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"SmmZA
'"6 law of
COMPENDIUM
LAW
OF PROPERTY IN LAND.
Digitized
by Microsoft
Digitized
by Microsoft
COMPENDIUM
LAW
OF PROPERTY IN LAND.
SECOND EDITION
LONDON:
Digitized
by Microsoft
BAB.
Digitized
by Microsoft
The
may
to
may
find
the subject.
of the
work
adopted in treatises on
juris-
prudence.
for
number and
here considered.
parts
the
in land
first of
The book
which treats
of
is
law
four
who
rules of law.
In the treatment
He
of the
Digitized
due pro-
by Microsoft
PREFACE TO THE FIRST EDITION.
VI
his book the
'
Law of
Eeal Property
modern law
'
the
title
commonly applied
'
real
'
and
title
'
'
personal,' fall
Law
under the
of Property in Land,'
Modern
subject.
legislation,
original distinctions
between real
property
will
many
the
of
moreover, by removing
little
it
The tendency
direction.
relating to land
of this legislation is to
the term land the principal division of the modern law of property.
In the
been given
to recent decisions
earlier authorities
Numerous
where necessary.
being referred
references
to,
been
have
all,
however,
made
to
or most, of
the cases on the points considered are collected; and the writer
desires to express his obligations to the authors
those works.
Coke upon
The leading
treatises
and editors
of
to
are
also
fre-
to.
26, 1888.
Digitized
by Microsoft
of Lincoln's Inn,
In the preparation of
throughout
and the
Some
of the
and, to the
Au
It
several
is
improvements
divisions
of
the
subject-matter
will
of
each
be found to be
its
deemed worthy
i,
1891.
Digitized
by Microsoft
first edition.
Digitized
by Microsoft
CONTENTS.
PAGE
xxiii
.
xxxix
iv
INTRODUCTOKY CHAPTER.
118.
Law
property,
4.
hereditaments, 16.
Arrangement
6.
Tenements, 15;
of topics, 17.
I.
TENURE.
1938.
Feudal principles,
19.
emptores, 22;
modern freehold
seisin, 21.
of, 24.
Manors, 26.
Copyhold tenure, 28. Copyhold estates, 32. Incidents of copyhold tenure,
Extinguishment of manorial rights, 34.
Enfranchisement, 35.
33.
Customary
CHAPTER
II.
ESTATES GENERALLY.
3950.
Definition of estate, 39.
common
law,
i6.
Classification, i6.
Digitized
tail,
by Microsoft
41.
Conditional fee at
Estate for
life,
42.
;;
CONTENTS.
Estate for yearfi,'43.
and
of freehold
Estate at
will, ib.
tUan freehold,
less
ib.
Conditions subsequent,
ib.
Arrangement
Different
modes
of topics, 50.
CHAPTER
III.
ESTATES IN POSSESSION.
51-111.
Definition of estate in possession, 51.
Sect.
Creation
alienation, 54.
I.
use
Eights of tenant
Determination of estate, 55.
or acquisition
61.
of,
Sect.
Estates Tail.
II.
Eights of tenant
and enjoyment, 52
use
Creation, 55.
common
recoveries,
56
fines,
Sect. III.
Creation, 63.
use
Creation,
Eights of tenant
89.
leases,
terms,
ib.
Alienation,
Land
100
assignment,
Acts, 101
ib.
underlease,
ib.
105.
of long
Sect. V.
Creation, 109.
Estates at Will.
ib.
Not
alienable,
ib.
Deiei-
minatioD, 110.
Sect. VI.
Commencement, 110.
Estates at Sufferahce.
Liability of terant,
ib.
Not
nation, ib.
Digitized
by Microsoft
alienable, 111.
Determi-
CONTENTS.
CHAPTER
xi
IV.
ESTATES IN EXPECTANCY.
112153.
Definition, 112.
Classification, ib.
Definition, 113.
Creation
115
Land
Application of Settled
Acts, 113.
Reversions.
Sect.
I.
114.
Rights of reversioner
use
and enjoyment,
Determina-
alienation, ib.
tion, 119.
Sect.
Sub-sect.
Definition
and
Sub-sect.
2.
Vested Semainders.
Rights of remainderman nse and enjoyremedies for waste, &c., ib. alienation, 125 in case of estate
ia remainder, ib.
Determination, 128. Merger, 129.
Definition, 123.
ment,
tail
Remainders Oenerally.
creation, 119.
How
ih.
created, ib.
to preserve, 136.
Contingent Semainders.
141
of,
Trustees
ib.
ib.
ExEcnTORr Interests.
Uses, 145.
Recognition
years, 147.
Remainders by way
at law,
of,
to failure, 134.
Creation
i6.
Failure or determination,
Sect. III.
common law
Liable at
Statutory alterations,
Rights of remainderman
alienation, 142.
Definition, 143.
Sub-sect. 3.
Definitions
148
Remainders.
II.
1.
146.
of use, 148.
149
uses,
ib.
Origin of, 144.
Stat, of
In copyholds and estates for
scintilla juris,
Rights of owner
151.
use
ib.
and enjoym
executory
ent,
152
alienation, ib.
CHAPTER
Y.
ESTATES IN COMMUNITY.
154169.
Definition, 154.
Classification, ib.
Sect.
Definition &c., 154.
ib.
ments,
&c.,
Joint Tenancy.
I.
Creation, 156.
Where
use
159.
158; alienation,
Deteimination or dissolution,
160.
Partition, ib.
Sect. II.
Definition,
&c., 163.
Tenancy
Creation,
ib.;
ib.
in
Coparcenary.
