Lit. (d) See Bringloe v. Qoodson, 4
271 h. III. 4. Bing. N. C. 726.
(4) Sugden, 482 ; see ante, p. 379. (e) Sugden, 483 ; Bringloe v.
(c) Sugden, 483 ; Earl of Ux- Goodson, 4 Bing. N. C. 726.
bridge v. Bayley, 4 Bro. C. C. 13 ;
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SECT. IV. § 2. CONStEtJCTION OF POWERS.
397
reversionary estates and interests under the settlement in
their order of succession (a).
A power of jointuring, according to its purpose, Power of jointur-
operates from the death of the husband, and takes priority
of all other beneficial uses and estates of the settlement
then subsisting or arising upon that event (6).
A power of charging portions for children, in general, Power of charg-
^ . ing portions.
takes eSect after the life estate of the father, and subject
to the jointure of his widow (c).
(a) jrhWoclc's Case, 8 Co. 69 I ;
Butler's note to Co. Lit. 214 a;
Isherwood y. Oldknow, 3 M. c& S.
382 ; Sogers T. Humphreys, 4 A. &
B. 299. In WhUlooVs Case it was
resolTed, as to the form of reserva-
tion in a lease under a power, that
"when the lessor reserves rent to
him and his heirs, it is good, for that
by construction of law precedes the
limitations of the uses, and then it
being well reserved, it is well trans-
ferred to every one to whom any
use is limited. So if the reservation
be to the lessor and to every person
to whom tlie inheritance or rever-
sion of the premises shall appertain
during the term, tliat is likewise
good, for the law will distribute it
to every one to whom an\ limitation
of the use shall be made. But it
was agreed that tlie most clear and
sure way was to reserve rent yearly
during the term, and leave the law
to make the distribution, without
an express reservation to any per-
son." 8 Co. 71a. Where the lessor
having a power of leasing under
a settlement made a lease reserving
the rent to himself, his heirs and
assigns, without any reference to the
power whereby the reservation
might be explained and directed, it
was held that the lease operated only
by way of estoppel between the
parties to it, and was void both for
and against the persons entitled
under the settlement. ITellotoly v.
Oower, 11 Ex. 274 ; 24 L. J. Ex.
289, explaining Greenatoay v. Hart,
14 C. B. 340 ; 23 L. J. C. P. 115,
in which case a lease made in like
terms but with express reference to
the power was supported in accord-
ance with the apparent intention.
(6) Sugdeu, 484.
(c) Sugden, 487.
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398 PAET II. CHAP. tl. THE LIMITATION OF PUTHEB ESTATES.
§ 3. Execution of Powers. §§ 1- Time op Execution.
Power may be executed at any time during the life of the donee —
notwithstanding the determination of liis estate.
Power given at a future time or event — after decease — when in
possession of estate.
Power given upon contingency — power given to survivor of two
or more persons.
Power restricted to certain time or event — during coverture —
powers in settlements.
Power given for A power given in general terms, without express or
implied restriction of the time of execution, may be ex-
ercised at any time during the life of the donee (a).
Notwithstanding And where the donee of the power takes an estate de-
determination of •iin-i*Tr»i
his estate and terminable during his liie, the power may continue and
vesting of re- .^., ■ t i i
maiuder. be exercised, though the estate be determined and the
remainder vested in possession until appointment. Thus
where real estate was settled upon A. for life or until
bankraptcy, with remainder to his children as he should
appoint, and in default of appointment to the children
equally ; upon his bankruptcy the property vested in pos-
session in the children, but was subject to a subsequent
execution of the power (&). — Where the donee of the
power took such a determinable estate, and it was ex-
pressly provided that upon the determination of his
estate in the event specified the property should go over
as if he were actually dead, it was held that his power
ceased upon the determination of his estate (c) .
(a) Sugden, 260. 97, as relating to personalty to be
(i) Aylivin's Trusts, L. E. 16 Eq. paid over upon the determination of
585 ; 42 L. J. C. 745 ; Wickham v. the estate.
Wing, 2 H. & M. 436 ; 34 L J. C. (o) Potts v. Britton, L. B. 11
425, explaining Easwell v. Sas- Eq. 433.
well, 2 D. E. & J. 456 ; 30 L. J. C.
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SECT. IV. § 3. TIME OF EXECUTION. 399
A power given at a future time or in a future event Power givm at
cannot be executed until the time arrives or the event
happens. Thus^ a power of sale given after the decease After decease of
of a person cannot, in general, be exercised during his "P""^^"""
life [a). — So, where in a settlement a power pf leasing
was given to the father tenant for life during his life, and
after his decease to the son tenant for life during his life ;
it was held that the sou could not lease under the power
during the lifetime of the father, although the father
conveyed his estate to the son (&).
But a power given to appoint uses or estates after the power gi-jen to
decease of a tenant for life may require to be construed after Ms decease,
relatively to the prior life estate, as 'applying to the time
of possession of the estate to be appointed and not as
hmiting the time for executing the power (c) . — A limita-
tion to A. for life and ' after his death ' as he shall appoint
does not restrict the execution of the power to a will, but
it may be made at any time during his life. On the other
hand, a devise to A. for life and afterwards to leave it or
will it to whom he pleases was construed to give a power
of appointment by will only {d). So a devise to testator's
wife for life and at her decease to dispose of the property
amongst his children at her discretion was held to give a
power by will only, and therefore in favour of such
children only as survived her (e) .
A power given to the tenant of an estate to be executed power giTen
when in actual possession of the estate cannot be executed Son?™^
before he obtains possession ; and, in general, possession
of his own estate is intended, so that the power cannot be
(a) Sugden, 266 ; Co. Lit. 112 b ; direction that any appointment by
Blachlow V. Laws, 2 Hare, 40. deed should not " come into opera-
Johnstone v. Baler, 8 Beav. 233 ; tion until after her death," and it
Want V. Stallihrass, L. E. 8 Ex. was held not to prevent the execution
175, 42 L. J. Ex. 108, and cases of the power by an irreTocable
there cited. deed.
(h) Coxe V. Bay, 13 East, 118. {d) Sugden, 210.
(c) Hargrave's note (2) to Co. (e) Freeland, v. Pearson, L. E.
Lit. 113 a. Alexander v. Young, 3 Eq. 658 ; 36 L. J. C. 374, and see
6 Hare, 393, where the power was the cases there cited,
given to the tenant for life with a
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400 PAKT II. CHAP. II. TIlE LIMITA0:iON OE fUTUEE ESTATES.
accelerated by possession acquired under a grant of a prior
possessory estate (a).
But in the above cases of a power to arise at a future
time or eventj a covenant or contract to execute tbe
power wlien it arises, may sometimes operate as a good
execution and be enforced in equity (b) .
Power given
upon a contin-
gency.
Power to sur-
vivor of two
persons.
A power given upon a contingency seems to depend
upon the nature of the contingencyj as to whether it can
be exercised before the contingency happens. A power
given to a person in case of failure of issue at his death
may be executed during his life, though operative only
upon the contingency happening of his death without
leaving issue (c).
If the contingency is as to the person, it cannot be
executed until the person is ascertained. Thus, a power
given to the survivor of two persons cannot be executed
by a joint appointment, or by a several appointment
during their joint lives. But, if to be executed by will,
it may be well executed by the will of the actual survivor,
though made during the joint lives ; for the will, now at
least, speaks from the death [d) .
Power restricted A power to be exercisod within a prescribed period is
or event™ ^™° not Well executed by a will, unless the donee of the
power die within the period, because the will is not
operative until his death (e) . And where the power was
limited to cease in a certain event, as if the donee were
(a) Sugden, 269, see Coxe v. Dat/,
13 East, 118.
(i) See post, p. 425 ; 1 Sch. and
Lef. 63, Shannon v. Bradstreet ;
AffiecTc T. AfflecTc, 3 Sm. & Giff.
394 ; 26 L. J. C. 358 ; Johnson v.
Touchet, 37 L. J. C. 25.
(c) Sugden, 263. X>o% v. Fallen,
2 Bing. 144. And as to a power to
arise on default of issue, see Sugden,
267.
{d) Sugden, 124, 263 ; 1 Vict. u.
26, s. 24 ; and a general devise
operates as a general power of ap-
pointment, s. 27. See ITAdam v.
Logan, 3 Bro. C. C. 310 ; Doe v.
Tomkinson, 2 M. & S. 165 ; Hole v.
Escott, 4 M. & Cr. 187. As to a
power given to A. in case he survive
B., see Sugden, 262.
(e) Cooper v. Martin, L. E. 3 Ch.
Ap. 47, and there is no jarisdiction
in equity to supply such defect in
the execution. lb. see post, 423.
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SECT. IV. § 3. T/ME OP EXECUTION.
401
then dead, a will previously made was held to be bo
execution, as the will remained revocable (a) .
A power given to a married woman during coverture Power during
cannot be exercised after the death of her husband ; a
power given "notwithstanding coverture" is not re- notwithstanding
stricted to the coverture (6). — So a power given to a
woman "being sole" cannot be exercised after marriage;
but such restriction will not be implied upon a general
power given in a settlement made before marriage, though
the settlement contain limitations and other particular
powers to take effect upon the marriage (c) .
The usual powers in a settlement are impliedly re- Powers in settle-
-,.-.. -iin • e ^ i ment impliedly
stricted m their execution by the duration oi the settle- restricted to pur-
poses of the
ment, or the continuance of the trusts and purposes to settlement.
which the powers are subservient ; and they cannot, in
general, be exercised after the vesting in possession of
the ultimate remainder in fee, whereby they are rendered
no longer necessary {d).
(a) Fotts V. Britton, L. E. 11 Eq.
433.
(5) Doe Y. Bird, 2 Nev. & M.
679; 5 B. & Ad. 695. Sugden,
155, 264. EolUday v. Overton, 14
BeaT. 467. A power given in a
marriage settlement " during cover-
ture " will not extend to a second
marriage. Worsman v. Alley, 1 J.
& W. 381 ; Morris v. Bowes, 4
Hare, 599.
(c) Sugden 155 ; Wood v. Wood,
L. R. 10 Eq. 220; 39 L. J. 0.
790.
(d) Sugden, 99, 859 ; see ante,
p. 382.
2d
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402 PAET II. CHAP. II. THE LIMITATION OF EDTUEE ESTATES.
§§ 2. The Form and Conditions of Execution.
Forms and conditions prescribed by the power must be strictly
complied with.
Power given in general terms.
Power to be executed by deed — by other instrument or writing—
will operating as instrument of execution — statutory form of
execution by deed.
Power to be executed by will — statutory form of execution by
will — execution by will revocable.
Consent required to execution.
Power involving discretion cannot be transferred — power ex-
tended to heirs or executors — to assigns — execution by
attorney.
G-eueral power may be transferred — execution by giving power.
Forms pre-
scribed in
power must be
observed.
The forms and conditions prescribed in the creation of
the power for the due execution must be strictly ob-
served ; — as that it shall be executed by deed, or will, or
writing ; — with signature, seaUng, delivery ; — in the
presence or with the attestation of witnesses ; — with en-
rollment, or any other like ceremony ; — with the consent
of certain persons, or with notice to certain persons, or
with any other conditions of the like kind {a).
Power giTen
iu general
terms.
A power given in general terms, without any express or
implied restriction upon the mode of execution, may be
executed by deed or will, or by any writing sufficiently
declaring the use or estate appointed (&) .
(a) Sugden, 206, 229; Hawkins
V. Kemp, 3 East, 410, where
EUenborough, C. J. said of such
requisitions that being " unessential
and unimportant, except as required
by the creators of the power, they
can only be satisfied by a strictly
literal and exact performance. They
are incapable of admitting any sub-
stitution, because they have ng
spirit in them which can be other-
wise satisfied ; incapable of receiving
any equivalent, because they are in
themselves of no value." They are,
however, introduced chiefly with the
object of securing deliberation and
certainty, and protecting the in-
terests of those whose estates are to
be defeated by the appointment.
(b) Sugden, 135, 203,
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SECT. IV. § 3. POEM AND CONDITIONS OF EXECDTION. 403
A power expressly requiring an execution by deed power to be
cannot, in general, be executed by will. — But if tlie mode deed! " ^
of execution be extended in terms to any other instru- men°'or wStog'
ment or writing, it is not then restricted to a deed,
and an instrument intended as a will, whether good or
not as such, if answering to the description and complying
with the formalities required by the power, may be a
sufficient execution (a) . In this respect, a will attested wm operating
as mstroment of
as being " published, acknowledged and declared " as execution,
the testator's will in the presence of witnesses was held
to answer the description of an instrument " de-
livered " (b) . But a will not sealed nor purporting to be
sealed was held not to operate as an instrument " sealed,"
as required for the execution of a power (c).
By the 22 & 23 Vict. c. 35, s. 12, "A deed hereafter statutory form
executed in the presence of and attested by two' or more deed,
witnesses in the manner in which deeds are ordinarily
executed and attested shall, so far as respects the execu-
tion and attestation thereof, be a valid execution of a
power of appointment by deed or by any instrument in
writing not testamentary, notwithstanding it shall have
been expressly required that a deed or instrument in
writing made in exercise of such power should be
executed or attested with some additional or other form
of execution or attestation or solemnity .•'" A proviso
follows saving the effect of any direction in the power as
to the consent of any person required, or as to any act
having no relation to the mode of executing and attesting
the instrument, and also saving an execution conformable
with the power.
(a) Sugden, 135, 209, 214 ; Frobi/ swers the description of an instru-
V. Landor, 30 L. J. C. 593 ; 6 Jur. ment in writing." Fer Westbury,
N. S. 1278; Tai/lor v. Meads, 34 L. C. lb. p. 206. As to the juris-
L. J. C. 203 ; " If a power be diction of equity to supply the de-
created to be executed by a deed or feet of an execution by will instead
instrument in writing, although the of by deed, see^o*^, p. 423.
words seem to indicate instruments (b) Smith v. Adkins, L. K. 14
inter vivos only, yet it is settled that Eq. 402 ; 41 L. J. C. 628.
it may be well executed by will. The (c) Taylor y. Meads, 34 L. J. C.
reason is that the will literally an- 203, and see the cases there cited.
2d2
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404 PAET II. CHAP. II. THE LIMITATION OF FUTUEE ESTATES.
Attestation be. Before this enactment the ordinary memorandum of at-
fore the statute. .
testation of a deed, " sealed and delivered by ia the
presence of us," etc., applied to the execution of a power
requiring attestation, was held not to coyer any other
form or requirements of execution than those mentioned
therein, namely, sealing and delivery ; and a power
which also required signing was not well executed un-
less the signing was also expressed to be attested [a).
An attestation in general terms, not particularising the
form or mode of execution, was held to cover all such
forms and requirements of execution as the deed or in-
strument expressed in its terms to have been used at its
execution (6).
Power to be exe- A power to be executed by will cannot be executed by
™ ^ ^ ■ a deed, for the intention of the power that the execution
should be revocable would be thereby defeated (c).
statutory form The WiUs Act, ] Vict. c. 26, (applying to wills made
o^^eiecuion y ^j^g^. 2337^^ which prescribos a general form for the exe-
cution of wills (s. 9), further enacts as to the execution
of powers by will (s. 10), " that no appointment made by
will in exercise of any power shall be valid, unless the
same be executed in manner hereinbefore required;
and every will executed in manner hereinbefore required
[a) Sugden, 234 ; and see the oases doctrine in full efifect as to deeds
there cited and discussed. Wright subsequently executed, until it was
r. Walceford, 17 Ves. 454 ; 4 Taunt. altered by the enactment above
213. In consequence of the above stated.
doctrine of the restrictive construe- (5) Doe v. Burdett, 9 A. & E.
tion of the ordinary memorandum 936 ; S. C. in H. L. nom. Bwrdett
of attestation, expressing the facts v. Spilsbwy, 10 C. & F. 340 ; 6 M.
of sealing and delivery only, and & G. 386. See Vincent v. Bp. of
the doubts thereby throvfn on the Sodor & Man, 5 Ex. 683, 694.
validity of deeds so attested where (c) Sugden, 210 ; Meid v. Sher-
signature was required, an Act was gold, 10 Ves. 370 ; see Thaoker v.
passed, 54 Geo. III. c. 168, to the Key, L. E. 8 Ex. 408. And there
effect that all such deeds in exeou- is no jurisdiction in equity to aid
tion of powers then made should such an execution of the power,
have the same validity as if the see pott, p. 423. As to the con-
memorandum of attestation had in- struction of a power in regard to
eluded signature. But this Act had execution by will only, see arde,
fio prospective operation and left the p. 399.
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SECT. IV. § 3. FORM AMD CONDmONS OB EXECUTION. 405
shall, as far as respects the execution and attestation
thereof, be a valid execution of a power of appointment
by will, notwithstanding it shall have been expressly re-
quired that a will made in exercise of such power should
be executed with some additional or other form of execu-
tion or solemnity " [a) .
The statute applies only to powers admitting in terms
of an execution " by will," and does not extend to powers
to be executed by other instruments or writings, though
a will might answer the description of such instrument
or writing and satisfy the terms of the power ; in which
case, however, the statute will not obviate the defects of
the wiU as such instrument in not satisfying the require-
ments of the power (6).
An appointment by will partakes of the revocable Execution by
i ^ .,,.,„. - . , . . -, T , will is revocable
quahty oi the will itself in which it is made, and, there-
fore, is not complete until the death of the testator.
Consequently it cannot operate in favour of appointees
dying before the testator (c) . So it cannot operate as
an execution of a power restricted to a certain time,
unless the testator die within the time, so that his
will may become operative during the continuance of the
power (d).
(a) If relating to personalty the such additional solemnities shall be
will must also be proved, the pro- sufficient; but it does not touch the
bate being the sole and oonclusiTe case of a power requiring an instru-
evidenoe of the will, though not ment signed, sealed and deUvered.
conclusive as to whether tlie will is In such a case the only question is,
a good execution of the power. whether the wUl be such an instru-
Sugden, 466. As to the effect of ment, and no help can be obtained
probate as evidence of the will in from the statute." Per Westbury,
matters concerning real estate, see L. C. lb. 207.
post, Part IV. ' WUls.' As to the (c) Sugden, 458, 460. Freeland
effect of a general devise of real v. Pearson, L. E. 3 Bq. 658 ; 36 L.
estate, see s. 27, cited post, p. 411. J. C. 374 ; see Davies' Trusts, L. E.
(S) Tai/lor v. Meads, 34 L. J. C. 13 Eq. 163 ; 41 L. J. 0. 97.
203 ; see ante, p. 403. " The (d) Cooper v. Martin, L. R. 3 Oh.
statute applies to powers requiring 47. And if the power cease before
specially a will with solemnities in the death of the testator, there is no
addition to the solemnities rendered equity in aid of the appointment in
necessary by the statute ; and in such his will. See post, p. 423.
cases it declares that a will without
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406 PART II. CHAP. II. THE LIMITATION OP lUTUEE ESTATES.
Consents re-
quired tor exe-
cution.
The consent of other persons, wMch may be required
as a condition to the execution of the power) must be
obtained, and at the time and in the particular form, re-
quired by the terms of the power (a). — The death of the
person whose consent is so required, or of one of several
persons whose joint consent is required, prevents the
exercise of the power and so destroys it (&).
Power involving
discretion can-
not be trans-
ferred.
Power extended
to heirs and exe-
cutors.
Power extended
to assigns.
Execution by
attorney.
" If the power repose a personal trust and confidence
in the donee of it, to exercise his own judgment and dis-
cretion, he cannot refer the power to the execution of
another, for delegatus non potest delegare " (c) .■ — So a
power of consent, as a condition to the execution of a
power by another, cannot be transferred {d).
The power may be expressly extended to representa-
tives, as the heirs or executors of the donee, who in such
case may execute it ; but it is not thereby made assign-
able (e).
If the power be expressly extended to the assigns of
the donee, it may pass to his assignee in law or in fact,
either as annexed to an estate or not, and either in his
lifetime or at his death, according to the intention of the
instrument creating the power (/) .
The deed or instrument of appointment under a power,
when prepared according to the instructions of the donee,
may be executed by attorney,, there being no discretion
involved in the mere act of execution ; unless the power
prescribe some particular mode of execution inconsistent
with such agency. The deed or instrument is in fact that
(a) Sugden, 252.
(b) Sugden, 252, and see the cases
there cited.
(c) Sugden, 179, and see the cases
there cited ; Topham y. Duke of^
Portland, 1 D. J. & S. 517 ; 32 L. J.
C. 257; 34 lb. 113.
(d) Sugden, 180 ; MawJcins v.
Kemp, 3 East, 410.
(e) Sugden, 129-134, and the
cases there cited ; see Cole v. Wade,
16 Ves. 27 ; Bradford T. BelfieU,
2 Sim. 265 ; Cooke v. Crawford,
13 Sim. 91 ; Wilson t. Bennett, 5
De G. & S. 475 ; 20 L. J. C. 279.
Nor is such power transferred to a
new trustee appointed merely by the
authority of the Court. Newman t.
Warner, 1 Sim. N . S. 457 ; 20 L. J.
C. 654.
(/) Sugden, 180 ; Ball T. Mag,
3 K. & J. 585 5 26 L. J. C. 791.
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SECT. IT. § 3. FORM AND CONDITIONS OP EXECUTION. 407
of the principal ; it purports to be drawn and executed
in his name, though the formal act of execution is by the
hand of an attorney (a).
A general powerj unrestricted as to the objects and as General power
. . may be trana-
to the execution, may be transferred to another. Thus ferred.
where an estate is limited generally to such uses as A.
shall appoint/ he may limit it to such uses as B. shall
appoint, and B. will take a general power of appoint-
ment. The power in such form is a species of owner-
ship equivalent to the fee simple, involving no trust or
discretion except on his own behalf (&) .
A power to appoint generally to or amongst particular Execution by
objects may be executed by giving to the objects a
general power of appointment, for that is . equivalent to
ownership, and not a delegation of the original power (c) .
So the power may be executed by giving to an object an
estate for life with power to appoint by will {d); only if the
object of the appointment were not living at the time of
the creation of the power, the appointment to him of the
power by will would be void for remoteness (e) .
giTing power.
(a) Sugden, 180, 199 ; see Serfe-
ley Y. Hardy, t'B. &C. 355.
(S) Sugden, 181, 195 ; see ante,
p. 394.
(c) Bray v. Hammersley, 3 Sim.
513.
(d) Phipson, v. Tnrner, 9 Sim.
227; SlarJc v. Bakyns, L. E. 15
Eq. 307 ; 42 L. J. C. 524 ; see Sug-
den, 683.
(e) WoUaston v. King, L. E. 8
Eq. 165; 38 L. J- 0. 61, 392;
Morgan v. Gronow, L. E. 16 Eq. 1 ;
42 L. J. C. 410 ; see post, p. 460.
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408 PAEl? II. CHAP. II. THE LIMITATION OF FUTUEB ESTATES.
3. Construction and Opeeation of the Insteument
OF Execution.
Intention to execute the power — examples.
Conveyance or deTise operating as execution of power — where
donee of power has no estate — where donee has estate —
where donee, having estate, both appoints and conveys.
Statutory effect of general devise in execution of power — power
created subsequently to the will.
Construction of the uses and estates appointed.
Partial and repeated execution of power — execution for mortgage
or charge only.
Execution with reservation of new powers of revocation and ap-
pointment — new powers must be expressly reserved — new
power of revocation does not include new appointment — new
powers do not require the formalities of the original power —
Execution by will revocable without reservation.
Execution subject to a condition.
Intention to
execute the
power must
appear.
Examples.
The instrument of execution must show an intention
to execute the power ; but it need not expressly recite or
refer to the power, provided it point sufficiently to the
property subject to it {a).
A will devising all the estate which the testator has
power to dispose of may operate as an execution of a
power, general or special, notwithstanding the will con-
tain a general charge of debts, which could not attach
on the property appointed, and notwithstanding that it
purport to devise a greater estate or to include other
persons than the power authorises (&). — So, a wiU made
in exercise of every power enabling the testator, with-
(a) Sugden, 201, 289 ; see Garth
V. Townsend, L. E. 7 Eq. 220 ; see
Kennard v. Kennard, L. R. 8 0.
227; 42 L. J. C. 280, and cases
there cited.
(S) Cowx V. Foster, 1 J. & H.
30 ; 29 L. J. C. 886 ; Ferrier v.
Jay, L. E. 10 Eq. 550 ; 39 L. J. C.
686 ; Teape's Trusts, L. E. 16 Eq.
442; 43 L. J. C. 87; Sruce v.
Sruce, L.E. 11 Eq. 371 ; 40 L. J.C.
141.
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SECT. IV. § 3. CONSTBUCTION OF INSTKTJMBNT. 409
without other reference to the power, is sufficient to sup-
port it as an appointment (a) . — A recital in an instru-
ment to the effect that a person, an object of the power,
is entitled to an estate or fund to be appointed may show
a sufficient intention to appoint, and if sufficient in re-
spect to form may operate as an appointment (&) . — Where
a person, having a general power over property vested in
a trustee, took a transfer of the property from the trustee
and executed the deed of transfer, it was held to operate
as an execution of the power (c) .
Where a person, having a power to appoint property. Conveyance or
but no estate or interest in it, executes an instrument as execution of
purporting to be a direct conveyance of the property, or no estate,
devises it by will, without any reference to the power or
expressed intention of executing it, the conveyance or
devise, if satisfying the requirements of the power as to
form and conditions, is taken to operate as an execu-
tion of the power, because it can operate only in that
way {d).
Where a person has a power of appointment and wtere donee of
power lias
also an estate m the same property, a conveyance estate.
or devise, without any reference to the power, ope-
rates presumptively upon the estate only, and not as
an- execution of the power. But if full effect cannot be
given to the intended disposition by way of conveyance
or devise, the instrument, if sufficient in other respects,
may be taken to operate in execution of the power in
order to effectuate the general intention (e) . — Thus, if a
(a) Sruce v. Bruce, supra. 2Eq. 816 ; Oratwick\ Trusts, L. R.
(J) Sugden, 202 ; Wilson v. Fig- 1 Eq. 177, where the gift inclnded
gott, 2 Ves. jun. 351. a person not an object of the power
(c) MarUr t. Tomtnas, L. B. 17 and was so far Toid, but was sup-
Eq. 8 ; 43 L. J. C. 73. ported as to those appointees who
(d) Sugden, 288 ; 1 Jarman on were objects.
Wills, 628 ; Hawkins on Wills, 25 ; (e) Sugden, 343 ; 1 Jarman on
Clere's Case, 6 Co. 17 b ; Scrape's Wills, 628 ; Hawkins on Wills, 22 ;
Case, 10 Co. 143 b ; Tomlinson v. see per Turner, L. J., Fomfret v.
Higlton, 1 P. Wms. 149 ; 10 Mod. Ferring, 5 D. M. & G. 775 ; 24
31; Att.-Gen. T. Wilkinson, L. B. L. J. C. 187; Wildborey. Gregort/,
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410
PART II. CHAP. II. THE LIMITATION OP FtlTUEE ESTATES.
Execution of
power operating
as conveyance.
"Where donee of
power having
estate both
appoints and
conveys.
tenant for life with a power of teasing grant a lease
without reference to the power^ such lease, as drawn from
his estate, would determine with his life ; but, if made in
conformity with the~ power, it may be supported for the
whole term as an execution of the power (a) .
On the other hand, where the instrument is expressly
made in execution of the power only, and not as a
conveyance of the estate, if it be void in execution of the
power, it may be supported as against the appointor out
of his interest ; but it will not operate as a conveyance
contrary to the intention, where the effect of such opera-
tion would be prejudicial to the appointee, as by merging
a prior interest, or giving a less interest than intended
under the power, or where the estate is subject to
trusts {b).
Where the donee of a power, having also an estate or
interest in the land, both executes the power and conveys
the estate, the question may arise whether the instrument
operates by way of conveyance or appointment. This is
a question of construction with reference to the circum-
stances, and that construction is to be adopted which
will best effectuate the intention of the parties (c). —
Conveyances are commonly drawn so as to be capable of
operating either way, for greater security {d).
L. R, 12 Eq. 482 ; 41 L. J. C. 129.
See Sutler v. Gray, L. R. 5 Ch.
26 ; 39 L. J. C. 291. " If the in-
tention to pass the property can be
collected, it will pass under the
power, although the donee supposed
that it would work by force of his
Interest. He intends the property
to pass and thinks he has all the in-
terest in it, whereas he really has
only a power. The intention go-
verns and the power wiU support
the disposition." Sugden, 350.
(a) Sugden, 344, 347 ; per Parker,
C. J., Tomlinson. f. Dighton, 10
Mod. 36 ; Campbell v. Leaeh, Ambl.
740.
(J) Sugden, 353; Roe t. Ahp.
York, 6 East, 86 ; Sowes v. East
London Waterworks, 3 Madd. 375.
" In a win there are no particular
words required to pass the estate ;
but any wori.i= that show the inten-
tion of the testator are sufficient ;
and although only the power is ex-
pressed to be exercised, yet the
words plainly manifest that the tes-
tator intended that the devisee
should have the estate." Sugden,
353.
(c) Sugden, 357, and cases there
cited ; see Sutler v. Gray, L. E. 5
Ch. 26 ; 39 L. J. 0. 291.
{d) See ante, p. 382.
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SECT. IV. § 3. CONSTEDCTION OF INSTEUMENT. 4ll
By the Wills Act, 1 Vict. c. 26, s. 27, "a general statutory effect
,.„-, , PI PI 1*^^ general devise
dcTise 01 the real estate oi the testator, or oi the real as execution of
estate of the testator in any place, or in the occupation
of any person mentioned in his will, or otherwise de-
scribed in a general manner, shall be construed to include
auy real estate or any real estate to which such descrip-
tion shall extend (as the case may be) which he may
have power to appoint in any manner he may think
proper, and shall operate as an execution of such power,
unless a contrary intention shall appear by the will ; "
the section proceeds to enact in the same terms as
to personal estate. — A power to appoint to any person
by will only is a general power within the section (a) ; a
power to appoint in any manner amongst children is
not (i).
This enactment merely expresses the rule of law, where
there is no other estate to satisfy the devise ; but where
the testator has an estate as owner, and also a general
power over the same or other estates, it alters the pre-
vious rule, that a general devise would operate as an
appointment only if the intention required it. Under
the statute a general devise executes the power unless a
contrary intention appear by the will (c).
Under this section a charge of debts or legacies, or Direction to pay
other general direction as to the application of the tes-
tator^s estate, may operate as an execution of a general
power of appointment (d) . But the execution will extend
only so far as necessary to render such directions effec-
tual, and so far as such directions fail by lapse or other-
wise the power will remain unexecuted (e).
(a) Powell's Trusts, 39 L. J. C. (d) Wildai/ v. Barnett, L. E. 6
188. Eq. 193 ; re Wilkinson, L. E. 4
(h) Cloves T. Awdry, 12 Beav. Ch. 587.
604 ; and see Hawkins on Wills, (e) Davies' Trusts, L. R. 13 Eq.
27. 163 ; 41 L. J. C. 97. Where see
Ifi) See ante, p. 409 ; Sugden, the distinction between such partial
300. As to what dispositions by execution and an appointment in
will operated as an execution of a terms to A. in trust for B. where
general power before the statute, only the trust fails by lapse or other-
^ see Sugden, 301. wise.
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412 PAET II. CHAP. II. THE LIMITATION OF PDTUEB ESTATES.
Powers created
subsequently to
tlie wiU.
The same statute enables a testator to dispose of all
the real and personal estate which he shall be entitled to
at the time of his death (sect 3) ; and further enacts that
every 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
death of the testator, unless a contrary intention shall
appear by the will (sect. 24) . — Hence a general devise
may operate in execution of a power created after the
date of the will, if it be capable of being so executed (a).
— But where the' power has been created by the testator
himself subsequently to his will, it may appear from the
circumstances that he did not intend his previous will to
operate in execution of it, and accordingly it will not so
operate (6).
Construction of The limitation of the uses or estates appointed in exe-
uses and estates ,. p , it,i i tit,
appointed. cution 01 a power are construed by the rules applicable to
the instrument of execution, as being a deed or a will.
Therefore, if the appointment be by deed, the same tech-
nical terms are required, and receive the same construc-
tion as in a conveyance of the like estates. If the ap-
pointment be by will, the terms of appointment receive
the same construction as wills in general (c). — The ap-
pointed limitations are construed, in general, in combina-
tion with the limitations of the original instrument creat-
ing the power and as if inserted therein in place of the
power [d).
Partial execu-
tion.
A power, of revocation and new appointment may be
executed from time to time as to different parts of the
(a) See Hawkins on Wills, 22;
Stillman v. Weedon, 16 Sim. 26.
Ruding's Settlement, L. B. 14 Eq.
266 ; 41 L. J. C. 665.
(J) Ruding's Settlement, supra ;
Fettinger v. Amhler, L. R. 1 Eq.
510; 35 L. J. G. 389, where the
testator made a further wiU after
the creation of the power in partial
execution of it. As to the expres-
sion of a contrary intention in the
will, see Moss v. Harter^ 2 Sm. &
Giflf. 458.
(c) Sugden, 441.
{d) See ante, p. 375.
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SECT. lY. § 3. CONSTEUCTION OP INSTEUMENT. 413
land, or as to different uses or estates, so long as any
power continues. Thus, a general power of appointment Repeated execu-
may be executed by appointing an estate for life at one
time, and the fee at another time. So, a power of jointur-
ing or raising portions may be executed from time to
time, as required, up to the limits of the power (a). —
And an express declaration that the residue of the estate
or interest shall go to the remainderman or as in default
of appointment is merely a statement of the legal result,
and not a complete execution of the power, preventing
any further execution of it (6) .
A power may be executed for the whole legal estate, Execntioa for
but only partially for the equitable or beneficial estate ; Siarls'Miiy.
as in the case of an appointment in fee by way of mort-
gage or charge only, the power is wholly executed at
law, but only partially in equity, leaving the equity of
redemption or the residue of the benefi.cial interest still
subject to the power ; and a mere formal reservation of
the equity of redemption is not of itsplf suflBcient to
operate as an appointment of the residuary interest,
without the intention otherwise appearing to alter the
previous title (c).
A power, whether general or limited, may be executed Bieoution with
..■,., !_■ s- J? I • -I power of revooa-
with the reservation oi a power or revocation and new tion and new
appointment, although no express authority for such re-
servation be given in the original power ; and a like
reservation may be made upon every subsequent execu-
tion of the power (cZ) . — And it seems " that such a power
may be reserved upon the execution of even a power
simply collateral " (e) . — " But a power may be so framed
as to show that an irrevocable appointment is intended
(a) Sugden, 272 ; Biggei Case, 1 (e) Sugden, 273, 274 ; Innes v.
Co. 173 J; i7er«)ey V. //e»-»«/, 1 Atk. Jackson, 16 "Ves. 356; 1 Bligb,
561 ; Zouch v. Woolston, 2 Burr. 104 ; see ante, p. 285.
1136 ; 1 Bi. 281. {cL) Sugden, 367; Adams v.
(J) Sugden, 82; ZoucJi v. Wool- Adams, Cowp. 651.
ton, supra, (e) Sugden, 389 ; see ante, p. 387.
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414 PAKT II. CHAP. II. THE LIMITATION OF FDTUEE ESTATES.
SO as to exclude the right to reserve a power of revoca-
tion" (ft).
Power of reTOoa- Where a power of appointment is executed by deed,
tion must be '■ '■'■,. J >
expressly Without a powcr of revocation being reserved in the
reserved. ^ , ^
deed^ the appointment cannot be revoked ; although the
original power expressly authorise revocation from time
to time (5).
Reserved power A powcr to rcvoko reserved upon the execution of a
of revocation p • j i , i • /»
does not include lormcr powcr, without an cxpross reservation oi a power
ment. to appoint new useSj does not authorise a new appoint-
ment ; upon the principle of construction that an
instrument exercising a power must expressly reserve
the powers intended to be retained (c). In general,
however, upon a revocation under the reserved power,
the original power would be revived, so as to authorise
a new appointment {d). — An original power in a settle-
ment reserved to the settlor to revoke the uses authorises
a new appointment without further reservation (e).
New powers Now powerg of rovocation and appointment re-
DOt restricted ., - . p . . ,
by formalities servcQ upou the oxecution 01 an original power are
' restricted in extent of operation and as to the objects of
appointment by the terms of the original power ; but
they are not restricted in execution by the formalities
required by that power. These formalities may be
altogether omitted, and the new powers executed in com-
(d) Sugden, 389. law estate which passed by the first,
(6) Sugden, 369 ; Mele v. Bond, for that is irrevocable, ergo, a power
Sugden, App. to limit new uses upon it must re-
(c) Sugden, 374; Ward v. Lent- main to the feofi'or, without reser-
Tiall, 1 Sid. 343 ; 2 Keb. 269. vation, or his estate is lost ; secondly,
{d) Sugden, 376 ; Montagu v. though no man can have a power of
Kater, 8 Ex. 507 ; 22 L. J. Ex. 1 54 ; revocation unless he reserves it, no
Evans v. Evans, 6 D. M. & Gr. 654. man can want a power of limita-
(e) Sugden, 371; Witham v. tion unless he excludes himself from
island,! Ch. Ca. 241; 3 Swanst. it; thirdly, when a power of revo-
277. Nottingham, L. C, gives the cation is reserved to a stranger, he
following note of his reasons in that has no power of limitation unless
case : — " First, because the revoca- reserved ; secus ubi the feoifor him-
tion of the first conveyance ex- self has the power to revoke." As
tended only to the uses limited in it, to the third position, see Sugden,
>nit could not extend to the common 375.
of original power.
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SECT. IV. § 3. CONSTRUCTION OP INSTRUMENT. 415
pliance with those formalities and conditions only which
may be prescribed in the terms of their reservation (a).
An execution by will is always revocable by the nature Execution by
of the instrument^ without any express reservation of a revocable.
power to revoke ; and a new appointment may be made
at any time by a subsequent will (5).
A power may be executed conditionally, so as not to Execution sub-
, ™ •! c ■ 1 1 • i°°* '° ^ condi-
take enect until a future time or event ; or t& be subject tion.
to revocation by a future event (c). Thus, an appoint-
ment by will, reciting that the appointor had then no
children, was construed to be conditional on there being
no children; so that, upon children being born, the
appointment was inoperative, and the children became
entitled under a limitation to them in default of
appointment {d). Under a power of appointing por-
tions to younger children to be raised at the death of
the parent, an appointment made to a younger child is
impliedly conditional upon his continuing to be a
younger child until the time of payment ; and upon his
becoming the eldest son in the lifetime of the parent, the
appointment becomes void and a new appointment may be
made of that portion (e). — Under a power of appointment
to children, who were also entitled in default of appoint-
•ment, an appointment was made of a share to one upon
terms that in case of no complete appointment it should
be in place of all claim of the appointee against the pro-
perty ; it was held that such appointment in the event
excluded the appointee from any further claim, and im-
pliedly appointed the residue to the other children (/).
(a) Sugden, 366 ; see Adams r. 136 ; 42 h. J. C. 17.
Adams, Cowp. 651 ; Brudenell v. (e) Sugden, 619 ; Chadwich v.
Blwes, 1 East, 442 ; 7 Ves. 382. Boleman, 2 Vern. 528 ; Teynham
(b) Sugden, 387 ; see ante, p. 405. v. Webb, 2 Ves. sen. 198.
(c) Sugden, 362. - (/) Foster v. Cautlet/, 6 D. M. &
(d) Jefferys' Trusts, L. E. 14 Eq. G. 55.
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416 PAET II. CHAP. II. THE LIMITATION OF rUTUEB ESTATES.
§§ 4. Execution in Excess of Powbe.
Excess as to the objects of the power — appointment amongst per-
sons, some of whom are strangers to the power — appointment
to object, with appointment over to stranger — appointment
to stranger with appointment over to object.
Appointment to child for life with remainder to his children or
issue, not objects — estate tail by cy-pres doctrine.
Excess in the estate appointed — lease in excess of power — charge
in excess of power.
Appointment with directions and conditions in excess of power
— direction that appointed property be settled — invalid
directions inseparable from appointment.
Execution in -^h appointment in excess of or deviating from the
excess of power. pQ^gj. jg^ \^ general, wliolly void; but if the excess or
deviation can be ascertained and separated from the rest
of the appointment, it is void to that extent only. The
excess or deviation may be in the objects to whom the
appointment is made ; — in the estates or interests ap-
pointed; — in conditions or qualifications annexed to the
appointment (ft).
Appointment An appointment made distributively amongst persons
amongst persons pi i • j p , i t i.
some ofwbom somo 01 wnom are objects oi the power and some not
may be void in toto from uncertainty as to what share the
proper objects should take ; but such an appointment may
be supported as to the objects within the power, if it can
be taken as in effect distributing the property amongst
those objects exclusively, or as giving to them certain
specific or ascertainable shares (6).
(a) Sugden, 498. An execution field, 1 W. & T. 1. C. 319, 3rd ed.
in excess of the power may be (i) Sugden, 504 ; Alexander v.
sometimes enforced against the per- Alexander, 2 Tes. jun. 640 ; Sad-
eon tailing in default of appointment ler v. Pratt, 5 Sim. 632 ; Brown's
under the equitable doctrine of Trusts, L. R. 1 Eq. 74 ; Bruce v.
election, which does not fall within Bruce, L. B. 11 Eq. 371 ; 40 L. J.
the scope of this work. Sugden, C. 141.
578 ; notes to Streatfisld v. Streat-
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SECT. IV. § 3. EXECUTION IN EXCESS OE POWER. 417
Where an appointnient is made to an object of the Appointment
power, with an ulterior appointment, either by way of appomtmrut
remainder or executory limitation, to a person not being
an object of the power, the latter appointment only is void
and the prior appointment may stand (a). — But where
the ulterior appointment is by way of executory limita-
tion in defeasance of the prior appointment, it may in
some cases operate by construction as a conditional
limitation of the preceding estate and determine it in the
event, though inoperative to pass the estate to the ap-
pointee as intended. It may express the intention that
the former estate is to cease in the event prescribed,
though it fail of further operative effect by reason of the
incapacity of the appointee (5).
An appointment to a person not within the power Appointment to
followed by an appointment over to an object of the power, appointment
.,, „ ., ,... . over to object.
either by way or remainder or executory limitation, is
void as to the prior appointment but may take effect as to
the appointment over. — The ulterior appointment, how-
ever, though limited by way of remainder, does not
admit of acceleration by removal of the preceding estate ;
for the prior appointment, though it be made in the form
of a particular estate, is wholly void, and leaves only the
ulterior appointment, limited to take. effect at the period
or event prescribed for the determination of the void
limitation. In all cases therefore the ulterior appointment
can be supported only as an executory limitation, and if
it be valid as such, it may take effect in due course ; and
until it takes effect, the estate goes as in default of ap-
pointment (c).
(a) Sugden, 503, 511 ; Adams v. 4 Ch. 296 ; 36 L. J. C. 905 ; 38 lb.
Adams, Cowp. 651 ; Brown v. iVJ.«- 345, where, the power being a
bett, 1 Cox. 13. general one, the ulterior appoint-
(b) Doe T. JSi/re, 5 C. B. 713; ment took effect as a remainder and
len, 512-514; see amfe, p. 363. was accelerated by a conditional
(c) Sugden, 508, 515 ; Brudenell determination of the particular es-
V. Elwes, 1 East, 442 ; V Ves. 382 ; tate. Carr , . 'Til 1 1 • reversion.
to commence m jumro is void, both at law and m
equity (c) ; but a contract to execute a lease at a future
time may be enforced when the time comes, if the power
then subsist and authorise the lease [d). — A power of
leasing in general terms presumptively authorises only
leases in possession ; and such a power does not authorise
leases in reversion, nor, it seems, future or concurrent
leases without special words for that purpose (e) .
Under a power to charge a certain sum on land a charge in exoeaa
, , ^ of power.
charge of a larger sum is void only for the excess (/) .
Conditions, directions, or qualifications annexed to an Appointment
. with directions
appointment which are not authorised by the power are and conditions
^ ^ ^ ... in excess of
void and may be rejected, and the appointment, if it can power.
be distinguished and separated from the unauthorised
terms, may stand unaffected by them {g). — Thus a direo- condition that
tion annexed to the appointment that the appointee should object partici-
share with a person not an object of the power is void
and may be rejected [li) . — So directions not authorised
by the power as to the time of vesting (i). — So a direc- condition that
. . -. .•p.- p debts be released
tion that the appointment be accepted m satisraction oi or paid.
(a) Sugden, 519; Campbell v. JBo5m», 15 lb. 32.
Leach, Ambl. 740 ; Roe v. Prideaux, (d) Shannon v. Bradstreet, 1 Sch.
10 East, 158; and see as to the & Lef. 52; see Dowell t. Dew, 1
execution of powers of leasing. Y. & 0. C. C. 345.
Sugden, o. ITIII. p. 711. As to (e) Sugden, 749, 752, 776 ; iJoe
reservation of rent and conditions v. Prideaux, 10 East, 184.
under a power of leasing, see ante, (f) Sugden, 521, Parker v. Par-
p. 397 ; and as to btatutory relief her, Gilb. 168 ; Hervey y. Servey, 1
againstdefeetsinleasesunderpowers, Atk. 561, case of exoesaiTe jointure,
see ;)Osi, p. 427. (jr) Sugden, 526.
(S) Isherwood r. Old/cnow, 3 M. & (A) Sadler v. Prait, 5 Sim. 632.
S. 382. See Stroud v. Norman, I Kay, 327 ;
(c) Sugden, 520, 760; Bowes v. 23 L. J. C. 443.
llasi London Water Works, Jacob, («) Billon t. Dillon. 1 Ball & B.
375 ; Doe t. Calvert, 2 East, 376. 77 ; Watt v. Creyke, 3 S. & G. 362 ;
See Doe v. Day, 10 lb, 427 j J)oe t, 26 I^- J- C 211 .
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420 PABT II. CHAP. II. THE LIMITATION OP FUTBBE ESTATES.
Condition that
appointed share
be settled, etc.
Appointment
combined with
settlement by
appointee.
Invalid direc-
tions inseparabh
from appoint-
ment.
a debt or that it be charged with debts, or that the ap-
pointee release a debt or pay debts («) ; — and the appoint-
ment in such cases will stand good.
Where under a power to appoint to children, the ap-
pointment of a share is qualified by a direction that it
shall be held in trust or settled in a manner to give a
benefit to the children or issue of the appointee, or any
other persons who are incapable of taking under the
power, such direction is, in general, void and inoperative,
and the appointment is good and absolute (&). — If the
appointee be a party to the instrument of appointment
containing such direction or qualification, the latter may
be supported as an independent disposition by him of the
appointed share ; as in the case of the marriage settle-
ment of a child to whom an appointment is made in the
form of a settlement of the share upon the issue of the
marriage (c).
But it is a question of construction whether upon the
whole instrument the directions which are invalid form a
substantive part of the appointment so as to invalidate it,
so far as they extend {d) .
(a) Roberts v. Dixall, 2 Eq. Ca.
Abr. 668. Cowx v. Foster, 1 J. &
H. 30 ; 29 L. J. C. 886 ; Ferrier v.
Jay, L. E. 10 Eq. 550; 39 L. J. C.
686 ; but see Reid t. Reid, 2Si BeaT.
469.
(6) Sugden, 516, 664; Cari-erY.
Bowles, 2 Russ. & M. 306 ; Kampf
T. Jones, 2 Keen, 756 ; Woolridge v.
Woolridge, Johns. 63 ; 28 L. J. C.
689 ; Churchill v. Churchill, L. R.
5 Eq. 44 ; 37 L. J. C. 92 ; and
there is no election in such cases
in favour of the grandchildren or
issue, lb.
(c) Sugden, 670 ; see ante, p.390 ;
see Morgan v, Gronow, L. R. 16
Eq. 1 ; 42 L. J. 0. 410 ; Cooper v.
Cooper, L. B. 5 Ch, 203 ; 39 L. J.
C. 240, where the appointruent vras
made to the daughter a minor on
her marriage and the settlement
made by her husband, giving a re-
versionary interest to tie appointor ;
the appointment w»s supported.
(d) Sugden, 518, 529. " In aU
cases the question depends entirely
on the language of the instrument.
If you find a clear gift in the first
instance, and then limitations over
grafted upon it, showing that the
object is first to make the gift and
then to settle it, the first gift takes
effect and the superadded limita-
tions will simply not operate ; or if
there is a clear gift in the first in-
stance and afterwards words occur
which divest it, the court will up-
hold the gift and reject the divesting
words ; but if the gift is so coupled
with the limitations over as to make
them part of the gift, you can only
give eifeot to so much as is autho-
rised by the power, and as to the
rest the fund will go as in default of
appointment." Fer "Wood, V. C.
Rvcker v. Scholefield, 1 H. & M.
36 ; 32 L. J. C. 46. See Beid v.
Reid, 25 Beav. 469,
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SECT. IV. § 4. EQUITABLE JXjEISDICTlON oVEE POWEES. 421
§ 4. Equitable Jueisdiction over Powers.
§§ 1. Jurisdiction in aid op execution.
Defective execution aided in favour of purcliaaer, vrife, child, etc.
— against persons claiming in default of appointment.
Defects of form aided — execution by will instead of deed — by deed
instead of will.
Non-execution or defective intention not aided.
Covenant or contract to execute a power enforced in equity —
covenant to execute future power — covenant to appoint
satisfied by allowing estate to pass in default of appoint-
ment.
Powers held in trust enforced in equity — trust for creditors raised
by appointment to a volunteer.
Statutory relief against defects in leases under powers.
Wtere an intended appointment fails at law from de- Defective bmou-
fect in the form or manner of execution required by tbe '""""pp'^ •
power, a court of equity, considering the claim of the
appointee in certain cases to be preferable to that of the
person becoming entitled in default of appointmentj will
aid the defective execution by compelling a transfer of the
legal estate according to the intention of the appoint-
ment (ft).
A defective execution is thus aided in equity in favour For purchasers,
of persons who have given value for the appointment, as
purchasers or lessees, mortgagees and creditors ; but not
at the suit of volunteers or persons claiming without any
consideration ; — also in favour of persons for whom the wife or oMia.
appointor is considered especially bound by relationship
to make provision, as a wife, but not in favour of a hus-
band ; a child, but not a grandchild ; — nor a father or
mother, brother or sister, or more distant relation (&).
(a) Sugden, 530 ; notes to Toilet Toilet, 2 P. Wms. 489 ; 1 W. & T.
V. Toilet, 1 W. & T. L. C. 207. L. C. 207, also in favour of an ap-
(J) Sugden, 533-535. Toilet y. pointment to charitable uses. Innes
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422 PAET II. CHAP. II. THE LIMITATION OF FUTURE ESTATES.
Illegitimate
child.
Against persons
claiming in
default of
appointment.
This equity, it is said, is not extended to an illegitimate
child. But the principle of aiding an appointment in
favour of a legitimate child, so far as founded on the
natural obligation of a man to provide for his offspring,
applies with at least equal force to illegitimate chil-
dren {a). — A power of appointment to children jsrima/acie
extends to legitimate children only; and where a power
is sufficiently general to include illegitimate children,
they must be aptly designated in the execution of the
power in order to take as appointees (b) .
This jurisdiction is exercised against the persons taking
in default of appointment, whether by express limitation
or by act of law, and although such persons are objects
of the power equally with the appointee. It is also exer-
cised against purchasers for value claiming under the
settlement, as their claim is subject to the power (c).
But a purchaser for value from an appointee under a
defective execution is in no better position than
the appointee from whom he derives title (c?).
Defects of form
supplied.
Iq deeds.
The defects aided in equity are omissions in the
form or manner of execution required by the power,
as signing, sealing, the presence of witnesses, attesta-
tion, and the like ; all which, it has been observed, are
immaterial except as prescribed arbitrarily by the donor
of the power (e) .
A power of appointment by deed may be well executed
in the form prescribed by 22 & 23 Vict. c. 35, s. 12, so
T. Sayer, 7 Hare, 377 ; 3 Mac. & G.
606 ; Sugden, 208; as to charitable
uses, see post, Part V. In some
cases a defective appointment caused
by fraud or accident may be aided
under the general doctrines of
equity, though the appointees do
not answer to any of the above
descriptions. Sugden, 572.
(a) Sugden, 535; see Occlestonv.
FuUalove, 43 L. J. C. 297 ; L. K. 9
Ch. 147.
(4) See ante, p. 372.
(c) Sugden, 542, 547 ; 1 W. &
T. L. C. 212, notes to ToUet v.
Toilet ; but as to the equity
against an heir, being a child of
the appointor and not otherwise
provided for than by the inheri-
tance in default of appointment, see
Sugden, 545.
(rf) Sugden, 542.
(e) See ante, p. 402 ; Sugden,
558, 560.
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SECT. IV. § 4. JUEISDICTION IN AID OF EXECtJTION. 428
far as respects the execution and attestation thereof,
although additional or other forms of execution be re-
quired by the power^ and the aid of equity is so far not
required (a).
The execution of a power by will is now regulated by lu wflis.
1 Vict. 0. 26j s. 10, by which a will executed as required
by the Act is made necessary and sufficient, so far as
respects the execution and attestation thereof; and,
therefore, no relief can be given in equity against
the requirements of the statute (&).
It is a general rule that in favour of a proper obiect, as Execution by
.„ 1 -1 T ^ • -11 f 1 T p wiU instead of
a wiie or child, a court or equity will supply the detect, deed,
where a power which ought to have been executed by
deed has been executed by will ; if there be nothing in
the instrument creating the power to mark the intention
of the donor of the power, beyond the fact that he has
pointed to a deed as the mode of executing the power. —
But it is competent to the donor of a power to make
the nature and character of the instrument by which it
is to be executed of the essence of the power,
without which no execution shall be valid (c).
If the power be limited in duration and expire be-
fore the death of the donee, his will, though made during
the subsistence of the power and purporting to execute
it, is no execution, because the power has ceased before
the will operates ; and in such case there is no jurisdiction
to supply the want of execution (d) .
A power to appoint bv will only cannot be executed Execution by
^ -^^ ■' -, on ■ 1 IT J.- deed instead of
by a deed, or by any act to take enect in the uietime wiii.
of the donee of the power ; nor can such execution be
(a) See ante, p. 403. 2 P. Wms. 489 ; 1 W. & T. L. C.
(6) See ante, 404 ; Sagden, 559. 207 ; Sugden, 558.
(e) See fier Eolt, L. J., in Cooper (d) Cooper v. Martin, L. E. 3
T. Martin, L. R. 3 Ch. 47, 57; Ch. 47; Potts y. Britten, L. R. 11
Brtioe V. Bruce, L. E. 11 Bq. 371 ; Bq. 433.
40 L. J. C. 141 J Toilet t. Toilet,
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424 PAET II. Chap. ii. tHB itMiTAtioN of fdtdke estates.
aided or supported in equity, for the intention that the
power should continue revocable would be thereby
defeated {a).
No reUef against The intention to execute the power must sufficiently
non-execution - i, o • tj npj.i • 3 p
or defeotiTe appear, lu whatover torm, m order to call tor the aid oi
equity ; for the court will in no case supply the non-
execution of a power, or what is the same thing, a defect
in the intention to execute (b) .
Covenantor An agreement to execute a power in the. form of a
contract to . i.t j_j_-ni r n* -i
appoint enforced covonant Or Valid contract will be eniorced m equity ;
in eqm y. ^^^ ^jj j_j^^^ Operate in a manner equivalent to an ap-
pointment, in favour of persons for whom a defective exe-
cution would be supplied, and upon the same principles.
" Contracts are considered as defective executions, and
require a sufficient consideration to enable the court to
act" (c) . — As a contract to execute a power may be en-
forced against the remainder-man or those taking in
default of appointment ; so where it can be executed in
their favour, as in the case of a contract to take a lease
or to purchase the estate, the court will compel an
execution of it on their behalf {d).
Agreement must The agreement to appoint an interest in land must be
e m wn ng. ^^ writing, in order to satisfy the Statute of Frauds (e) .
Effect of part Part performance of a parol agreement by the intended
parol agreement, appointee wiU take the case out of the statute as
against the party contracting to execute the power, on
(a) Sugden, 560 ; Beid v. Sher- dispose of the property, see ante,
gold, 10 Ves. 370 ; see Thaoher p. 408 ; Garth v. Townsend, L. E.
T. Key, L. K. 8 Eq. 408, and it 7 Eq. 220 ; Kemard v. Kemard,
seems that a covenant by the donee L. E. 8 Ch. 227 ; 42 L. J. C.
of a testamentary power in favour 280.
of particular objects to exercise it (c) Sugden, 550, 552 ; 1 W. &
in a certain manner would be void T.li. C. 214:, noteato ToUetv. Toilet;
as ooutrolling his discretion. re DyTces' Estate, L. E. 7 Eq.
(5) Sugden, 588 ; 1 W. &^T. L. 337.
C. 220 ; as to the constructions of {d) Sugden, 557.
memoranda or documents as im- (e) Sugden, 550, 554 ; Blore y,
porting an intention to appoint or Sutton, 3 Mer. 237.
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SECT. IV. § 4. JURISDICTION iN AID OF EXECUTION. 425
the ground that it would be fraudulent and inequitable for
him to repudiate the contract after the other party had
acted upon the faith of it. But, as against the remainder-
man entitled in default of appointment, part perform-
ance will have no effect, unless it has been performed
upon the faith of some act of acquiescence or permission
on his part (a) .
A recital in an instrument, as a marriage settlement, Eedtai showing
. intention to
that an object of the power is entitled to a certain execute,
estate or interest in the property subject to the power,
which the instrument proceeds to deal with, may
effectually bind the donee of the power, if party to the
recital, to appoint accordingly, and may be enforced in
equity. • If the instrument in other respects satisfy the
requirements of the power, it may operate as a direct
and perfect appointment, in law as well as in
equity (&) .
A covenant is a suflB.cient declaration of intention to covenant to
, . execute future
execute, and will be enforced in equity, even when made power,
before the power arose, as where a power is limited to
be exercised by a tenant for life in possession, and he
covenants that when he comes into possession he will
execute the power (c). Thus, where a power was given
to the successive tenants for life under a settlement as
and when they should be in possession to appoint a
jointure, and one of the tenants for life on his marriage
covenanted that if he should come into possession he
would execute the power ; having come into possession be-
fore his death, it was held that his widow was entitled to
have the jointure raised {d). — So where a power was given
(a) Sugden 555 ; Blore v. Sutton, as to leases granted in intended ex-
3 Mer. 237 ; Shannon v. Bradstreet, ereise of power, before acquiring the
1 Sch. & Lef. 52 ; see Morgan t. power, see 12 & 13 Viet. c. 26, s. 4,
Milman, 3 D. M. & G-. 24 ; 22 L. J. cited post, p. 428.
C. 897. (d) Affleck t. AffleeTc, 3 Sm. &
(S) Sugden 550; Wilson v. Giff. 394 ; 26 L. J. C. 358, notwith-
Figgott, 2 Ves. jun. 351. standing the covenantor had become
(c) 1 Sch. & Lef. 63, per Lord of unsound mind before coming into
Eedesdale, Shannon v. Bradstreet ; possession.
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426 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES.
to a person to be exercised after he should attain the age
of twenty-five years and not before, and a covenant to
appoint was made before that age ; it was held, upon
his attaining that age, to be a valid execution in
equity (a).
A covenant to execute a power, given in favour of
particular objects, to be executed by will only, cannot
be enforced; for such a covenant, if valid, would
enable the donee to defeat the intention of the power
by making an irrevocable appointment (&).
Contract satia- A covonant to appoint is satisfied in equity by
estate'topaMm allowiug the property to pass to the same object for
appointment, the Same ostato by default of appointment (c).
Covenant not to A covouant not to cxecute a power may operate in
equity as a release of the power {d) ; —and a recital in a
deed to that effect may operate as a release (e).
Powei'3 held in A powcr held in trust without any discretion as to its
in equity. oxercise will be enforced in equity in conformity with the
trust, although not executed by the donee of the power ;
— as a power in trustees or executors to sell the pro-
perty and apply the proceeds upon trusts; and if the
trustee die without executing the power, or if no
trustee be appointed to execute it, the court will order a
sale and compel the heir to join in conveying (/) ;
but the court will not execute or control a discretion-
ary power {g) .
Where a person having a general power of appoint-
(a) Johnson t. Touchet, 37 L. J. Surst, 16 Beav. 372 ; 22 L. J. C.
C. 25. 538.
(6) Thacker v. Key, L. B. 8 Eq. (e) Boyd t. Petrie, L. R. 10 Eq.
408 ; see ante, p. 423 ; see Bulteel 482 ; 7 Ch. 385 ; 41 L. J. C.
T. Plummer, L. E. 6 Ch. 160 ; 39 L. 378.
J. C. 805. (/) Sugden, 588 ; and see the
(c) ThacTcer v. Key, L. E. 8 Eq. cases there cited ; see Brown t.
408 ; see Blandy v Widmore, 1 P. Higgs, 8 Ves. 561, 574 ; as to an
Wms. 324 ; 2 Tud. L. C. 378. implied gift or trust for the objects
{d) Isaac v. Hughes, h. E. 9 Eq. of the power in default of appoint-
191 ; 39 L. J. C. 379 ; see Scropey. ment, see ante, p. 3yi.
"■" y,i Bro. P. C. 237. Hurst v. {g) Sugden, 258,659.
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SECT. IV. § 4. JURISDICTION IN AID OF EXECUTION. 427
ment executes it effectually in favour of a volunteer, -[^^^t for credi-
whether by deed or willj a trust is thereby created for appointment to
his creditors, and the appointed property is made assets ™™°^''
in equity for payment of his debts ; though in the
administration of the assets of a deceased debtor the
property so appointed will not be resorted to until the
property descended or devised has been exhausted. If no such trust
the power be not executed or be defectively executed, defeotiYe.
there is no jurisdiction in aid of the execution, and no
such trust arises for creditors, as against those entitled
in default of appointment (a).
But a purchaser for a valuable consideration from ifor against pur-
nh ASAr fro tn
the appointee, having a specific claim on the property, appointee,
is not affected by the general charge of the creditors ;
and a settlement of the appointed property upon the
marriage of the appointee would also be supported
against them (b).
Execution may be had by a judgment creditor against Execution
-, -, i'iii-|-iii T • against land sub-
any lands over which the debtor has any disposmg power jeot to power.
which he may exercise for his own benefit; but the
judgment does not operate as a charge upon the land
until it is actually delivered in execution (c) .
Statutory relief is provided against defects in leases statutorr reUef
•^ .7 . . against defects m
granted by persons having valid powers of leasing in leases under
certain cases by 12 & 13 Vict. c. 26, amended by 13
6 14 Vict. c. 17. Sect. 2 enacts "that where in the
intended exercise of any such power of leasing, whether
derived under an Act of Parliament or under any instru-
ment lawfully creating such power, a lease has been or
(a) Sugden, 474, 540, 588 ; 2 (c) 1 & 2 Vict. c. 110, ». 11 ; 27
White & Tudor; L. C. 121, notes to & 28 Vict. c. 112 ; as to delivery
Sili y. Prime; Holmes v. Coghill, under the latter statute where the
7 Ves. 499, 12 Ves. 206 ; Fleming legal estate is outstanding. See
v. Buchanan, 3 D. M. & Gr- 976, Hatton r. Baywood, L. E. 9 Ch.
22L. J. C. 886. 229; 43L. J. C. 372; BecTcett y.
{b) George t. Millanhe, 9 Ves. Buckley, L. E. 17 Eq. 435 ; re
190 ; see per Q-rant, M.E.., 1 Mer. South, 43 L. J. C. 441. See post,
639, Dauheny v. CoeUurn. Part IV. ' Legal Process.'
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428 PAET II. CBAP. II. IHE IIMITATION Of PDTUEE USTATES.
Defective lease
considered in
equity as a
contract.
Proviso where
lease may be
confirmed.
Confirmation by
acceptance of
rent.
Lease may be-
come valid by
subsequent
power.
shall hereafter be granted, which is, by reason of the
non-observance or omission of some condition, or re-
striction, or by reason of any other deviation from the
terms of the power, invalid as against the person entitled
after the determination of the interest of the person
granting such lease to the reversion, or against other
the person who, subject to any lease lawfully granted
under such power, would have been entitled to the
hereditaments comprised in such lease, such lease, in
case the same have been made bond fide, and the lessee
named therein, his heirs, executors, administrators, or
assigns (as the case may require) have entered there-
under, shall be considered in equity as a contract for a
grant, at the request of the lessee, his heirs, executors,
administrators, or assigns (as the case may require), of a
valid lease under such power, to the Uke purport and
effect as such invalid lease as aforesaid, save so far as
any variation may be necessary iu order to comply with
the terms of such power; and all persons who would
have been bound by a lease lawfully granted under such
power shall be bound in equity by such contract : pro-
vided always, that no lessee under any such invalid lease
as aforesaid, his heirs, executors, administrators, or
assigns shall be entitled by virtue of any such equitable
contract as aforesaid to obtain any variation of such
lease, where the persons who would have been bound by
such contract are willing to confirm such lease without
variation."
By sect. 3, the acceptance of rent shall be deemed a
confirmation of such lease, if accompanied with a signed
receipt or note in writing confirming such lease (see
13 & 14, Vict. c. 17, s. 1, 2). By the latter Act, sect. 8,
where the reversioner is able and willing to confirm, the
lessee is bound to accept the confirmation.
By sect. 4, "where a lease granted iu the intended
exercise of any such power of leasing is invalid by reason
that at the time of the granting thereof the person grant-
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SECT. IV. § 4. JURISDICTION IN AID OF EXECUTION. 429
ing the same could not lawfully grant sucli lease, but the
estate of such person in the hereditaments comprised in
such lease shall have continued after the time when such
or the like lease might have been granted by him in the
lawful exercise of such power, then and in every such
case such lease shall take effect and be as valid as if the
same had been granted at such last-mentioned time, and
all the provisions herein contained shall apply to every
such lease."
By sect. 5, "'when a valid power of leasing is vested Lease supported
. -, . J • 1 n •=? power though
m or may be exercised by a person granting a lease, and uot referred to.
such lease (by reason of the determination of the estate
or interest of such person or otherwise) cannot have
effect and continuance according to the terms thereof,
independently of such power, such lease shall, for the
purposes of this Act, be deemed to be granted in the in-
tended exercise of such power, although such power be
not referred to in such lease " (a) .
(a) See the eifect of these enactments stated and commented on in
Sugden, 571.
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430 PAET II. CHAP. II. THE LIMITATION 01 FUTURE ESTATES.
§§ 2. JuEISDICTION TO SET ASIDE EXECUTION.
Execution in fraud of the power set aside in equity — examples —
motive distinguished from purpose of execution.
Appointment to child in consideration of benefit to parent— con-
sideration paid by a third party.
Appointment for the pm-pose of disposing to a person not an
object of the power.
Appointment for ulterior purpose consistent with the power.
Execution partly in fraud of the power — appointment of jointure
in excess of interest given to wife — appointment to one of
children in fraud of the power.
Subsequent execution after prior invalid appointment.
Purchaser from appointee under fraudulent appointment.
Illusory appointment under non-exclusive power.
Execution in The execution must be within the purpose and inten-
set^aside.^™^'^ tion of the power, which is to be collected from the
true construction of the instrument creating it^ without
regard to any purpose or design of the donor not therein
expressed; and if an appointment, though correct in
point of form and operative at law, be made for any-
indirect or ulterior purpose not warranted by the power,
it will be set aside in equity as a fraud on the power (a) .
Thus, where a parent, having a power of appointment
amongst his children, and being desirous of preventing
one of his daughters from marrying a particular person,
for that purpose appointed the portion intended for that
daughter to one of his sons, upon a trust or understand-
(d) Topham ■v. Duke of Portland, with an entire and single view to
11 H. L. C. 32 ; 34 L. J. C. 113 ; the real purpose and object of the
L. R. 5 Ch. 40; 39 L. J. C. 259; power, and not for tlie purpose of
Sngden, 606; 1 W. &T. L. C. 339, accomphshing or carrying into eifect
notes to ^/e^w v. Belchier. "The any by or sinister object— sinister
donee, the appointor, under the in the sense of its being beyond the
power, shall, at the time of the purpose and intent of the power."
exercise of the power, and for any JPer Westbury, L. C, in Tophamj'
purpose for which it is used, act Duke of Portland, supra,
with good faith and sincerity and
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SECT. IV. § 4, JUKISDICTION TO SET ASIDE EXECUTION. 431
ing that his son should retain the control over it, and
withhold it or not from the daughter according to the
event ; the appointment was held to be a fraud on the
power and void. In the same case the parent, in pursu-
ance of the same purpose, made a settlement of property
with a power of appointment in favour of the daughter,
but upon an understanding and with the direction to
the donee of the power that he should execute it in a
manner to promote such purpose, which, however, was
not expressed in the deed ; it was held that the inten-
tion of the power was to be collected from the instru-
ment creating it only, and that extrinsic evidence of the
purpose of the donor was inadmissible ; but that such
evidence was admissible to show the purpose for which
the power was in fact executed, and that the execution,
being in pursuance of a purpose not authorised by the
power, was void (a).
Upon the same principle, where a father, having a
power of appointment amongst children, appointed to
one who was a lunatic and likely to die, for the purpose
of himself succeeding to the appointed share as his
representative, the appointment was held to be fraudulent
against the other objects of the power and void {b). But
where under like circumstances the appointment was
made in favour of an infant then in good health, it was
held good, though in the event the appointee died in
infancy, whereby the father became entitled as his next of
kin to the exclusion of the reversioners (c) . For, it was
said, " provided a power in other respects is well
(a) Topham v. Bulce of Portland, garded as a fraud on the power.''
supra, where Hatherley, L. C, said, and see Lee v. Fernie, 1 Beav. 483,
■'The court will not allow him (the where the owner of the property
donee) to interpret the donor's in- had reserved the power to himself,
tention m any other sense than the and it was held that he was never-
oourt itself holds to be the true theless bound by its terms,
construction of the instrument creat- (b) WeUesley v. Mornington, 2
ing the power ; and a literal execu- K. & J. 143.
tion of the power, with a purpose (c) Seere v. Boffmister, 23 Beav.
which it does not sanction, is re- 101 ; 26 L. J. C. 177.
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432 PART II. CHAP. II. THE LIMITATION OP PUTUEE ESTATES.
executed, the fact that it is executed to defeat those
iu remainder is not any ground for avoiding the execu-
tion" (a).
Motive of ap- The mere motive of an appointment apart from the
tinguiaiiea from purposo to bo effected by it, as the indulgence of feel-
purpuse.
ings of preference or animosity towards the objects, is
immaterial to the validity. " The court cannot inquire
into the motive, but it can inquire into the intention or
purpose" (&).
Appointment
to child in con-
sideration of
benefit to
parent.
If a parent, having a power of appointment amongst
his children, execute it in consideration of some benefit
to be derived to himself irom the appointment, as upon
an agreement with the appointee for a payment or
advance of money, the appointment is void as being in
fraud of the power in regard to the other children ; and
as the appointee is a participator in the fraud and benefits
by it, such appointment will be set aside in toto, and not
merely to the extent of the sum (if any) diverted from
the objects of the power (c). — In a case where the
whole fund was appointed to one of the children, who
immediately requested the trustee of the fund to transfer
it to the parent, the trustee, in complying with such
request was held to have committed a breach of trust
and to be liable to replace the fund [d) .
(a) Per Romilly, M. K,, lb. ; and
see Butcher v. Jaelcson, 14 Sim.
444 ; Fearon v. Desbriiay, 14 Bear.
641.
(b) Sugden, 618 ; Vanev. Lord Dun-
gannon, 2 Sclio. & Lef. 130, 131, per
Lord Redesdale ; Camphell v. Rome,
1 T. & C. C.C. 664. See the dis-
tinction between motive and pur-
pose pointed out in Topham v. Buke
of Portland, 1 D. J. & S. 570 ; L. K.
5 Ch 57.
(c) Dauheny v. Cochhurn, 1 Mer.
626 ; Farmer v . Martin, 2 Sim.
511 ; Arnold v. Bardwick, 7 Sim.
343 ; see Humphrey v. Olver, 28
L. J. C. 406 ; Cooper v.
L. R. 5 Ch. 203 ; 39 L. J. C. 240,
wliere an appointment made upon
the marriage of the daughter with
a settlement of the property ap-
pointed was supported, under the
circumstances, although the ap-
pointor took a reversionary interest
under the settlement.
{d) Mackechnie v. Marjoribanks,
39 L. J. C. 604. And as to the
liability of trustees refusing to con-
vey according to the appointment, see
Firming. Pulham, 2 De G. & S. 99 ;
Campbell v. Home, 1 Y & C. C. 664 ;
Cockcroft V. Sutcliffe, 25 L.J.C. 313.
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SECT. IV. § 4. JURISDICTION TO SET ASIDE EXECUTION. 433
Where the cousideration for the preference of one of conaideration
the children is given by another person^ and not derived party,
out of the property appointed, and though without the
knowledge of the appointee, the appointment will be
set aside ; for it is a fraud upon the power in regard to
the other objects who are thereby excluded from the
property appointed (a).
An appointment made upon any bargain or understand- Appointment for
ing that the appointee shall dispose of the property to disposing to
persons who are not objects of the power is void and will objects.
be set aside (&). — An appointment made for the purpose
and in the expectation that the appointee would transfer
the property to a person, not an object of the power, was
held void, though that purpose was not at the time com-
municated to the appointee (c). — But an appointment to
a child upon marriage with a view to a suitable settlement
being then made, though to include persons not objects
of the power, is valid as being a proper mode of enjoy-
ment of the property by the appointee {d) .
An ulterior purpose may be consistent with the power j Appointment
— as where the appointment is made for the purpose of purpose oonsis-
making a title to enable all the persons interested to ™ ™
deal with the property in their respective interests. Thus
an appointment may be well made to enable the appointee to enable »p-
to join in selling the property. Where a tenant for life FnTafe! ° ' '
with an exclusive power of appointment amongst his
children sold the estate and then appointed to one son in
fee, who joined with him in conveying to the purchaser,
the title was held good, as it did not appear that the son
(ffi) Rowley V. Rowley, 1 Kay, Prt/or, 2 D. J. & S. 33 ; 33 L. J.
242; 23L. J. C. 275. C. 441.
(6) Sugden, 615 ; Daubeny t. (c) Marsden's Trust, 4 Drew.
Coclelurn, 1 Mer. 626 ; Salmon v. 594 ; 28 L. J. C. 906.
G-ibls, 3 D. & Sm. 343 ; Lee v. (d) See Pryor v. Fryor, supra.
Fernie, 1 Beav. 483 ; Birley v. Fitzroy t. Duhe of Richmond, 27
25 BeaT. 308 ; 27 L. J. C. Beav. 190 ; 28 L. J. C. 752 ; and
569 i Ranking v. Barnes, 33 L. J. see ante, p. 420.
0. 539 ; 12 "W. R. 565 ; Fryor y.
2e
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434 PAET li. CHAP. II. THE LIMITATION OP FUTUEE ESTATES.
got less than the value of his reversionary interest on
Appointment for acceding to the purchase (a) . So an appointment may
making a mort- be made by a tenant for life with power of appointing the
remainder to his children, for the purpose of enabling the
appointees to join him in a mortgage, the money being
expressed to be advanced to all of them, and being applied
in a business in which they were all partners (6) ; or for
the purpose of making a building lease for the improve-
ment of the property in the interest of all parties (c) .
An appointment may be made for the purpose of the
appointee making a settlement on his or her marriage,
though to include persons not objects of the power (d).
or lease,
or settlement.
Execution partly The Oourt cannot, in general, distinguish what is attri-
in fraud ot" . .
power. butable to an authorised purpose from what is attributable
to an unauthorised purpose, and the bad purpose affects
the whole appointment ; but if the evidence enable the
Oourt to make the distinction, the appointment will be
void only pro tanto (e).