Rights of coparceners
use
Determination or dissolution,
Digitized
by Microsoft
ib.
and enjoy-
Xll
CONTENTS.
Tenancy
Sect. III.
Definition, &o., 165.
common
,in-
Creaticfti,
in
Common.
Gross-remainders,
166.
167
ii.
alienation, ib.
Eights of tenants
Betermination,
ib.
^Tenancy by Entireties.
&c., 167.
Subsequent intermarriage of grantees, 168.
Married Women's Property Act, 1882, as to, il.
Effect of
Definition,
CHAPTER
VI.
EQUITABLE ESTATES.
170201.
Sect.
Definition, 170.
ib.
Origin,
By
real, ib.
I.
tb.
Analogy
conversion, 174.
exceptions,
Division of topics,
ib.
Sect. II.
Secret trust,
express or implied,
ib.
executory
Rights of cestui que trust use
and enjoyment, i6. ; alienation, 181 under Settled Land Acts, 181. Determination or failure, 184. Estate of trustee, 185. Disclaimer or acceptance by trustee, 187 ; his retirement or removal, ib. Appointment of new-
or executed, 178
ib.
&c.,
trustees,
ib.
Joint
trustees, 191.
Trustee's
powers,
192
and
rights, 194.
Sect. III.
Sub-sect.
Definition,
1.
Instances
195.
tenancy in common,
ib.
ib.
196
equitable
Sub-sect. 2.
Instances
Definition, 198.
notice,
200
what
is
under contract
notice
ib.
effect
Digitized
purchase with
by Microsoft
201
CONTENTS.
PART
PROPERTY INFERIOR
TO OWNERSHIP.
II. RIGHTS OF
class, 202.
CHAPTER
I.
POWEBS.
202220.
Definition, 202.
203
204
Classification,
(i.)
common law
powers,
ih.
(li)
statu-
under law relating to executory interests, or powers of appointment, 206 (iv.) equitable powers,
208.
Powers of appointment and of revocation, 209. Powers, general or
special, ib.
Creation of powers, 210. Transfer and devolution, 211.
Execution, 212; discretion, ih.; formalities, ib,; partial execution, 214;
power of revocation, ib. Objects of, 215; excessive execution, 216; nonexclusive power, ih.; fraud on power, 217.
Determination, 218; in case
of power appendant or appurtenant, 219; where collateral or in gross, ih.
tory
powers, instances,
(iii.)
powers
CHAPTER
II.
RIGHTS OF CREDITORS.
221269.
Sect.
I.
221; legal or equitable, i6. Mortgagor's estate or interest at common law, 222 equity of redemption, 223 incidence of debt on mortgagor's
death, 225
Locke King's Act, ih. mortgagor in possession, 227 leases
Creation of mortgages legal, of freeholds or leaseholds, ih.
by, ih.
Definition,
statutory, 231
by
security
legal of copyholds,
title-deeds,
ib.
leases, ib.
insuring, 236
ih.
his
Rights of mortgagee
deeds, 234
security, ib.
title
ib.
estate,
233
right
to
as to timber, 235
tacking, 237
con-
238
solidation,
profits,
240
receiver, ih.
demption,
Sect.
ib.
II.
Lien
ib.
Lien
for
reconveyance, 249.
judgment
of
of equitable
purchase-money, 251.
for
lieu,
250
instances
Alienation,
debts, 252.
ib.
Sect, III.
Definition
sale
judgment
debt,
252.
Digitized
Mode. of enforcing
by Microsoft
XIV
C0NTE^"rs.
execution under
elegit, ib.
Crown
Eights in Respect of
Sect. IV.
sale
Debts.
Succes-
Sect. V.
charge of debts,
community and
fee simple,
liability
Liability of estates
equitable, 266.
tail, ib.
of estates for
life, ib.
tive
ib.
CHAPTER
III.
RENTS.
270281.
Estates in land the only subjects
Definition, 270.
Sect.
Definition,
270
Creation,
Recovery, 273.
ment, 272.
in,
ib.
ib.
Division
of, ib.
Payment and
ij.
apportion-
Determination, 275.
Alienation, 274.
Sect. II.
Interests
Definition, 276.
of, lb.
Rent-service.
I.
Eent-charge.
Creation,
Recovery,
PayDetermina-
277.
Registration,
ib.
Alienation, 279.
ib.
tion, ib,
CHAPTER
IV.
I.
Tithe Rent-charge.
Tithes at common-law,
Definition, 282.
and recovery,
ib.
t6.
Lay
Payment
ib.
Determination, 285.
Sect. II.
Charges under Improvement of Land Act, 1864, 287 under Copyhold Acts, ib. ;
under Agricultural Holdings (England) Act, 1883, ib. Charge for redeemed
;
land-tax, 288.
CHAPTER
ib.
V.
RIGHTS OF COMMON.
289296.
Definition,
289.
purtenant,
ib,
Varieties, ib.
;
pur
Creation
common
Digitized
by Microsoft
of
appendant,
shack,
ib.
290 ; apnone by
CONTENTS.
custom,
ation,
ib.
extent
of, ib.
XV
Use and enjoyment,
in gross, 292.
ib.
Alien-
ib.
Determination,
294.
CHAPTER
VI.
EASEMENTS.
297305.
Definition, &o., 297.
easements
Instances,
in gross, 298
dents of ownership,
299
ib.
;
public rights,
ib.
ib.
PART
covenants,
Meanings
303.
ib.
of terms,
Alienation,
inci(7).
ib.
Determination, 304.
OF RIGHTS OF PROPERTY
III.TRANSFER
IN LAND.