Appointment of Where a power of jointuring was executed upon an
o°f'intoes"2™n' agreement that part of the jointure should be applied to
pay the debts of the husband, the appointment, as to that
part, was set aside. Such an execution of the power,
so far as it goes to the wife who is the sole object of the
power, is good and may be supported ; but so far as it
diverts the property from her as the object of the power,
it is in excess of the power and in fraud of the persons
entitled in default of appointment (/).
(a) M'Queen v. Farguhar, 11
Tea. 467 ; Campbell v. Home, 1 T.
& C. C. C. 664 ; as to questioning
like transactions between father and
son on the ground of undue in-
fluence or improper appropriation
of the proceeds, see King v. King,
1 D. & J. 663 ; 27 L. J. C. 29 ;
Warde v. Dixon, 28 L. J.C. 315.
(S) Cochcroft T. Sutcliffe, 25 L.
J. 0. 313.
(c) Ee Suisli'a Charity, L. E. 10
Eq. 5 ; 39 L. J. C. 499.
(d) See ante, p. 433 ; Pryor T.
Pryor, 2 D. J. & S. 33 ; 33 L. J.
C. 441.
(e) See per Turner, L. J., in Top-
ham T. Duke of Portland, 1 D. J.
& S. 517; 32 L. J. C. 270; and
see Trollope \. Koutledge, 1 D. &
Sm. 662.
(/) Sugden, 609 ; Lane t. Page,
Ambl. 233; Aleyn t. BelcUer, 1
Eden, 132 ; 1 W. & T. L. C. 339.
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Sect. iv. § 4. jueisdiction to set aside execution. 435
Under a power of appointment to claildren, an appoint- Appointment to
-t r- ^ • f 1 J" 1 .,, one of children
ment made to one of them m fraud oi the power will in fraud of power,
not invalidate an appointment made of the rest of the
property to the others at the same time (a). And it
seems that an appointment of a specific share to the same
appointee to whom the invalid appointment is made, if
unconnected with the invalidity, may be supported (&) .
If a prior appointment be invalid, a subsequent appoint- Subsectuont
, -, ^ , _,.. execution after
ment may be made oi the same property under the ongi- prior invaUd
. ± L tt n n -I appointment.
nal power ; but it must be clearly shown to be free of the
purpose or influence which has invalidated the prior ap-
pointment (c).
A purchaser from the appointee under an appointment Purchaser from
. -. f, T ^ ^ -, ^ appointee has no
which may be set aside for the above causes, though he better title,
gave value and had no notice of the improper execution
of the power, would have no better title in equity than
the appointee himself {d).
A distributive or non-exclusive power formerly required lUuBory appoint-
a share to be given to each of the objects of the power ; exclusive power
but it was satisfied, at law, by giving some amount or
interest, however small, to each object, either by way
of direct appoiutment, or (which amounts to the same
thing) by leaving sufficient residue unappointed to be
divided amongst all the objects in default of appointment.
(ffl) TopTiam v. Duke of Portland, has taken place between the donee
supra; Mowley t. Rowley, 1 Kay, of a power and an appointee, a
242 ; 23 L. J. C. 275. second appointment by the same
(J) Ranking T. Barnes, 33 L. J. donee to the same appointee cannot
C. 539 ; 12 W. B. 565. be sustained, otherwise than by clear
(c) Sugden, 285, 355 ; see Parmer proof on the part of the appointee
V. Martin, 2 Sim. 502 ; Sumphrey that the second appointment is per-
T. Ohier, 28 L. J. C. 406 ; Carver fectly free from the original taint
T. Richards, 1 D. F. & J. 548 ; 29 which attached to the first." Per
L. J. C. 35/ ; AsTcham v. Barker, &iffard, L. J., TopJiam v. Duke of
12 Beav. 499 ; TopTiam t. Duke of Portland, supra.
Portland, L. K. 5 Ch. 40 ; 39 L. J. (d) Daubeny t. CocTcburn, 1 Mer.
C. 259. " "Where an appoiutment 626 ; see Warde t. Dixon, 28 L. J.
has been set aside by reason of what C. 315.
2 f2
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436 pAet n. chap. li. the limitation oi putuee estates.
Bnt void in But in equity, before the passing of the statute 1 Will.
IV. c. 46, appointments, under non-exclusiye powers,
whereby an unsubstantial, illusory or nominal share of
the property was appointed to, or left unappointed
to devolve upon any of the objects were invalid,
although the like appointments were valid in law ; and it
was necessary to inquire in each case of appointment
what was a sufficiently substantial share to satisfy the
power (a).
Made valid in The statute 1 Will. IV. c. 46 (passed to alter and
statute. amend the law relating to illusory appointments),
enacted that no appointment which from and after the
passing of the Act should be made in exercise of any
power or authority to appoint any property real or per-
sonal amongst several objects should be invalid or im-
peached in equity on the ground that an unsubstantial,
illusory, or nominal share only should be thereby appointed
to or left unappointed to devolve upon any one or more
of the objects of such power ; but that every such appoint-
ment should be valid and effectual in equity as well as at
law, notwithstanding that any one or more of the objects
should not thereunder or in default of appointment take
more than an unsubstantial, illusory, or nominal share of
the property subjected to such power.
The effect of this Act was not to convert all such powers
into exclusive powers ; but it placed them in the same
position in equity as at law, requiring that each object
of the power should take some share, however unsub-
stantial, in order to satisfy the non-exclusive form of the
power (&).
Appointment not Now by the Act to amend the law as to appointments
ground of ex- Under powors not exclusive, 37 & 38 Vict. c. 37, s. 1,
it is enacted " that no appointment, which from and after
the passing of this Act shall be made in exercise of any
(a) Sugden, 449, App. 938 ; 1 (b) Gainsford t. Bmn, L. E. 17
W. & T. L. C. 358, notes to Aleyn Eq. 405 ; 43 L. J. C. 403.
T. BelcMer.
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SECT. IT. § 4. JURISDICTION TO SET ASIDE EXECUTION. 437
power to appoint any property real or personal amongst
several objects, shall be invalid at law or in equity on the
ground that any object of such, power has been altogether
excluded, but every such appointment shall be valid and
effectual notwithstanding that any one or more of the
objects shall not thereby, or in default of appoint-
ment, take a share or shares of the property subject to
such power."
Section 2 provides " that nothing in this Act contained power non-ei-
shall prejudice or affect any provision in any deed, will, declared amount
or other instrument creating any power, which shall de-
clare 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 ex-
cluded."
Under the law applying to appointments made before Execution by
ft T . . 1 . . successive
the passing of this Act, where there are several appoint- appointments,
ments to different objects of the power at different times,
and one is ultimately excluded, the ultimate appoint-
ment, disposing of the residue of the property, only is
invalid ; for to that appointment only the exclusive effect
can be attributed (a) . — But where several appointments
are made to take effect at one time, as in the case of ap-
pointments by will with an ultimate residuary appoint-
ment, the exclusive effect is attributable to all equally and
all are void {b) .
(a) young M. Lord WaterparJc, all the objects in default of appoint-
13 Sim. 202 ; see Trollope v. Rout- ment. Ranking ¥. Barnes, 33 L.J.
ledge, 1 D. i; Sm. 662. It may be C. 539 ; 12 W. E. 565.
made good by the invalidity of a, (5) Bulteel v. Plummer, L. E. 6
prior appointment whereby the Ch. 160; 39 L. J. C. 805.
share thereby appointed passes to
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438 PART II. CHAP. II. THE LIMITATION OF PUTUEE ESTATES.
Section V. Perpetuities and Accumulations.
§ 1. The Rule against perpetuities.
§ 2. Accumulation of rents and profits.
§ 1. The Eule Against Perpetuities.
The Rules restricting the limitation of future estates — remainders
— springing uses and executory devises.
The Rule against perpetuities stated — any lives may he taken
as the measure of the time and »■ term of twenty-one
years — time of gestation allowed, when child taking is in
ventre sa mire — application to limitations of terms of
Limitations to persons to be ascertained by description.
Limitations to a class of persons — children — grandchildren — limi-
tations upon death of children.
Limitations upon failure of issue — upon failure of issue within
restricted period — of term of years upon failure of issue —
construction of phrases importing failure of issue — excep-
tional constructions of limitations on failure of issue.
Validity of limitations is independent of subsequent events —
limitation to class containing objects too remote — where
the shares are ascertained within the period.
Limitations with modifications too remote — directions to post-
pone the possession beyond the period.
Limitation in alternative of limitation too remote — limitation in
restricted alternative.
Limitations restricted by the duration of the estate limited —
estate for life of living person — leasehold for life.
Limitations after estates tail — provisoes for cesser of estate tail
— limitations to take effect after determination of estate tail
— term preceding estate tail upon trusts subsequent.
Application of the rule to powers — power may be unrestricted
in terms — execution of the power is subject to the rule —
the time is computed from the creation of the power —
general power is equivalent to ownership.
Power to appoint to grandchildren or remoter issue — appoint-
ment must take effect within the rule — power in marriage
settlement to appoint to children,
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SECT. T. § 1. THE EtJLB AGAINST PERPETUITIES. 489
Powers of sale, leasing, etc. may be unrestricted in terms — power
of sale with consent — power of sale extending over
estates tail— powers impliedly restricted to the continuance
of the settlement.
The limitation of future estates is subject to restric- The resMotionB
tions as to tlie time of taking effect^ which differ ac- Son'of fature*'
cording to the nature of the limitation, as operating by
way of remainder, or by the way common to springing
and shifting uses and executory devises.
The restrictions upon limitations by way of remainder The restrictions
have already been considered. They are, for the most °
part, involved in the dependence of the remainder npon
the particular estate, requiring that it must become
vested in interest pending that estate, so as to take
efifect in possession immediately upon its determination.
The limitation of remainders is further restricted by the
positive rule that, (though they may be limited to the
unborn child of a living person,) they cannot be limited
to the issue of a person unborn (a).
The particular estate supporting a remainder may be Eemaindemot
an estate for life or in tail, and an estate tail may en- estates for iife
T ' 1 n • • o • ^°^ minority of
dure throughout mdennite generations oi issue ; but the tenant in tail,
tenant in tail in possession for the time being, when of
full age, has the power, by means of a disentailing
assurance, to acquire or convey an estate in fee simple
discharged of all remainders. Therefore, the limitation
in remainder after an estate tail remains effectual only
during the minority of the tenant in tail; and if the
estate tail be preceded by an estate or estates for life,
as in an ordinary settlement of land, the limitations in
remainder, though valid in creation, cannot be made
effectual in operation beyond the lives of the tenants
for life and twenty-one years, the possible minority of
the tenant in tail {b).
On the other hand, limitations by way of springing
{a) See ante, pp. 318, 328, 334, (J) See ante, p. 835.
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440 PART II. CHAP. II. THE LIMITATION OF PUTUEE ESTATES.
Hestrioticras use and executorj devise arise and take effect according
uses and eieou- to the tcrms of limitation independently of the pre-
tory devises. ... , tip
ceding estates, which they supersede and deieat ; con-
sequently there are no restrictions inherent in the nature
of such limitations as there are in remainders. If limited
after or in defeasance of an estate tail they may be dis-
charged or destroyed by the disentailing assurance of
the tenant in tail ; but a tenant in fee simple cannot by
any means destroy or get rid of the executory limitations
of this kind which may operate upon his estate. There-
fore, except where preceded by an estate tail, these
limitations require a special rule of restriction ; other-
wise they might be employed in a manner to restraiu
the alienation of the land for an indefinite period or in
perpetuity (a).
Enie against per- A rulc has accordingly become established by judicial
petuities stated, t • ■ r* iii-u i j.j.1 ^• •±. r
decisions, founded criieny on analogy to the limits of a
settlement at common law by way of particular estates
and remainders, that limitations by way of springing or
shifting use or executory devise must take effect within
the period of a life or lives in being at the time of
creating the limitations and twenty-one years afterwards.
This rule is known as the rule against perpetuities (b).
A limitation which infringes the rule is void of effect ;
but it is not therefore to be taken as struck out of the
{a) See ante, p. 219 ; 1 Sanders period arrived when such future
on Uses, 145, 153, 4th ed. ; Fearne, use or estate is to arise. If that
C. E. 423 ; 1 Hayes on ConT. 136, event or period be withiu the
5th ed., where see remarks on the bounds prescribed by law, it is not
greater power of tenant in tail a perpetuity.' " Lewis on Perpe-
over executory limitations. — " The tuities, 164.
best definition (of a perpetuity) (i) Bengough v. Edridge, 1 Sim.
seems to be that supplied by Mr. 173, 267 ; S. C. nom. Cadell v.
Sanders in his Essay on Uses, (p. Palmer, 7 Bligh, N. S. 202 : see
196,) who saya: — ' A perpetuity Lewis on Perp. c. xi ; Butler's note
may be defined to be a future to Co. Lit. 271 i, III. 2 ; Butler's
limitation, restraining the owner notes to Pearne, C. R. 429, 566;
of the estate from aliening tlie fee and the same rule applies to trusts
simple of the property, discharged and equitable estates, see post, p.
of such future use or estate, before 471 ; Butler's note to Co, Lit. 290
fbe event is determined or the h, o. xiv,
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SECT. T. § 1. THE EULE AGAINST PERPETUITIES. 441
will or deed altogetlier ; it may be read as part of the
context for all purposes of construction^ as if no such
rule existed (a) .
The lives of any persons and of any number of per- Any iwes may be
sons, though wholly unconnected with the limitations in measure of the
point of interest, may be taken for the measure of the
■neriod. Also a term of twenty-one years independent And a term of
„,.„,, twenty-one
of any estate limited, or of the infancy oi any person years,
taking an estate or interest (6). If lives be not selected
as part of the period restrictive of the limitation the
rule imports that it must take effect within twenty-one
(c).
As a child in ventre sa mere is considered as a person Timeofgesta-
_ - - - .' 1 1 • ■ ^ ^^"^ allowed,
m esse for the purpose of taking property, the limits of when ehud tak-
. ing is in ventre
the rule may be in fact extended by the time of the samhre.
gestation of such child ; — thus if a devise be made to
the child of A. for life, such child being in ventre sa mere
at the testator^'s death, the additional time of gestation
may accrue at the commencement of the period allowed
by the rule, which may be measured by the life of such
child and twenty-one years ; — so, if a devise be made to
(o) Heasman v. Pearse, L. E. 7 of the period being a minor the dis-
Ch. Ap. 275 ; 41 L. J. C. 705. abihty to alienate might in fact be
(J) Cadell T. Palmer, supra. extended for a further period of
(c) See Palmer v. Solford, 4 twenty-one years. Again, the rule
Euss. 403. It may be here ob- as to remainders prohibits absolute-
served that the rule against per- ly the limitation of them to the
petuities, though framed by analogy issue of persons unborn ; but the
to the limits of perpetuity possible rule against perpetuities admits of
with common law limitations by executory limitations to the children
way of estates for life and remain- or remoter issue of persons unborn,
ders, leads to some different results. prOTided they are restricted to vest
The latter mode of limitation is I'e- within the allowed period ; and only
stricted, as to perpetuity, by the when not so restricted such limita-
lives of the persons actually taking tions are void. In the above re-
estatee, and by the actual minority spects, therefore, remainders are
of the ultimate remainder-man ; more restricted than other execu-
whereas the rule against perpetuities tory limitations ; on the other hand
admits of an absolute period remainders may be limited on
measured by lives and years, but events of indefinite contingency,
wholly independent of the lives or provided they become vested pend-
minority of the persons actually ing the particular estate. fciee 1
interested ; and in the case of the Jarman on Wills, 229 ; Stuart v.
ultimate taker at the extreme limit Cockerell, L. E. 7 Eq. 363.
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442 PAET II. CHAP. II. THE LIMITATION OP PUTDEE ESTATES.
the cliildren of A. who shall attain the age of twenty-
one yearSj and A. die leaving a child in ventre sa mere,
the additional time of gestation may accrue at an inter-
mediate period, and the limits of the rule may be ex-
tended until such child attains the age of twenty-one
years ; — so if the ultimate taker after a given period of
lives in being and twenty-one years be a child in ventre
sa mere, the limits of the rule may be in fact extended
at the termination of the period by the time of gesta-
tion (a).
Application of The Same rule applies to executory bequests of terms
the rule to limi. ^/ . • i i /v s -, ■
tations of terms 01 years and chattel interests m land (o) ; — and, it seems,
of years. • p c
also to the creation of future terms of years (c) .
Limitations to
persons to be
ascertained by
description.
Examples of the application of the rule occur with
limitations to a person to be ascertained by some descrip-
tion or character or qualification, which may not be
satisfied within the allowed period {d) . Thus, a devise to
the first or other son of A. (having no son at the time of
the devise,) who should be in holy orders, was held void
for remoteness, because A. might have a son who might
take orders so as to answer the description more than
twenty-one years after the death of A. ; and a devise
over in the same will, in case A. should have no such son,
was also held void, as being limited upon a contingency
which might not become ascertained until an equally re-
(a) 1 Jarman on Willa, 222
Long T. Blaclcall, 1 T. R. 100
Blackhurn t. Stables, 2 V. & B
367.
(h) Hargrave's note (S) to Co.
Lit. 20 a; Pearne, C. E. 460.
(c) Sanders (on Uses, p. 198,)
states : — " I do not find any rule of
the common law confining the
period within which the entry under
a condition is to be made ; and
although an interesse termini may
be created at common law, I am not
aware of any case at the common
law, fixing the period, within which
it must take efiect in possession."
But, he adds, " it can scarcely be
doubted, that by analogy to the
modern doctrine of perpetuities, the
rights of entry upon common law
conditions, and the interesse termini
would be confined to the time al-
lowed in cases of executory devises
and springing uses." And this
opinion is adopted in Lewis on
Perpetuities, p. 614.
(d) Lewis on Perpetuities, c.
xviii. ; 1 Jarman on Wills, 233.
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SECT. V. § 1. THE KUIiE AGAINST PEKPETUITIES. 443
mote period (a) . — Soj a devise made to such person as
should from time to time bear a certain title, in order that
the property should be held with the title, was held void
for remoteness, because the title might remain in abey-
ance for an indefinite period ; and though that case did
not happen, the validity of the limitation could not de-
pend upon contingencies which might cause it to be good
or bad according to the event (&) .
A devise to the first heir male of the body of A. who To heir attaimiig
.,„ a certain age.
should attain twenty-one was held to be void for remote-
ness; because the person so described might not be
ascertained within the allowed period, — all the heirs male
of the body of A. during that period might die in their
minorities (c). — A devise to the first son of A. who
should attain twenty-one would obviously be good, though
A. have no son at the time of the devise, as it must take
eflFect, if at all, within twenty-one years of the death
of A.
A bequest of personal estate made to the first tenant in
tail under a settlement of real estate who should attain
twenty-one, was construed to extend only to the tenants
in tail taking by purchase under the settlement, and not
to include tenants in tail by descent, and therefore being
within the_ allowed period of limitation was good [d).
Limitations to a described class of persons, as children, Limitations to
issue and the like, must be so restricted that the objects as children. '
of the class become ascertained within the time allowed
by the rule. Thus, an executory devise to all the children
of A. who shall attain the age of twenty-one, though it
include children born after the testator's death, is good ;
(a) Procter v. Bp. Bath ^ Wells, D. & W. 509 ; S. C. nom. Lord
2 H. Bl. 358. See 1 Jarman on JDungannon v. Sinith, 12 CI. & F.
Wills, 242. 546.
(b) ToUemache v. Marl Coventry, (d) Christie v. Q-osUng, L. B. 1
5 Madd. 232 ; 8 Bligh, N. S. 547 ; H. L. 279 ; 35 L. J. 0. 607 ; see
1 Jarman on Wills, 235. Harrington v. Harrington, L. R. 5
(c) Kerr t. Lord Dmgavmon, 1 H. L. 87 ; 40 L. J, C. 716.
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dren.
4'44 PART II. CHAP. II. THE LIMITATION 01 PUTUEB ESTATES.
because it must necessarily be ascertained within the life
of the parent and twenty-one years. But if it were to
such children of A. as should attain the age of twenty-
two, or any greater age than twenty-one, and included
after-born children, it would be void for remoteness, as
possibly not to be ascertained within such limit of
time (a). — So, a devise to the children of A. who should
be living at the end of twenty-eight years from the death
of the testator was held void, because the time for ascer-
taining the objects was too remote ; and a gift over in
case there should be no such child was also held to be too
remote (&).
To grandoiiu. A devise Or bequest may include all the testator's
grandchildren, born and to be born, without infringing
the rule, as they must all be born within lives in being at
the testator's death ; and the vesting of their shares may
be further postponed during their minorities, but not
beyond. On the other hand, a devise or bequest includ-
ing all the grandchildren, born and to be born, of any
other person is too remote, because children might be
born to that person after the testator's death, and grand-
children might be born at any time during the lives of
those children (c). But a gift to the children of A. who
shall attain twenty-one and the issue of such of them as
shall die under twenty-one is good because necessarily
ascertained within the life of A. and twenty-one years
after his death {cl) .
It may be observed that limitations to a class, as to the
children of A. who shall attain the age of twenty-two,
or to the children and grandchildren of A., may be good,
{a) 1 Jarman on Wills, 326, and 403.
see the eases there cited ; Stephens v. (c) 1 Jarman on Wills, 233
Stephens, Cas. t. Talb. 228 ; Leake Newman t. Newman, 10 Sim. 51
T. RoUnson, 2 Mer. 363 ; Edmond- Smith v. Smith, L. R. 5 Ch. 342
son's Estate, L. R. 5 Bq. 389 ; Stuart v. Cockerell, L. R. 7 Rq. 363
Smith T. Smith, L. R. 5 Ch. 342. 5 Ch. 713 ; 39 L. J. C. 729.
As to the construction of devises to {d) Moseleifs Ti'usts, L. R, 11 Eq.
children, see ante, p. 370. 499 ; 40 L. J. C. 275.
(6) Palmer v. Solford, 4 Russ.
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SECT. V. § 1. THE EtJLE AGAINST PEEPETUITIES. 445
if limited by way of contingent remainder^ though, void
by way of executory devise, as being too remote ; by the
rules regulating remainders they would be restricted to
such objects of the class as would be ascertained at the
determination of the particular estate (a) .
A devise limited to take effect in the case of all the Limitation upon
, . -, - deathof children.
children of a living person dying under the age oi twenty-
one is good ; but if postponed until their death at any
time, or at any age greater than twenty-one, it is too
remote (b). — A devise over in case of all the children of a
person dying under a certain age may, in some cases, be
construed to include the contingency of there being no
children, so as to take effect either if the person has no
children, or if, having children, they do not attain the
given age, and the limitation as regards the former con-
tingency may be supported separately, though the limita-
tion as regards the latter contingency be void (c) .
Future uses and executory devises limited to take effect Limitation upon
P -I o -i ' r»A*if»-i 1* 1 fsil'^^G of issue.
upon failure of the issue of A. indefinitely, are obviously
too remote {d). — But if there be a preceding limitation
to A. for an estate in tail general, the limitation over
upon failure of the issue of A. is good as a remainder (e) .
Also, if there be a preceding limitation to A. and his heirs,
with a limitation over on failure of issue of A. indefinitely.
(a) See ante, p. 341 ; 1 Jarman on order to effect the intention of the
Wills, 229. whole will, that "Tested" must be
(I) Sayer's Trusts, L. R. 6 Eq. construed as meaning " indefeasi-
319 ; 36 L. J. C. 350, where it was ble," and the gift over was void for
held that a gift over upon the death remoteness. Edmondson' s Estate,
of all the children A. could not be L. R. 5 Eq. 389.
supported by evidence that at the (c) See ante, p. 370 ; MacMnnon
date of the will A. was past the age v. Sewell, 2 M. & E. 202 ; Wilson v.
of chUdbearing, showing that the Mount, 2 Beav. 397 ; Doe v. Challis,
testator could only mean the chil- 18 Q. B. 231 ; 29 L. J Q. B. 121 ;
dren then living. Where a gift was 7 H. L. 531 ; see BrooTcman v. Smith,
made to the children of a person, L. R. 6 Ex. 291 ; 7 lb. 271 ; 4,1 L.
with a direction that the shares J. Ex. 114.
should not be vested until twenty- (d) Eearne, C. R. 444.
five, and a gift over in case of death (e) See ante, p. 364.
under twenty-five, it was held, in
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stricted time.
446 PAET II. CHAP. II. laB LIMITATION OF PUT0EE ESTATES.
the estate of A. is restricted to a fee tail, and the limita-
tion over is a remainder, by a well-known rule of con-
struction (a) . And by a further rule of construction ap-
plicable to wills, a devise in terms to A. for life, with a
devise over upon failure of issue of A. indefinitely, gives
A. an estate tail with remainder over {b) .
Limitation upon An executory devise limited to take effect upon the
failure of heirs of a person is too remote (c) ; but when
following a devise to such person and his heirs, and
limited to one who is capable of becoming a collateral
heir of such person, the word heirs in the first devise is
construed as heirs of the body, reducing the devise to an
estate tail, and the devise over operates by way of re-
mainder (d).
Limitations ttpon A futuro use or executory devise limited to take effect
within a re- upon failure of issue of A. restricted within a definite
period not too remote may be good : — as a limitation to
take effect upon the death of A. without issue living at
his death ; — or upon the death and failure of issue of A.
in the lifetime of B. ; — for such limitations must take
effect, if at all, upon the death of A. or before the death
of B. — So, a limitation to take effect, if A. die leaving
issue at his death, and such issue die under the age of
twenty-one years, is within the limits of the rule (e). —
Such limitations over upon restricted failure of issue
have no implied effect, like limitations over upon in-
definite failure of issue, in enlarging or restricting
the preceding limitation to an estate tail, because
they correspond to the determination of an estate tail
only in a particular event ; but if they follow a limita-
tion in tail, they take effect by way of remainder,
contingent upon the failure of issue at the death of A.
(a) See ante, p. 181. (e) Fearne, C. R. 468, 470 ; Pells
(6) See on ^ i'n*j_T'ji
tained within the number 01 sharos must become ascertained witnm the
'"^"° ' period, and the destination of some of the shares only is
too remote, the limitation as to the rest may be vahd.
— Thus, a testator devised to A. for life, with remainder
to the children of A. in equal shares for life, with re-
mainder, as to the share of each child, to the children of
(a) 1 Jarman on Wills, 233 ; see
Jee V. AudUy, 1 Cox, 324, per Ken-
yon, M. E., "the question is, not
whether the limitation is good in
the events which have happened,
but whether it were good in its
creation."
(b) Jee V. Audley, 1 Cox, 324.
(c) Bayer's Trusts, L. E. 6 Eq.
319 ; 36 L. J. C. 360 ; but see Eno
V. ilno, 6 Hare, 171, where such
circumstance was considered in con-
struing a limitation upon failure of
issue.
(d) 1 Jarman on Wills, 231;
Leake v. Robinson, 2 Mer. 363, 382,
388 ; Smith v. Smith, L. E. 5 Oh.
342.
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SECT. V. § 1. THE RULE AGAINST PEEPETUITIES. 451
that child in fee ; the devise was held goodj except only
as to the remainders in the shares of the children of A.
born after the testator's death, the number of shares
being finally ascertained at the death of A (a) .
Thus also, a gift to the children of A. who should
attain twenty-one, and the issue of such of them as should
die under twenty-one, such issue to take only the share
of their parents, but conditionally upon their attaining
twenty-one ; was held good as to the shares of the chil-
dren who attained twenty-one, because the number of
shares must be ascertained within 21 years of the death
of A., though void as to the shares of those dying under
twenty-one, because the vesting of such shares was post-
poned until the issue (of children who might not be born
until after the testator's death) attained twenty-one (&).
Where a future interest is limited to vest within the Limitations with
.,-,,.. />■ 1 • -\ -\ • 1 1 modifications
prescribed limits of time, but is attended with a clause too remote,
settling or modifying the interest in a manner extending
beyond the limits, and which is therefore void, the sub-
stantive limitation may stand unaffected by the subse-
quent clause. Thus, a testator having given his residuary ^
estate to his children in equal shares directed that the
share of each daughter should be settled upon her for
life and after her decease upon such of her children who
should attain the age of twenty-five ; it was held that the
absolute gift to the daughter in the first instance was
restricted only in favour of her children, and that restric-
tion being void, it remained absolute (c) .
If a future interest be limited to vest within the period Directions to
. , . postpone poases-
allowed, with a direction to postpone the possession aion only beyond
the period.
(a) Oatlin f. Brown, 11 Hare, L. J. C. 95.
372. (c) 1 Jarman on Wills, 257 ;
(J) Moseley's Trusts, L. E. 11 Arnold v. Congreve, 1 Rusa. & M.
Eq. 499 ; 40 L. J. C. 275 ; and see 269 ; Carver v. Howies, 2 Eus3. &
the same principle applied in Storrs M. 306 ; Ring v. Sardioiclce, 2
v. Benbow, 3 D. M. & G. 390 ; 22 Beav. 352.
L. J. 0, 823 ; Wilson T. Wilson, 28
2 g2
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452 PAET II. OHAP. II. THE LIMITATION OF PaTUEE ESTATES.
beyond that period^ the direction as to the possession
may be rejected and the limitation may be good (a) .
Thus, devises to all the children of A. luhen and as
they attain, or at or upon their attaining, some given age,
have been construed as giving vested interests in the
children as they come into existence, but with a post-
ponement of the possession or distribution ; which, if ex-
tended to postponing the possession of unborn children
beyond the age of twenty-one is void (?^). — With vested
interests, not being remainders, the possession cannot be
effectually postponed unless there be a divesting limita-
tion to take effect within the period of postponement, for
a person of full age taking a presently vested and inde-
feasible interest in the property is not bound to let the
income accumulate, which he himself will be ultimately
entitled to ; he may dispose of his whole interest as soon
as he is competent to do so (c).
limitation in A limitation, after a limitation too remote, which is
event beyon°d the limited to take cffcct in the alternative of the same event,
is also too remote ; and it is not accelerated by the prior
limitation being void, or by the alternative of the event
in fact happening within the prescribed period. As a
devise to the children of A. who should be living at the
end of twenty-eight years from the death of the testator,
with devises over in case there should be no such child ;
(») " It is no objection to the 208. As to the reference of such
validity of a devise, that it post- expressions to a limitation over, see
pones the possession beyond the ante, p. 367 ; and see 1 Jarman on
limits prescribed for the vesting of Wills, 733-767.
estates ; for, in such a case, the (e) See Josselyn v. Josselyn, 9 Sim.
doctrine under consideration has no 63 ; Saunders v. Vautier, 1 Cr. &
other effect than to vacate the post- Ph. 240 ; 4 Beav. 115 ; Smith's Will,
ponement, and thereby accelerate 24 L. J. C. 466 ; and see Sariin v.
the possession." 1 Jarman on Wills, Masterman, Ji. 'R. 12 Eq. 559; 40
252. L. J. C. 760, where in the case of a
(S) Farmer v. Francis, 2 Bing. gift to charities with directions to
151 ; Murray v. Addendrooke, 4 accumulate, they were held not
Euss. 407 ; Judd v. Judd, 3 Sim. entitled to present possession, by
525 ; Doe v. Ward, 9 A. & E. 582 ; reason of the fluctuating character
see Simpson v. Peach, L. E. 16 Eq. of the recipients. Bee post, p. 468.
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SBCT. V. § 1. THE EULE AGAINST PEEPETUITIES. 453
tbe devise to the cMldren is void as possibly not ascer-
tained until a period too remote, and the gifts over not
being to take eflfect until after the same period, which is
too remote, are necessarily void also (a) .
But a limitation in an alternative to a too remote event, Limitation in
if restricted to happen within the allowed limits, may be native,
good. — As if a devise be made to the children of A. who
should attain the age of twenty -£ve, and in case A. should
die without leaving issue at his death, or leaving issue
they should all die before the age of twenty-five, then to
B. ; the devise in the event of A. dying without leaving
issue would be good, and that in the event of A. leaving
issue would be bad (b) . — -A limitation over in the event
of the death of all the children of A. under a certain age,
which if exceeding twenty-one years would render the
limitation void for remoteness, may be construed in some
cases to extend to the event of there being no children,
as a separate alternative event, and in such event the
limitation would be good (c).
A limitation in terms too remote may be restricted in Limitations re-
efiect by the duration of the estate limited, which may be tion of the estate
such as must determine within the period allowed, as an
estate for the life of a living person. Thus an executory
devise, after the failure of issue of A., to B. for life is
good, because the estate must necessarily take effect, if
at all, during the life of B., and the rule, as to the time
of limitation, is excluded [d).
(a) Palmer v. Holford, 4 Eubs. v. Westcott, 5 Taunt. 393 ; Long-
403; see Procter v. -Bp. Bath S{ head v. Phelps, 2 W. Bl. 704;
Wells, 2 11. Bl. 358 ; ante, p. 443 ; Crompe y. Barrow, 4 Ves. 681.
RoUnson t. Sardcastle, 2 T. R. (c) See ante, p. 370, n (a).
241 ; 2 Bro. C. C. 22 ; Soutledge {d) " Though an executory devise
v. Dorril, 2 Ves. 357 ; Brudenell v. in tail or in fee to one in esse after
Mlwes, 1 East, 442 ; 7 Ves. 382 ; 1 a dying without issue, is void ; yet
Jarman on "Wills, 242. an executory devise for life to one
(6) Cambridge v. Rous, 8 Ves. 12 ; in esse, to take place after a dying
Leake v. Robinson, 2 Mer. 363 ; see without issue, may be good ; because
the remarks on these eases in 1 Jar- in the latter case, the future limita-
mau on Wills, 246. A.aA s,eo Beard tion being only for lire of one ira esse,
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454 PART II. CHAP. II. THE LIMITATION OP PUTUEE ESTATES.
But this exclusion of the rule extends no further than
the life estates created in living persons ; and the rule
applies as to other limitations for transmissible interests
to take effect upon the failure of issue^ though created
at the same time and in the same instrument. Thus, a
testator (before 1838) devised all his estate, upon failure
of issue of A. to be divided between certain persons
named, but the part of one for life only ; it was held that,
though the devise for life to the one was good, and would
take effect if that one should be living when the issue
failed, yet the devise of absolute transmissible interests to
the others, to take eifeot upon the indefinite failure of
issue, was void for remoteness (a) .
limitation con- A future limitation may purport to be made to a per-
i)dD™aiiTe. SOU to take effect upon an indefinite failure of issue or
any other remote period, for any estate, if made contia-
gently upon his being then alive ; for then it would be
expressly restricted within the limits allowed {b) .
Leaseholds for The Same doctrino applies to future limitations of
lives or terms of- t i -i n t pi p tj_ -ii
twenty-one leaseholds tor lives, or tor terms oi years determinable
years.
it must necessarily take effect during
that life, or not at all ; and therefore
tlie failure of issue, in that case, is
confined to the compass of a life in
being." Peai-ne, C. E. 488. Uoe
T. Jeffery, 7 T. K. 589, in which
case a devise to A. and his heirs and
in case he should die and leaTe no
issue to B. was held to mean leaving
no issue at death ; but it has been
observed that the decision can only
be supported on the ground of the
devise over being of life estates. 7
A. & B. 660, in Doe v. Bwart ; see
avte, pp. 183, 447.
(a) Barlow v. Salter, 17 Ves.
479, Grant, M. K., there said, —
" Where nothing but a life interest
is given over, the failure of issue
must necessarily be intended a fail-
ure within the compass of that life ;
but where the entire interest is given
over, the mere circumstance that
one taker is confined to a life inte-
rest, furnishes no indication of an
intention to make the whole bequest
depend upon the existence of that
person at the time when the event
happens on which the limitation
over is to take effect." See Rt/e's Set-
tlement, 10 Hare, 106 ; 22 L. J. C.
345 ; Stuart v. CocJcerell, L. B. 7
Eq. 363, 368 ; Msher v. Weister,
L. R. 14 Eq. 283 ; 42 L. J. C. 156.
The above doctrine can have little
application to wills coming under
the operation of 1 Vict. c. 26, s. 29,
which restricts the failure of issue
to meaning failure at death unless
a contrary intention appear. 1 Jar-
man on Wills, 256 (n) ; see ante,
p. 183.
(S) Fells V. Brown, Cro. Jac.
590 ; see the observation on Palmer
V. Holford, 4 Euss. 403, in 1 Jarman
on Wills, 231 n (x) ; and see ante,
p. 446.
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SECT. V. § 1. THE EBLE AGAINST PEEPETTJITIES. 455
with, lives, or for an absolute unexpired term of years not
exceeding twenty-one ; these are not subject to the rule
against perpetuities, because the limits of duration of the
estate sufficiently restrict the vesting within the allowed
period (a). Thus, where a term was created of one
hundred and twenty years, if twenty-eigM persons
named or the survivor of them should so long live with
an additional term of twenty years from the expiration of
that term, and was made the subject of a settlement, the
limitations of the settlement, though in terms void for
remoteness, were allowed to be good because restricted
in effect by the subject to which they were applied (6) ; —
but the above doctrine seems not to be applicable to Henewabie
renewable leaseholds, for such estates are equivalent to
indefinitely continuing interests (c).
The rule against perpetuities is not applied to executory Eaie not applied
hmitations, whether by way of shifting use or executory after™atatertaii.
devise, which are to take effect in defeasance or upon the
determination of an estate tail ; because the power of dis-
position of the tenant in tail for the time being, by means
of a disentailing assurance, extends over all subsequent
limitations of whatever kind and enables him to acquire
or convey the fee simple, and the freedom of alienation
is thereby preserved [d).
Estates tail may, therefore, be settled subject to con- provisoes for
ditional limitations or provisoes for cesser, with limitations tail,
over, indefinite as to time, as a proviso divesting the
(a) Butler's note (e) to Fearne, C. be good, because tlie power which
E. 500 : see King v. Cotton, 2 P. resides in the owner of that estate
Wms. 676, cited in Fearne, C. K. to destroy all posterior limitations,
489 ; Low T. Barron, 3 P. Wms. executory as well as vested, by
262 ; Wastneys v. Chappel, 1 Bro. means of an enrolled conveyance,
P. C. 457. (now substituted for a common re-
(6) Bengough v. Bdridge, 1 Sim. covery,) takes the case out of the
173 ; S. C. nom. Cadell v. Palmer, mischief of, and consequently out of
1 Bligh, W. S. 202. the rule against perpetuities." 1
(o) See arde, p. 203 ; Lewis on Jarman on WiUs, 223 ; see ante p.