CHAPTER
I.
MODES OF TRANSFER.
306307.
Modes
307.
Alienation,
of law, ib.
ib.
of
by act of party
extraordinary modes
Arrangement of topics,
or
by operation of law,
Transfers by operation
of, ib.
ib.
CHAPTER
II.
ALIENATION GENERALLY.
308342.
Requisites of valid alienation, 308.
Sect,
I.
Disclaimer, 309.
II.
title, 309.
to, ib.
Proof of, 310. Title by
mere possession, 311. Searches, &c., ib. Discharge of encumbrances by
payment into court, 313. Period over which investigation of title extends,
Covenants for title, ib.
Titles under Land Transfer Act, 1875, 315.
ib.
where implied under Conveyancing and Law of Property Act, 1881, 317.
Rights of alienee as
Definition of
Registration of instruments
Act,
1884, 320.
undertakings
Delivery of documents of
title,
Yorkshire Registries
321.
Covenants and
322.
Digitized
by Microsoft
XVI
CONTENTS.
Object or Pukpose of Alienation.
Sect. III.
Void or voidable,
323.
to,
of,
328
Meaning
of
'
land
'
13 Eliz.
stat.
o. 5, ib.
Alienations in fraud
ib.
325
exoep
330
void dispositions
Mortmain and
c. 36, ib.
Mortmain and Charitable Uses Act, 1891,
under the Acts, 336. Void alienations of advow-
fraud of credHors
Perpetuities,
ib.
void, ib.
385.
329.
its effect,
what are
ih.
ib.
its applications,
definition, &c.,
stat.
of-
Alienations in
338.
titles,
effect of
the statute,
27 Eliz.
c. 4,
marital rights,
ib.
340
Alienations
effect of the
Alienations
341.
CHAPTER
III.
I.
Forms of Conveyances.
Sub-sect.
Classification, 343.
lease,
346
effect of
Sub-sect. 2.
Special
modes
of conveyances
of,
369.
lord, ib.
Entry on court
Digitized
Land
ib.
by Microsoft
XVU
CONTENTS.
Sub-seot.
3.
Forms
of conveyances
Conveyances of equitable
Words
378
Interests,
Trusts by
trust, ib.
estates, 375.
Sect. II.
and
upon
estate for
380
life,
of limitation
fee tail,
377
of legal
ih.
estates in
limitations in joint
of equitable estates,
Con-
ib.
CHAPTER
IV.
ALIENATION BY WILL.
385409.
and codicil, ib. testamentary
and statutory extensions, ib. Formalities, 387
alterations or interlineations, 388
Operasignature, ib. ; witnesses, 389.
tion of wills
office of
as to real estate, 390 as to personal estate, 391
executor, ib.
proof of will, 392
powers of executor over personalty, 393
common
alienation at
Definitioos of will
law,
how
it
gift,
395
general
rules,
397
ib.
Con-
operative words,
words of
ib.
gifts by implication, 399
words of limitation, 402 devise without words of limitation, 403
estate tail, 404
rule in Wild's case, ib.
Vesting, lapse, and
ademption of testamentary gifts when gift vests, 405 ; lapse, ib. ; exceptions to general rule as to, ib.; ademption, 406.
Revocation of
398
description, 401
wills, 408.
CHAPTER
V.
classes
of,
410.
vesting
Transfers by
ib.
elegit,
ib.
411
charges
Judicature Act,
1864,
ib.
Digitized
by Microsoft
XVUl
CONTENTS.
OHAPTEE,
VI.
SUCCESSION ON INTESTACY.
415426.
Sect.
Descent
tates'
I.
Heir-at-law, 417.
Sect.
II.
Distribution of residue,
ib.
estate of married
rules of succession
of
ib.
father,
CHAPTER
VII.
I.
Restrictions on
common law
and by analogous
rights, 427.
ib.
ib.
Dower
at
common
law, 436.
Dower
Dower under
dower, 438.
of dower, 440.
II.
present law
Dower Act,
!h.
ib.
Digitized
by Microsoft
limitations to bat-
1833, 439.
Freebench
Recovery
in copyholds
XIX
CONTENTS.
CHAPTER
VIII.
Sect.
Statutes ov Limitation.
I.
Periods of limitation
operation, ib.
446
base
fees, ib.
to
action
estates
as
to advowsons,
ib.
450
ib.
their
in
by mortgagee,
ib.
as
ih.
estates
equitable claims
equities of redemption,
tail,
and
449 ;
Sect.
Prescription at
of
common
common, 453
II.
as
to
Prescription.
The
law, 452.
ways
as to rights
as to
454
access,
CHAPTER
IX.
statutes, 456.
property divisible
Powers
charge of bankrupt,
among
creditors, 458.
ib.
Bankrupt's
Disclaimer
Dis
ib.
CHAPTER
X.
FORFEITURE.
464466.
Definition
464.
of,
Causes
of, ib.
Former causes
CHAPTER
of,
465.
XI.
ESCHEAT.
467469.
Definition
of,
467.
holds, ib.
escheat, 468.
Rights of Crown,
of equitable
Digitized
by Microsoft
Escheat of copy-
Former causes
of
XX
CONTENTS.
I.
470.
ib.
under
CHAPTEE
II.
MARRIED WOMEN.
472484.
Division of subject, 472.
estate
by
will, ih.
474
of land,
mode
of disposition
Act,
ib.
real
476
exercise of powers,
mittance
to,
&c., ib.
Land Acts,
;
ib.
inter vivos,
ib.
statutes
ib.
Married
ib.
alienation of chattels
appointment of attorney,
purchase of land,
copyholds, ad-
statutes of limitation,
alienation
ib.
of, ib.
and
pre-
under Settled
ib.
underAgricultural Holdings
will of personalty
restraint on anticipation,
liability of
modern
ib.
scription, 477.
478
Land
of,
1870, 480
Married
CHAPTER
III.
INFANTS.
485491.
Ab'enation by,
its effect in
powers, 486.
of,
Purchase by infant,
general, 485
ib.
exceptions,
Contract
No
Appointments under
as to land,
ib.
land, ib.
ih.
of,
No
Digitized
Position
Conv. and
Settled
Land Acts,
ib.
by Microsoft
CONTENTS.
OHAPTEE,
xxi
IV.
Estate
of,
Bankruptcy of
ib.
lunatic, 494.
CHAPTER
V.
FELONS.
495496.
prior
Disabilities of
may make
Act
to the
will, ib.
of 1870, 495
ib.
Felon
curator
CHAPTER
ib.
of, ib.
VI.
CORPORATIONS.
497500.
Definitions
498.
aggregate and
sole,
497.
Acquisition of land by
Creation
mortmain,
of, ib.
ib.
Contracts
of,
how made,
Limitations in conveyances
to,
500.
Alienation?,
by, ib.
INDEX
....
Digitized
by Microsoft
501
Digitized
by Microsoft
v.
Ashburner
Middletoii, 398
Adams
Agar
Ashworth
v.
Petvin, 400
v.
V. Mioklethwail, 173
Aston V. Aston, 69
Atkins V. Shephard, Re Shephard, 259,
263
Atkinson, Re, 160, 182
Atkinson v. Baker, 42
Att.-Gen. V. Doughty, 298
Airey
Mann, 336
Astley
Savage, 148
v.
a.
Maguire, 407
v.
Aspinall
y.
Ash worth
Bower, 407
Att.-Gen.
v.
Duke
Aldous
Att.-Gen.
v.
Att.-Gen.
v.
Mitchell, 262
Att.-Gen.
v.
Morgan, 8j
Att.-Gen.
u.
Sittingbounie,
Comwell, 364
V.
of Marlborough, 69
Att.-Gen. v. Tomline, 30
Allen
V.
Att.-Gen.
v.
Allen
V.
Attree
Hawe, 337
Allen
V.
Allison
Amea
Att.-Gen.
Bewsey, 173
Jackson, 331
Taylor, 302
V.
v.
Ancaster
Frisby,
Re
v.
Audsley
450
Auworth
Aveline
Aynsley
Armstrong, Re,
Armstrong, Re,
Ex p.
Ex p.
Horn, 404
v.
Corporation of Oldham,
Johnsjn, 90
Whisson, 362
Newman, Re Cartwright, 66
Avis
V.
V.
Eeid, 479
v.
Jenkins, 331
Glover, 452
Badgbk
v.
Ford, 30
Baggett
V.
Meux, 478
Bagot, 124
Boyd, 481
Bagot
Gilchrist, 481
V.
Appleyard, 455
Arnold
v.
Dixon, 491
Bailey
v.
Arthur
v.
Lamb, 158
Bailey
v.
Badham, 285
Bailey
Ekins, 243
Ashcroft, Re,
Ex p.
Todd, 460
Digitized
464
V.
v.
Andrew v. Aitken, 98
Andrew v. Andrew, 400
Andrew v. Cooper, Re BowJen, 449
Anglo-Italian Bank v. Davies, 258
Axford
Ayerst
Cliandlers' Co.,
53
52,
Wax
v.
v.
Austerberry
Cadogan, 398
v. Mayer, 225, 396
Ry.
Upton, 262
v.
Attwater
Frisby,
&o.,
250
Co.,
by Microsoft
XXIV
Bailey
Baker
Baker
Andrews, 198
Hobson, 158
Biggs
Trehame, 160
v.
Baillie v.
Sebright, 124
White, 172, 173,' 185, 391
CuUimore, 110
V.
v.
Birch-Wolfe
v.
Bird
Ball V.
Baiikes
v.
Banner
v.
Berridge, 448
V. Wenn, 239
Birkbeck Freehold Land Society, Exp.
Bird
v.
Teal, 108
Barnes
v.
Dowling, 66
Wood, 474
Barrow v. Isaacs and
Barnes
Bishop, Exp.,
Bishop
v.
V.
Me
Tonnies, 460
Howard, 90
245
Bass V. Gregory, 298
Bassett v. Bassett, 135
Bassett v. Noswortliy, 184
Batchelor, Me, 472
Bate, Me, Bate v. Bate, 397
Black
Bateman
Blake
Mxp.
V. Jobling, 409
Blackborough v, Davis, 426
Blackburn v. Stables, 135
Blackburn and District Benefit Building
Bartlett v. Bees,
v.
Batten, Me,
Milne, 365
a.
Bearpai'k v.
Bliss
v.
v.
Tasker, 482
v.
302
Atlee,
Me Thompson, 337
Holtby, 126
V.
Bennett
Reeve, 290
v.
Benson
Berens
Chester, 292
v.
v.
Berridge
Berrington
Berry
v.
v, Scott,
128
v. Besley,
Bessey
v.
315
Windham, 338
Bickerton
Biokley
v,
v.
of
Strathmore
v.
Berry, 185
Besley
v.
Bowles
Ward, 384
v.
V.
Boddington
Boddington
v. Teal,
In b., 409
2n 6., 389
Collins, 274
Beckett
Beddington
Banbury, 180
v.