Perp. 681. '^^^' '^^^' ^""^ see 1 Sanders on Uses,
(d) " li the executory devise is 194 ; 2 Hayes Conv. 170, n (156) ;
subsequent to an estate tail, it wUl Lewis on Perpetuities, o. xxiii.
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456 PAET li. CHAP. II. THE LIMITATION OP PQTUBE ESTATES.
estate in the event of the tenant in tail or any issue in tail
neglecting to assume the name and arms of the settlor, —
or in the event of their becoming entitled to other settled
estates ; — for such limitations or provisoes may be barred
by the disentailing assurance of the tenant in tail (a). —
Whereas such limitations over in defeasance of an estate
in fee simple, as they could not be barred by the tenant,
would be void, unless expressly restricted to operate
within the period allowed by the rule against per-
petuities {b).
Limitations Accordingly, where a devise was made for estates tail,
CratdeferiSna- with remainder to trustees upon trust to seU and to
tail. divide the proceeds amongst the children of A. who should
be then living and the issue of such of them as should be
then dead, with a proviso that if any of such issue should
be then dead leaving issue, the issue should take the share
of the parent, the proviso, though operating throughout
the continuance of the estates taU, was held valid ; and it
was laid down by the court " that whether the limitation
be directly to a class of issue to be ascertained at the
determination of the estate tail, or a gift to a trustee for
such class, or upon trust to convey to such class, or to
sell and to divide the produce amongst such class, is
wholly immaterial, if the legal and beneficial interests
should be both ascertainable at the moment of the deter-
mination of the estate tad " (c) .
limitations An oxecutory limitation after an estate tail, which may
detramination^of not be ascertained at the determination of the estate
estate tail. j_*i/j_i* j- j ' t t ' ^ j_
tail, (not bemg a contmgent remamder, which must
take effect then or not at all,) though it may be barred
by the tenant in tail during his tenancy, may be inca-
pable of being barred by the remainder-man after the
(a) See ante, pp. 218, 352 ; Nicolls (I) See ante, p. 440.
V. Sheffield, 2 Bro. C C. 215 ; Carr (c) Heaseman v. Fearse, L. R. 7
Y.JEarlof&-roU,6'Eaat5S;DoeY. Ch. 275; 41 L. J. C. 705. Morse
Earl of ScarborougTi, 3 A. & E. v. Ormonde, 5 Madd. 99 j 1 Euss.
897. 382.
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SECT. V. § 1. THE BULB AGAINST PEfiPETUITIES. 457
determination of the estate tail^ and in this view may be
considered to be subject to the rule against perpetuities ;
but there does not appear to be any direct authority upon
the point.
Thus, if land be limited to A. in tail male with
remainder to B. in fee, subject to an executory limita-
tion to take effect upon the general failure of issue of A..,
such executory limitation would seem not to be with-
drawn from the rule by reason of the prior estate tail,
since it might be neither barred nor ascertained during
the continuance of the estate tail, and after the deter-
mination of that estate, it could not be barred by the
tenant in fee, and woald be open to all the objections the
rule is intended to meet (a).
If a- term of years be created antecedent to an estate Term preceding
tail, it cannot, nor can any trusts of the term be barred trusts Bubse-
by the tenant in tail. The trusts of such term are there-
fore subject to the rule against perpetuities and must be
limited to take effect within the period allowed by the
rule (6). Thus where a term was created prior to estates
tail upon trusts to raise portions upon failure of issue
in tail, the trusts were held void for remoteness (c).
Where a term was created and subject thereto the
land settled for life estates with remainders in tail in suc-
cession, a power given to the trustees of the term, during
the minority of any person who should be from time to
time entitled under the settlement to the immediate free-
hold for life or in tail, to enter into possession and manage
the estates, was held void for remoteness {d).
(a) See Lewis on Perpetuities, charges in this case eould be barred;
671 ; Sartopp y. Lord Caiieiy, they depend upon a term and
cited in 1 Sanders on Uses, 197. that term is precedent to the estates
See Bristow t. BootTiby, 2 Sim. & tail, so that after a recovery there
St. 465 ; Morse v. Lord Ormonde, would remain a term and a trust to
5 Madd. 99 ; 1 Buss. 382. be performed : a trust which could
(i) Bales v. Conn, 4 Sim. 65 ; not be defeated, and a term which
Case T. Drosier, 2 Keen, 764 ; 5 M. cannot be destroyed." &/Aes t.
6 Cr. 246. Si/ies, L. R. 13 Eq. 56 ; 41 L. J.
(c) Case T. Drosier, supra, L. C. 25.
Langdale, M. R., there said : — (d) layer v. Bankes, L. E. 8 Kq.
" Ihere are no means by which the 115.
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458
PAET II. CHAP. II. THE LIMITATION OF FtJTUEE ESTATES.
A pplicatiou of
the rule to
powers.
Power may be
unrestricted in
terms.
Execution is
restricted by the
rule.
Time is com-
puted from crea-
tion of the
power.
Under general
power time is
computed from
the appointment.
The rule against perpetuities applies to powers^ but
with the modifications required by the nature of a
power.
A power may be unrestricted in its terms as to the re-
moteness of the appointment authorised, provided it do
not expressly direct an appointment beyond the rule ;
because the power alone gives no estate, but only the
authority to appoint estates and interests. Where the
object of a power, as appearing in its terms, is to create
a perpetuity, it will be considered simply void. — But the
appointment under a power must be restricted to estates
and interests which shall take effect within the time
allowed by the rule (a) .
The uses and estates appointed take effect from the in-
strument creating the power, as if originally inserted
therein in place of the power. Therefore the time allowed
by the rule is, in general, computed from the creation of
the power and not from the appointment ; that is, from
the execution of the deed, if the power be created by
deed, and from the death of the testator, if by will (&).
But a general power, not restricted as to objects or
time of execution, is equivalent, as regards the disposal
of the property, to the absolute ownership ; and the
execution of such a power is considered, in substance, as
an original disposition. Therefore, the time withiu which
the limitations appointed under it must take effect is to
be computed from the execution of the power and not
from the creation of it (c). — Thus, if A. were to convey
his estate to his unborn son for life, remainder to the sons
of that son as purchasers, the limitations to the children
of the son would be void as tending to a perpetuity ; but
(a) Sugden on Powers, 31, 151,
8th ed. ; Duke of Marlhorough y.
Barl CfodolpJdn, 1 Eden, 404; S.
C. nom. Spencer y. Duke of Marl-
borough, 5 Bro. P. C. 592, where,
m a settlement of land, a power
given to trustees, on the birth of
the unborn tenants in tail, to con-
vert their estates tail into estates
for life with remainder to their sons
in tail, was held void as creating a
perpetuity.
(b) See ante, p. 375 ; Sugden,
396, 470 ; Lewis on Perpetuities, o.
XX.
(o) Sugden, 394.
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SECT. V. § 1. THE EULE AGAINST PEEPETUI'MES. 459
if A. were to convey Ms estate to such uses generally as
he should appoint, he might afterwards, upon the birth
of a son, limit the estate to that son for life, remainder to
his sons as purchasers, in precisely the same terms as if
at the birth of the son he had been seised in fee (a).
A general power to appoint by will is not equivalent to General power
absolute ownership, because it restrains alienation during win.
life ; and therefore the estates appointed must vest within
the time computed from the creation of the power (6).
Accordine' to these principles, a power may be well Power to appoint
° , ^ K,-, , to grandchildren
created to appoint to grandchildren or other more remote or remoter issue,
issue of a person, without any express restriction to those
who may be born within the time allowed from the creation
of the power ; but the appointment authorised is impliedly
so restricted, and the power, so far as it extends to more
remote objects, is simply void. — An appointment to any
objects of such power living at the time of the appoint-
ment would be valid ; also an appointment restricted to
those objects, whether grandchildren or remoter issue,
who may be born in the lifetime of the donee of the
power, or within twenty-one years of his death, would be
valid ; because such appointments must take effect within
the limits of time allowed from the creation of the power (c) .
— But an appointment to the grandchildren or remoter Appointment in-
.. ,. . PI 1-1 eluding objects
issue. Without restriction as to the time of their birth, too remote is
void.
would be void altogether, even as to those who are in
fact born within such limits of time. Unless it could be
supported as a distinct appointment of certain shares to
those of the objects who are capable of taking, leaving
the residue unappointed (d) .
Accordingly, a power of appointment in a marriage
(«) Sugden, 395. to issue, see Thomas v. Thomas, 14
(i) Powell's Trusts, 39 L. J. C. Sim. 234 ; Thomas v. Llot/d, 25
188. Beav. 620.
(o) Sugden, 152, 397 ; Routledge (d) See ante, p. 450. Sugden,
v. Dorril, 2 Yes. 357 ; as to the 505 ; 1 Jarman on Wills, 250 ;
construction of powers in extending Griffith y. Pownall, 13 Sim. 393.
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460 PAET II. CHAP. II. THE LIMITATION 01" FUTUBE ESTATES.
Power iu mar-
riage settlement
to appoint to
children.
Appointment to
child for life with
remainder to his
children
To child on
marriage.
To child for life
with power to
appoint by will.
settlement amongst the issue of the intended marriage is
restricted in execution to issue born at the death of the
parents or within twenty-one years after. — An appoint-
ment under such power to children for life, with remainder
to their children^ would be void as to the latter as being
too remote (a). — And an appointment under such power
to a child cannot be postponed in vesting beyond
the death of the parents and twenty- one years after.
Thus, an appointment to a child to vest on marriage
is too remote, being an event which might occur at any
time during the life of the child unborn at the date of
the settlement (&). — So, an appointment to a child for
life, with power in the child to appoint by will, is too
remote, as to the power by will ; because postponed until
the death of a person unborn at the date of the settle-
ment (fl) . Although a power given in favour of a living
person may be well executed by appointing to him an
estate for life, with a power of appointment by will [d).
Powers of sale,
etc. may be un-
restricted in
terms.
Powers of sale and exchange, of leasing, and the hke
powers which operate only upon the subject of the pro-
perty in settlement, without affecting the limitations of
the settlement otherwise than transferring them to the
new or altered subject of property, may be indefinite in
the terms of their creation, as to the period of execution;
as where limited to trustees and their heirs, or to trustees
and their executors, or to trustees for the time being of a
settlement containing powers of renewing the trustees
(e) . — If such powers are conditioned to be executed with
(a) Sristoii) v. Warde, 2 Ves.
jun. 336; Crompe y. Barrmo, 4
Tes. 681 ; Brudenell t. Slwes, 1
East, 442. 1 Jarman on Wills,
248.
(S) Morgan v. Qronow, L. R.
16 Eq. 1 ; 42 L. J. C. 410.
(c) Wollasion v. King, L. R. 8
Eq. 165; 38 L. J. C. 61, 392;
Morgan v. Qronow, L. E. 16 Eq. 1 ;
42 L. J. C. 410.
(d) Phipson V. Turner, 9 Sim.
227 ; Slark v. Dakyns, L. K. 15
Eq. 307; 42 L. J. C. 524; see
ante, p. 407.
(«) Boyce y. Banning, 2 C. & J.
334; Biddle v. Perkins, 4 Sim.
135 ; Wood y. White, 4 M. & Cr.
460. " Under the exercise of a
power of sale and exchange there is
merely a change of title, and not a
destruction of interest. In point of
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SECT. V. § ] . THE RULE AGAINST PEEPETUITIBS. 461
the consent of tlie tenant for life or other person living,
they are restricted in exercise within due limits by the
express condition of the execution (a). — Such powers, as
extending over estates tail in the settlement, are not sub-
ject to the rule against perpetuities, because in common
with all executory limitations to take effect in defeasance
of an estate tail, they may be barred by the disentailing
assurance of the tenant in tail, and his power of aliena-
tion is not restricted by them (b).
But the powers of this kind in a settlement are impliedly
restricted to the continuance of the settlement ; and when
the ultimate remainder or reversion in fee under the limi-
tations of the settlement has vested in possession, giving
an absolute power of disposition, the powers can no longer
be exercised (c).
Power of sale
with consent of
tenant for life.
Power of sale
extending over
estates tail.
Power of sale,
etc., resfricted
to the continu-
ance of the
settlement.
fact, such a power enables the aliena-
tion of property without affecting
the interest of the person beneficially
entitled to the property," Sugden,
848 ; see ante, p, 379,
(a) Sugden, 849 ; see WolJey v,
Jenkins, 23 Beav. 53 ; 26 L. J, C.
379.
(S) Sugden, 850 ; Wanng v,
Coventry, 1 M, & K, 249 ; Wallis
V, Freestone, 10 Sim, 225.
(c) Sugden, 850 ; Wood v, WTiite,
4 M, & Cr. 460 ; Wolley v. Jenkins,
23 Bear, 53; 26 L. J, 0, 379;
Grey v. Jenkins, 26 Beav, 351 ;
Brown's Settlement, L, K, 10 Eq.
349 ; 39 h. J. C.845; seeLantslery
V. Collier, 2 K. & J. 709 ; 25 L. J,
C, 672, "When the uses of the
settlement and the purposes of the
settlement are spent, the power is
no longer oapabl'e of being exer-
cised," Per Wood, V.C, lb. ; and
see Doncaster v. Doncaster, 3 K. &
J. 26. See ante, p. 382.
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462 PART II. CHAP. II. THE LIMITATION OP PUTDEE ESTATES.
§ 2. Accumulation of Eents and Peopits.
Accumulation of rents and profits restricted by statute — exception
of proTisions for payment of debts, portions, etc.
Accumulation allowed during one only of the statutory periods.
Directions to accumulate in excess of statutory period.
Implied directions to accumulate.
Directions to accumulate in excess of the rule against perpetuities.
Destination of income as to the excess — where the gift of the pro-
perty is immediate — where it is deferred.
Directions to accumulate after present vesting,
Aooumuiation of Dispositions of real or personal estate made for tlie
rents and profits r, ij* .1 1 n m n ,
restricted by purposo 01 accumulating the rents and profits and post-
poning tlie beneficial enjoyment were formerly subject to
no other restriction of time tban that prescribed by the
rule against perpetuities, common to all executory limita-
tions ; and accordingly an accumulation might be directed
during the same period as allowed for suspending the
vesting (a).
Such dispositions have been subjected to the addi-
tional restriction of the statute, 39 & 40 Geo. III. c. 98,
which enacts as follows : — " That no person or persons
shall after the passing of this Act, by any deed or deeds,
surrender or surrenders, will, codicil or otherwise how-
ever, settle or dispose of any real or personal property so
and in such manner that the rents, issues, profits or pro-
duce thereof shall be wholly or partially accumulated for
(a) Dispositions for the aecumula- equitable estate of freeliold, or even
tion of rents and profits are possible any other actual or beneficial inter-
only in dealing with the equitable est. See ante, p. 140 ; Butler's
estate or beneficial interest ; being note (x) to Pearne, 0. R. 637. The
contrary to the rule of the common law against accumulations hag been
law applied to legal limitations, that placed here, in anticipation of its
the freehold can never be in bus- proper place in the section on future
pense. This rule was not followed equitable limitations, on account of
in equity ; and it was considered to the close connection, as regards the
be no objection to a trust that it did object of the law, with the rule
not vest in any person an actual against Perpetuities.
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SECT. V. § 2. ACCUMULATION OF RENTS AND PROFITS. 463
any longer term than the life or lives of any such grantor
or grantors, settler or settlers ; or the term of twenty-one
years from the death of any such grantor, settler, de-
visor, or testator, or during the minority or respective
minorities of any person or persons who shall be living
or in ventre sa mere at the time of the death of such
grantor, devisor or testator; or during the minority or
respective minorities only of any person or persons who
under the uses or trusts of the deed, surrender, will or
other assurances directing such accumulations, would for
the time being, if of full age, be entitled unto the rents,
issues and profits, or the interest, dividends or annual
produce, so directed to be accumulated ; and in every
case where any accumulation shall be directed otherwise
than as aforesaid, such direction shall be null and void,
and the rents, issues, profits and produce of such pro-
perty so directed to be accumulated, shall, so long as the
same shall be directed to be accumulated contrary to the
provisions of this Act, go to and be received by such
person or persons as would have been entitled thereto,
if such accumulation had not been directed " (a) .
Section 2 provides " that nothing in this Act contained proviso as to
shall extend to any provision for payment of debts of any debts, portions,
grantor, settler or devisor or other person or persons, or
(ffl) This statute, commonly known disposition having been upheld by
as the Thelusson Act, was occasioned the courts, it was deemed necessary
by the will of Mr. Thelusson. " The by the legislature to prevent such
law as it stood before the statute accumulation for tlie future." Fer
had placed no restraint upon the Turner, T. C, in Bassil v. Lister,
accumulation of property for any 9 Hare, 181 ; 20 L. J. C. 643 ; see
period within the rule against per- Thelusson y. Woodford, 4 Ves. 227 ;
petuity. In that state of the law, 11 Ves. 112 ; 1 B. & P. N. R. 357 ;
Mr. Thelusson by his will directed Butler's note to Fearne, C. R. 436,
his property to be laid out in land, 539 ; 1 Jarman on Wills, 264. This
and the rents, profits and income of statute has hardly ever come before
such land to be accumulated during the courts without the judge having
the lives of all his descendants who occasion to observe upon the inarti-
should be living at the period of his ficial and ill-defined language of its
death, and he then limited the aocu- provisions. See _per Brougham, L.
mulated property in favour of cer- C, 1 M. & Or. 139, in Shaw y.
tain of his descendants, who might Rhodes ; per Cranworth, L. C, 6 D.
be living at the determination of M. & G-. 453; 24 L. J. C. 718, in
the period of accumulation. This Tench v. Cheese.
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464 FART II. CHAP. II. THE LIMITATION OV FUTURE ESTATES.
to any provision for raising portions for any child or cliil-
dren of any grantor, settler or devisor, or any child or
children of any person taking any interest under any such
conveyance, settlement or devise, or to any direction
touching the produce of timber or wood upon any lands
or tenements " (a) .
One only of the The Act restricts the power of accumulation to one only
aifowed7^™° ^ of the periods mentioned. Accordingly, where a testator
gave his residuary estate to the first son of A. who should
attain twenty- one, so as to involve an, accumulation
during the minority of such son, aud further directed the
trustees of that estate to accumulate the income for
twenty-one years from his death ; it was held that the
accumulation must stop at twenty-one years after his
death, although no son of A. had then attained twenty-
one, and that the direction to accumulate during the
minority of the son was void (&) .
Trust to aocumu. Trusts and directions to accumulate rents and profits,
late for period .^^
m excess of Act SO far as they exceed the limits allowed by the Act, are
is void only as to , , ,
the eicesa. void. Thus a trust by will to accumulate during the life
of a person named is held good only for the term of
twenty-one years from the death of the testator, and stops
at the end of that term (c) . — So, with a gift to a person
upon her marriage with the accumulations of interest
from the death of the testator {d). — So, an accumulation
of income until a certain sum be raised, or a sum required
for a certain purpose, cannot be continued beyond twenty-
(os) As to tkis prOTiao, see Shaw- L. J. C. 716, per Knight Bruce, L.
v. Rhodes, 1 M. & Cr. 135 ; JSvans J. And see the eases on the statute
V. Hellier, 5 CI. & F. 114 ; Morgan collected in Chitty's Statutes.
V. Morgan, 4 D. & Sm. 164 ; 20 L. (6) Wilson v. Wilson, 1 Sim. N.
J. C. 109 : Bateman v. HotchJcin, S. 288 ; 20 L. J. 0. 365.
10 Beav. 426 j Barrington v. Lid- (c) Griffith t. Fere, 9 Ves. 127 ;
dell, 2 De Q-. M. k Gc. 480 ; 22 L. JElborne v. Goode, 14 Sim. 165 ;
J. C. I ; Middleton v. Losh, 22 L. O'Neill Y. Lucas, 2 Keen, 313 ; %re
J. C. 422 ; Edwards t. Tuoh, 3 De v. Marsden, 2 Keen, 564.
G-. M. & a. 40 ; 22 L. J. C. 523 ; (d) Morgan v. Morgan, 20 L. J.
Burt T. Sturt, 22 L. J. C. 1071 ; C. 109.
Tench V. Cheese,6 D. M. & Q-. 453 ; 24
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SECT. V. § 2. ACCUMULATION OP BENTS AND PEOPITS. 465
one years (a). — And in such cases the term of twenty-
one years during which the accumulations may continue
commences from the death of the testator^ although the
accumulations be not directed to commence until a period
subsequent to the death (b). — A trust by deed to accumu-
late during the life of a person named is held good only
during the life of the grantor and ceases at his death (c).
So a trust by will to accumulate until an unborn child Accumulation
-, . , ^ - 'IIP until unborn
attams twenty-one, extending through the period beiore cMid attains
•' o o jr twenty-one.
the birthj is held to stop at twenty-one years from the
death of the testator (d). A trust to accumulate during
the minority only of an unborn child, who when of full
age would be entitled to the fund, (the trust not commenc-
ing until the birth of the child,) seems to be within the
terms of the Act (e). — The accumulation by the Court Accumulation of
^ / , . infant's estate.
of the income of minors, or rather of their surplus in-
come after providing for maintenance, is independent of
the Act, being an exercise of discretion by the Court on
behalf of the infant, as to the most advantageous mode
of applying the rents of his property (/) .
A trust or disposition of property implying or causing implied airec-
-,,. ,, 1 ,. , -... , tions to accumu-
an accumulation, though not m express terms directing late aie witun
such accumulation, is within the statute ; — thus, a charge
(a) Shaw v. Shades, 1 M. & Or. (/) See per Eldon, L. C, in
135 ; Curtis v. Lukin, 5 Beav. 147; Griffiths v. Vere, 9 Tes. 136. " Ac-
Oddie T. Browri, 4 D. & J. 179 ; cumulation there has a different
28 L. J. C. 542. meaning from accumulation directed
(J). Wehl T. Wehh, 2 Beav. 493 ; while the enjoyment of the property
Ait.-Oen. v. Poulden, 3 Hare, 555. is in suspense. In the case of pro-
The term is exclusive of the day of perty coming to an infant, aceumu-
his death. Gorst v. Lowndes, 11 lation is only that which, if it were
Sim. 434. iiofc the case of an infant, the owner
(c) Mosslyn's Truits, 16 Sim. might do for himself. If the pro-
39]^^ perty comes to an infant, the infant
{d) Longdon v. Simson, 12 Ves. has no will to say, whether it shall
295 ; Haley v. Bannister, 4 Madd. be spent or accumulated ; and, there-
275 ■ Mlis V. Maxwell, 3 Beav. fore, the court expresses its will for
587 ; Edwards v. Tuck, 3 B. M. & the infant, and says that is the
&. 40 ; 22 L. J. C. 523 ; Tench v. most advantageous way of applying
Cheese', 6 D. M. & &. 453 ; 24 L. the rents for him." Ber Cranworth,
J. 0. 716. L. C, in Tench v. Cheese, supra.
' (e) See Ellis v. Maxwell, supra. See 1 Jarman on Wills, 268.
2h
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466 PAET II. CHAP. II. THE LIMITATION OF FUTURE ESTATES.
Powers of main,
tenance and ad-
vancement out
of income.
* Trust to pay
premiums on
policy.
of a certain sum to be raised out of the annual rents and
profits^ the distribution of which is postponed until the
sum is raised, is, in effect, a trust or direction to accumu-
late, and cannot be continued beyond the period allowed
by the Act (a) . — An executory devise, if made in such
terms as to include the income until vesting ; or a future
residuary disposition, as it carries the intermediate income
if not otherwise disposed of, involves an accumulation,
and is within the Act {b).
Where the property was directed by will to be accumu-
lated for the ultimate benefit of certain objects, with
powers of maintenance and advancement out of the in-
come, the powers, as disposing of the income, were held
to continue and to be capable of exercise, notwith-
standing they extended beyond the period allowed for
accumulating the income (c) .
A trust to pay the premiums upon a policy of insurance
during the life of a person out of the income of property
is not an accumulation of such income within the Act ; it is
an absolute disposal of it in consideration of the payment
to be made in a certain event under the policy {d) .
Directions to A trust Or direction for accumulation which infringes
accumulate in ., .. . . . -, , . . .
excessofthe rule the rule agamst perpetuities, as directinar accumulation
against per- .... . °
petuities void, for an indefinite period, or a period extending beyond the
time allowed by that rule, or as disposing of the accumu-
lations by limitations too remote, is void altogether,
independently of the above statute, and is not apportion-
able as to the time of accumulation ; as a proviso in a
(a) S?mw T. Shades, 1 M. & Cr
135 ; Evans v. Hellier, 5 CI. & F,
114 ; see 1 Jarman on Wills, 274.
(6) 1 Jarman on Wills, 276
M'Donald v. Bryce, 2 Keen, 276 .,
Morgan t. Morgan, 4 D. & Sm
161; 20 L. J. C. 109, 441; see
Tench T. Cheese, 6 D. M. & G-. 453 ;
24 L. J. C. 716, where Cranworth,
L. C, said, "If a testator directs
that to be done which, as a oonse-
quence,leai3s to an indefinite accumu-
lation, he must within the meaning
of the statute be taken to have di-
rected accumulation." But as to
an accidental accumulation, see Cor-
poration of Bridgnorth v. Collins,
15 Sim. .=138.
(c) Pride t. Fooks, 2 Beav. 430.
(d) Bassil v. Lister, 9 Hare, 177 ;
20 L. J. C. 641.
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SECT. V. § 2. ACCUMULATION OP RENTS AND PROFITS. 467
settlement that during the rainorities of any persons
becoming successively entitled in possession under the
settlement, the trustees shall receive and accumulate the
rents and profits (a) . Where a testator created a long
term of years upon trust to raise and accumulate an
annual sum for the purpose of paying the mortgage debts
charged upon the land, it was held that the trust, though
not limited in duration, was valid, because the power of
the owner of the inheritance, subject only to the
mortgages, was not thereby restricted (6).
Where there is an absolute and immediate disposition Destination of
of the property, subject only to a direction for accumula- exeesa.— where
, . . . - - . . there is an im.
tion durmg an excessive period, the statute m stopping mediate gift of
. r ' -^ ^ ^ the property.
the accumulation beyond the period allowed leaves the
disposition of the property discharged from the direction,
and entitles the grantee or devisee to the immediate in-
come or possession (c) .
Where the accumulation is directed for an excessive where the gift
period, and there is no disposition of the property until
the expiration of that period, the statute in stopping the
accumulation beyond the period allowed does not accele-
rate the disposition ; but the effect is to withclraw the
subsequent income from the disposition of the rest of the
property. The subsequent income until the disposition
takes effect will then pass under the residuary disposition
in the will; — or, if the disposition from which such in-
come is withdrawn be a residuary disposition, it will pass
as undisposed of, — either to the next of kin, or to the
(a) See ante. p. 457. Lord to be within the exception of the
Southampton v. Marq. Hertford, 2 Act restraining accumulations, being
V. & B. 54 ; Marshall t. Molloway, a provisioa for the payment of debts.
2 Swanst. 432 ; Palmm- v. Bolford, See ante, p. 366, and see Bacon v.
4 EusB. 403 ; Browne y. Stoughton, Proctor, T. & E. 31 ; BnggsY. JEarl
14 Sim. 369; SeaHslrich v. Sleel- of Oxford, 1 D. M, & a. 363; 21
mersda/e, 17 Sim. 187 ; Turvin v. L. J. C. 829 ; Tetvart v. Lawson,
Newcomhe, 3 K. & J. 16. 43 L. J. C. 673 ; L. E. 18 Eq. 490.
(b) Bateman v. HotchUn, 10 (o) 1 Jarman on WiUa, 270;
Beav. 426, and the trust was held TricTcey t. Trickey, 3 M. & K. 560.
2 h2
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468 PART II. CHAP. IT. THE LIMITATION OP PUTTJEE ESTATES.
heir, according to the nature of the property (a). — Where
a testator devised to trustees upon trust to accumulate
the rents until the youngest child of A. attained twenty-
one, it was held that the interest of the heir, becoming
entitled to the undisposed of rents accruing after twenty-
one years from the testator's death until the youngest
child should attain twenty-one^ was a chattel interest
which upon his death passed to his personal represen-
tatives (5) . A trust to invest the accumulations of in-
come of property in the purchase of land, does not attach
upon the income during the period of excess, and such
portion of the income passes according to the original
nature of the property (c).
ireotion to ao- Where property becomes presently and absolutely
•esent Testing, vestcd in a person who is sui juris, although it be subject
to a trust or direction for accumulation beyond the time
of vesting and be directed to be paid at a future period,
he is not obliged to let the accumulations continue, but
may claim to have the property transferred to him in
immediate possession {d). — In the case of a charity taking
a gift, subject to a direction to accumulate the income,
the charity was held not entitled to present possession
on account of the fluctuating character of the bene-
ficiaries (e).
(a) 1 Jarman on Wills, 271
Crawley v. Crawley, 7 Sim. 427
O'Neill T. Lucas, 2 Keen, 313
Ellis T. Maxwell, 3 Beav. 587
M'Donald y. Bryce, 2 Keen, 276
liyre t. Marsden, 2 Keen, 564
IBlhorne v. Goode, 14 Sim. 165
Tench v. Cheese, 6 D. M. & G. 453
(b) See ante, p. 45, 197 ; Sewell
V. Benny, 10 Bear. 315.
(e) Simmons \. Pitt, L. E. 8 Ch.
978 ; 43 L. J. C. 267. See Earl
of Bective v. Hodgson, 33 L. J. C.
601.
{d) Saunders v. Vauiier, 4 Bear.
115 ; Curtis v. LuTcin, 5 Beav. 147 ;
24 L. J. C. 716. As to the further Bateman v. Sotchkin, 10 Beav.
income of the accumulations already 426; Hilton v. Hilton, L. K. 14
made until the period of vesting, Eq. 468, 475. See ante, p. 452.
see Morgan v. Morgan, 20 L. J. C. (e) Harhin v. Masterman, L. E.
441. 12 Eg. 559 , 40 L. J. C. 760.
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SECT. VI. 'pUTtJEE EQUITABLE ESTATES. 469
Section VI. Fotdee Equitable Estates and Interests
IN Land.
§ 1. The limitation of future equitable estates and interests.
§ 2. Priority of estates and interests in equity.
§ 3. Protection of the legal estate.
§ 4. The doctrine of notice.
§ 5. Tacking and consolidating mortgages ; Marshalling.
§ 1. The Limitation op Futuee Equitable Estates and
Interests.
Future equitable estates corresponding to legal estates — remainder
and reTcrsion — limitation of freehold in fufuro — in defea-
sance of prior estate — powers.
The rule against perpetuities — accumulations.
Contingent limitations of equitable estates — vesting of interme-
diate interest.
The rule in Shelley's case applied to equitable limitations.
Future charges upon land of portions, legacies, etc. — construction
of charges as vested or contingent — charges upon personalty
— charges upon both real and personal estate.
Charge of portions subject to advancement — presumption against
double portions.
Equitable estates and interests in land have been dis-
tinguished into those corresponding with legal estates
and those peculiar to equity, having no analogy with legal
estates [a).
In the limitation of equitable estates, corresponding Future ectuitaWe
^ -. . , ■ estates eorre-
with legal estates, future estates and interests are, m aponcUng with
o ' Til legal estates.
general, limited in the same manner, and the same lan-
guage is used and receives the same construction, as in
limiting future legal estates ; — according to the principle
that eauitv follows the law. Accordingly, the equitable Kemamder and
" " T. •/ . - reversion.
-estate may be limited for a particular estate with re-
See ante, p. 243.
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470 PAET II. CHAP. II. THE LIMITATION OF FDTUEE ESTATES.
liimitation of
freehold in
fufuro.
Limitations in
defeasance of
prior estate.
Powers of ap-
pointment.
mainder^ or with successive remainders, or leaving a re-
versioHj as at law (a).
But tlie limitation of tlie trust or equitable estate is
free from tlie restrictive rules peculiar to tlie quality of
freehold tenure ; for these rules are satisfied in their
application to the legal estate of the trustee and have no
ulterior effect on the beneficial interest. The rule of
common law that the freehold cannot be in abeyance,
with all its consequences in legal limitations, has no
application in equity. Therefore, an equitable estate,
freehold in quantity, may be limited to commence at a
future time, or upon the happening of a future event,
without any preceding freehold estate to support it as a
remainder (fe).
So an equitable estate may be limited to take effect in
defeasance or substitution of a preceding estate without
awaiting its determination, in the same manner as a
shifting use or executory devise (c). — The trust or equit-
able interest in leaseholds or terms of years may be
limited with all the freedom of an executory bequest of
personal estate {d).
Equitable estates may also be appointed under powers
given for that purpose, analogous to and, so far as the
quality of the estate permits, governed by the same
rules as powers of appointing uses or powers under
wills (e).
Rule against per.
petuity applied
to equitable
limitations.
Future limitations of the trust or equitable estate are
subject to the same rule against perpetuities as future
legal limitations by way of springing use and executory
devise, and the rule is applied according to the same
principles. " It may be laid down without any qualifica-
tion that no nearer approach to a perpetuity can be made
a) See ante, pp. 139, 243.
b) See ante, p. 140.
(c) See ante, pp. 14.0, 350, 360.
(d) See ante, p. 321 ; and see
ffolmes T. Prescott, 33 L. J. C.
264.
(e) See ante, p. 374 ; Sugden on
Powers, 45, 8tli ed.
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SECT. VI. § 1. rUTDEE EQUITABLE ESTATES. 471
through the medium of a trustj or will be supported by a
court of equity^ than can be made by legal conveyances
of legal estates or interests or will be admitted in a
court of law" (a).
By means of a trust or direction for that purpose the Trusts for acoa.
rents and profits of land may be withdrawn from present
ownership and accumulated for the benefit of a future
and uncertain owner. Such dispositions were impossible
at the common law on account of the rule that the free-
hold could never be in suspense. Trusts and directions
to accumulate rents and profits for future disposition are
subject to the rule against perpetuities ; and they are
subject to further restriction by the Statute 39 & 40
Geo. III. c. 98, already noticed (b).
The rules restrictive of contingent remainders at the Contingent Umi.
,, .... . . , tations of equit.
common law have no apphcation m equity. A contmgent able estates,
limitation of the equitable estate, though in the form of a
contingent remainder at law, may take effect as and when
it is limited to arise, subject only to the rule against per-
petuities. It is not affected by the determination of the
preceding estate before the happening of the contingency
upon which it depends (c). Thus under a trust for A.
for life and after his death for the children of A. who
should attain twenty- one, the trust for the children will
not fail by reason of A. dying before any child has at-
tained that age, as would be the case with a contingent
remainder at law in the same terms (d). So under a
trust for A. for life and after his death to the children of
B„ the trust for the children of B. does not fail upon
the death of A. before children of B. exist (e).
(a) Butler's note to Co. Lit. 290 {d) Eddel's Trusts, supra ; Holmes
b, 8. xi¥. ; see ante, p. 440. v. Prescott, 33 L. J. C. 264; Best
(h) See ante, p. 462. t. Donmall, 40 L. J. C. 160.
(e) Fearne, C. B. 303, 321; (e) Chapman t. Blisset, Cas. t.
MddeVs Trusts, Jj. 'S,. 11 Eq. 559; Talb. 145, and see 2 Jarman on
40 L. J. C. 316 ; see Umbers v. Wills, 88. As to executory de-
Jaggard, L. E. 9 Eq. 200. vises to children, see ante, p. 370.
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472 PART II. CHAP. II. THE LIMITATION OF SUTCEE ESTATES.
Intermediate in- If a Contingent limitation be made without any preced-
terest until vest- . . ,...-, , , ,-i
ing of contingent ing estatCj OP if a contingent limitation do not vest until
after the determination of the preceding estate, the in-
termediate interest, unless otherwise disposed of, results
to the settlor or his heir, or falls into the residue of his
estate (a).
The rule in ^ho rulo in Shelley' s case, by which limitations in the
SpUeltoe^tdt- form of remainders to the heirs or to the heirs of the
afoe limitations, ^^^j^^ ^^^^^ ^^ gg^.^^^^ ^f freehold in the ancestor, are re-
ferred to the estate of the ancestor, is applied by analogy
in construing the like limitations of equitable estates, and
upon the same principles upon which it is applied to legal
limitations (b).
limitations But it cau bo applied only where the limitations to the an-
aua'paSy'iegai. costor and to the heirs are homogeneous, either both legal
or both equitable ; if the estate limited to the ancestor is
equitable and the remainder to the heirs is legal, or con-
versely, the rule is not applicable (c) .
Legal limitation Where both the limitations are legal, a trust imposed
subject to trust. ^^^^ ^^^ ^j ^.j^^^ ^^^^ ^^^ prevent the application of the
rule to the legal limitations ; for a court of law, in con-
struing legal limitations, takes no notice of trusts {d).
(a) See ante, p. 363 ; Fearne, settled by reference to the limita-
C. K. 545, 546. Eddel's Trusts, tions of realty involving a contin-
L. B. 11 Bq. 559 ; 40 L. J. C. gent limitation, was held to follow
316 ; see Best v. Donmall, 40 L. the rents of the realty.
J. C. 160. Sective v. Hodgson, (b) Wright v. Fearson, 1 Eden,
10 H. L. C. 656 ; 33 L. J. C. 601, 119 ; PUlips t. Srydges, Brydges
vrhere see the different rule stated v. Brydges, 3 Ves. 120 ; Weih v.
as to personalty ; " If by a will the JSarl of Shqfiesiury, 3 M. & K,
whole of the personal estate or the 599 ; Jackson v. Nolle, 2 Keen,
residue of the personal estate be the 590. See the rule stated and ap-
subject of an executory bequest, the plied, ante, p. 342.
income of such personal estate (c) See Pearne, C. R. 52, 58. See
follows the principal as an aeoes- Curtis v. Price, 12 Ves. 89 ; Nash
sory, and must during the period v. Coates, 3 B. & Ad. 839 ; Quested
which the law allows for accumu- v. Michell, 24 L. J. C. 722 ; Cooper
lation be accumulated and added to v. Kynoch, 41 L. J. C. 296 ; L. E.
the principal." Per Westbury, L. 7 Ch. Ap. 298 ; Balcer v. Parson,
C, lb. 602. See Holmes v. Fres- 42 L. J. C. 228.
cott, 33 Ii. J. C. 264, where the in- (d) Fearne seems to have been of
termediate income of personalty, a contrary opinion, see C. E. 35 ;
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SECT. VI. § 1. FUTDEB EQUITABLE ESTATES. 473
But the rule in Shelley's case is not applied in con- Application of
struing executory trusts, which have to be carried out by tory trusts.^
a conveyance or settlement to be framed according to
certain directions, where an application of the rule to the
literal terms of such directions would defeat the intended
purpose of the trust. As in marriage articles or a devise
by will directing that a settlement be made to a person
for life with remainder to the heirs of his body, (limita-
tions which in their technical meaning according to the
rule in Shelley'^ case would make him tenant in tail in
possession with an absolute power over the property,) the
trust is executecl by a strict settlement, with limitations
to the person for life with remainders to his first and
other sons successively in tail (a) .