Blewitt,
Beckett
Bedford
v.
Blackley,
v.
Baynton
Baynton
Beardman
Ex p. Graham, 279
Fysh, 151
Society, Me,
Blackman
Cartwright,
Grubb, 304
Barlow
v.
325
364
Barkshire
v.
Higginson, 290
V.
AValker, 246
Biekley, 419
Digitized
Boyes
Brace
Cook, 407
Duchess of Marlborough, 237
Bracebridge v. Cook, 430
Bradbury i>. Wright, 271, 277
Bradford Banking Go. v. Briggs, 238
v.
v.
Bradley
v.
by Microsoft
v.
V.
Carne
Warde, 141
Mutual Investment
Co.
v.
v.
Carr
v.
Atkinson, 215
Company, 201
Cartwright Be, Avis e. Newman, 06
Casborne v. Scarfe, 224, 225
Cattley
Badley, 336
V.
Carr
Smart, 266
Brook
Long, 327
v.
Lambert, 295
Carritt v. Real and Personal Advance-
V.
British
Arnold, 31
v.
Cave V. Cave, 9
Cavendish v. Cavendish, 337
Cecil V. Langdon, 188
Chadwick v. Doleman, 215
Me,
Challoner
Murhall, 63
v.
Chamber Colliery
v.
Poote, 453
Chambers
v.
Lefever, 298
Bryant
Bryant
Armitage, 302
of) v.
Clowser, 304
V.
Bridger
Briggs
Cardigan (Earl
Co.
r.
Kingham, 181
v.
Chandler
v.
Chapman
v.
Buckmaster
Cheeseman
Bull
Charlton
Buckmaster, 486
Pritchard, 134
V.
v.
Cheese
Howell, 337
Gatcombe, 284
Att.-Gen., 262
v.
Lovejoy, 409
v.
v.
Hardham, 291
Chester
v. Chester,
Baylie, 323
Bullock
V.
Dommitt, 95
Child
Bulmer
v.
Hunter, 339
Chilton
0.
Corporation of London,
V.
In
Christian,
389
v. Wheate, 468
Burnaby's Settled Estates, Me, 180
Burridge v. Bradyl, 440
Bursill V. Tanner,
Chubb
Burgess
Arnold,
V.
482
Me
Jeffery,
V. Butler,
Byram
Tull,
v.
Stretch, 479
(>.
v.
Martin, 334
Churchill (Lord),
In
re,
Manisty
Churchill, 268
Hughes
v.
Ander-
Clare
v.
Lamb, 316
Clark (James), In
430
son,
b.,
Ovington, 483
v.
Gburcher
402
Christie
489
Mc Dixon, 168
Clark
V.
re,
388
Cogge, 302
Clarke
v.
Clarke
v.
494
Cahill V. Cahill, 474
Caine, Me, 474
Caldecott v. Brown, 70
Clarke
r. Willott,
Caldwell
Gadell
v.
Ex p.,
Cahen,
v.
Fellowes, 160
Camden (Marquis)
Campbell
Campbell
Candy
v.
Capron
v.
v.
2'.ll,
497
Burt
336
Murray, 490
Clarkson
v.
Clements
Clifford V.
v.
Henderson, 234
Lambert, 293
Koe, 404
v.
Holyland, 245
v.
Leach, 216
Cloves
Campbell, 400
Capron 272
V.
Awdry, 398
Digitized
by Microsoft
88
x.wi
In re, 201
Gorham, 301
Coward and Adam's Purchase, Ee, 433
Cock, ^e,
Exp.
Gockbum
v.
Cousins,
Coutts
Shikon, 461
Edwards, 243
Codling
Cogan
Cohen
Cowley (Earl)
Johnson, 303
V,
V.
Stephens, 198
v.
Mitchell, 458
Cox
Cox
Cole V. Green, 68
Cole
V.
McBean,
Collier V.
V.
Bennett, 408
V.
Higford, 465
Crawford
v.
Crawford
v.
Crawshaw
383
48,
v.
V.
Forshaw, 211
Newton, 95
Crawshaw, 405
v.
CoUingwood
Croom,
Collier v. Walters,
48
v.
Stanhope, 215
Colman
Duke
v.
Colston
Golyer
Penhall, 339
v.
In
Roberts,
V.
re Fleck, 226
Commissioners of Sewers
v.
Glasse,
291
Constable
v.
Constable, 272
Cutting
Ex p.
Dalton
v.
v.
New, 65
V.
Cartwright, 265
Eichardson, 100
London School
v.
Danby
v. Coutts, 367
D'Angibeau, Ee, 486
D'Arcy (Lord) v. Askwith, 68
Dashwood
Dashwood
v.
Ayles, 16
r,
Davenport
v.
Magniao, 67
The Queen, 103
v.
Royal National
Davies
v.
Davies, 66
Davies
v.
Earl of Dysart, 13
Davies
v. Sear,
302
Cottrell V. Cottrell, 87
Cottrell V.
V.
Damerell
Corven's Case, 14
Cottee
Derby, 272
V.
Hall, 459
V.
Cornish
Mansfield, 476,
Curtis V. Daniel, 8
Cooper, 218
V.
v.
191,
6.,
Cooper, Ee,
Cooper
476
Cooper, Ee, 458
Cooper
v.
480
In
Provincial
V.
483
Cuno, Ee, Mansfield
v.
Davies, 400
Hudson, 220
Crossley v. Elworthy, 339
Groughton's Trusts, Ee, 478
Gropton
Cross
Finch, 265
v.
England
Craw-
Colombine
Ee,
v.