Trusts for conversion, charges of money for portions, Future charges
legacies, debts, etc., constituting equitable interests in portions',
land of a kind peculiar to equity, and having no cor-
respondence with legal estates (6), may also be limited
to take effect at a future time or upon the happening of
some event or contingency, subject only to the rule
against perpetuities.
With charges of money on land, whether by deed as charge to be paid
portions in settlements, or by will as legacies, it is a rule or other event
of construction as to the vesting of the charge, that a person,
direction for payment at some future time or event, having
reference to the condition or circumstances of the legatee
or portioner, as at the age of twenty-one or on marriage,
is to be construed as deferring the vesting; so that if the
legatee or portioner die before the time, the land is dis-
charged, unless an intention to the contrary appear in the
will or instrument. And the gift of interest on the sum
in the meantime for maintenance or otherwise is held not
but see Butler's note (p) lb. ; and Lord Glenorchy t. Bosville, 1 W. Sc
see 2 Jarman on Wills, 245 ; Douglas T. L. C. 21 ; and see as to executory
T. Congreve, 1 Beav. 59. trusts, ante, p. 245.
(a) Pearne, G. E. 90, 114 ; 2 (S) See ante, pp. 243, 248.
Jarman on Wills, 252 ; notes to
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474 PAKT II. CHAP. II. THE LIMITATION OF FUTURE ESTATES.
Charge to be
paid upon death
of tenant for life
or other event
affecting the
property.
Charges on per-
sonalty payable
at a future time.
Charge on lease-
hold and pro-
ceeds of con-
to be sufficient to show an intention to the contrary. —
But if the payment be postponed to a time or event,
having reference merely to the condition or convenience
of the property, as the death of a tenant for life, and
having no reference to the personal condition of the
legatee or portioner, the effect of such direction is re-
stricted to the purpose manifestly intended^ and it does
not affect the vesting (a).
With charges on personal estate a different rule pre-
vails, — a direction for payment at a fature time does not
alone defer the vesting ; and if the legatee or portioner
die before the time of payment his representatives become
entitled, notwithstanding the payment be postponed,
unless an intention appear to the contrary (6).
This rule of construction is applied to charges on terms
of years and leaseholds (c) ; — and to charges on the pro-
ceeds of land under trust for conversion {d).
But if the legacy or portion itself, and not merely the
payment of it, be expressed to be at some future time or
event having reference to the person, as "if" or "when"
(a) " In regard to aums payable
out of land in futuro, the old rule
was that whether charged on the
real estate primarily, or in aid of the
personalty, they could not be raised
out of the land, if the deyisee died
before the time of payment ; but
this doctrine has undergone some
modification and the estabUshed dis-
tinction now is " that above stated.
The rule was founded on the prin-
ciple of favouring the inheritance.
1 Jarman on Wills, 756 ; Butler's
note (1) to Co. Lit. 237 a ; and note
(^) to Fearne, C. E. 552 ; Hawkins
on Wills, 234 ; see Remnant v.
ITood, 2 D. P. & J. 306 ; 30 L. J.
C. 71 ; Farher v. Hodgson, 1 Dr. &
Sm. 568 ; 30 L. J. 0. 590.
(V) 1 Jarman on Wills, 759;
Hawkins on Wills, 226 ; Lister v.
Bradley, 1 Hare, 12 ; re Bartholo-
mew, 1 Mao. & G-. 354. The above
difference between real and personal
estate " has arisen from the applica-
tion to the latter of doctrines bor-
rowed from the civil law, which have
not obtained in regard to real estate,
having been introduced by the Ec-
clesiastical Courts, who possessed,
in common with courts of equity, a
jurisdiction for the recovery of
legacies and distributive shares of
personal estate. Pecuniary legacies
charged on land are, so far as they
come out of the real estate, to be
considered as dispositions pro tanto
of that species of property." 1
Jarman on Wills, 755 ; see 3 Spenee,
Eq. Jur. 395 ; and see per Enders-
ley, V. C, Barker v. Hodgson, 1
Dr. & Sm. 568 ; 30 L. J. C. 590.
(c) Re Hudsons, 1 Drury, 6.
(d) Hart's Trusts.SB. & T. 195 ;
28 L. J . C. 7 ; see Spencer v. Wil-
son, L. B. 16 Eq. 501 ; 42 L. J. 0.
754.
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SECT. VI. § 1. FUTUEE EQUITABLE ESTATES. 475
he attains twenty-one, or " at ", or " upon ", or " after " Future and con.
attaining twenty-one ; or where the only words of gift p'otUod. ^^""^ ""^
consist in a direction to pay to children, etc., when they
attain, or at, or upon, or after attaining twenty-one, there
being no other terms from which vesting could be im-
plied, it is deferred until the time of payment, and is
contingent upon attaining the age mentioned (a). — So,
a direction to pay a legacy to a person upon her marriage
is a contingent gift which is not vested until marriage (6).
The gift of the interest until the time appointed, in the Gift of interest
case of personalty, presumptively vests the principal j vests principal,
unless it be given by way of accumulation at the same
time as the principal, in which case it affords no such pre-
sumption (c).
As a charge upon real estate, it makes no difference
whether the legacy or portion be given to the person in
the terms above mentioned as " at twenty-one ", or
whether it be given to him in absolute terms in the first
instance and then adding " payable at twenty-one " ; it is
equally considered to be contingent upon attaining the
age mentioned {d).
In consequence of the above distinction in the effect of charge upon
T . . P p 1 -PI \>oi)i real and
a direction for future payment upon the vesting of charges, personal estate,
as operating upon real or personal estate, it may happen
that a legacy originally charged both on real and personal
estate may fail as against the real estate by reason of the
death of the legatee before the time of payment, but
(a) 1 Jarman on Wills, 760, 762 ; on WiUs, 759.
Hawkins on WiUs, 223 ; Hanson y. (b) Morgan v.. Morgan, 4 D. &
Graham, 6 Ves. 239 ; Leake v. Sm. 164 ; 20 L. J. C. 109.
Bobinson, 2 Mer. 363 ; Zocke v. (c) 1 Jarman on Wills, 766 ;
Lamb, L. E. 4 Eq. 375 ; Kidman v. Hawkins on Wills, 227 ; see Morgan
Kidman, 40 L. J. C. 359 ; Spencer v. Morgan, supra ; Hart's Trusts,
T. Wilson, L. R. 16 Eq. 501 ; 42 L. 3 D. & J. 195 ; 28 L. J. C. 7
J. C. 754. "A leading distinction is, Simpson v. PeacJi, L. R. 16 Eq. 208
that if futurity is annexed to the s«S- Peek's Trusts, Ij. K. 16 Eq. 221
stance of the gift, the vesting is sus- 42 L. J. C. 422.
pended ; hut if it appears to relate (d) Fer Kindersley, V. C. Parker
to the time of payment only, the t. Hodgson, 1 Dr. & Sm. 568 ; 30
legacy rests instanter." 1 Jarman L. J. C. 590.
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476 PAET II. CHAP. II. THE LIMITATION OF PUTUEE ESTATES.
remain a charge upon the personalty ; as in the case of a
legacy given to a person and made payable at twenty-one,
and the legatee dying under twenty-one (a) .
Portions charged
subject to satis-
faction by ad-
vancement.
Presumption
against double
portions.
Portions charged in settlements of land to be raised
upon the death of the parents are usually made subject
to an express proviso that an advancement made by the
parents in their lifetime shall be taken in satisfaction,
unless expressly declared not to be so intended (&).
Under such a proviso a devise or bequest by will of the
parent would not, in general, operate as an advancement
in his lifetime in satisfaction of the portion (c) .
Where the settlement of the portions is made by a
parent, or one who stands iii loco parentis to the por-
tioners, and there is no express provision relative to
satisfaction by advancement or otherwise, there is a
general presumption of equity against double portions,
and in favour of satisfaction by an advancement j which,
however, is capable of being rebutted by the nature and
circumstances of the advancement. Where the settlor is
a stranger to the portioners there is no such presump-
tion, and the effect of an advancement is strictly a ques-
tion of construction {d) .
(a) Hawkins on Wills, 236;
Pearce t. Loman, 3 Ves. 135 ; Par-
ker V. Hodgson, 1 Dr. & Sm. 568 ;
30 L. J. C. 590.
(4) See 2 Prideaux Conv. 284,
7th ed. ; 2 Hayes Convey. 63, 5tli
ed. ; 2 W. & T. L. C. 356 notes to
Exp, Pt/e.
(c) Cooper v. Oooper'Zi. B, 8 Ch.
813 ; 43 L. J. C. 158, explaining
the cases of Twisden v. Twisden, 9
Ves. 413, and Leake v. Leake, 10
Yes. 477, supposed to have decided
to the oontrai-y.
(d) 2 W. & T. L. C. 354, notes
to Ex p. Pye.
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SECT. TI. § 2. THE PRIORITY OF ESTATES. 477
§ 2. The Priority op Estates and Interests in
Equity.
Priority of estates and interests in equity.
Priority of acquisition gives prior equity.
Priority lost by fraud or negligence.
Negligence as to the custody of title deeJs — trusting to repre-
sentations as to the deeds.
Trustee depositing deeds in breach of trust.
Vendor signing receipt for purchase money.
Priority by notice to trustee of equitable interest in personalty
or money charged upon land — no priority in equitable
estates in land by notice to trustee — notice upon change of
trustees.
Estates and interests may be created in. the same pro- priority of
perty not in a prescribed series of limitations^ but upon terests S" equity,
various and independent occasions ; and questions may
then arise as to their priority or relative times of taking
effect which cannot be determined merely by construc-
tion of the terms of limitation, but are to be decided by
the rules and principles of equity.
For examplCj the equity of redemption in mortgaged Eiampies.
land may be mortgaged or charged successively to two
personSj between whom may consequently arise a conflict
of claims to priority (a). — An interest in the proceeds of
real estate under a trust for conversion, or a charge to be
raised by sale or mortgage may be assigned to two per-
sons successively, thereby raising a question of priority
(b). — A purchaser of land, having taken a conveyance
subject to a lien or charge of the vendor for unpaid pur-
chase money, may sell or charge the same land in favour
of a third person, and a conflict of claims may thus arise
(a) Jones v. Jones, 8 Sim. 633 ; (b) See Lee v. Sowlett, 2 K. &
Wilmot V. Pike, 5 Hare, 14; see J. 531 ; Hughes'' Trusts, 2 H. & M.
Phillips V. Phillips, 31 L. J, C. 89 ; 33 L. J. C. 735.
335.
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478 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES.
between the vendor and tlie subsequent incumbrancer (a).
— A trustee by his dealings witli the trust property may
raise a conflict of equities with the cestui que trust (b).
Priority of ao- The general rule of equity as to the priority of estates
prior equity?^ and interests created or arising on different occasions
in the same subject of property is that they rank in order
of the time of acquisition. — "Every conveyance of an
equitable interest is an innocent conveyance, that is to
say, the grant of a person entitled in equity passes only
that which he is justly entitled to, and no more. If,
therefore, a person seised of an equitable estate, the legal
estate being outstanding, makes an assurance by way of
mortgage or grants an annuity, and afterwards conveys
the whole estate to a purchaser,- he can only grant to the
purchaser that which he has, namely, the estate subject
to the annuity or mortgage, and no more. The subse-
quent grantee takes only that which is left in the grantor.
Hence grantees and incumbrancers claiming in equity take
and are ranked according to the dates of their secu-
rities, and the maxim applies, qui prior est in tempore
potior est in jure. — And it is quite immaterial whether
the subsequent incumbrancers at the time they took their
securities and paid their money had notice of thS first in-
cumbrance or not " (c) .
(a) nice v. Sice, 2 Drew. 73 ; 23 meanour by statute. 22 & 23 Vict.
L. J. C. 289 ; see ante, p. 305. c. 35, s. 24. See post, p. 511.
(5) Newton v. Newton, L. E. 6 (c) Per Westbury, L. C, Fhillips
Eq. 135 ; 4 Ch. 143 ; 38 L. J. C. v. Phillips, 31 L. J. C. 321, 325.
145 ; Dance r. Goldingham, L. K. See per Selbome, L. C, Dixon v.
8 Ch. 902 ; 42 L. J. C. 777 ; Staclc- Muckleston, 42 L. J. C. 213 ; L. E.
house V. Countess Jersey, 1 J. & H. 8 Ch. 155, citing Turner, L. J., in
721 ; 80 L. J. C. 421.— It may here Corn ^- %«. 1 D- J- & S. 167. See
be noticed with reference to trans- the rule stated and explained that
actions of the kinds above men- the assignee of an equity is bound
tioned that the fraudulent conceal- by all the equities affecting it. Lewin
ment of any deed or instrument on Trusts, 453, 4th ed. ; and see
material to the title, or any incum- post, p. 491 ; as to the protection
brance, from the purchaser by a afforded by the legal estate, see ^o*«,
seller or mortgagor or his solicitor p. 485.
or agent has been made a misde-
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SECT. TI. § 2. THE PEIOEITY OF ESTATES. 479
The priority in equity due to priority of acquisition Priority lost by
may be rebutted and lost by circumstances of fraud, mis- gence.
representatioUj or negligence in the conduct of the prior
claimant relatively to the subsequent claimant. — "A
court of equity will not prefer the one to the other on the
ground of priority of time, until it finds upon an examina-
tion of their relative merits that there is no other suffi-
cient ground of preference between them, or, in other
words, that their equities are in all respects equal ; and if
the one has on other grounds a better equity than the
other, priority of time is immaterial. In examining into
the relative merits or equifcies of two parties having ad-
verse equitable interests, the points to which the court
must direct its attention are obviously these : the nature
and condition of their respective equitable interests ; the
circumstances and manner of their acquisition ; and the
whole conduct of each party with respect thereto" (a).
But no preference in equity arises from the mere form
of the instrument or mode by which the estate or interest
is created. " A better equity is where a second incum-
brancer, without notice, takes a protection against a sub-
sequent incumbrancer, which the prior incumbrancer has
neglected to take ; " as by giving notice to the ti'ustee,
where such notice is effectual to secure the priority {b).
A mortgagee who negligently omits to get his security Negligence as
perfected and leaves the title deeds in the possession of of title deeds,
the mortgagor, who is thereby enabled to raise another
mortgage upon deposit of the deeds, loses his priority
as against the second mortgagee. — " Prima facie a mort-
gagee who knowing that his mortgagor has title deeds,
omitted to call for them or to make any inquiry on the
(a) Per Kindersley, V. C, in L. J. C. 194.
Sice V. Eice, 2 Drew. 73 ; 23 L. J. (*) Foster v. Blackstone, 1 M. &
0. 291 ; approved in Hunter v. K. 297 ; S. C. nom. Poster v. Cock-
Walters, L. R. 11 Eq. 312 ; and erell, 3 CI. & F. 456. As to effect
see per Giffard, V. C, in Thorpe v. of notice given to the trustee, see
HoUsworth, L. B. 7 Bq. 146 ; 38 post, p. 482.
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480 PART II. CHAP. II. THE LIMITATION OF FTJTUEE ESTATES.
subjectj must be considered guilty of sucli negligence as
to make him responsible for the frauds he thus enabled
his mortgagor to commit '■" (a) .
ifegUgenoe in SOj if a mortga.geo negligently give back the title deeds
seIsilnof°aeeds!" to the mortgagor for any purpose, who in fraud of that
purpose raises another mortgage upon them, the original
mortgagee is postponed. Thus, where a mortgagee
allowed the mortgagor to have possession of the deeds
upon the representation that he wanted them to complete
a sale, and never applied for them for many years, during
which time the mortgagor raised money upon them, the
first mortgagee was postponed to the subsequent charges
(b) . — Where a mortgagee allowed the mortgagor to have
possession of the deeds for the purpose of raising a certain
sum in priority to his mortgage, and the mortgagor
raised a much larger sum, it was held, that the original
mortgage must be postponed to the whole amount raised
(c). — -Where the mortgagee gave back the deeds to the
mortgagor to enable him to raise a second mortgage, and
the mortgagor raised a mortgage without giving notice
of the prior one, it was held that the original mortgagee
lost his priority (d) .
Possession of The mere fact of the deeds getting back into the pos-
pfaine™^''' session of the mortgagor, unexplained, is not alone suffi-
cient to postpone the first mortgagee ; and it lies upon the
second mortgagee to prove a case of fraud or negligence
against him. — " The doctrine at last is, that the mere cir-
(a) Per Cranworth, L. C, in a person taking a legal mortgage
Colyer v. Finch, 5 H. L. 0. 905 ; chooses to leave the deeds with the
26 L, J. C. 65 ; hayard v. Maud, mortgagor, not through negligence
L. E. 4 Eq. 397 ; 36 L. J. C. 669. or through fraud, but intentionally
(b) Waldron v. SJoper, 1 Drew. to enable him to raise a sum of
193 ; see Dowle v. Saunders, 2 H. £15,000, which should take prece-
& M. 242 ; 34 L. J. 0. 87, where dence, the mortgagee cannot com-
tlie solicitor of the mortgagee re- plain if instead of £15,000 he raises
turned the deeds to the mortgagor £50,000, because he puts it in hia
for a special purpose without the power to raise any sum of money he
consent of his client, and was held pleases." Per Cranworth, L. C,
responsible. lb.
(o) Perry Herriok t. .4 ttwood, 2 {d) Brigas v. Jones, L. K. 10 Bq.
D. & J. 21 27 L. J. C. 121. " If 92,
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SECT. TI. § 2. THE PEIOEITY OP ESTATES. 481
cumstance of parting with the title deeds^ unless there is
fraudj concealment, or some such purpose, or some
concurrence in such purpose, or that gross negligence
that amounts to evidence of a fraudulent intention, is
not of itself a sufficient ground to postpone the first
mortgagee " (a) .
Where a mortgagee advances money upon the deeds of Trusting to re-
an estate, honestly trusting to the representations of the to'thTdee'dr
mortgagor that all the deeds are deposited, but some are
in fact kept back, and the mortgagor obtains an advance
upon them from another person, there is no such negligence
in the first mortgagee as to deprive him of priority (b) .
Where a trustee, having the legal custody of the title Trustee deposit-
deeds in right of his trust, deposits them, in breach of Slach of trust'"
trust, as security for an advance to himself, the cestui que
trust, if not guilty of any negligence in the matter, as
having the prior equity, is preferred (c) . — If the cestui que
trust has improperly intrusted the trustee with the deeds
or indicia of property upon which the latter has created
the charge, he would be postponed (d).
As between a vendor having a lien for unpaid purchase vendor signing
money and a mortgagee from the purchaser, the vendor chase money.
(a) Fer Eldon, L, C, 6 Tes. 190, for the depositee." Fer Selborne,
Evans V. JBicknell ; Allen v. KnigJit^ L. C, in Dixon v. Muclclestone^ L.
5 Hare, 272 ; 16 L., J. C. 370 ; 11 E. 8 Cli. 161 ; 42 L. J. C. 210 ;
Jur. 527. ' Rolerts v. Croft, 2 U. & J. 1 ; 27
(S) " When the court is satisfied L. J. C. 220 ; Htint t. Blmes, 2 D.
of the good faith of the person who F. & J. 578 ; 30 L. J. C. 255 ; Rat-
has got a prior equitable charge, oliffe v. Barnard, L. E.. 6 Ch. 652 ;
and is satisHed that there has been 40 L. J. C. 147, 777, where the
a positive statement, honestly be- later mortgagee obtained the legal
lieved, that he has got the necessary estate, as to the effect of which see
deeds,— then he is not bound to post, p. 485.
examine the deeds, and is not bound (c) Baillie t. McXewan, 35 BeaT.
by constructive notice of their actual 177 ; Stachhouse v. Countess Jersey,
contents, or of any deficiencies which 1 J. & H. 721; 30 L. J. C. 421 ;
by examination he might have dis- Neiolon r. Newton, L. R. 6 Eq. 135;
coveredin them. This I tate to be the 4 Ch. 143 ; 38 L. J. C. 145.
law even in cases where the depositor Id) R.r. Shropshire Union Co.,
of the deeds is himself acting in the L. E. 8 Q. B. 420 ; 42 L. J. Q.
double character of borrower of the B. 193 ; and see Mangles v. Dixon,
depositee's money and of solicitor 1 Mao. & &. 437 ; 3 H. L. C. 702,
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482 PART II. CHAP. II. THE LIMITATION OP PUTUEB ESTATES.
who had executed a conveyance acknowledging the pay-
ment of the money both in the body of the deed and by
a receipt indorsed, and had delivered over the title deeds,
was held to be estopped from setting up his lien in
priority to the mortgagee, who had lent money upon a
deposit of the deeds {a). — Signing such receipt is a re-
presentation that the money has been paid and that the
purchaser has a good title both at law and inequity; and
it binds the person signing as against all persons taking
the property upon the faith of siich representation {b) .
Priority by If the Subject of property be of the nature of personal
o rus ee. (,jj^^|;g]g^ whicli pass at law by delivery of possession, the
priority of an assignee or person acquiring an equitable
interest depends upon giving notice of his interest to the
trustee, which is necessary to change his possession to that
of trustee for the assignee ; and until such notice be given
a subsequent assignee for value without notice of the prior
assignment may secure pi'iority by giving notice to the
trustee. So with choses in action, to preserve the analogy
with chattels in possession, the same doctrine is applied
and notice is necessary to perfect the assignment. — "The
act of giving the trustee notice is, in a certain degree,
taking possession of the fund ; it is going as far to-
wards equitable possession as it is possible to go ; for,
after notice given, the trustee of the fund becomes a
trustee for the assignee who has given him notice" (c).
(a) Rice T. Bice, 3 Drew. 73 ; 23 notes to RyaU y. Howies, 2 W. & T.
L. J. 0. 2ftl ; White ». Walcefield, L. C. 722 ; Bridge v. Beadon, L. E.
7 Sim. 401, thougli he remained in 3 Eq. 664- ; 36 L. J. C. 651.— Notice
possession as tenant to the pnr- is also necessary to secure priority
chaser. against the claim of a trustee in
(V) Sice V. Rice, supra ; Hunter hankruptcy to all goods and chattels
V. Walters, L. R. 11 Eq. 292 ; 7 in the order and disposition of the
Ch. 75 ; 41 L. J. C. 175. As to a bankrupt. But the Bankruptcy
receipt in an unusual form or place, Act, 1869, has excepted things in
see Kennedy T. Green, 3 M. & K. action other than trade debts.
699; and see post, p. 496. Ryall v. Howies, 2 W. & T. L. C.
(c) Per Lyndhurst, L. C, in 670 ; see J!j: p. Union Bank of
Loveridge v. Cooper, 3 Russ. 58 ; Manchester, L. E,. 12 Eq. 354 ; JBx.
Dearie y. Hall, 3 Kuss. 1 ; see the p. Kemp, L. E. 9 Ch. 383,— The
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SECT. TI. § 2. THE PEIOEITY OF ESTATES. 483
Accordingly upon an assignment of an interest in the Notice required
proceeds of real estate under trust for sale and conversion, oCney'lharged
or in a charge to be raised by sale or mortgage, being of
the nature of a personal chattel, the assignee must give
notice to the trustee to secure his priority over other
claims (a).
But equitable estates and interests in the land cor- Notice not re-
responding to legal estates, though the legal estate be abiTestateain
vested in a trustee, follow the analogy of legal estates ;
and their priority is independent of notice to the trustee
and is subject to the general rule of priority of acquisi-
tion. — " At law the rule clearly is that different convey-
ances of the same tenement take effect according to their
priority in time. If a man seised in fee first grants
one term of years and then another terra, the second termor
cannot enter till the first term has ceased by effusion of
time, surrender or otherwise. So, if freehold interests
are carved out of the fee by different conveyances, the
estate of the second grantee cannot take effect in posses-
sion till the estate of the first has in some manner ceased.
— Equity follows the law ; and where the legal estate is
outstanding conveyances of the equitable interest are
construed and treated, in a court of equity, in the same
manner as conveyances of the legal estate are con-
strued and treated at law " (b) .
Thus, with the equitv of redemption of a legal mort- No priority by
' ^ . ... notice to legal
gage, as between successive mortgagees, no priority is mortgagee.
trustee in banla-uptey must also give in action is made effectual in law to
notice in order to preserve his transfer the legal right and all the
priority against a subsequent pur- legal remedies for the same.
chaser for value without notice of (a) Foster v. BlaeTcstone, 1 M. &
the bankruptcy. Stuart v. Code- K. 297 ; S, C. nom. Foster r. Cock-
erell, L. E. 8 Eq. 607 ; 39 L. J. C. erell,?. CI. & F. 456 ; see Wllmot
127 ; re London and Provincial v. Filce, 5 Hare, 14 ; Lee v. Soio-
Teleqraph Co., L. B. 9 Eq. 653 ; 39 lett, 2 K. & J. 531 ; Hughes' Trusts,
L. f. C 419 ; see :E.r p. Caldwell, 2 H. & M. 89 ; 33 L. J. C. 725.
L. R. 13 Eq. 188.— By the Supreme (h) Per Shadwell, V. C, 8 Sim.
Court of Judicature Act, 1873, 36 642, Jones v. Jones ; and see the
& 37 Vict c. 66, a. 25 (6), an assign- cases there cited. See per Lang-
ment in writing, with notice in dale, M. E., 5 Hare, 20, in Wilmot
writing, of any debt or legal chose v. File.
2 i2
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PART II. CHAP. II. THE LIMITATION OP PUTUEE ESTATES.
acquired by a notice given to the first mortgagee of tlie
legal estate ; but they are entitled in order of time, not-
withstanding such notice given (ex). — The same rule
applies to a leasehold estate and to other chattel interests
in land (&).
Notice upon
change of
trustees.
Upon a change of trustees, it is not the duty of the
new trustees, nor is it the practice of the court, to inquire
respecting notices given to the old trustees, nor are the
new trustees affected by such notices (c) . Notice to one
of joint trustees is sufiicient ; but upon his death it does
not survive with the property to the others (d). And
notice to one of the trustees is suificient, although he be
at the same time interested in the property, and might
by concealing the notice make a subsequent assign-
ment (e).
(a) See ante, p. 301. Jones t.
Jones, 8 Sim. 633 ; fFilmot v. Pike,
5 Hare, 14 ; see Peacock v. Burt, 4
L. J. 0. 73, also reported in Coote
on Mortgages, App.
(i) Wiltshire T. Uablits, 14 Sim.
76.
(e) PMpfs T. Lovegnve, L. K. 16
Bq. 80 ; 42 L. J. C. 892.
(d) Meux V. Bell, 1 Hare, 73.
" Notice to one trustee is sufficient
because a subsequent incumbrancer
or assignee would be under obli-
gation to inquire of every one of
the trustees." Per Westbury, L. C,
in WillesY. GreenUll, 31 L. J. C.
1. See Smith v. Smith, 2 C. & M.
231.
(e) Willes t. Greenhill, supra.
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SECT. VI. § 3. PEOTECTION OF THE LEGAL ESTATE. 485
§ 3. Peotection op the Legal Estate.
Protection of the legal estate against prior claims.
The Vendor and Purchaser Act, 1874, disallowing protection.
Protection of the legal estate to a purchaser for yalue with-
out notice.
Purchaser without notice ohtaining legal estate after notice —
from a prior mortgagee — from a trustee.
Purchaser with notice from purchaser without notice — Pur-
chaser without notice from purchaser with notice— repur-
chase by trustee.
Prior claims paramount to vendor — claim to set aside or cor-
rect the legal title.
Purchaser having legal estate entitled to concurrent equitable
remedies — not entitled to auxiliary equitable remedies in
aid of legal title.
Plea of purchase for value without notice applies only to the
jurisdiction of equity over legal rights^not between merely
equitable claims.
Assignee of equitable interest takes it subject to equities without
notice.
The doctrine has hitherto prevailed in Courts of Equity^ Protection of tb
that a purchaser of an estate or interest in land, being i^afnsTprior
invested with the legal estate or having obtained the ° ^^^'
title deeds or any other legal advantage, cannot be de-
prived of such legal estate or advantage at the suit of a
merely prior and not on other grounds superior equitable
claimant. According to this doctrine, priority of acquisition
is not allowed to prevail against the legal title, unless
some further grounds of preference can be shown.
This doctrine is now restricted by the following enact- protection dis-
ment, sect. 7 of "the Vendor and Purchaser Act, 1874," ttZto."^
37 & 38 Vict. c. 78: — "'After the commencement of
this Act, no priority or protection shall be given or
allowed to any estate, right, or interest in land by reason
of such estate, right, or interest being protected by or
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486 PART 11. CHAP. II. THE LIMITATION OF FUTURE ESTATES.
tacked to any legal or other estate or interest in such
land ; and full effect shall be given in every court to this
provision, although the person claiming such priority or
protection as aforesaid shall claim as a purchaser for
valuable consideration and without notice : provided
always, that this section shall not take away from any
estate, right, title, or interest any priority or protection
which but for this section would have been given or
allowed thereto as against any estate or interest existing
before the commencement of this Act."
Protection of As to ostates and interests which are excepted in the
to a purchaser proviso, Or which otherwise do not come within the opera-
for value without . p_lt \ j_ j_i i .... „ ...
notice. tion 01 the Act, tliough priority m time oi acquisition gives
a prior equity against a subsequent purely equitable
claimantj a prior claimant will not be aided in equity in
obtaining the legal estate from a subsequent claimant who
has paid a valuable consideration without notice of the
prior claim ; and to a bill for that purpose the defendant
may plead the defence of a purchase for value without
notice. — "' In the case of a purchaser for valuable con-
sideration, without notice, obtaining upon the occasion
of his purchase and by means of his purchase deed some
legal estate, some legal right, some legal advantage, such
a purchaser's plea of a purchase for valuable considera-
tion without notice is an absolute, unqualified, un-
answerable defence, and an unanswerable plea to the
jurisdiction of the court. When once he has satisfied the
terms of the plea of purchase for valuable consideration
without notice, this court has no jurisdiction whatever
to do anything more than to let him depart in posses-
sion of that legal estate, that legal right, that legal
advantage which he has obtained, whatever it may
be" (a).
(a) Fer James, L. J., in Filcher v 40 L. J. C. 673, where the doctrine
Rawlins, L. E. 7 Ch. 268 ; 41 L. J. was extended to a legal reversion.
C. 485. See ante, p. 144 ; re Russell Marriage is equivalent to value for
Soad Purchase, L. R. 12 Eq. 78 ; the purpose of this doctrine, see
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SECT. VL. § 3. PEOTECTION OP THE LEGAL ESTATE. 487
This defence may also be maintained in some cases purchaser with-
1 1 f 1 ■ 1 ■ 1 - r* °^*' ii^tice ob-
wJiere a purchaser for value without notice at the time of taimng legai
1-11 . T 1 f> . f, estate after
his purchase, has got m the legal estate after notice of notice,
the prior claim : — as in the case of a third mortgagee
without notice of a second mortgage, after discovery of it,
having procured a transfer from the first mortgagee, he
may then hold the legal estate against the second mort-
gagee until he be paid in full (a).
But he cannot maintain this defence where he has obtaining legal
taken the legal estate from a trustee for the prior claim- tee.
ant, after notice of the trust ; for by taking a convey-
ance with notice of the trust he becomes affected with
the same trust and will not be allowed to retain the legal
estate against it (6). And it seems doubtful whether it
be available for protection in any case, to obtain the legal
estate from a trustee subsequently to the purchase (c).
Bilkex V. Broadmead, 2 D. F. & J.
566 ; 30 L. J. C. 268 ; Uaxfield v.
BuHon, L. R. 17 Eq. 15 ; 43 L. J.
C. 46 ; and it extends to all the in-
terests under a marriage settlement
coming within the consideration
of the marriage, as tljose of the hus-
band and wife and children. Nairn
V. Proivie, 6 Ves. 752.
(o) See post, p. 509 ; Blackwood
V. London Chartered Bank of Aus-
tralia, L. E. 5 P. C. 89 ; 48 L. J. P.
C. 25, where it was said in the
judgment, deliTered by Selborne, L.
C, — "There is nothing morefamiliar
than the doctrine of equity that a
man who has hond fide paid money
without notice of any other title,
tliough at the time of the payment
he, as purchaser, gets nothing but an,
equitable title, may afterwards get
in a legal title if he can, and may
hold it ; though during the interval
between the paymentand the getting
in the legal title he may have had
notice of some prior deahng incon-
sistent with the good faith of the
dealing with himself" In that case
the title got in was a lease from the
Crown to which the vendor was
entitled, and the Crown was not
affected by the prior dealings of tlie
vendor.
(S) Lewin, 557 ; Saunders v. De-
hew, 2 Vern. 271 ; Allen v. KnigM,
5 Hare, 272 ; 16 L. J. C. 370 ; 11
(Tur. 527 ; Mmnford v. Stohioasser,
43 L. J. C. 694. See ante, p. 145.
(c) Accordn;g to Jessel, M. E.,
" There is no doubt that yon can-
not gain priority by obtaining the
legal estate from a trustee who com-
mits a breach of trust in transfer-
ring it to you." Maxfieldy. Burton,
L. E. 17 Eq. 17; 43 L.J. C. 46;
see Mumford v. Stohwasser, supra.
Eomilly, M. R., has laid down that
" if the owner in fee simple, having
the legal estate, creates an equit-
able charge in favour of A., and
afterwards a second equitable charge
in favour of E., and then a third
equitable charge in favour of C, he
cannot alter these equities by trans-
ferring the legal estate to any one
of them." Sharpies v. Adams, 32
Beav. 213; 11 W. E. 450; and
see per James, L. J., in Tilcher v.
Rawlins, L. E. 7 Ch. 268 ; 41 L. J.
C. 489 ; Burt v. Trueman, 29 L. J
0. 902.
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488 PABT II. CHAP. II. THE LIMITATION OF FUTUEE ESTATES.
Mortgagee not a
trustee for sub-
sequent
claimant.
It may be observed that a legal mortgagee is not a
trustee for any ulterior claimants^ although he may have
notice of them ; he holds the estate in his own right until
he be paid off, and may transfer it to whom he will,
subject only to the equity of redemption, and his trans-
ferree holds it equally unfettered with trusts (a) . But
the transferree of a mortgage debt, without the concur-
rence of the mortgagor, is in no better position than the
mortgagee in respect of the debt transferred ; and if that
debt be invalid, he obtains no charge upon the land, though
he gave a valuable consideration and had no notice of the
invalidity (6). ,
Purchaser with
notice from pur-
chaser without
notice.
Purchaser with-
out notice from
purchaser with
notice.
Eepurchase by
trustee.
The plea of purchaser for value without notice in re-
spect of the legal estate is available to all purchasers or
claimants under such purchaser ; they may rely upon the
position of the vendor at the time of his purchase, though
they took after notice to him or to themselves. — It is
also available to a subpurchaser for value without notice,
although his vendor was affected with notice originally
(c) . — But if the trustee who has conveyed the land to a
purchaser for value without notice, himself repurchase
the land, though for a valuable consideration, he cannot
rely upon the title of his vendor; but the land in his
hands will be again charged with the trust [d).
Prior claims
paramount to
title of vendor.
The protection of the legal estate to a purchaser for
value without notice is available not only against claims
under the same vendor, but also against claims paramount
to his title, as where the vendor, as to the equitable title,
was in possession under a forged will (e). — In a case
(a) See ante, p. 296 ; post, p.
510 ; see per Wood, V. C, in Bates
■V. JoJmson, John, 304 ; 28 L. J. C.
609.
(6) Burt V. Trueman, 29 L. J. 0.
902 ; Parker v. Clarke, 30 Bear.
54; Vorley^. Cooke, 1 Giff. 230;
27 L. J. 0. 185.
(c) Lowther v. Carlton, 2 Atk.
242 ; Harrison y. Forth, Prec. Ch.
51 ; per Eldon, L. C, McQueen v.
Farqnhar, 11 Ves. 478.
(S) See ante, p. 144 ; Lewin on
Trusts, 558, 4th ed.
(e) Jones T. Fowles, 3 M. & K.
581.
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SECT. VI. § 3. PBOTECTION OF THE LEGAL ESTATE. 489
where the vendor was in possession as beneficial devisee
under a supposed will, but was in fact devisee in trust
under the real will, the purchaser was held bound by the
trusts {a). But this case was disapproved of by a court
of appeal in a recent case in which it was held that a
purchaser for value without notice might rely upon deeds
to prove his legal title, which had been concealed from
him, though the deeds disclosed trusts in favour of a
prior claimant (b).
So, a suit to set aside or correct a deed for fraud or ciaim to aet
mistake, under which the defendant derives a legal title, the legal title,
may be met by the plea that he is a purchaser for value
without notice (c).
A purchaser or mortgagee who has obtained the legal Purchaser hav-
.,., . T. ,.. . ing legal title is
title Without notice and without complicity m any entitled to con-
p -, . . , . . . current equitabL
fraud is entitled to exercise all his legal rights and remedies.
remedies against other purchasers or incumbrancers
for value without notice, without restraint in equity,
and is further entitled to all the ordinary equitable
remedies which under the concurrent jurisdiction of
courts of equity are incident to the legal estate. — The
law has been stated thus : " If the suit be for the enforce-
ment of a legal claim or the establishment of a legal
right, then, although this court may have jurisdiction in
the matter, it will not interfere against a purchaser for
valuable consideration without notice, but leave the parties
to law ; if, on the other hand, the legal title is perfectly
clear, and attached to that legal title there is an equit-
able remedy, or an equitable right, which can only be en-
forced in this court, I have not found any case where this
(a) Carter v. Carter, 3 K. & J. see Heath y. Crealock, L. K. 18 Eq.
617; 27 L. J. 0. 74. 215 ; 43 L. J. C. 169, where the
(b) Pilcher t. Saivlins, L. R. 7 purchaser's legal title was only by
Ch. 259 ; 41 L. J. C. 74 ; and see estoppel against his vendor, and
p. 496. was held not to be a defence against
(e) JPer Westbnry, L. C, in Phil- a claim to set aside a conveyance
IS T. Phillips, 31 L. J. C. 326 ; which would have fed the estoppel.
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490 PAET II. CHAP. II. THE LIMITATION OP PUTUEE ESTATES
court will I'efuse to enforce tlie equitable remedy which is
incident to the legal right " [a).
Accordingly, a legal mortgagee may foreclose against
a purchaser or incumbrancer for value without notice ; for
he is thereby only standing upon his legal title and exer-
cising his right to call upon the adverse claimant to
redeem (&).
Not entitled to But a court of equity will not exercise its auxiliary
able remediea in I'urisdiction in aid of a legal title ao-ainst a purchaser for
aid of legal '', ., . ^ ,*?,.^„ ,,
title. value without notice, so as to deprive him of any legal
defence or advantage which he may possess. — " Where
an application is made to the auxiliary jurisdiction of the
Court by the possessor of a legal title, as by an heir at
law, which was the case of Basset v. Nosworthy , or by a
tenant for life for the delivery of title deeds, which was
the case of Wcdwyii v. Zee, and the defendant pleads he
is a honij-fide purchaser for valuable consideration with-
out notice, the defence is good, and the reason given is,
that as against a purchaser for valuable consideration
without notice, the Court gives no assistance, that is, no
assistance to the legal title " (c).
Claim to title Thus, to a bill for discovery and specific delivery of
cbaser for value title doeds, the plea that the defendant is a purchaser for
value without notice is a good defence {d), — And ac-
cordingly, a legal mortgagee claiming foreclosure, as
against a purchaser for value without notice who was in
possession of the title deeds, was held, though entitled to
foreclosure, not to be entitled to an order for the delivery
up of the deeds (e) . — But where in a foreclosure suit under
(a) Per Romilly, M. E., in Colyev (c) Per Westbury, L. C, in Phil-
V. Finch, 19 Beav. 500; S. C. 5 H. lips y. Phillips, 31 L. J. C. 326.
L. 0. 905 ; 26 L. J. 0. 65. See See RaicUffe v. Barnard, svipra.
Heath v. Orealoch^ L. E.. 18 Eq. (c?) Basset v. ^^osworthy^ Cas. t.
215 ; 43 L. J. C. 169, where the Finch, 102 ; 2 W. & T. L. C. 1 ;
cases are ouUected and commented Waltoyn v. Lee, 9 A'es. 24; Joyce
on by Bacon, V. C. ; Ratcliffe v. t. Be Moleyns, 2 J. & L. 274.
Barnard, L. R. 6 Ch. 652 ; 40 L. (e) Head v. Egerton, 3 P. Wins.
J. C. 147, 777. 280 ; Hunt y. Elmes, 2 D. F. & J.
{b) Golyer t. Finch, Heath v. 578 ; 30 L. J. C. 255.
Crealock, supra.
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without notice.
SECT. VI. § 3. PBOTECTION OF THE LEGAL ESTATE. 491
like circumstances a sale was ordered^ it was further
ordered, that for the purpose of the sale the deeds must be
produced, and that they should be delivered over to whom-
soever should become the purchaser under the sale {a) .
The above doctrines are founded on the principle that, piea of purchase
. -, . T 1 . 1 , p . i'or value applies
as between parties havmg legal rights, a court oi equity only tothejuris-
.p . ^ p -. .": diction of equity
Will not interfere against a purchaser for value without over legai rights.
notice ; it will neither deprive him of the legal title nor
aid the legal title against him (6) . But the principle has Not between
no application to purely equitable claims, where the legal purely equitable.
estate is outstanding, and the beneficial interest is claimed
by several adverse but equally innocent purchasers for
value without notice ; the court may then be called upon
to declare the right to the estate in question. In such
cases the court necessarily makes a decree against some
one or more purchasers for value ; and such a decree will
further regulate the disposition of the legal estate and
the possession of the title deeds, if necessary to complete
and enforce the equitable title (c).
The purchaser of a purely equitable interest frmid facie Assignee of
takes it subject to all the equities chargeable against his takes it subject
vendor in respect of it, though he gave a valuable con- out notice,
sideration and had no notice. So far as depends upon
his purchase, and independently of the conduct of adverse
claimants, he can take no better title than his vendor (S) .
Thus, if an equitable mortgagee, affected with notice of a
prior charge, transfer it to another without notice, his
assignee is equally bound by the prior charge (e). So if
he have obtained the mortgage by a fraud entitling the
mortgagor to have it set aside, his assignee though with-
(a) Thorpe v. HoldswortTi, L. R. (i) See ante, p. 490, n [a).
1 Eq. 139; 38 L. J. C. 194; fol- (c) Newton v. Newton, L. E. 4
lowed in Heath v. Crealock, 43 L. Ch. 143 ; 38 L. J. 0. 145.
J. C. 169 ; L. R. 18 Eq. 215 ; but {d) See ante, p. 478 ; Lewin on
see Seath v. Crealock, on apptal, Trusts, 453, 4th ed.
Weekly Notes, 1874, p. 188. (c) Ford t. White, 16 Beav. 120.
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492 PAET II, CHAP. II. THE LIMITATION OF FUTURE ESTATES.
out notice takes it subject to the equitable relief against
tlie fraud (a).
frioi-ity under The priority of all claims arising since the enactment
Purchaser Act, above mentioned of the Vendor and Purchaser Act,
1874. .
1874, so far as the operation of that Act may extend,
will be determined upon purely equitable considerations,
without allowing any priority or protection to any legal
estate or interest ; and the legal title will in all such
cases follow the priority in equity (b).
§ 4. The Docteines op Notice.
Notice of prior claim — notice before payment — before convey-
ance.
Actual and constructive notice — duty of inquiry.
Notice of deeds belonging to the title and their contents — trust-
ing to representations as to the deeds — notice of possession
of deeds by banker or solicitor — deeds suppressed by fraud
or accident — informality or defect in deeds.
Constructive notice from the possession of the land — rights and
equities of tenant in possession.
Notice to solicitor or agent — solicitor also solicitor of vendor —
fraud of solicitor.
Lis pendens affects purchaser as to rights in question — must be
registered.
Crown debts — do not affect purchaser unless writ issued and
registered.
Judgments — statute taking away their effect upon land until
execution — as to interests not capable of delivery in execu-
tion — purchaser with notice of registered judgment-^judg-
ment operates only upon beneficial interest of debtor.
Registration in Middlesex and Yorkshire — notice prevails not-
withstanding registration — registration under 25 & 26 Tict.
0.53.
:luim.
N"otioe of prior A purchaser or incumbrancer acquiring any estate or
interest after notice of a prior claim acquires such in-
terest only as he knows his vendor can justly dispose of.
(a) Cockell v. Taylor, 15 Beav. cited ante, p. 488 (h).
103 ; 21 L. J. C. 545. See the cases (A) See ante, p. 485.
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SECT. TI. § 4. THE DOCTEINES OF NOTICE. 493
He cannotj thereforej claim any priority or protection by
reason of holding any legal estate or advantage ; but in
respect of such legal estate he will be in the position of
a trustee for the prior claimant of whose rights he had
notice {a). — Also any question of fraud or negligence on
the part of the prior claimant relatively to himself, as a
ground of priority, would, in general, be excluded by the
fact of his knowledge of the prior claim (b) .
It becomes important, therefore, on the above grounds
to consider the doctrines of notice as affecting priority in
equity ; but it may be observed that since the passing of
the above mentioned enactment of the Vendor and Pur-
chaser Act, 1874, which disallows the priority and pro-
tection before attributed • to the legal estate in a pur-
chaser for value without notice, the doctrines of notice
have a correspondingly diminished application (c) .
Though a purchaser or incumbrancer have no notice at Notice before
the time of contracting for the purchase or charge, yet if
he receive notice before payment of the purchase money
or consideration, notwithstanding he have given security
for it, he will take the property subject to the prior
claim {cTj . — And though he have paid the purchase money Before convey-
without notice, if he receive notice before taking the ''°'^°'
conveyance, he will be entitled to no protection or pre-
ference from the legal estate (e).
Notice may be actual as a matter of fact ; or construe- Actual and con-
tive, that is, which is imputed to a person by presump-
tion or rule of law.
A purchaser is taken to know all matters concerning Duty of inquiry.
which he was bound generally, or under the special
circumstances, to inquire, and by inquiry would have
obtained the knowledge imputed to him. — But a pur-
(o) Sec ante, pp. 145, 486. 307 ; Sardinglam t. Nkholla, 3
g>) See ante, p. 479. Atk. 304.
(c) See ante, p. 485. (e) Wigg v. Wigg, 1 Atk. 384.
yt) Towrville v. NaisJi, 3 P. Wms, See ante, p. 487.
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49 Ji PAET II. CHAP. II. THE LIMITATION OF FUTURE ESTATES.
chaser is not affected with notice^ if he honestly and
without negligence trusts to representations made to him
respecting the matter^ either in answer to proper in-
quiries, or which prevent or dispense with his making the
proper inquiries (a).
Constructive It has been asserted judicially " that the cases in which
constructive notice has been established resolve them-
From notice of solves into two classos : — First, cases in which the party
inquiry. charged has had actual notice that the property was in
fact incumbered or in some way affected, and the court
has thereupon bound him with constructive notice of
facts and instruments, to a knowledge of which he would
have been led by an inquiry after the incumbrance or
other circumstance affecting the property of which he
Abstainiog from had actual uotice ; and secondly, cases in which the court
notice. has been satisfied from the evidence before it, that the
party charged had designedly abstained from inquiry for
the very purpose of avoiding notice. — The proposition
of law upon which the former class of cases proceeds is
not that the party charged had notice of a fact or instru-
ment, which related to the subject in dispute without his
knowing that such was the case, but that he had actual
notice that it did so relate. The proposition of law upon
which the second class of cases proceeds is, not that the
party charged had incautiously neglected to make in-
quiries, but that he had designedly abstained from such
inquiries for the purpose of avoiding knowledge " (&) .
Notice of deeds A purchaser is presumed in law to investigate the
tents. ' title and to inquire respecting all deeds and instruments
forming part of the title, and all deeds recited or referred
to therein ; also respecting all deeds apparently wanting
(a) Dixon, t. Muclclesion, L. E. (S) Per Wigram, V. C, in Jones
8 Ch. 161 ; 42 L. J. 0. 210 ; Ro- t. Smith, 1 Hai-e, 55 ; S. 0. 1 Ph.
berts V. Ci'oft, 2 D. & J. 1 ; 27 L. 244 ; further explained by Wigram,
J. C. 220 ; see ante, p. 481 ; and V. C, in West v. Reid, 2 Hare,
see the notes to Le Neve v. Le Neve, 257.
3 W, & T. L. C. 43, 3rd ed,
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SECT. YI. § 4. THE DOCTRINES OP NOTICE. 495
in the title ; and if he neglect to inquire he is presumed
to have notice of the contents of the deeds^ and of all
such dealings with thenij as would have been disclosed
on inquiry [a).
But if he make a proper inquiry, and a reasonable Trustmg to re-
11 ■ ,• j_inn I'll! j_i presentations as
account be given respecting the deeds, which he honestly to deeds,
relies upon, he is affected only with such notice as he in
fact obtains (6). — "In transactions of sale and mortgage,
if no inquiry is made as to deeds which constitute the
title to the property, the Court is justified in assuming
that the purchaser abstains from making the inquiry from
a suspicion that the title will be affected by the inquiry,
if made, and it is, therefore, bound to impute to the pur-
chaser or mortgagee a knowledge of the facts which
would have been disclosed on inquiry; but where an
inquiry is made and a reasonable excuse given, and there
is no ground to impute suspicion, this principle cannot
apply " (c) — And accordingly where a party has notice
of a deed which does not necessarily — which may or may
not — affect the property, and is told that it does not affect
it but relates to some other property, and the party
believes the representation to be true, he is not fixed
with notice of the instrument " {d) .
Notice of title deeds being at the bankers of the owner. Notice ttat
without any inquiry being made thereupon, was held to "^ ^* ™ ^"'
operate as constructive notice of a charge the bankers
(3) " A purchaser must be pre- maid r. Maitland, 35 L. J. C. 69.
sumed to investigate the title of tlie (b) Jones v. Smith, 1 Hare 43 ; 1
property he purchases, and may, Phill. 24-1' ; Hewitt v. Loosemore, 9
therefore, be presumed to have exa- Hare, 449 ; 21 L. J. C. 69 ; Espin
mined every instrument forming a v. Pemberton, 3 D. & J. 554 ; 28 L.
link, directly or by inference, in that J. C. 311 ; Rutcliffe v. Barnard, L.
title ; and that presumption I take B. 6 Ch. 652 ; 40 L. J. C. 147, 777 ;
to be the foundation of the whole Dixon v. Muckleston, supra ; Agra
doctrine. But it is impossible to Barilc v. Barry, L. K. 7 H. L. 135.
presume that a purchaser examines See ante, p. 481.
instruments not directly nor pre- (e) Per Turner, V. C, in Hewitt
sumptively connected with the title, v. Loosemore, supra,
only because they may by possibility (d) Per Lyndhurst, L. C, in Jones
affect it." Per Wigram, V. C, in v. Smith, 1 Phil. 253 ; and see per
Westy.Seid, 2 Hare, 360; Jackson Wigram, V. C, in West v. Seid, 8
V. Eoive, 2 Sim. & St. 472 ; }For- Hare, 260,
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496 PART IT. CHAP. II. THE LIMITATION 01" FUTURE ESTATES.
Deeds sup-
pressed by
:raud or aoci-
ient.
s^otice that deeds had upon tlietn for advances (a) . — But notice of the deeds
it aolicitovs. ,.. ..
being m the custody of the solicitor of the owner was
held to be no notice of a charge by the solicitor^ (beyond
his ordinary professional lien^) because it is an ordinary
course for a solicitor to have the custody of his client's
deeds (6).
A purchaser may rely on deeds necessary to support
his legal title^ of which he had no notice^ actual or con-
structive, at the time of acquiring it, without being
affected with the trusts or equities shewn in the deeds ;
as where such deeds have been suppressed by accident or
design at the time of the purchase, and an apparently
good title shewn without them. — Thus, a mortgagor hav-
ing borrowed trust money by a mortgage deed expressly
noticing'the trust, took a re-conveyance without paying off
the cestui que trust, and afterwards by suppressing, the
mortgage and re-conveyance shewed a good title to a
purchaser and sold and conveyed to him the estate ; it
was held that the purchaser was entitled to retain the
legal estate against the cestui que trust, notwithstanding
the mortgage and re-conveyance were necessary steps in
his title (c).
An informality or defect in a deed would, in general,
indicate a corresponding defect in the title or transaction
therein recorded, of which notice would be imputed ; as
the absence of the usual receipt for the purchase money;
or the receipt appearing in an unusual form or place (d).
— And a person is affected with notice of all circum-
[nformality or
defect in deed.
(a) Maxfeld t. Burton, L. R. 17
Eq. 15 ; 43 L. J. C. 46.
(h) Sozon T. Williams, 3 Y. & J.
150.
(c) Filcher v. Rawlins, L. B. 7
Ch. 259 ; 41 L. J. C. 485 ; disap-
prOTiiig Carter v. Carter, 3 K. & J.
617 ; 27 L. J. C. 74, in which case
a devisee under a supposed last will
conveyed to a purchasei', but it ap-
peared from a later will that he was
jn fact devisee in trust for others ;
and it was held that the purchaser,
as deriving title from the will, was
bound by the trusts. See ante, p,
489. It may be observed with re-
spect to these cases that in future
the legal title will not be of any
avail against a prior and not inferior
equitable claim. See ante, p. 485.
{d) Kennedy T. G-reen, 3 M. & K.
699 ; and as to the effect of signing
the receipt for the purchase money,
see ante, p. 481.
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SECT. VI. § 4. THE DOCTEINBS OF NOTICE. 497
stances apparent upon the deeds whicli a solicitor^ if
employed by him, would have discovered on his behalf;
he cannot avoid such notice by not having used
the ordinary caution of employing a solicitor to protect
his interest (a).
A purchaser is bound to inquire respecting the posses- constructive
sion of the land : and possession bv a person other than &om the posses-
-, . . . PT- ■■, ■ aion of the land.
the vendor is constructive notice of his title or interest (6).
— Hence the legal estate is no protection to a purchaser
for value from a vendor out of possession (c). — And,
" whoever purchases an estate from the owner, knowing
it to be in the possession of tenants, is bound to inquire
into the estates these tenants have ■" {d).
This constructive notice extends to any contract or contracts and
equity of the tenant in possession affecting the title, which tenants.
the tenant would be presumed to communicate to an
intending purchaser in answer to inquiries ; as a covenant
or agreement to renew his lease, or a contract to sell to
the tenant (e) . — So with terms of the tenancy concerning
valuations to an outgoing tenant (/) . — In a recent case
land was vested in two persons as tenants in common in
fee, who entered into partnership and occupied the land
under an agreement that it should be partnership pro-
perty; one of them subsequently mortgaged his estate
in the land to a person who had notice that it was occupied
by the firm for partnership purposes ; it was held that he
had constructive notice of the title of the partnership,
and that his claim must be postponed to claims on the
partnership assets, even in respect of debts incurred sub-
sequently to the mortgage {g)-
(a) Kennedy t. Green, supra. {d) Per Loughborough, L. C, in
(b) See notes to Le Neve v. Le Taylor y. Stibert, 2 Yes. jun. 4,40.
Neve 2 W & T. L. C. 46. Mum- (e) Danieh v. Davison, 16 Ves.
fm-dv. Stohwasser, 43 L. J. C. 694. 249 ; 17 lb. 433.
(c) Per Eldon, L. 0., in Daniels (/) Phillips T. Miller, 43 L. J. C.
T Davison, 16 Ves. 252 ; OgiMe v. V. 74 ; L. R. 9 C. P. 196.
Jeaffreson, 2 Giff. 353 ; 29 1. J. C. (ff) Cavander v. Bulteel, L. E. 9
-^ ' nU l-!t\ . AOT. T t^ Qr7f\
905.
Ch.79j 43L. J. C.370.
2k
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PABT II. CHAP. II. THE LIMITATION OP PUTUEE ESTATES.
[Constructive
aotice does not
3xtend to su-
perior title.
Possession
Facant.
^onstrnctiTe
lotice of the
■ights of tenant
lot imputed as
Lgainst the
rendor.
But this constructive notice does not extend to all the
equities of those through whom the actual tenant in occu-
pation derives title. "If at the time of the purchase,
the tenant in possession is not the original lessee, but
merely holds under a derivative lease, and has no know-
ledge of the covenant contained in the original lease, it
has never been considered that it was want of due diligence
in the purchaser, which is to fix him with implied notice,
if he does not pursue his inquiries through every deriva-
tive lessee, until he arrives at the person entitled to the
original lease" (a). — Nor does it extend to equities or
agreements not connected with the title, and which the
tenant would have concealed (&). — Nor if the possession
be vacant is the purchaser bound to inquire of the last oc-
cupier, though the land be described as late ia his
occupation (c).
The doctrine of constructive notice imputed to a
purchaser, of the rights and equities of the tenant in
possession, is not applied for the benefit of the vendor.
As between vendor and purchaser the rights of the pur-
chaser rest upon the descriptions and representations upon
which the contract is based ; and a misdescription by
the vendor cannot be remedied by constructive notice ia
the purchaser {d).
!fotice to solici-
ior or agent.
Notice to the counsely solicitor, or agent of a purchaser
is constructive notice to their principal ; provided, as a
general rule, that the notice was obtained in the same
transaction or at least during the employment ; though
(a) Per Leach, M. R., in Sanhwry
T. Litchfield, 2 M. & K. 633.
(V) See Carter t. Williams, L. E.
9 Eq. 678 ; 39 L. J. C. 560.
(e) Miles t. Langley, \ Russ. &
M. 39 ; 2 lb. 626.
(d) Cdballero v. Henty, 1. R. 9
Ch. 447 ; 43 L. J. C. 635, disapprov-
ing the dicta to the contrary in
James T. Lichfield, L. R. 9 Eq. 51 ;
89 L. J. C. 248. " If there is any-
thing in the nature of the tenancies
which affects the property sold, the
vendor is hound to tell the purchaser,
and to let him know what it is which
is being sold ; and the vendor can-
not afterwards say to the purchaser,
' If you had gone to the tenant and
inquired, you would have found out
all about it.' Per James, L. J., in
Caiallero v. Henty, supra.
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SECT. TI. § 4. THE DOCTEINIS OP NOTICE. 499
under special circumstances the rule may be more ex-
tensive {a). — "Notice to an agent or counsel who was
employed by another person, or in another business, and
at another time, is no notice to his client who employs
him afterwards " (h) .
The same rule applies where the solicitor is also the SoKcitor also
T • p 1 1 • 1 PI solicitor of
sohcitor of the vendor or mortgagor m the matter of the vendor.
purchase. And the rule has here a wider application i
for the constructive notice through the solicitor will in-
clude prior dealings with the property by the vendor
through the same solicitor. Thus, a mortgagee employing
the mortgagor's solicitor will, in general, have construc-
tive notice of previous mortgages made by him of the
same land (c).
Where the mortgagor is himself a solicitor and prepares Mortgagor him-
the mortgage deed, though the mortgagee employ no
other solicitor, the relation does not necessarily arise so
as to fix the mortgagee with constructive notice ; but
some consent must be proved on the part of the mortgagee
that the mortgagor should act as his solicitor [d].
Constructive notice is not, in general, imputed of a Fraud of soiioi-
fraud of the solicitor or agent, which it is presumed he
would conceal ; but a fraud of the solicitor upon his client
does not prevent the application of the general rules of
constructive notice in favour of a prior claimant who is
no party to the fraud, though the fraud might neces-
sarily involve the concealment of the knowledge im-
puted (e).
(a) See the notes to Le Neve v. Tweedale v. Tweedale, 2 Beay. 341 ,
Le Neve, 2 W. & T. L. C. 55 ; Shel- Rolland v. ffart, L. E. 6 Ch. 678 ;
don T. Cox, 2 Eden, 228 ; see Mount- 40 L. J. C. 345.
■ford T. Scott, Turn. & R. 274, 280. (d) Espin t. Pemherton, 4 Drew.
(i) Per Hardwicke, L. C, in 333 ; 3 D. & J. 554 ; 28 L. J. C.
Worsley v. Harl of Scarborough, 3 311.
Atk. 392 J and see per Wigram, V. (e) Kennedys. Green, 3 M. & K.
C., in Fuller v. Benett, 2 Hare, 404. 699 ; AUerhury v. Walhs, 8 D. M.
'(c) Brothertom v. Hatt, 2 Vern. & G. 454 ; 25 L. J. C. 792 ; Ogilvie
574 ; Bargreaves v. Rothwell, 1 t. Jeaffreson, 2 Gifl. 353 ; 29 L. J.
Eeen 154; see ^cj* Wigram, V. C, C. 905 ; Hollands. Sart, Jj. E. 6
in Fuller v. Benett, 2 Hare, 405 ; Ch. 678 ; 30 L. J. C. 345.
2 k2
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500 PAET II. CHAP. II. THE LIMITATION OF FUTTJEE ESTATES.
is pendem.
stendB to rightf
. question in
lit.
)licitor'3charge
r costs.
Feet ceases
>on judgment
decree.
Jgistration of
pendens.
ity of Bolici-
: to register,
A lis pendens or suit relating to the property affects a
purchaser pendente lite, and his title is, in general, subject
to the result of the litigation, — in accordance with the
maxim, pendente lite nihil innovetur (a) .
The effect of a lis pendens upon a purchaser extends
only to the rights in question in the suit, which require
to be ascertained; it does not apply to other rights,
though apparent upon the proceedings in the suit ; as the
equity of a defendant against a co-defendant which is not
required to be adjudicated upon for the purposes of the
suit (b). — It extends to the solicitor's charge for his
costs upon the property recovered or preserved in the
suit, under the Solicitors Act, 1860, 23 & 24 Vict. c.
127, s. 28 (c).
A lis pendens and its consequent operating effect upon
a purchaser pendente lite ceases upon judgment or de-
cree; although the judgment remain to be carried into
execution {d).
The statute 2 & 3 Vict. c. 11, ss. 7, 8, has enacted that
no lis pendens shall bind a purchaser or mortgagee with-
out express notice thereof, unless and until it has been
registered in the manner provided in the statute.
It is the duty of the solicitor of a claimant in the suit
to register, and he is responsible to his client for neg-
(a) See notes to Le Neve y. Le
Neve, 2 W. & T. L. 0. 62 ; " It is
scarcely accurate to speak of lis
pendens as affecting a purchaser
upon the doctrine of notice, although
undoubtedly the language of the
Court often so describes its opera-
tion. It affects him not because it
amounts to notice, but because the
law does not allow to litigant parties,
pending the litigation, rights in the
property in dispute, so as to preju-
dice the opposite party. — If this
were not so, there could be no cer-
tainty that the litigation would ever
come to an end. A mortgage or
sale made before a final decree to a
person who had no notice of pend-
ing proceedings, would always
render a new suit necessary." Per
Cranworth, L. C, in Bellamy v. Sa-
line, 1 D. & J. 566 ; 26 L. J. C.
797 ; per Turner, L. J., lb. ; and
see per Grant, M. E., in Bp. of Win-
chester ¥, Paine, 11 Vc;s. 197.
(S) Bellamy t. Sabine, supra ;
Wbrsley t. Harl of Scarborough,
3 Atk. 392 ; see Ti/ler v. Thomas, 25
BeaT. 47.
(c) Jones T. Frost, L. B. 7 Ch.
773 ; 42 L. J. 0. 47.
(d) fForsfey v. Earl of Sear-
borough, supra ; Kinsman v. Kins-
man, 1 Buss, and M. 617 ; see
Berry v. Gibbons, L. E.. 8 Ch. 747 ;
42 L. J. C. 89.
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SECT. VI. § 4, THE DOCTRINES OP NOTICE. 501
lecting to register (a). — And it is the duty of the sohoi- and to search tb
tor of a purchaser or mortgagee to search the register of '^^" "^'
pending suits ; as aLio it is his duty to search the register
of crown debts^ judgments^ and other incumbrances
which may aifect the land^ before the completion of the
purchase or mortgage (6).
Debts to the Crown by record and specialty and from crown debts,
accountants to the Crown are made a charge upon the
real estate of the debtor, legal and equitable, by various
statutes ; and they take priority over a purchaser without
notice ; but they must be registered according to statute,
otherwise a purchaser even with notice cannot be charged
with them (c) .
By the statute 28 & 29 Vict. c. 104, s. 48, it is enacted do not affect
as to such Crown debts incurred after the commencement writ iBsued and
of the Act, that they shall not affect any land as to a
hona-fide purchaser for valuable consideration or a mort-
gagee, whether he have or have not notice thereof, unless
a writ of extent or other process of execution thereon
has been issued and registered (see sect. 49), before the
execution of the conveyance or mortgage and the pay-
ment by him of the purchase or mortgage money {d) .
Until a recent enactment a judgment operated as a judgments,
charge in equity upon the estates and interests in land of
the debtor, legal and equitable, which were capable of
being taken in execution under it; subject, as to subse-
(o) Flant y. Pearman, 41 L. J. affect a purchaser with conetruetiTe
O. B. 169. notice. Bugden v. Bignold, 2 Y &
\h) Seel Prideaux Convey. 135 ; C. C. 377. As to the right of a
Sugden Vend. & Purch, c. iii. ; person having an interest to inspect
Dart Vend. & Purch, c. xi. It is the rolls, see ante, p. 73.
also usual to search the County (e) See 2 Vict. c. 11, ss. 8, 9, 10;
Register, in counties where there is 22 & 23 Vict. c. 35, s. 22.
a register ; and it is sometimes re- (d) See further as to Crown debts,
quired to search the Court Eolls, if 1 Prideaux Conv. 153, 7th ed. ;
the land be copyhold. The Court Prideaux on Judgments and Crown
Bolls of a manor do not, in general, debts,
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502 PART II. CHAP. II. THE LIMITATION OF fUTUEE ESTATES.
Not to affect
land until execu-
tion.
Judgment in-
cludes decrees
and orders.
quent purcliasers and mortgagees, to the statutes requir-
ing registration of the judgment (a).
By the statute 27 & 28 Vict. c. 112, passed to assimi-
late the law affecting freehold, copyhold, and leasehold
estates to that affecting purely personal estates in respect
of future judgments, it is enacted : — By section 1, that
" no judgment to be entered up after the passing of this
Act shall affect any land (of whatever tenure) until such
land shall have been actually delivered in execution by
virtue of a writ of elegit, or other lawful authority, in
pursuance of such judgment " (6) .
By section 2, " In the construction of this Act the
term ' judgment ' shall be taken to include registered
decrees, orders of courts of equity and bankruptcy, and
other orders having the operation of a judgment ; and
the term 'land' shall be taken to include all heredita-
ments, corporeal or incorporeal, or any interest therein."
Section 3 provides that every writ or other process of
execution of such judgment by virtue whereof any land
shall have been actually delivered in execution shall be
registered as therein provided and that no other or prior
registration shall be necessary for any purpose.
Order for sale of Soction 4 providos that " every creditor to whom any
land delivered in.* iitt -i ■
execution. land 01 his debtor shall have been actually delivered m
execution by virtue of any such judgment, and whose
writ or other process shall be duty registered shall be
entitled to obtain from the Court of Chancery, upon
petition in a summary way, an order for the sale of his
debtor's interest in such land."
The Act while it deprives judgments of any charge
Writ of execu-
tion to be regis-
tered.
[a) 1 & 2 Yict. c. 110, ss. 11, 13,
19 ; 2 & 3 Vict. c. 11, ss, 4, 5. See
1 Prideaui Convey. 135 ; Prideaux
on Juflgments ; and see post, Part
IV. ' Transfer by Legal Process.'
{b) This Act in effect repeals 1 k
2 Vict. c. 110, 8- 13 ; and a regis-
tered judgment creditor before exe-
cution has no charge upon the land,
and is no longer a necessary party
to a foreclosure suit. He JBailey's
Trusts, 38 L. J. C. 237 ; Earl of
Cork r. Jtussell, L. K. 13 Eq. 210 ;
41 L. J. C. 226. See Mildred v.
Austin, L. E. 8 Eq. 220.
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SECT. VI. § 4. THE DOCTEINES OP NOTICE. 603
upon the land until actually delivered in execution^ makes interests in
. . p . • 1 T T • n y^nd not capable
no express provision for interests m land wnicn are not of deiiTery.
capable of such actual delivery ; as an equity of redemp-
tion (a) ; — or an equitable interest in leasehold (6) ; —
or a remainder or contingent interest (c) ; — or where the
land has been already taken under a prior writ (d) .
In such cases the judgment creditor must proceed in proceedings in
equity to enforce his judgment by redeeming the prior judgment.
charges or obtaining such other relief as may be equiva-
lent to delivery ; and in such proceedings he may further
obtain complete relief by sale or foreclosure, without a
separate petition under the fourth section of the Act (e).
As to judgments entered up before the passing of the Purchaser with
. . , ^ ° . , notice of regis-
above Act, a subsequent purchaser or mortgagee, with tered judgment.
notice, is bound by the judgment as a charge upon the
land, subject to the condition imposed by statute of it
being duly registered ; but if the judgment be not duly
registered notice is immaterial, and the judgment creditor
is postponed (/) .
Registration alone does not amount to notice, and the Eegistration is
° ^ _ _ not notice.
purchaser is not bound to search ; but if he do search, it
will be presumed that he had the notice which might be
obtained by searching {g).
(a) Thornton v. Finch, 4 Giff. case in which the judgment creditor
515 ; 34 L. J. C. 466 ; JBatton v. must have come into equity to re-
Haywood, L. R. 9 Ch. 229 ; 43 L. move a legal impediment, the judg-
J. C. 372. ment and execution issued being
(l) Re Duke of Newcastle, L. K. the foundation of his right, it ap-
8 Eq. 700 ; 39 L. J. C. 63. pears to me that the relief given is
(o) Re South, L. E. 9 Ch. 369 ; substantially a delivery in execution,
43 L. J. C. 372. vphether in form it be a writ of as-
(d) Se Cowbridge Ri/. Co., L. E. sistance or of sequestration, or the
5 Eq. 418 ; 37 L. J. 0.306. Hence appointment of a receiver." Per
judgment creditors now tate priority Selhorne, L. C, in Hation r. Say-
according to the delivery of the writ wood, L. E. 9 Ch. 235 ; 43 L. J.
to the sheriff. Guest v. Cowbridge C. 372. See re Bush, 39 L. J. 0.
Ry. Co., h. E. 6 Eq. 619 ; 37 L. J. 759 ; Wells t. Kilpin, L. E. 18 Eq.
C. 909. 298.
(e) Beckett v. Buckley, L. E. 17 (/) 3 & 4 Vict. o. 82, s. 2 ; 18 &
Eq. 435. " Any lawful authority 19 Vict. u. 15, ss. 4, 5
which could cause such a delivery v. Strathmore, 16 Ves. 419 ; Lee v.
as the subject matter was capable Green, 6 D. M. & G. 155 ; 25 L. J.
of, seems to me to satisfy the Ian- C. 269.
guage of the statute ; and in any {g) Robinson v. Woodward, 4 D.
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504 PART II. CHAP. II. THE LIMITATION OF FUTURE ESTATES.
Judgment ope-
rates only upon
the beneficial
interest.
A judgment operates as a charge in equity only upon
the beneficial interest of the debtor, and is subject to all
prior equitable charges and interests created by him ;
nor can the judgment creditor claim any protection or
priority against prior claims by reason of acquiring the
legal estate by execution or otherwise (a).
Registration in
Middlesex and
Yorkshire.
Notice prevails
notwithstanding
registration.
By the Middlesex Registry Act, 7 Anne, c. 20, a deed
or conveyance is to be adjudged fraudulent and void
against any subsequent purchaser or mortgagee for valu-
able consideration, unless registered according to the
Act before the registering of the deed or conveyance
under which such subsequent purchaser or mortgagee shall
claim. The Yorkshire Registry Acts are to the same
efiect (&).
Equitable charges created by mere agreement are
within the Acts and require to be registered; as an
agreement to execute a mortgage, or to make a deposit
of title deeds (c). — So, a further charge upon a registered
mortgage must be registered, or it will lose priority over
a subsequent registered charge {d).
The equitable doctrine of notice prevails notwithstand-
ing these Acts ; and a purchaser with notice of a prior
claim is charged with it in equity notwithstanding he has
& S. 562 ; WesthrooTc v. Slyth, 3
E. & B. 737 ; 23 L. J. C. 386 ;
Frocter t. Cooper, 2 Drew. 1 ; Lane
V. Jackson, 20 Beav. 535. It is
generally recommended that a search
be made, otherwise the purchaser's
title will depend upon the fact of
his not having had notice, a title
which would not bemarketable with-
out the concurrence of the judgment
creditor. Freer v. Hesse, 4 D. M.
& G. 495 ; 22 L. J. C. 597.
(a) Whitworth T. Gaugain, 1
Phil. 728 ; Beavan v. Earl of Ox-
ford, 6 D. M. & G. 507 ; 25 L. J.
C. 299, where it was held that a
judgment had no priority over a
Toluntary conveyance previously
made. Einderley v. Jervis, 22
Beav. 1 ; 25 L. J. C. 538. As to the
effect of a judgment upon powers,
see anie, p. 385.
(S) 2 & 3 Anne, c. 4, for the
West Eiding ; 6 Anne, c. 35, for
the East Riding; 8 Geo. 2, c. 6,
for the North Kiding. As to the
Eegistry of the Bedford level see
15 Ch. II. c. 17 i it applies only for
the purposes of the Act. Willis v.
Brown, 10 Sim. 127.
(c) Neve v. Pennell, 2 H. & M.
170; 33 L. J. C. 19 ; re Wight s
Mortgage Trust, L. E. 16 Eq. 41 ;
43 L. J. C. 66.
(d) Credland v. Potter, 48 L. J.
C. 484 ; L. E. 18 Eq. 490.
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SECT. VI. § 4. THE DOCTRINES OF NOTICE. 505
obtained priority of registration (a) . — A purchaser with-
out notice may after notice obtain priority by prior
registration (&).
Registration under these Acts is not alone notice ; Effect of regis-
a purchaser is not bound to search the register^ and notice.
negligence is not imputed for omitting to search (c).
But if he do search, he may be presumed to be acquainted
with the contents of the Register during the period for
which he searched {d) .
By the Act "to facilitate the proof of title to, and Eepstry of title
'■ under S5 & 26
■ conveyance of real estates/' 25 & 26 Vict. c. 53, 1862, viot. c. 63.
which established a registry of title to landed estates of
freehold tenure and leasehold estates in freehold lands,
and authorised special modes of conveying and disposing
of registered lands n addition to those in general use,
(see sect. 63,) it is expressly provided with reference to
dispositions of such lands, (sect. 74,) " that no un-
registered estate or interest, contract or engagement, for
the registration whereof provision is made by this Act,
shall prevail against the title of any subsequent purchaser
for valuable consideration duly registered under this
Act" (e).
In the case of any fraudulent statement or represen- Effect of fraud
. . ■ • 1 A ^° obtaining
tation or concealment in obtaining registration the Act registration.
(ffl) Ze Neve v. Ze Neve, Ambl. interest can be transferred or created
436 ; 3 Atk. 646 ; 2 W. & T. L. C. upon the register only, and the doc-
28 ; Rolland t. Hart, L. R. 6 Ch. trines of notice have no application.