Watkins, 311
Digitized
437
Dawson
Dawson
o.
v.
by Microsoft
Oliver-Maesey, 330
Small, 400
TABLE OF CASES
Day
Day
V.
V.
Day, 447
Woolwich Equitable Building
Society, 369
Deane, 218
v.
Doe
Doe
Doe
CITEL).
V,
Pearson, 54
Woodbridge, 104
Wrighte, 334
Dolphin V. Aylward, 340, 341
Dommett v. Bedford, 74
Dorin v. Dorin, 331
V.
V.
Dendy
Drake
104
v. Nicholl,
v.
Dickinson,
Be
Ord, 387
Digby
V. Irvine,
255
v.
Edmnndson,
Dillon V. Dillon, 74
v.
Drinkwater
v. Eatcliffe,
Drummond and
162
Davies' Contract,
Re,
480
Duberly v. Day, 430
Dudley (Lord) v. Lord Warde, 72
Dudley's (Countess of) Contract, 490
Dugdale, Be, Dagdale v. Dugdale, 3.!2
Dumpor's Case, 105
Dunn V. Flood, 193, 325
Dunn
178
Dimes
v.
252
Co.,
Dyer
369
Dixon, Be,
V. Green, 63
Durrant and Stoner, Be, 475
Dye . Dye, 373
Byram
v.
Eager
Turner, 110
428
v. Granville, 9,
30
Ey.
-ill)
Cheyne, 406
y.
Ecclesiastical Commissioners
Digitized
Furnivall,
v.
Eardley
Eocles
v.
Dyer, 196
v.
TuU, 168
v.
is.
E.
448
Co.,
Edwards
Edwards
v.
Fashion, 157
Tuck, 175
v.
Egerton
v.
Elibank
v.
Elliott V. Inoe,
492
Ellis V. Smith,
Ellis's Trusts,
362
Be, 478
Elwes V. Mawe, 9
Ely (Dean of) v. Bliss, 451
Emmanuel
College
v.
Evans, 223
v.
by Microsoft
Co.,-
Co., 8
h'e
XXVlll
Eyans, JUxp., 258
Gardiner
Ewer
Gardner
Garland
Hayden, 9
V.
Faieclough
v.
237, 322
151
u. Allen, 134,
Festing
In
Field,
b.,
Co.,
Fisher
parte Clothworkers'
V.
V.
Ford
Ford
V.
V.
Forrest
Gibbins
Smith, 162
Gleaves
Goldsmid, Me,
Goodchild
Peering, 13
Goodman
Goodall
Whiteway, 156
v.
Glegg,
Eyden, 428
v.
v.
Thomas, 455
De Pontes, 408
Higginson, 187
Ex
p. Taylor, 459
446
V. Skerratt,
Dougal, 474
V.
Mayor
v.
Goodright
of Saltash, 452
Cornish, 139
v.
Goodtitle d.
Hood
v.
Goodtitle d. Sweet
Patterson, 449
w.
o.
Gilchrist,
Bentley, 116
Forshaw
Co., 362
245
Dixon, 9
v.
Forster
w. Silkstone, &c.,
Gilbert
Wigg, 377
Flack V. Downing College, 208
Fleck, In re, Colston v. Roberts, 226
Fleming v. Buchanan, 397
Metcher v. Ashburner, 12, 175 490
Flight
Gartside
Gandy, 308
Giacometti
v.
Flight
v.
461
v.
Fisher
Mead, 391
389
Ex
Finley, Me,
v.
v.
Garth
v.
Sheldon, 899
Marshall, 227
Earrand
Courthope, 409
v.
v.
v.
Stokes, 382
Herring, 403
Foster
V.
Cook, 397
Goodtitle
Foster
v.
Crabb, 13
Foster
v.
Foster, 490
Foster
Mackinnon, 308
Be Esther Wil-
liams, 398
Fowke
V. Drayoott, 433,
474
Fox
V.
Frank
Muzeen,
v.
Franks
Eraser
Freeland
Frene
Erend
Me Wormald, 478
Bollans, 431,
v.
473
Mason, 34
v.
Pearson, 212
v.
Clement, 406
v.
Buckley, 315
Fry
V.
Fryer
325
Morland, 261
Bond, 348
FurnesB
v.
Gale
Gale, 179
v.
Digitized
v.
by Microsoft
AVhite, 153
Hawkins
198
V.
366
Hale
Haywood
Kemp u. Haynes, 88
Brunswick, &c., Building
re,
v.
Society, 53
Heath
Heath
Heath
v.
Crealock, 184
v.
Lewis, 331
v. Pugh, 445
Hedgeley, Be, 264, 479
Pew, 141
v.
Kemp, 213
v.
Haynes, In
Griffiths V.
XXIX
v.
Gledhill, 338
Henning
Burnett, 305
v.
Hensman
v.
Hall
V.
Henty
Wrey, 218
Hall
V.
Byron, 292
Herbert
Hall
V.
Herlakenden's Case, 10
Hall
Heward; 246
May, 191
Hall,
Hall-Dare
Hallet
Hallett
Hibbert
Furze, 248
V.
Hastings,
V.
v.
Fryer, 397
"Webster, 479
Hall-Dare, 60
v.
v.
Hickley
Be Lady Hast-
479
v.
Cooke, 70
v.
Strangways,
Be
Hampshire
ings,
v.
Wickens, 95
Holman, 141
Hill
Hampton
Hanaford
v.
Hanaford, 401
Hill
v.
v.
Glyn, 212
Harding, 251
Midgley
Hargveaves, Be,
v.