678 ; 40 L. J. C. 345. See Agra 8 & 9 Viot. c. 89.
Bank v. Barry, L. E. 7 H. L. 135. (e) Registration under this Act,
(*) j;/seyT.i«i!yeMj8Hare, 159. (introduced by Lord Westbury,)
(e) Morecoch v. Diciins, Ambl. which is Tohmtary, has not been
678 ; Ford v. White, 16 Beav. 120 ; adopted to any considerable extent,
re Russell Moad Purchase, L. E. 12 and it is now proposed to supersede
Eq. 78 ; 40 L. J. C. 673. it by a new scheme of registration
(d) Hodgson t. Dean, 2 S. & St. embodied in the Land Titles and
221. The Irish Registry Act, 6 Transfer Bill which passed through
Anne, c. 2, differs in this respect, the House of Lords in the Session
and gives an absolute priority to re- of 1874, but was withdrawn in the
eistration over all subsequent in- House of Commons with an under-
terests. See 2 W. & T. L. C. 41. taking to introduce it again in the
So under the Ship Registry Act an next Session of ParUament.
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506 PAET II. CHAP. II. THE LIMITATION OF PUTUEE ESTATES.
provides that " The act or thing done or obtained by
means of such fraud or falsehood shall be null and void
to all intents and purposes^ except as against a purchaser
for valuable consideration without notice." (Sect. 105.)
Registration under this Act supersedes the operation
of the Middlesex and Yorkshire Registry ActSj as to the
lands registered. (Sect. 104).
§ 5. Tacking and Consolidating Moetgages :
Marshalling.
The doctrine of tacking — priority by tacling taken away by the
Vendor and Purchaser Act, 1874.
Eight of mortgagee to tack "■ further charge against meane in-
cumbrancera — not allowed after notice — tacking against
surety — further charge must be proved by writing.
Eight of assignee of mortgage to tack a further charge — assign-
ment after notice— pending suit — notice to first mortgagee.
Mortgage after satisfaction gives no priority — assignee of mort-
gage in same position as mortgagee.
Mortgagor can give no priority amongst equitable charges by
subsequent transfer of legal estate^ — where legal estate out-
standing charges rank in priority of time.
Statute against clandestine mortgages — fraudulent concealment of
incumbrance.
Debts not charged cannot be tacked against mortgagor — may be
tacked against heir or devisee — not against creditors — tack-
ing judgment debts.
Consolidation of mortgages — by assignee of mortgage — against
purchaser or mortgagee of equity of redemption.
The doctrine of marshalling — marshalling securities in favour
of second mortgagee — ■ marshalling assets in favour of
creditors — in favour of legatees.
Some equitable doctrines regulating the priority of
estates and interests in land remain to be noticed in this
subsection, namely, the doctrines of tacking and con-
solidating mortgages, and the doctrine of marshalling.
Upon the principle of equity, which prevailed until the
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SECT. YI. § 5. TACKING AND CONSOLIDATING MOETGAGES. 507
passing of the "Vendor and Purchaser Aot^ 1874, 37 & 38 Doctrine of
Vict. c. 78, that a purchaser for value without notice on^the^protec
acquiring the legal estate could not be depriyed of it at estate.
the suit of a prior claimant merely upon the ground of
priority in time of acquisition, was founded the doctrine
of tacking mortgages and charges (a) .
By that Act, section 7, which has been already cited Priority by taok-
• ■ • n T ing taken away
at length (6), the priority or protection allowed to any by the vendoi-
estate or interest in land by reason of being protected by Act, 1874.
or tacked to any legal or other estate or interest in such
land is taken away, although the person claim such
priority or protection as a purchaser for valuable consi-
deration and without notice ; but with a proviso saving any
priority or protection which but for that section would
have been allowed as against any estate or interest exist-
ing before the commencement of the Act. — Therefore the
doctrine and rules of tacking now to be stated must be
understood as applying only against estates and interests
existing at the commencement of the Act ; and as against
such as may be created since the date of the Act, (7 Aug.
1874,) they have no application.
Bv the doctrine of tacking a mortgagee of the legal Eight of mort-
estate making a further advance or acquiring a further |''^J|*°^*^°^^^
charge upon the same security, without notice of any
intermediate charge, is entitled to tack or add the further
advance or charge to his original debt, and to hold the
legal estate as against intermediate incumbrancers until
he be satisfied in full (c) .
But the legal mortgagee is not entitled to tack further
(a) See ante, p. 485 ; Coote on of the land ; 2dly, He must, except
Mortgages, 385, 3rd ed. as to time have an equal equity ; and
(J) See ante, p. 485. 3dly, which foUows from the last,
(c) Brace v. DucTiess of Marl- he must have advanced his money
lorouqh 2P Wms. 491, 494 ; notes without notice of the other's claim."
to Marsh v. Lee, 1 W. & T. L. 0. Per Cottenham, L. C, in Lacey v.
559 "A party claiming to tack Ingle, 2 Ph. 419. And see the
must as against the party against doctrine explained iniiBejyooZ ^a-
whom the tack is to operate, have rine Credit Go. v. Wilson, L. K. 7
advanced his money upon the credit Ch. 507 ; 41 L. J. C. 798.
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508 PART II. CHAP. II. THE LIMITATION OP PUTTJKB ESTATES.
TacMng not
allowed after
notice — though
mortgage ex.
tend to further
advances.
Eight to tack as
against surety
ior mortgage
debt.
Further charge
must be proved
by writing.
advances as against an intermediate mortgage or charge
of wMch he had notice at the time of making the ad-
vances. Nor does he become entitled to do so by reason
of his mortgage deed being expressly made to extend to
further advances; and although the subsequent mort-
gagee had notice that it so extended (a). Where the
subsequent mortgage was expressly made " subject to the
security already given/' which extended to further ad-
vances, it was held that further advances with notice
could not be tacked against it (&).
A mortgagee cannot, in general, tack a further charge
as against a surety for the mortgage; for a surety is
entitled to the benefit of all the securities unimpaired in
the event of being compelled to pay the debt, and cannot
be prejudiced by any subsequent transaction between the
creditor and the principal debtor (c). — But in a case
where two sums were advanced at the same time, secured
respectively upon separate mortgages to the same mort-
gagee, and another person at the same time with know-
ledge of the whole transaction became surety for one of
the sums, it was held that he was not entitled on payment
to the benefit of the mortgage for which he was surety,
and that the mortgagee might retain it against him, until
both sums were paid (d) .
Further advances made upon the security of a prior
legal mortgage cannot be charged by a mere verbal
agreement without the evidence in writing required to
satisfy the Statute of Frauds (e) .
(a) Shaw t. Neale, 20 Beav. 157 ;
6 H. L. C. 581 ; Rolt v. EopMnson,
3 De a. & J. 177 ; 9 H. L. C. 514 ;
28 L. J. C. 41 ; 34 lb. 468.
(S) Menzies v. lAghtfoot, L. E.
11 Eq. 459 ; 40 L. J. C. 561. But
it was there said that the second
mortgage might by sufficiently ex-
plicit terms be made subject to fur-
ther advances to be made on the
first mortgage.
(c) Bowker v. Sull, 1 Sim. N. S.
29 i 20 L. J. C. 47 ; Pearl v. Dea-
con, 24 Beav. 180 ; 26 L. J. C. 761 j
see Pledge v. Bass, Johns. 663.
(d) Farebrother v. Wodehouse, 23
Beav. 18 ; 26 L. J. C. 81 ; and see
Williams v. Owen, 13 Sim. 597. It
is necessary to observe that these
cases appear to have been decided
upon a general rule, contrary to
that above stated, that a mortgagee
may tack a subsequent charge against
a surety ; therefore the law seems to
be somewhat uncertain.
(e) Exp. Sooper, 1 Mer. 7; see
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SECT. VI. § 5. TACKING AND CONSOLIDATING MOETGAGES. 509
In extension of the same doctrine, a third mortgagee Eight of assigne
,.-,,,. T -i. -i-u of mortgage to
having advanced his money upon the same security with- taok.
out notice of a second mortgage or charge, by taking an
assignment of the original legal mortgage may exercise
the same right of tacking as against the second mort-
gagee (a).
The third mortgagee may take an assignment of the Assignment of
° . ° . mortgage after
first mortgage for the purpose of tacking, after notice of notice.
the intermediate charge ; provided he was not affected
with notice at the time of taking his own mortgage.
"Having notice of a second incumbrance at the time of
taking in the first does not hurt ; it is the very occasion
that shows the necessity for it. It is only notice at the
time of taking in the third that will afiect him ; for then,
no act he can do will help him ■" (5) . — The third mort- Pending suit.
gagee may buy in the first legal mortgage pending a suit
by the second incumbrancer to realise his security, for
the lis pendens has no further effect than notice ; but he
cannot do so after a decree made, for there is then a
judgment for the creditors that they shall be paid accord-
ing to their priorities (c).
ante, p. 298. If the land be in a limited to the case where the first
Register County, such charge must mortgagee has the legal estate." Fer
be registered. Credland v. Potter, Westbury, L. C, in FhilUps t. Phil-
ip L. J. 0. 484 ; see ante, p. 504. lips, 31 L. J. C. 326 ; see post, p.
(a) Marsh t. Lee, 2 Vent. 337 ; 511, note (4).
1 Ch. Ca. 162; 1 W. & T. L. C. (b) Per Hardwicte, L. C, in
550 ; Brace T. Duchess of Marl- Wortley v. Birlchead, 2 Ves. sen.
lorough, 2 P. Wms. 491 ; per Hard- 574 ; see ante, p. 487.
wioke, It. C, in Wortley v. BirTc- (c) Marsh v. Lee, supra ; Wortley
head,' 2, Ves. sen. 573. This was v. -BJrMeai, supra. "Butyoumay,
called by Lord Hale, " the creditors' as was held in the House of Lords,
talula in naufragio." lb. Spencer {BeloUer v. Renforth, 6 Bro. P. C.
v. Pearson, 24 Beav. 266.— "If 28,) up to the time of the decree
the first mortgagee or incum- stmg^e iov the tahula m naufragio ;
brancer has the legal estate and and though the decree is in a sense
the third pays him ofi' and takes an only a judgment upon the rights, as
assignment of his securities and a they stood at the time the bill was
conveyance of the legal estate, he is filed, yet it was decided m that case,
entitled to tack his third mortgage that until the decrre you might do
to the first mortgage he has acquu-ed, so." Per Eldon, L. C, m Ex p.
and to exclude the intermediate in- Knott, 11 Ves. 619 ; Bates v. John-
cumbrancer. But tliis doctrine is son, John. 304 ; 28 L. J. C. 509.
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] PAET II. CHAP. II. THE LIMITATION OP PUTUEE ESTATES.
Notice to first
mortgagee is
immaterial.
It is immaterial to the right of the third mortgagee
that the first mortgagee have notice of the intermediate
charge at the time of transferring his mortgage. For he
holds the legal estate in his own rights as security for the
debt, and may, therefore, transfer it to whom he pleases,
subject only to the equity of redemption; nor can his
rights be restrained by a mere notice of other claims ;
and there is no equity to redeem the estate in the hands
of the transferree, without paying off all the advances he
may have made upon the security of it without notice of
prior claims (a).
3atiBfied mort-
gage gives no
priority.
But a legal mortgagee, after satisfaction of the debt,
can neither tack any subsequent debt of his own, nor can
he give any advantage to a subsequent incumbrancer by
a transfer of the legal estate ; for he has then ceased to
hold in his own right and is a bare trustee for the mort-
gagor and those claiming under him, and the transferree
would be affected with the same trust (b). — And in gene-
ral, the assignee of a mortgage debt and security, unless
by the concui-renoe of the mortgagor, is in no better
position than the assignor ; and if the debt be invalia or
subject to equities on the part of the mortgagor, the
assignee acquires no greater charge upon the land in
respect of it, or of the consideration paid for it (c) .
Upon a like pi'inciple, a mortgagor, having created
mong°st^"harges sovcral succcssive equitable mortgages or charges cannot
)y transfer of
klortgagor can
[iye no priority
egal estate.
(») Bates Y. Johnson, Johns. 304 ;
28 L. J. C. 509. " To give a third
mortgagee who has obtained a legal
estate (from a first mortgagee) a
priority over the second, nothing
further is necessary but that he had
advanced his money without notice
of the second mortgage ; the equi-
ties of the two parties being equal,
thi? court on that account refuses to
interfere, not because he has better,
but because he had an equal right."
Fer Pepyg, M. E., in Peacock v.
JBwrt, 4 L. J. 0. 73 ; S. C. in Coote
on Mortgages, App. 571, 3rd ed.
(5) Ante, 296, 488. Mayor of
Brecon v. Seymour, 26 Beav. 548 ;
28 L. J. C' 606 ; see per Wood,
V. C, in Bates v. Johnson, John.
304 ; 28 L. J. C. 509.
(e) Burf V. Trueman, 29 L. J. C.
902 ; 6 Jur. N. g. 72 ; Parier v.
Clarke, 30 Beav. 54.
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SECT. VI. §5. TACKING AUD CONSOLIDATING MORTGAGES. 511
give an advantage to one of them by a subsequent
transfer of the legal estate, as he is trustee for all accord-
ing to their priorities (a) . — And generally, in all oases Where legal
where the legal estate is outstanding, as where it remains ing priority Ib i
„ . T . , order of time.
in a lirst mortgagee, the several incumbrances, m the
absence of special circumstances affecting their relative
equities, rank according to their priority in time (&) .
The statute against clandestine mortgages (4 & 5 W. & statute against
-H/r 1 ^\ -Til • T clandestine
M. c. lb) provides that a mortgagor granting a second mortgages,
mortgage, without giving the second mortgagee notice in
writing of the first mortgage, shall forfeit his equity of
redemption, and the second mortgagee shall hold the
lands as if he had been the absolute purchaser ; but the
title of the second mortgagee under this statute is very
doubtful and precarious, so that it is safer and more usual
to resort to his power of sale (c). — By the 22 & 23 Vict. c. Fraudulent coi
35, s. 24, the fraudulent concealment of any instrument or oumbranoe.
incumbrance by a seller or mortgagor, or his solicitor
or agent, is made a misdemeanour, punishable by fine or
imprisonment.
A mortEfaaree cannot tack debts, which are not charged Debts not
" ° ^ charged cannot
upon the estate, even against the mortgagor ; and the be tacked
mortgage may be redeemed upon payment of the mort- g»gor-
gage debt only, notwithstanding the mortgagee be
(a) Sharpies v. Adams, 32 Beav. L. C. 561 ; Wilmot v. Fike, 5 Hare,
213 ; Mwnford v. Stohwasser, 43 L. 14 ; and see Rooper v. Harrison, 3
J. C. 694. But in a, case where, K. &J. 86. " If the Court does not
under such circumstances, the legal find the legal estate interposed, it
estate was conveyed by the mort- deals according to priorities." Per
gagor in pursuance of a contract Wood, V. C, lb. " If the first
with the first incumbrancer to that mortgagee has not the legal title, the
efiect, it was held to give the right third mortgagee by payment off of
to tack subsequent advances against the first acquires no priority over
mesne incumbrances, as if originally the second." Per Westbury, L.
conveyed. Cooke v. Wilton, 29 Beav. C, in Phillips v. Phillips, 31 L. J.
100 ; and see ante, p. 487. C. 326
(6) See ante, p. 478 ; Brace v. (c) See observations on this Sta-
Duchess of Marlborough, 2 P.Wms. tute in Kennard v. Putvoye, 2 Giff.
495 ; notes to Marsh v. iee, 1 W. & T. 81 ; 29 L. J. C. 553.
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512 PAET II. CHAP. II. THE LIMITATION OF FUTUEB ESTATES.
:ay be taclied
gainst heir or
ivisee.
ot against
editors.
icking judg-
ent debts.
a creditor in respect of other debts not charged upon the
same security (a).
Upon the death of the mortgagor the mortgagee can
tack against the heir or devisee all such debts as in the
administration of assets become charged upon the real
estate ; which formerly was the case only with specialty
debts binding the heir, but since the statute 3 & 4 Will.
IV. c. 104j is the case with all debts, as well debts due
on simple contract as on specialty, either under a charge
of debts by will, or under the statute ; and the heir or
devisee cannot redeem without paying all such debts (&) .
— So upon the mortgage of a term of years or other
personal estate, the executor cannot redeem without pay-
ing all debts to the mortgagee (c).
But he cannot tack debts not specifically charged upon
the estate against other creditors: who, having a Hke
charge upon the real assets of the deceased mortgagor, are
entitled to be paid rateably (d) .
A first mortgagee might formerly tack a further sum
advanced upon a judgment, as against a mesne mortgagee
of whose charge he had no notice, because the judgment
operated as a charge upon the land upon the credit of
which the mortgagee was presumed to have advanced the
money; bat a judgment is no longer any charge upon the
land until actually delivered in execution (e). — A judg-
ment creditor, by buying in the first mortgage, could not
tack or unite the two debts, because the judgment creditor
(a) Per Hardwicke, L. C, in
Morret v. Paske, 2 Atk. 53 ; Archer
V. Snatt, 2 Strange, 1107 ; per Ar-
den, M. E., in Jones'^. Smith, 2 Ves.
jun. 376.
(I) See ante, p. 262 ; Coleman, v.
Winch, 1 P. Wms. 775 ; Elvy v.
Norwood, 5 D. & Sm. 241 ; 21 L.
J. C. 716; Rolfe t. Chester, 20
Bea¥. 610; 25 L. J. C. 244;
Thomas v. Thomas, 22 Beav. 341 ;
25 L. J. C. 391.
(o) See Coleman-9. Winch, supra.
(d) Seams v. Bance, 3 Atk. 630 ;
see Irly t. Irby, 22 Beav. 217. But
see Maselfoot's Estate, Chauntler's
Claim, L. E. 13 Eq. 327 ; 41 L. J.
C. 286, where the mortgagee having
realised the property and holding
the proceeds was held entitled to
satisfy unsecured debts, though
the estate was insolvent ; followed
in re General Frovident Ass. Co.,
L. E. 14 Eq. 507; 41 L. J. C.
823.
(e) See ante, p. 502 ; Brace v.
Duchess of Marlborough, 2 P. Wms.
494 ; Baker v. Harris, 16 Ves. 397.
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SECT. VI. § 5. TACKING AND CONSOLIDATING MGETGAGES. 513
acquired no specific charge upon the land, but only a
general charge upon all the real estate which could be
taken in execution ; besides^ it was said, the judgment
creditor does not lend his money upon the credit of the
land, and is not deceived by prior judgments or incum-
brances (a).
The consolidation of mortgages is an extension of the Consolidation of
doctrine of tacking. — A mortgagee, having two mortgages
upon separate estates of the same mortgagor, upon default
in payment, may tack the debts together, and charge the
whole sum upon each mortgage. It is a rule of equity,
founded upon the principle that he who seeks equity must
do equity, that the mortgagor shall not redeem one without
redeeming the other ; and the mortgagee may claim this
equity not only in a suit for redemption, but also in n suit
for foreclosure and upon a sale under a power (6).
The same right is incident to equitable mortgages (c) ; Equitable mort-
also where the mortgages are held in trust for the same
person, though by different trustees {cl).
The assignee of separate mortgages made bv the same Assignee of
, C2 o TTCii mortgage may
mortgagor has the same right to consolidate. — So also consolidate,
the mortgagee of one estate who subsequently buys in a
mortgage upon another estate of the same mortgagor (e) .
Upon the occasion of assigning two mortgages to the
same person, it is usual to consolidate them in express
(a) Brace v. Duchess of Marl- Fomfret,lJ. &H. 336 ; 30 L. J.C.
borough, 2 P. Wms. 491 ; see per 770, where the doctrine wa3 appUed
Cottenham, Ij. C, in Lacey v. Ingle, to the surplus proceeds of a sale
2 Ph. 421. made bj the mortgagee under his
(J) 1 W. & T. L. C. 562, notes to power.
Marsh v. Lee. — " It is quite settled (o) Neve t. Pennell, 33 L. J. C.
that, whether the suit is for fore- 19; 11 W. K. 986.
closure or redemption, the mortgagee {d) Tassell t. Smith, 2 D. & J.
has a right to say to the mortgagor, 713 ; 27 L. J. C. 694.
you must redeem entirely or not at (e) Bovey v. Skipioith, 1 Ch. Cas.
aU " Per Cranworth, L. J., in 201 ; Vint f . Padget, 2D. & J.
Watts Y. Symes, 1 D. M. & G-. 240 ; 611 ; 28 L. J. C. 21 ; Ttoeedale t.
21 L J.C. 713; and seeder Turner, Tweedale, 23 Bear. 341; Beevor v.
L j' in Tassell v. Smith, 2 D. & J. Imck, L. K. 4 Eq. 537 ; 36 L. J. C.
713 ; 27 L. J. C. 694 ; Seliy v. 865.
2l
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514 PART II. CHAP. IT. THE LIMITATION OP PDTtJEE ESTATES.
terms by a deed in whioh the mortgagor is made to
concur as a party.
■ety for one of A Surety for one of two mortgage debts to the same
f conaoiidate. mortgagee^ having been compelled to pay itj is entitled
to stand in the place of the mortgagee, as to the right of
consolidation, and so gain the benefit of both the
securities (a).
against pur- The right to Consolidate prevails against a purchaser
;ee of equity Or mortgagee of the equity of redemption of either of
the mortgages, although he took it without notice of the
other mortgage, or of the mortgages being united in one
person ; and notwithstanding that the mortgages be not
united until after the purchase or mortgage of the equity
of redemption, and that the person in whom they unite
had notice of it {b).
e doctrine of
rshaUing.
The rights of a prior claimant against several funds
belonging to the same person or estate are subject to the
doctrine of marshalling the funds in favour of other
( -t n . rt T assets in favour
of the assets or a deceased person, it a creditor resort of creditors.
(a) Aldrich v. Cooper, 8 Ves. 382 ; subject to a power, and a subsequent
2 W. & T. L. C. 66; "A person appointment is made out of a speciSc
having two funds shall not by hia part of the property, the general
election disappoint the party having appointment must be satisfied first
only one fund ; and equity, to out of the part not specifically ap-
satisfy both, will throw him who has pointed and the specific part can be
two funds upon that which can be resorted to only in case of deficiency,
affected by him only, to the intent Morgan v. Q-ronow, L. R. 16 Eq. 1.
that the only fund to which the (4) 2 W. & T. L. C. 90 ; notes
other has access may remain clear to to Aldrich v. Cooper ; and see Bales
him." Fer Eldon, L. C, lb. — Upon v. Cox, 32 Bear. 118 ; Mower's
this principle where an appointment Trusts, Jj. E. 8 Eq. 110; Ford t.
is made generally out of property Tynte, 41 L. J. C. V58.
2 l2
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516 PAKT 11. CHAP. II. THE LIMITATION OF FDTrEE ESTATES.
to a portion of the a.ssets which is common to other
creditors^ the latter may stand in his place as against
assets to which the former might have resorted but the
latter could not. Hence it was, formerly, that if creditors
by specialty binding the heirs, who might recover satis-
faction out of the real estate, resorted to the personal
estate to the exclusion of simple contract creditors who
had no remedy against the real assets, the simple con-
tract creditors were allowed satisfaction out of the real
assets so far as the specialty creditors had exhausted the
personalty {a).
The statute 3 & 4 Will. IV. c. 104, has superseded
this application of the doctrine of marshalling by render-
ing the real estate of the deceased of all kinds, which
he has not by his will made subject to his debts, assets
for the payment of all debts, as well debts due on simple
contract as on specialty (6).
arsiaiiing The doctriue of marshalling assets is also applied in
sets in favour r. o • ^ ■ i i
legatees. tavour 01 pecuniary legatees as against the real assets
descended or charged with debts. If the creditors have
exhausted the personal assets, which are the only fund
for the legatees, the latter become entitled to charge the
real estate to which the creditors might have resorted, to
the extent to which the creditors have exhausted the
personalty ; and the same doctrine is applied as between
legatees, some only of whoso legacies are charged upon
real estate (c).
o marshalling But this right is restricted to the real assets left to
descend or charged with debts by the testator, and
there is no ma,rshalling in favour of pecuniary legatees
(a) AldHch v. Cooper, 8 Ves. 382 ; for this species of marshalling ; that
2 Jarman on Wills, 606 ; Williams if those creditors, having a right to
on Ex. 1457, 4th ed. go to the real estate descended, will
(5) See ante, p. 262. go to tlie personal estate, the choice
(c) 2 W. & T. L. C. 82, 83, notes of the creditors shall not determine
io AldHch Ti . Cooper; Williams on whether the legatees shall be paid or
Ex. 1459. " The mere bounty of not." Per Eldon, L. C, in Aldrich
the testator enables the legatee to call t. Cooper, sxxpva.
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SECT. VI. § 5. DOCTKINE OF MARSHALLING.
517
against devisees of the real estate, nor any right of con-
tribution from the latter towards a deficiency of personal
estate (a). — A devise to the testator's heir, since the
statute 3 & 4 Will. IV. c. 106, s. 8, precludes marshall-
ing against him, as under that statute he is to be con-
sidered to have acquired the land as a devisee, and not
by descent (b).
{a) Mirehome v. Scaife, 2 M. &
Cr. 695 ; Collins v. Lewis, L. R. 8
Eq. V08 ; Due/dale v. Dugdale, 41
L. J". C. 565 ; L. E. 14 Eq. 234,
in which cases Hensman v. Fryer,
L. R. 3 Ch. 420 ; 27 L. J. C. 77 ;
deciding that devisees should con-
tribute rateably with legatees was
disregarded as being " clearly a mis-
taken decision." — " Where lands are
specifically devised the legatees shall
not stand in the place of the cre-
ditors against the devisees, for that
is upon the supposition that there is
in the will as strong an inclination
of the testator in favour of a specific
devisee as a pecuniary legatee, and
therefore there shall be no marshal-
ling." Fer Eldon, L. C, in Aldricli
V. Oooper, 8 Ves. 382. And see 2
Jarman on Wills, 601.
ih) See ante, p. 161 ; Strickland
V. Strickland, 10 Sim. 374.
Digitized by Microsoft®
Digitized by Microsoft®
INDEX.
(See also the Table of Contents.)
Abbtanoe.
of freehold, 47.
of remainders, 48, 338.
admissible in equity, 470.
Accumulation.
of rente and pi-ofita, 462.
statutory restrictions of, 462.
of infant's estate, 465.
in excess of rule of perpetuity, 466.
destination of income under void trust for, 467.
trust for, after vesting of the property, 468.
Action.
real and personal, 8.
real actions abolished by statute, 59. See Ejectment.
Admittance.
to copyhold, 72, 88.
mandamus to compel, 88.
bill in chancery to compel, 88. See Copyhold.
Agent.
notice to, alFects principal, 498.
Aoeeement.
uses raised by, 108.
trusts created by, 137-
volantary, 137.
for lease, 198.
tenancy under, 201.
concerning interest in land, 198.
to execute pov^er, 424.
equitable mortgage by, 297, 299. See Conteact.
Aids, 28.
Alienation.
fines for licence on, 28.
without licence by statute qtda empfores, 19, 28.
power of, as against heir, 33.
limitation in restraint of, 219.
condition against, 237.
Ancestob.
admitted in descent, 65.
Ancient Demesne, 24, 25.
customary freehold in, 77-
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520 INDEX.
Annuity.
charged upoa land, 274.
Appendant.
powers, 385.
Appointment.
power of, 374.
estates in default of, 376. See Powers.
Assets.
equitable and legal, 260.
administration of, 261, 265.
land made assets by statute, 262.
exoneration of real or personal, 265, 267.
marshalling, 515, 516.
Assignment.
of trusts, 142.
of satisfied term, 222.
mortgage of term by, 800.
or underlease, 316.
A ssiaNS.
grant extended to, 34.
power extended to, 406.
Attendant.
term, 221.
ceases by statute, 222.
assignment of, to protect purchase, 222.
Attestation.
of deed executing power, 403.
AlTOKNEY.
execution of power by, 406. See Soiicitoe.
Atioenmbnt.
of tenant, 54.
grant made effectual without, 54.
to adverse claimant, void, 55.
Bankeuptoy.
estate determinable by, 220.
BAHeAIN AND sale, 108, 120.
for a year with release, 56.
Base Fee, 35, 40, 319.
Bond.
for mortgage debt, 283. See Specialty debt.
BoEoiTGH English.
descent by custom of, 86.
Bound AfiiES.
Suit to ascertain, 89.
Beeaoh.
of condition, 230.
efi'ect of licence for, 240.
waiver of, 240. See Condition,
buegagb tenure, 24, 25.
Castle Q-uaed, 23.
Cattle Gates, 78.
Cessee,
proviso for, of estate tail, 217.
of estate for life, 219.
of term of years, 221.
on alienation, 219. See Alienation.
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INDEX, 521
Cesttii que lEtrsT, 126.
rights of, 127, 128.
possession of, 208.
Cestui que use, 100.
ChAE&ES UrON liAKD, 257.
by deed, 258.
by will, 259.
of debts, 258.
of legacies, 267.
of annuities, 274.
power to raise, in devisee or executor, 271.
construction of, as to vesting, 473.
Chattels.
real, 8, 45.
chattel interests of uncertain duration, 204,
Child.
purchase in name of, 133.
remainder to unborn child, 333.
to child of unborn child void, 334.
to unborn child for life, 334.
appointment to, and settlement of share, 394, 420.
appointment to, in consideration of benefit to parent, 432.
illegitimate, how designated, 372.
posthumous, may take remainder, 329.
in ventre sa mere capable of taking as if born, 329, 372.
gestation of, extends rule of perpetuity, 441.
Childeen.
as word of limitation, 187.
devise to, 370.
future devise to, SVl.
power of appointment to, 390.
does not include grandchildren, 418.
implied gift to, in default of appointment, 391.
Claim.
under a condition, 225.
Collatebal Descent, 65.
collateral powers, 386.
Condition".
precedent and subsequent, 214.
distinguished from conditional limitation, 215, 223.
construction of, 224, 238.
annexed to freehold estate, 225.
to lease for years, 226, 227.
reservation of to grantor and his heirs, 227.
assignment of, 228.
breach of, revests estate, 230.
avoids mesne charges, 230.
and remainders, 230.
not executory estates, 281.
impKed in tenure, 231.
express, 231.
mortgage by, 232.
for payment of rent, 233.
for performance of covenants, 234.
illegal and impossible, 235.
void for uncertainty, 237.
repugnant to estate, 237.
against alienation, 237
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622 INDEX.
Condition — continued.
effect of licence for breach of, 240.
waiver of, 228, 240.
relief against, at law, 241.
relief in equity, 241.
cokditiohal limitation, 214, 216.
Consent.
to disentailing deed, 40.
to execution of power, 406.
CONSIDEBATION.
of use, 106, 109.
in bargain and sale, 109,
in covenant to stand seised, 110.
of trust, 133.
good and valuable considerations, 110, 138.
of iuarriage, 188.
Consolidation.
of mortgages, 513.
by assignee of mortgages, 513.
by surety for one of the mortgages, 514.
against purchaser of equity of redemption, 514.
CONSTKUCTION.
of conditions, 238.
of words of contingency, 339, 367.
in favour of vesting, 239, 339, 366.
in favour of remainders, 354, 364.
restricting contingency, 367.
extending contingency, 369.
of wUls, 69.
of powers, 378, 393, 396, 400.
of charges of portions, etc., as to vesting, 473.
of phrases " die without issue," " failure of issue," etc., 183, 447.
" or " construed as " and," 160, 361, 449.
Contingency, See Constbwction.
Contingent Bemaindeb, 48, 322.
classification of, 323.
to person not ascertained, 324.
requires particular estate of freehold, 32S.
must be vested at determination of particular estate, 328.
destruction of, 57, 330.
trustees to preserve, 331.
of copyhold, 82, 332.
to unborn child, 333.
to child of unborn child, 333.
with subsequent remainder, 337.
with alternative remainder, 338.
construction of, 339.
Contingent use, 116.
contingent limitation of equitable estate, 471.
Continual claim, 59.
contbaot.
creation of trust by, 137.
equitable estates arising from, 302.
conversion by contract of sale, 306. See Agebement ; Baegain and
SALE J OONSIDEBATION ; COVENANT,
CONTBBSION.
doctrine of, 248,
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INDEX. 523
CONVEBSION — continued.
of land into money, 249.
of money into land, 249.
absolute and conditional, 249.
discretionary, 250.
resulting interest under, 250, 251.
residuary bequest under, 252.
residuary devise, 252.
nature of residuary interest, 253.
election against, 254.
of partnership estate, 256.
by contract of sale, 306.
CONTEYANOE.
tortious operation of, 57, 58.
voluntary, 134.
obtained by fraud, 135.
of equitable estate, 142.
as execution of power, 382.
of copyhold, 72.
Copyhold Tenuee, 22, 72, 76.
application of statutes to, 78.
statute of uses does not apply to, 123.
possession of, 86.
rights and remedies of copyholder, 87.
estate of, regulated by custom, 79.
limitation of uses of, 80.
estate tail in, 81.
conveyance of, by surrender and admittance, 72, 80.
lease of, 84.
devise of, 84.
devise of freehold and copyhold combined, 124.
power of appointment of, 83.
descent of, 86.
escheat and forfeiture of, 90.
extinction of, 93, 94.
regrant of by lord, 95.
enfranchisement of, 97.
trusts and equitable estates of, 129, 133, 140.
how far binding on lord, 141.
equitable estate tail of, 143.
mortgage of, 300.
future estates of, 314.
contingent remainder of, 332.
made assets for debts, 263. See Admittance ; Couet Eolls ;
Custom ; Sueeendeb.
Copyhold Fines, 89.
fees of steward, 90.
COENAOE, 23.
Couet Baeon, 20.
customary court baron, 22.
Couet Leet, 22.
Court Eolls.
title by copy of, 72.
inspection of, 73.
admissible in evidence, 73.
mortgage by deposit of, 300.
search of, by purchaser, 501,
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524 INDEX.
COTENANT.
to stand seised, 109.
to renew lease, 203.
running with land, 203.
to pay mortgage debt, 282.
to execute power, 424.
Cbeditoeb.
voluntary conveyance void against, 134.
tacking unsecured debts against, 512. See Assets ; Debts.
Ceown Debts.
registration of, 501.
do not affect land unless writ issued, 501.
Custom of manoe.
general custom judicially noticed, 73.
special customs, 74.
essential requisites of, 74.
evidence of, 75.
special custom of entail, 81.
to take timber and minerals, 87.
CUSTOMAET CotJKT BAEON, 22, 72.
CCJSTOMAET BSTAIE.
ol cop,\ hold, 79.
CusTOMAEY Feeehold, 76, 77.
CtJSTOMAET TEHtTEE, 70.
special forms of, 77.
Cy-eees.
doctrine of construction, application to wills, 336.
to appointment by will, 418.
Death.
presumption of, 196.
death " without issue," 182, 325.
Debts.
charge of by deed, 258.
by will, 259.
implied from direction to pay, 259.
creates equitable assets, 260.
priority of, in administration of assets, 261, 263.
specialty, binding heir, 262.
land made assets for simple contract debts, 262.
copyhold made chargeable for, 263.
charge of, on land in exoneration of personalty, 266.
charge of, combined with legacies, 269.
interest upon charge of, 270.
power in devisee or executor to raise charge, 271, 378.
See Assets ; Creditoes ; Ckown Debts ; Judgments,
Deed.
of feoffment, 50.
of grant, 53, 56.
of lease, 198.
in execution of power, 403.
Demesne Lands, 19, 70.
customary tenants of, 71.
ancient demesne, 24, 25, 77.
Demise, 197. See Lease.
Detise.
specific and residuary, 265.
lapsed, 266.
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tNDEX. 525
Devise — continued.
future and executory, 356.
application of rule in Shelley's case to, 357.
in execution of power, 409, 411. See Exeoutokt Detisb ; WiLi..
Deposit.
under contract of sale, 305.
of deeds, mortgage by, 297.
Descent, 60.
traced from purchaser, 61.
restricted to blood of purchaser, 61.
of estate tail, 63.
of equitable estate, 143.
of copyhold, 86. See Heir.
Descent Cast, 59.
Discontinuance, 59.
Disseisin, 56.
seisin of disseisor, 61 .
no disseisin of copyhold, 84.
DiSTKESS.
for rent service, 24.
power of, under mortgage deed, 291.
Ejectment, Action oe.
by lessee for years, 44.
by copyholder, 87,
against tenant at will, 209.
against tenant at suiferance, 213.
for forfeiture, 229.
by landlord for rent in arrear, 233.
by mortgagee against mortgagor, 290.
real actions abolished except, 59.
Election.
to enforce forfeiture, 92, 229.
against conversion, 254.
under appointment in excess of power, 418, 420.
Eleght.
tenant by, 205.
Enfeanchisement
of copyhold , 97.
statutes of, 98.
Entail. See Estate Tail.
Entry.
to perfect lease for years, 44, 49.
right of, upon disseisin, 56, 58.
to avoid freehold under condition, 225.
to avoid lease, 226.
construction of conditions requiring, 226, 227- See Conbition ;
Ee-entbt.
Eqttitable Assets, 260.
land made chargeable as, 262.
Equitable Estate, 126, 243.
legal estate subservient to, 127.
corresponding to legal estates, 243.
created by express limitation, 139, 243.
by construction of equity, 141, 244.
equitable rights distinguished from, 246.
estates and interests peculiar to equity, 248.
conveyance of, 142.
devise of, 142.
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526 INDEX.
Eqttitabie ^staih— continued.
descent of, 143.
mortgage of, 301.
future limitations of, 469.
power of appointment of, 470.
contingint limitations of, 471.
rule of perpetuity applied to limitations of, 470.
rule in HJiellet/'s Case applied to, 472.
assignee of, takes subject to equities, 491. See Chaege ; CoNVEESloif ;
Trtjst.
Equitable Moetgage.
by deposit of deeds, 297.
by agreement, 299.
of copyhold, 300.
Equity.
the system of uses, 100.
the system of trusts, 126.
follows the law, 139, 243.
to prevail in case of variance with law, 129.
remedial jurisdiction in case of fraud, mistake, etc., 241.
remedies of incident to legal title, 489.
remedies auxiliary to legal title, 490.
relief against forfeiture, 241.
relief in aid of execution of powers, 241.
to set aside execution of powers, 430.
Equity
of redemption, 232, 284.
made assets for debts, 285.
form of reservation of, 285. See Moetgage.
Escheat, 27, 90.
ESOUAGE, 23.
Estate
in land, 3, 4.
defined by the terms of limitation, 152. See Equitable Estate ;
Estate in Fee Simple ; Estate Tail ; etc. etc.
Estate at Will. See Tenancy at Will.
Estate eoe Life, 189.
pur autre vie, 189.
for several Uves, 190, 192.
for own life greater than for life of another, 190.
limitation of, 191.
by devise without words of limitation, 192.
by implication, 193.
vrith proviso for cesser, 219.
determinable at will, 220.
occupancy of estate pur autre vie, 193.
Umitation to special occupant, 193.
special occupant by statute, 194.
Estate foe Yeaes, 197.
limitation of, 199.
limitation to executors, 202.
to heii-s, 202, 203.
covenant for renewal, 203.
determinable upon lives, 220.
determinable by notice, 221. See Lease, Teem.
Estate in Fee Simple, 33, 155.
conditional, 35, 36, 217.
limitation of, in conveyance, 156.
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INDEX. 527
Estate in Fee Simple — continued.
limitation of, in wills, 159.
devise of, without words of limitation, 164.
implied from devise over, 165.
implied from charge imposed, 166.
in devise to trnstee, 167.
Estate in Eee Tail, 37, 168.
limitation of, in conveyance, 168.
in will, 175.
devise to heira of the body, 175.
to issue, etc., 180.
implied from devise over on failure of issue, 182, 446.
proviso for cesser of, 217, 455.
mode of disentailing, 39.
power of tenant to convey fee simple discharged of subsequent limita-
tions, 40, 219, 455.
descent of, 63.
in copyhold, 81, 174.
Exchange.
power of. See Sale.
EXEOtTTOB.
limitation of term to, 202.
devise to, for payment of debts, 204.
direction to, to pay debts, 259.
entitled to legal assets, 260.
power to raise charges, 272.
construction of will, as to giving power or estate to, 378.
Executoky bequest.
of term, 321.
Executoex Devise, 69, 360.
not preceded by freehold, 360.
divesting preceding estate, 361.
after determination of preceding estate, 363.
alternative executory devises, 364.
construed as remainder, if capable, 364.
remainder or executory devise according to event, 365.
construed in favour of vesting, 366.
to children, 370.
Exeoutoby Trust, 244.
construction of, 245, 473.
in marriage articles, 246.
in wills, 246.
Extinction.
of manor, 21.
of copyhold, 93.
by surrender to lord, 93.
by copyholder acquiring freehold, 94.
by severance of copyhold from manor, 94.
Family.
devise to, 189.
Fealty, 26.
of copyholder, 90.
Fee, 18, 31.
fee simple. See Es iate.
fee tail. See Estate.
base fee, 35, 40.
FEOrEE.
to uses, 100.
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528 INDEX.
Feoppment, 18, 46.
required to be in writing, 50.
by deed, 50.
superseded by grant, 51.
tortious eiTeot of, 57.
re-feoifment, 52.
Feudal System, 17.
FiNEa.
as form of conveyance, abolished, 39.
PlHE.
on alienation of fee, 27, 29, 30.
on admission to copyhold, 89.
on change of lord, 89.
for licence to copyholder, 90.
on regrant, 97.
FOEEOLOSUEE.
of mortgage, 280, 284.
sale instead of, 282.
by equitable mortgagee, 298.
FOEEEITIIBE.
of fee by treason or felony, 28, 91.
by feoffment or fine, 57, 58.
of copyhold by a freehold couTeyance, 90.
by a lease without licence, 91.
by waste, 91.
by refusing admittance and services, 91.
waiver of, by lord, 92.
for breach of condition, 230, 231, 233.
relief against, 241.
FOEMEDON".
writ of, 37.
FEANEALMOiaW, 25, 30.
Fbanohise, 20.
Feaud.
of solicitor, notice not imputed to client, 499.
in registration, 505.
in concealment of incumbrance, 511.
Fbauds.
Statute of. See SiATtiTES cited, 29 Car. II. c. 3.
Feeehold.
tenure, 17.
estate, 43.
estate in copyhold, 84.
future and contingent estate of, 47, 48, 313.
in equitable estates, 470. See Estate ; Copyhold.
FuTUEE Estates, 312.
freehold itifuturo, 47, 313.
lease for years infuturo, 314.
fnture uses, 116.
future equitable est»tes, 469.
future uses of copyhold, 314. See Remaindee ; Eeteesion ;
SPEiNaiNQ Uses ; Bxeotttoky Devise ; etc.
Gatelkind, 24, 25.
descent in, 86.
GiPT.
imperfect, 138.
Goods.
as subject of property, 3.
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INDEX. 5,29
G-EA'NDCHILDEEN.
devise to, 444.
power to appoint to children does not include, 390.
appointment to, construed cy-jpres, 418.
appointment to, where too remote, 459.
under marriage settlement, 460. See Childeen.
G-EAND Seejeanty, 23, 30.
Geant.
distinction of livery and grant, 52, 198.
freehold lies in, 51.
rules of limitation in, 51.
meaning of term, 53, 198.
Geautoe.
limitation by, to himself, 51.
to his heirs, 52.
title of, by purchase, 52.
Geoss.
power in, 386.
GUAEDIAIf.
in socage, 27.
Haie-blood,
descent to heir of, 62.
Heie. '
fee extended to, 32.
title of, by grant and by descent, 33.
rules of descent to, 60.
preference of male, 63
lineal and collateral,, 64.
a« word of limitation, 33, 156, 159.
as word of purchase, 157, 344.
as devisee, 160, 161.
limitation to heir of grantor, 52.
devise to heir of testator, 161.
heir with additional description, 162.
"heir male," 158, 163, 174, 176, 344.
" heir now living," 159, 344. See Estate in Fee Simple.
Heib op the Body.
grant restricted to, 32.
fee conditional upon issue, 85.
fee tail, 37.
as words of limitation, 169, 175.
as words of purchase, 172.
as devisee, 178.
meaning of, qualified by context, 179, 344.
" heir male of the body," 173, 179. See Estate in Eee Tail.
Heeeditaments.
corporeal, 51.
incorporeal, 53.
Hbeiot, 27, 30.
in copyhold, 90.
HOMAfiE, 26.
Husband and Wipe.
Conveyance to wife, 52. See Maeeiage.
iNCtTMBEANOB. See ChAE&E.
search for, 501, 503.
notice of. See Kotioe.
Digitized by Microsoft®
530 INDEX.
Ineant.
wardship of, 26.
IlTFEUDATIOir, 18.
Sub-infeudation, 18.
Inhebitance. See Descent ; Fee ; Heie.
Instoanoe.
forfeiture under condition for, 241.
power of, in mortgagee, 296.
Intekesse Teemiwi, 44, 198, 314.
Inieeest.
upon charge on land, 269.
upon charge of debts and legacies, 270.
on specific legacy, 271.
on mortgage, 282.
distress for, under mortgage, 291.
Issue.
as word of limitation, 180.
as devisee, 184, 185.
with words of limitation, 184.
with words of distribution, 185.
limitations and dsTises on failure of, 181, 182.
when too remote, 445.
meaning of " die without issue," etc., 182, 447.
Joint Owneeship, 11.
jointuee.
power of appointing, 379, 397.
execution of power in excess, 437.
JuDflMBNT.
as charge upon land, 501.
does not affect land until execution, 502.
registration of writ, 502, 503.
order for sale under, 502.
interests not capable of delivery under, 503.
purchase with notice of, 503.
charges beneficial interest only, 504.
decrees and orders in equity, bankruptcy, etc., 502.
against donee of power, 385.
KlTI&HT Seetiob, 22.
Land.
as subject of property, 3, 4, 9.
Lease.
for years, 44, 197.
requiring writing and deed, 49, 198.
parol lease, 198.
agreement for, 198, 201.
estate and possession of lessee, 44, 49.
leasehold, 45.
certainty of term, 199.
for successive terms, 200.
" from year to year," 200.
with covenant for renewal, 203.
determinable upon lives, 220.
during minority, 221.
to commence infuturo, 50, 314.
with remainder of freehold, 49, 326.
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INDEX. 531
Lease — continued.
lease and release, 55.
mortgage of leasehold, 300.
power of leasing, 379, 396.
form of, under power, 397.
in excess of power, 418.
relief against defects in lease under power, 427.
of copyhold, 84, 90. See Estate job Teaes ; Inteeesse tebmini.
LegaoibsI
charge of, 258, 267, 269.
in aid of personalty, 268.
on real and personal estate rateably, 268.
charge of debts and legacies, 269.
construction of, as to vesting, 473.
construction of, as charge on personalty, 474.
marshalling assets in favour of, 516.
no equity in legatee against devisee, 516.
Legal estate.
subservient to equitable, 127.
legal and equitable title, 127.
union of titles, 128.
protection of, in equity, 485.
taken away by statute, 485, 492.
equitable remedies incident to, 489.
auxihary to, 490.
Licence.
effect of, upon conditions, 240.
restricted effect of, 240.
to copyholder to lease, etc., 90.
Lien.
for xmpaid purchase money, 290, 303.
discharge of, by other securities, 304.
for purchase money paid in advance, 305.
Life. See Estate fob Lipe ; Lease.
Limitation.
of estates, 152, 312.
distinction between words of purchase and of, 152.
devise without words of, 163.
conditional, distinguished from condition, 224. See Estates ;
Ebeehoid ; Heibs, etc.
Limitation.
of actions for recovery of land, 59, 75, 89.
of action for rent or interest charged, 282.
of action on specialty, 282.
Lis eendens.
purchaser affected by, 500.
registration of, 500.
LiTBBY.
feoffment by, 46.
distinction between grant and.
Males.
preference of, in descent, 63.
Mandamus.
by copyholder for admittance, 88.
Mandevillb's Case.
rule in, 172, 178, 186.
Manob, 19.
2 M 2
Digitized by Microsoft®
532 INDEX.
Manob — continued.
creation and extinction of, 21.
reputed manor, 21.
severance of, 94. See Copyhold ; Cottet, etc.
Mabkiaoe.
of ward, 26, 29.
estate determinable upon, 219.
estate during, 219.
condition in restraint of, 235.
will revoted by, 448.
equivalent to valuable consideration, 138, 486.
Mabshallinq.
doctrine of, 514. ..
securities, 515.
assets, 515.
in favour of legatees, 516.
MEEaEK.
of equitable in legal estate, 128.
of estate ^Mc autre vie in estate for life, 190.
of estate for life in remainder, 330,
effect of, upon contingent remainder, 330.
Mesne.
lord, 18.
Middlesex.
register of deeds, 504.
MoETGAaE.
with condition of re-entry, 232.
with proviso for redemption, 233, 273.
redemption by statute, 279.
foreclosure, 280, 283.
power of sale, 280.
covenant to pay, 282.
with separate bond for debt, 283.
by trust for sale, 283.
equity of redemption, 284.
debt made primary charge on the land, 287.
mortgagor in possession, 290.
rc-demise to mortgagor, 29] .
distress for interest, 292.
rights of mortgagee, 293.
conveyance of the land by vesting order, 294.
conveyance by personal representative of mortgagee, 295.
mortgagee in possession, 295.
equitable mortgage, 297.
agreement for mortgage, 299.
mortgage of copyhold, 300.
of leasehold, 300.
of equitable estates and interests, 301.
tacking further charge, 507.
giving second, without notice of first, 511.
fraudulent concealment of, 511.
consolidation of, 513.
MOBTGAaEE.
charge of, for debt interest and costs, 293.
legal estate of, 294.
devise by, 294.
personal representative of, may convey, 295,
in possession bound to account, 295.
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INDEX. 533
MoETGA&BB — continued.
account with annual rests, 295.
may insure, 296.
may appoint receiver, 296.
not a trustee, 296, 488, 510.
notice to, gives no priority, 510. See Moetoage.
MOKTOAeOE.
in possession, 290, 292.
tenant under, 290.
not bound to account for rents and profits, 292.
may sue in his own name, 293. See MoElGAaE.
moteabies and immoveablea, 3, 8, 45.
Ne&lig-enoe.
priority lost by, 479.
as to custody of deeds, 479
WOTIOB.
to determine tenancy, 200.
to redeem mortgage, 279.
to trustee, when necessary to complete assignment, 301, 483.
upon change of trustees, 484.
of prior claim postpones purchaser, 492.
before payment or conveyance, 493.
actual and constructive, 493.
of matter for inquiry, 494.
abstaining from inquiry, 494.
of deeds and their contents, 494.
effect of representations as to deeds, 495.
from possession of deeds by banker or solicitor, 495.
suppression of deeds by fraud or accident, 496.
from informality or defect in deeds, 496.
from possession of the land, 497.
to solicitor or agent, 498.
of fraud in solicitor or agent, 498.
of Us pendens, 500.
of crown debts, 501.
of judgments, 501.
presumed from search of register, 503, 505.
Occupancy.
of estate pur autre vie, 193.
limitation to special occupant, 193.
executor as special occupant, 194.
of copyhold, 195.
Paeobneks, 64.
Paetictjlae estate, 40. See Bemaindeb,.
Pabtnbeship.
conversion of real estate of, 256.
Pateenai.
line preferred in descent, 63.
Perpetuities.
rule against, whether applied to remainders, 335
rule stated, 440.
period of gestation allowed, 441.
applied to limitations to persons by description, 442.
limitations to class of persons, 443, 450,
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534 INDEX.
PEBPETtriTlES — continued.
limitations to children and grandchildren, 444, 459.
limitations upon failure of issue, 445.
rule applies independently of event, 449.
directions postponing possession, 451.
limitation in alternative of remote event, 452.
limitations restricted by duration of estate, 453.
limitations after estates tail, 455.
term preceding 'estate tail upon trusts subsequent, 457.
rule appUed to powers, 458.
to powers of sale, etc. in settlements, 460.
to directions to accumulate rents and profits, 466.
Peesonal kbtate.
primary assets for debts, 260.
exoneration of, by testator, 266, 268.
exoneration of, from mortgage debt by statute, 287.
Pebsons.
law of, as affecting property, 11.
POETIONS.
charged on land, 258, 473.
power of charging, 397.
construction of, as to vesting, 473.
satisfaction of, by advancement, 476.
presumption against double portions, 476.
possessio eeatbis, 62, 63.
Possession.
of land and of goods compared, 5.
of lessee for years, 44.
distinguished from seisin of freehold, 49.
of tenant at will, 206.
of tenant at sufferance, 212.
of copyholder, 86.
of mortgagor, 290.
of mortgagee, 295.
is constructive notice of title and claims of tenant, 497.
not as between vendor and purchaser, 498.
Possibility.
doctrine of remote, 335.
POSTHUMOFS OHIID.
may take remainder, 329. See Child in ventre sa mere.
POWEES.
of appointing and revoking uses, 114, 374.
uses appointed under, 375.
created by will, 377.
to trustees or executors, 377.
construction as to power or estate, 378.
to raise charge for debts and legacies, 379.
to lease, sell, etc., 379, 396.
in settlements, operating upon the interests and upon the property, 379.
usual powers, 380.
co-existing with estate, 381.
donee of power acquiring fee, 381.
suspension of, by conveyance, 383.
conveyance with reservation of power, 384.
judgment against donee of power, 385.
appendant or appurtenant, 385.
collateral or in gross, 386.
simply collateral, 387.
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INDEX. 535
POWEES — continued.
general and particular, 389.
distribxitive and exclusive, 389, 435.
construction of, as to estates to be appointed, 393.
as to priority of operation, 396.
time of execution, 398.
form of execution, 402.
execution by deed and will, 403, 423.
delegation of power, 406.
effect of conveyance or devise as execution of, 408.
effect of general devise, 411.
partial execution, 413, 415.
execution with reservation of power, 413.
execution in excess of power, as to the objects, 416.
as to the estate, 418.
execution aided in equity, 421.
covenant or contract to execute, 424.
power held in trust, 426.
execution in fraud of power, 430.
illusory appointment, 435.
rule of perpetuities applied to, 458.
in settlements, restricted by duration of settlement, 461.
Peeoatoey tetjst. See Teust.
Pbimee Seisin, 26, 29.
Peimogenituee, 64.
Peiobitt.
in equity, 477.
due to priority in time, 478.
lost by fraud or negligence, 479
by notice to trustee, 482.
of powers in settlements, 396. See Legal Estate ; Notice.
Peopeett.
subjects of, 3
civil law of, 6.
English law of, 6.
real and personal, 8.
transfer of, 11.
Protection oe IiEgai estate. See Legai Estate ; P0echase.
Peoviso eoe cessee, 217.
of estate tail, 217.
of estate for life, 219.
of term of years, 221.
for redemption of mortgage, 278.
PuE AUTEE TIE. See Estate eoe Liee ; OcctrpASCY.
Puechase.
words of, distiuguislied from hmitation, 152.
equitable estate of purchaser, 303.
plea of, for value without notice, 144, 486, 491.
from trustee, 487.
after notice, 488,
re-purchase by trustee, 488.
as root of descent, 61.
Puechase money.
when purchaser bound to see to application, 275.
lien of vendor for, 303.
charged primarily on the land by statute, 310.
lien of purchaser for deposit, 305. See Keceipt.
Quia Emptoees, statute of, 18, 98.
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536 INDEX.
Real.
and personal property, 8.
and personal actions, 8.
actions abolished, 59.
Ebceiet.
power to give, 145, 275.
in trustee, 275,
in executor, 276.
statutory power, 277.
effect of signing receipt for purchase money, 481.
Rbceiteb.
power in mortgagee to appoint, 296.
Keooveey.
used as conveyance, 39.
Kedemption".
of mortgage, 232, 278, 283.
express proviso for, 233, 278.
coats of, 279.
redemption by statute, 279. See Mobtga&e.
Ee-ektkt.
condition of, 215, 225. See Condition.
Eegisteation.
of Us pendens, 500.
of crown debts, 501.
of judgments, 502.
not notice unless search made, 503.
of deeds in Middlesex and Yorkshire, 504.
effect of, as notice, 503, 505.
of titles, 505.
fraud in obtaining, 505.
Kb-gbant.
of copyhold, 95.
distinguished from grant, 55.
conveyance by lease and release, 55.
superseded by statutory grant, 56.
Eeliee.
payable on death of ancestor, 26, 30.
Eemaindeb, 41, 317.
cannot be limited after fee simple, 319.
after fee tail, 319.
after term of years, 320.
in particular estates, 320.
tenure of, 321.
in equitable estates, 469.
rules restricting, 334, 439.
whether rule of perpetuity applies to, 335. See Contingent
Eemaindee.
Renewal oe Lease.
by trustee, 151.
covenant for, runs with land, 203.
Ebnt.
service, 24, 72, 317.
distress for, 24.
passes with reversion, 317.
condition of re-entry for non-payment of, 233.
ejectment by landlord under condition, 233.
charges upon rents and profits, 273.
reservation of, in lease under power, 397.
accumulation of, 462.
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INDEX. 537
Eepebbentaiion.
of ancestor in descent, 65.
KBPir&lfANT.
condition, 237.
BBSTOTHfa.
use, 107, 352.
trust, 135.
interest under trust for couTersion, 250, 251.
Eeteesion, 40, 314.
no reversion after fee simple, 41.
express limitation of to grantor and his heirs, 315.
in particular estate, 315.
tenure of particular estate to, 42, 317.
grant of, 317.
in equitahle estate, 469.
Ketocation.
of uses, 114, 874.
reservation of power of, 413.
Eight.
to things, 1.
against persons, 2.
of entry, 58.
assignment of, 59.
of action, 59.
real actions abolished, 59.
Sale.
power of, in mortgage, 280
statutory power of, 281.
surplus proceeds of, 286.
power of, in settlements, 379, 396. See BAEaAiN and SaIiE ; CoN-
TEACT ; Ptjeohase ; Vendoe.
Scintilla y«ns, 116.
Seabce.
for incumbrances, 501, 503.
notice presumed from, 503, 505.
Sbignoet, 17.
release of, to copyholder, 97.
Seisin.
of freehold, 18, 45.
livery of, 46.
limitations shifting, 46.
abeyance of, 47
as root of descent, 60.
of heir, 61.
of purchaser, 61.
of disseisor, 61.
applied to copyhold, 84.
to support uses, 117. See I^eehold.
Seizuee quousgue.
of copyhold, 88.
Seejbanty, 23, 24, 30.
Seetiobs.
of tenure, 18, 19, 22.
tnight service, 22.
socage tenure, 24.
rent service, 24.
villenage, 71. See Tenure.
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538 INDEX.
Skttiemeitt.
strict settlement, 335.
limits of duration of, 335.
powers in, 379, 460.
Shelley's Case.
rule in, 34, 157, 160, 171, 176.
the rule stated, 342.
application of the rule, 343,
estate of freehold in ancestor, 344.
estate for years in ancestor, 345.
not applied to separate instruments, 345.
limitations of estate^Mc autre vie, 346.
of term of years, 346.
lease for life with remainder for years to executors, 347.
applied to uses, 349.
to uses appointed under powers, 376.
applied to wills, 160, 176.
not appKed to executory dcTises, 357, 358.
applied to equitable limitations, 472.
application of, to executory trusts, 245, 473.
rule applied to copyhold, 80.
SHlPTINa.
uses, 351.
construed as remainder if possible, 354.
SOOAO-E.
tenure, 24, 29.
SOLICITOB.
possession of deeds by, 496.
notice imputed to, 497.
notice to, when notice to client, 498.
where same employed by both parties, 499.
fraud of solicitor, 499.
duty of, to register and search registries, 500.
Son.
as word of limitation, 188.
eldest preferred in descent, 64.
Special tail, 170. See Estate Tail.
Specialty.
debt binding heir, 262.
priority of, 263. See Debts.
Specipio peepokmance.
inequity, effect of, in creating trust, 802.
couTersion under coutraet of sale depends on, 308, 310.
of agreement to give mortgage, 298.
SPBlNaiNG.
uses, 350.
Statutes cited.
3 Ed. I. c. 29 (time immemorial), 74.
13 Ed. I. (de donis), 37, 81.
18 Ed. I. c. 1 (quia emptores), 18, 28, 36, 42, 100, 108, 217, 232,
321.
1 Ed. III. c. 12 (fine on alienation), 28.
34 Ed. III. 0. 15 (fine on alienation), 28.
15 Kich. II. u. 5 (uses), 102.
1 Eich. in. c. 1 (uses), 103.
4 Hen. Til. c. 24 (fines), 39.
21 Hen. Till. c. 4 (sales by executors), 378.
c. 15 (feigned recoveries), 44.
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INDEX. 539
STATtriBS CITED — continued.
27 Hen. VIII. o. 10 (uses), 67, 102, 103.
0. 16 (inrolment of bargain and sale), 109.
32 Hen. VIII. c. 1 (wills), 67.
e. 36 (fines), 39.
34 & 35 Hen. VIII. c. 5 (wills), 67.
13 Eliz. c. 5 (conveyance in fraud of creditors), 135.
14 Eliz. c. 8 (recoTeries) , 58.
27 Eliz. 0. 4 (conreyance in fraud of purchasers), 135.
12 Car. II. u. 24 (tenures), 29, 67, 78.
15 Car. II. c. 17 (Bedford level registry), 504.
29 Car. II. c. 3, S3. 1, 2 (leases and estates to be made in writing), 49,
50, 198.
s. 4 (contracts concerning land), 198, 297, 298, 299,
424.
s. 5 (wills), 67.
3. 7 (creation of trusts in writing), 106, 132.
3. 8 (constructive trusts), 106, 132.
s. 9 (assignment of trusts), 142.
8. 10 (trusts made assets), 285.
s, 12 (estate puf autre vie) , 194.
3 & 4 Will. & M. c. 14 (devises in fraud of creditors), 262.
4 & 5 W. & M. c. 16 (clandestine mortgages), 511.
10 & 11 Will. III. c. 16 (posthumous children), 329.
2 & 3 Anne, c. 4 (West Eiding registry), 504.
4 Anne, c. 16, ss. 9, 10 (attornment), 54.
6 Anne, u. 2 (Irish registry), 505.
c. 18 (evidence of death), 196.
— c. 35 (East Hiding registry), 504.
7 Anne, c. 20 (Middlesex registry), 504.
8 Anne, o. 14, s. 6 (distress for rent), 229.
4 Geo. II. c. 28, s. 1 (tenant holding over), 197, 213.
s. 2 (ejectment by landlord), 233.
— s. 4 (relief against ejectment), 241.
7 G-eo. II. u. 20, s. 1 (redemption of mortgage), 279.
8 G-eo. II. c; 6 (North Riding registry), 504.
11 Geo. II. c. 19, s. 11 (attornment), 55.
8. 18 (tenant holding over), 213.
14 Geo. II. 0. 20 (estate pur autre vie), 194.
39 & 40 Geo. III. c. 98 (accumulation), 462.
47 Geo. III. c. 74 (assets in bankruptcy), 263.
54 Geo. III. c. 168 (attestation of deeds executing powers), 404.
55 Geo. III. c. 192 (suiTCnder to use of will), 85.
1 Will. IV. c. 46 (illusory appointments), 436.
c. 47 (devises in fraud of creditors), 262.
2 Will. IV. 0. 45, 8. 26 (possession), 116.
2 & 3 Will. IV. c. 71 (prescription), 75.
3 & 4 WUl. IV. c. 27, 3. 2 (hmitation of actions for recovery of land),
59, 75, 89.
8. 7 (tenancy at will), 211.
3. 16, 19 (disabilities), 59.
ss. 25, 28 (lunitation of trust), 284, 296.
■ a. 36 (real actions abohshed), 21, 37, 59, 64, 88.
. 3. 39 (descent oast, etc.), 59, 61.
3. 42 (limitation for recovery of rent or interest),
282.
3 & 4 WiU. IV. c. 42, s. 3 (limitation of action on specialty), 282.
■ c. 74, s. 1 (base fee), 40, 319.
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540 INDEX.
Statutes cited — continued.
3 & 4 Will. IV. c. 74, s. 2 (abolition of fines and recoTeries), 39.
ss. 4-6 (ancient demesne), 25.
^^— ^— ss. 50-53 (estate tail in copyhold), 82, 142.
3 & 4 Will. IV. c. 104 (land made assets in equity), 262, 264, 276, 285,
516.
3 & 4 "Wai. IV. 0. 106, ss. 1, 2 (descent from purchaser), 60, 61.
s. 3 (limitation to grantor), 52, 62, 115, 315.
s. 3 (devise to testator's heir), 158, 161, 517.
s. 4 (heirs taking as purchasers), 158, 161, 172.
ss. 5-8 (lineal descent), 65.
s. 9 (descent to half blood), 63.
1 Vict. c. 26, s. 2 (repeal of statutes of vfilla), 68, 85.
s. 3 (power of disposition by will), 60, 194, 412.
ss. 3, 4, 5 (will of copyhold), 86.
s. 6 (estate ^Mr autre vie), 194, 196.
s. 9 (execution of will), 86.
s. 10 (will in execution of power), 404, 423.
s. 18 (will revoked by marriage), 448.
s. 24 (will speaks from death), 265, 400, 412.
s. 25 (lapsed and void devises), 253.
s. 27 (general devise as execution of power), 400, 411.
s. 28 (devise without words of limitation), 163, 192.
• s. 29 (meaning of "die without issue," etc.), 183, 325,
448, 454.
ss. 30 (devise to trustee), 204.
1 & 2 Vict. c. 110, Bs. 11, 13 (judgment a« charge upon land), 385, 427,
502.
2 & 3 Vict. u. 11, ss. 4, 5 (registration of judgments), 502.
■ — ss. 7, 8 {lis pendens), 500.
ss. 8, 9, 10 (crown debts), 501.
4 Vict. c. 21, s. 1 (lease and release), 56.
4 & 5 Vict. c. 35 (enfranchisement of copyhold), 98.
s. 86 (customary court), 72.
6 & 7 Vict. c. 23 (enfranchisement of copyhold), 98.
7 & 8 Vict. c. 55 (enfranchisement of copyhold), 98.
8 & 9 Vict. u. 89 (Shipping registry), 505.
8 & 9 Vict. u. 106, B. 2 (freehold lies in grant), 51, 56.
0.3 (deed required for conveyance, lease, etc.), 49,
15, 198, 202.
3. 6 (contingency and right of entry assignable),
59, 228, 333.
s. 8 (contingent remainders) , 57, 329.
8 & 9 Vict. c. 112, ss. 1, 2 (satisfied terms), 222.
9 & 10 Vict. 0. 95, s. 14 (manorial courts), 21.
12 & 13 Vict. u. 26, B. 4 (defective lease under power), 425, 427,
429.
13 & 14 Vict. c. 17, ss. 1, 2 (defective lease under power), 427, 428.
c. 60, ss. 3, 8, 19 (vesting order), 294.
s. 32 (new trustees), 147.
15 & 16 Viet. c. 51 (enfranchisement of copyhold), 98.
c. 55, s. 9 (new trustees), 147.
c. 76, B. 210 (ejectment by landlord), 233.
S3. 210, 211, 212, 219 (relief against forfeiture),
241, 279.
■ c. 86, a. 48 (sale in foreclosure suit), 282.
17 & 18 Vict. 0. 113 (mortgage debts to be paid out of the land), 287
290, 310.
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INDEX. 541
Statutes cited — continued.
19 & 20 Vict. 0. 120 (leases and sales of settled estates), 380.
20 & 21 Vict. u. 54 (fraudulent trustees), 144.
21 & 22 Vict. u. 94 (enfranchisement of copyhold), 98.
c. 77 (leases and sales of settled estates), 380.
22 & 23 Vict. c. 35, ss. 1,2 (licence to assign, etc.), 240.
0. 35, ss. 4-8 (relief against forfeiture), 242.
— s. 12 (execution of power by deed), 403, 422.
S3. 14-16 (power in trustee or executor to sell
for debts), 271, 378.
■ s. 22 (crown debts), 501.
■ 3. 23 (trustee's receipt), 146, 277.
s. 24 (concealment of deed), 511.
23 & 24 Vict. u. 38, b. 3 (registration of judgments), 264.
s. 6 (waiver of condition), 241.
s. 7 {scmiilla juris) ^ 117.
■ c. 126, ss. 1, 2, 3 (relief against forfeiture), 241. ,
c. 127, o. 28 (charge for solicitor's costs), 500.
0. 145, ss. 1-10 (Powers of sale), 146.
ss. 11, 24, 32, 34 (statutory powers in mort-
gages), 281, 282, 296.
s. 27 (new trustees), 148.
s. 29 (trustee's receipt), 146, 277.
25 & 26 Viet. u. 53 (registry of titles), 505.
27 & 28 Vict. u. 45 (leases and sales of settled estates), 380.
e. 112 (judgment as charge on land), 385, 427, 502.
28 & 29 Vict. c. 104, ss. 48, 49 (crown debts), 501.
30 & 31 Vict. 0. 69, s. 1 (mortgage debt), 288.
s. 2 (lien for purchase money), 290, 310,
32 & 33 Viot. 1.;. 46 (priority of specialty debts taken away), 263, 285.
33 & 34 Vict. u. 23 s. 1 (forfeiture for treason or felony), 91.
36 & 37 Vict. c. 66, ss. 24, 25 (Supreme Court of Judicature, law and
equity), 129, 242, 262.
s. 25 (mortgagor suing in his own name), 293.
37 & 38 Vict. 0. 33 (consents to lease or sale of settled estates), 380.
e. 37 (illusory appointments), 436.
• c. 78, s. 7 (protection of legal estate taken away), 485,
492, 493, 507.
Statute.
merchant and staple, 205.
Stewaed.
of manor, 90.
SUBPCENA.
in Chancery to perform uses, 101.
SUB-TENUEE, 18.
sub-infeudation prevented by statute, 18.
StTFEEEANOE.
tenancy at, 212, 290.
Suit.
of Court, 20.
SUBETY.
tacking further charge against, 508.
right of, to consolidate mortgages, 514.
SUEEENDEB.
of copyhold, 72.
limitation of uses of, 80, 82.
to use of will, 84.
supplied in equity, 85.
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542 INDEX.
SuEEENDEE — Continued.
dispensed with by statute, 85.
TAOKINa.
abolished by statute, 507.
of further charge by mortgagee, 507.
not allowed after notice, 508.
against surety for mortgage, 508.
by assignee of mortgage, 509.
assignee may tack after notice or pending suit, 509.
notice to first mortgagee, 510.
satisfied mortgage gives no right of tacking, 510.
unsecured debts, 511.
against heir or devisee, 512.
against creditors, 512.
judgment debts, 512.
Tail, 37, 168. See Estate Tail.
Tenakct. See Estate.
from year to year, 200, 201.
at will, 206.
creation of, 208.
determination of, 209, 210.
right of tenant at will to take crops and remove goods, 211.
at sufferance, 212.
of copyhold at will of lord, 72, 209.
Tenant.
holding over, remedies against, 213.
Tenant Right, 77.
Tenuee, 17.
sub-tenure, 18.
in capite, 18.
converted into common socage, 29.
between tenant and reversioner, 42, 317.
of remainder, 321.
of copyhold, 70.
Teem.
of years, 197.
limitation of, 199.
imderlease of, 316.
satisfied and attendant terms, 221.
cesser of, by statute, 222.
protection of satisfied term, 222. See Estate foe Yeaes ;
Lease.
Title.
to land, 5.
legal and equitable, 127.
Title deeds.
equitable mortgage by deposit of, 297.
right of depositee without notice to retain, against legal title, 490.
notice of, and their contents, 494.
negligence in not inquiring for, 479.
in not keeping, 480.
trusting to representations as to, 481, 495.
possession of, by banker, solicitor, 495, 496.
suppression of, by fraud or accident, 496.
informality or defect in, 496.
Teust.
active and passive, 121.
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iNDUx. 543
Teust — continued.
distinguished from Uses, 125.
creation of, 131.
declaration of, 131, 136.
precatory, 132, 136, 895.
to be proved by writing, 132.
parol evidence of, 133.
voluntary declaration of, 136, 138.
constructive, 133.
raised from payment of consideration, 133.
resulting, 135.
created by contract, 137.
effect of voluntary agreement, 137.
effect of imperfect gift, 138.
for conversion, 248. See CoNTEESloif.
for accumulation, 462, 471. See Exeoutoey tetjst.
Tettstee.
estate and office of, 143.
purchase from, 144.
power to give receipt, 145.
appointment of new, 147.
diity of, to account, 148.
remuneration of, 148.
indemnity of, 149.
negligence of, 149.
default of co-trustee, 149.
profits of trust, 150.
purchase by, 150, 151.
what estate passes by devise to, 167.
to preserve contingent remainder, 331.
depositing title deeds in breach of trust, 481.
notice to, of assignment, 482.
UirOEETAINTT.
condition void for, 237.
TJkdbblease.
with reversion, 316, 320.
distinction between assignment and, 316,
mortgage of term by, 300.
ITsAaE.
immemorial, 74.
iS.
origin and description of, 99.
disposition of, 102.
devisable by will, 102.
descent of, 102.
statute of, 103. See Siattjtes.
creation of, under the statute, 105.
declaration of, 105.
consideration of, 106, 109.
resulting, 107.
limitations of. 111.
operation of statute of, 115.
scintilla juris, 116.
seisin required to support, 117.
upon possession of term of years, 118.
to grantee of legal estate, 119.
upon a use, 120.
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544
INDEX.
Uses — continued.
application of statute of, to wills, 69, 122.
limited as remainders, 349.
springing and shifting uses, 112, 113, 350, 351.
limited to grantor or heirs of the grantor, 114, 115.
to heirs of the hody of grantor, 114, 353.
impHed use in grantor for life, 353, 355.
future use construed as remainder, if possible, 354.
power of appointing, 114, 375.
uses appointed, 375.
use appointed upon a use, 375.
uses in default of appointment, 376.
Uses ov Sueeehdeb.
of copyhold, 72, 80, 82.
power to appoint, 83.
use limited to surrenderor, 83.
statute of uses does not apply to, 123.
Venboe
trustee for specific performance, 302.
bound to account for rents and profits, 303.
lien of, for unpaid purchase money, 303.
may lose lien by signing receipt, 481.
See CONTEAOT ; PUEOHASE.
Vested.
meaning of term, 18, 46.
and contingent remainder, 48, 322. See Kemaindee.
construction in favour of vesting, 239, 339, 366. See Consteuctioh".
construed as indefeasible, 445.
VESTINa oedee.
of land in mortgage, 294.
ViLlENAGE, 71.
pure viUenage, 76.
villein socage, 77. See Copthold.
VOIiUNTAET contbtanoe.
no resulting trust upon, 134.
void against purchaser and creditor, 134.
for purpose wliieh fails, 135.
voluntary declaration of trust, 136, 138.
voluntary agreement, 137.
imperfect gift, 138.
Waitee.
of forfeiture of copyhold, 92.
of forfeiture under a condition, 228.
efieet of, as dispensation of condition, 240.
restricted to specific breach by statute, 241.
Waedship, 26, 29.
Waste.
land of manor, 20.
approvement of, by lord, 20.
Widow.
estate during widowhood, 219.
with devise over on marriage, 340.
power to charge jointure, 379, 397. See Maeeia&e.
WirB.
purchase in name of, 133. See Mabeiage ; Widow.
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INDEX. 545
Wild's Case.
rule in, 187.
Will.
land not devisable at common law, 66.
uses devisable, 67.
statutes of wills, 67.
devise of future estates, 68, 356.
executory devise, 68, 360.
construction of wills, 69.
use of technical terms in, 69.
execution of power by, 404.
of copyhold, 84, 85. See Uevise ; Exectjtoet Devise.
Wei TING.
not required for feoffment at common law, 50.
required for feoffment by statute, 50.
when required for lease, 198.
for contract or sale of interest in land, 198.
for creation of trust, 106, 132.
for agreement for mortgage, 299.
for further advance on mortgage, 298, 508.
Year. See Estate fok Ybaes.
lease from year to year, 200, 201.
YOEKSHIEE.
register of deeds, 604.
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