Tatley,
325
Harley v. King, 97
Harlock v. Ashberry, 445
Harris v. Barnes, 148
Harris v. De Pinna, 298
Harris v. Tubb, 340
Harrison, Be, 10, 125
v.
Forth, 185
Be
Hart,
v.
In
Harter
v.
re,
63
Colmau, 239
Hartshorn
v.
Harvey, In
Peek
v.
Savory, 325
v. Hastie, 179
Hastings (Lady), Be, Hallett
Hastie
v.
Eussell, 84
V.
Haywood, 258
Howe
ings,
Hatten
Hatton
124
Hotchkys, Be, 66
Watson, 348
re.
67, 68,
478
Little,
Wormsley, 226
336
Hobbs, Be, Hobbs v. Wade, 443
Hockley v. Mawbey, 215
Hodges V. Hodges, 478
Hodson and Howe's Contract, Be, 244
Hollins V. Verney, 455
HoUoway v. Eadclifife, 175
Holmes v. Coghill, 397
Holmes V. Goring, 305
Holmes v. Penney, 333
Holyland v. Lewin, 406
Home's Settled Estate; In re, 183
V.
Harrison
Barclay, 465
V.
Harding
Harding
Strang-
ways, 78
v.
Hast-
479
Digitized
V. Lichfield,
by Microsoft
263
XXX
.Johnson
v.
Hudson
Hudson
Hughes
Johnson
v.
V.
Cook, 252
V.
Eevett, 364
V.
Anderson,
Trusts, 430
Jones
V.
Jones
V.
Harber, 459
Jones
V.
Ogle, 272
Jones
V.
Robin, 291
Jones
V. "Watts,
Jordan
Church Commissioners
v.
Grant,
451
Jn
.Jupp
re,
v.
Kelsey
v.
Kershaw, Jn
226, 252
v.
Jackson, 157
Jacobs
V.
Jagger
Seward, 158
Jagger, 328
v.
V. Bailey,
Kettlewell
v.
re,
298
Drake
Kinderley
King
V.
v. Jervis,
266
Smith, 227
v.
v. Trollope,
v.
Dean, 44
James, 244
Kinnaird
.James
Kinsman
v.
James
James
v.
Kerr, 234
v.
Shrimpton, 409
Be, Burt
Jeffery,
v.
Arnold, 489
Kershaw,
"Watson, 236
.James
482
v.
.Jay V. Robinson,
490
Kelsey, 279
v.
Keppell
Jackson
Bnckwell, 169
v.
Oxley, 304
V.
Ivie V. Ivie, 13
314
Adams, 403
v.
Kelland
Davies, 429
IvAV
Cook, 377
v.
482, 491
Keech
Idle
Baker, 315
Exp.,
Jones,
Mekin, 175
V.
480
434,
Butler's
7?c
246
v.
Turner, 331
Jesson
V.
Jessop
V.
Wiight, 403
"Watson, 426
V.
v.
Lake
Lake
v.
Briggs, 454
Craddock, 157
v. Gibson, 251
Lambert, Be, Stanton ?'. Lambert,
Rogers, 13
Lampet's Case, 142, 147
v.
Potton, 158
.Johnson
Laird
Lambert
Job
Arnold, 175
Digitized
by Microsoft
43'i
XXXI
53,
327
v. Collier,
V.
Laslimar, Be,
Latham
Lavery v.
Lawrence
Lawton
Lawton
Leach
Leach
Drake, 92
London (Mayor
Puroell, 10
v.
v.
Lawton, 72
v.
Ward, 303
v.
Thomas, 90
Luke
Lyell
Legh
Leigh
Leigh
Jie,
Lekeux
Dolland, 157
Machu, Be,
Mackay
159
v,
Leigh, 486
Douglas, 339
v.
Nash, 97
v.
Edwards, 199
v,
v.
Maberi.ey, Be, 85
V. Diokesorj,
Leigh,
Lyster
V.
Kennedy, 443
Lysaght
MiUs, 272
V.
Co., 191
245
V. Fisher,
Leftly
v.
V.
Hudson, 273
Leathes, 13
v.
v.
Kensington Hotel
So.
V.
Lushington
481
Kobinson, 326
v.
Leathes
Pewterers' Co.,
Holmwood, 92
v.
of) v.
455
Lowndes, Be, 460
Hitch, 452
v. Driffield,
Leake
Penfold, 468
v.
v.
Leader
Leak
Moody
Attwood, 71
v.
Lempri^re, 482
Lemage
Symmons,
v. Goodban, 408
Lemaitre v. Davis, 298
Lempri^re v. Lange, 487
Mackreth
Le Neve
Lester
Letts
Lewis
Lewis
Liddy
Le Neve,
v.
200, 320
374
Hutohins, 248
Madocks, 179
V.
Kennedy, 103
Lidiard and Jackson's and Broadley's
Contract, Be, 444
V.
Liggins
V.
337
Lisburne (Earl
Lloyd's
of)
of) v.
p.
Wolferstan,
v.
Jones, 236,
v.
Hardy, 246
Parker, 232
v.
238
v.
Bogle,
479
Mannox
Spooner, 269
v.
v.
Greener, 404
v.
Mansfield,
Be Cuno,
476,
480
March, Be, Mander v. Harris, 168,
169
Margary v. Robinson, 389
Marlborough's (Duke of) Estates, Be,
85
Digitized
Be Lord Church-
Mansfield
v.
Churchill,
v.
268
Mannmg
Davies, 295
322
Lockhart
Locking
169
Mandeville's Case, 378
ill,
Banking Co,
v.
Manisty
Inge, 305
(Bishop
Lincoln
of)
Eees, 841
V.
251, 252
Knotts, 366
v. Foxcroft,
V.
v.
by Microsoft
xxxu
Morgan
Marshal
v.
Gingell, 185
Morley
Marshall
v.
Green, 10
Marshall
v.
HoUoway, 329
Marshall
v.
Shrewsbury, 248
Swansea Urban
v.
v.
Martin
v.
Knowllys, 158
Martin
v.
Smith, 90
Muggleton
Martinson
v.
Clowes, 243
Mulliner
v.
Barnett, 25
Midland Ey. Co., 500
v.
v.
Society
v.
Catterson, 301
Naikh
v.
Marjoribanka, 70
Miles
V. Jarvis,
Miles
V. Miles,
151
&
E. Co. v. Mowatt,
V.
Gammage, 424
v.
398
Neill V.
Duke
Neve
Pennell, 238
V.
of Devonshire, 289
Minifie v. Banger, 16
Nevil's Case, 40
MinshuU v. Oakes, 97
Moase v. White, 402
Newcastle
v.
Moltou
Newson
Pender, 303
V.
Newbold
Camroux, 492
Moor
Moor
V.
V.
Barham, 426
Denn, 16
Smith, 450
v.
w.
Vane, 125
Nicol
Noel
England
Mines, case
of
186
Bank
National Provincial
313
Mill's Trusts, Be,
Co. v.
Donald, 305
408
Haven E.
v.
Metcalfe, 332
Milford
v.
Sanitai-y
Authority, 483
434
V. Nicol,
V.
AVard, 13
Maconachie,
331
Digitized
(Duke
of)
Case, 323
Butler, 53
OocLESTON
V.
FuUalove, 331
Gland's Case, 71
by Microsoft
XXXlll
Olivant
Phillips V.
Owen, Ee, 89
Phillips V. Phillips,
437
Pidgley
Rawling, 68
v.
Pike
Fitzgibbon, 479
V.
Leapingwell, 336
v.
Phillips V. Smith, 68
Pinhorn
Page
Paget
Pitt
V.
Jackson, 216
Pitt
V.
Jones, 162
Marshall, 308
Gurney, 481
Fletcher, 301
Palliser v.
Palmer
Palmer
Palmer
Palmer
Palmer
v.
v.
Hendry, 246
v.
Holford, 327
v.
Johnson, 315
Parish
v.
Parker
v.
V.
In Ee, Wignall
Parker,
Tovey, 97
v.
Mendel, 245
Plowden v. Gayford, Ee Onslow, 435
Plowden v. Hyde, 225
Plumstead Board of Works v. British
Land Co., 384
Piatt
Locke, 220
v.
186
Souster, 110
v.
314
Phillips V. Caldcleugh,
"Wright, 377
v.
v.
In
Pople,
Park, 337
89
re,
Lamb, Ee,
Portal and
9,
387
Porter
Peachy
v.
Peacock
v.
v.
De
Quetteville,
Powell
Poulett (Eari)
Powys
Pratt
v.
Hood, 316
Harvey, 337
Morris, 225
Price
Moseley, 326
Price V.
Pedder
r.
Hunt, 444
V.
Worwood, 104
Proudfoot
Proudley
V.
Hart, 95
Fielder,
v.
Prytheroh, In
re,
240
Pumfrey, Ee, 251
Perryman's Case, 38
Petchell, In b., 408
Peters v. Lewes and East Grinstead
Pyer
v.
V.
Pybus
V.
Mitford, 380
v. Carter,
QniLTEE
V.
301, 302
Mapleson, 106
Co.,
Digitized
432
Prytherch
liams,
Petty
480
Price, 312
Petre
38
327
Petre, 448
Styward, 157
v.
Blagrave, 66
V.
V.
v. Hill, 30,
v.
Ey.
Porter
Howells, 401
V.
v.
v.
re.
215
Pearce
Pearks
Perrin
In
Porter's Settlement,
R.
V. Chorley,
R.
V.
Corbett,
by Microsoft
304
204
v.
Wil-
XXXIV
R.
V.
Garland, 391
K.
V.
Inhabitants of Aylesford, 25
R.
V. Jolliffe,
E.
V.
453
Lord of Manor of Hendon, 372
Lord of Manorof Oundle, 147, 208
R.
u.
JR. V.
Roe
Roe
Roe
d.
d.
V.
488
Roe
Siddons, 304
V.
Rogers,
Ex p.,
320
E. V. Wilson, 204
Radnor's (Earl of) Will Trusts, Be, 81
Ralph V. Carrick, 399
Rolt
V.
Hopkinson, 238
Rolt
V.
Lord Somerville, 69
Rosher, In
Reid
Reid
V.
v.
Rhodes
v.
Rice
Rice, 322
V.
Richards
Roper
Roper, 440
V.
Rosher
Reilly v. Booth, 9
Eenals
Rosher
v.
Rosher, Zoi,
332
r.
13
Be,,
424
Rouse's Case, 44
Rowe V. Gray, 162
Rowland
Cowlishaw, 53
Rhodes, 398
Williams, 340
v.
Ross's Trusts,
Russel
v.
Cuthbertson, 439
Enssel, 232
V.
h.,
408
Exp., 339
Richards, 135
Russell,
Russell
V.
Chell,
RusseU
V.
V.
Watts, 301
v.
Tramways
Co.,
383
Russell
Richardson
v.
Feary, 162
Ryall
Richardson
Richardson
v.
Harrison, 383
v.
Eyder
Younge, 449
Errington, 474
Richardson
Eiddell
Rider
v.
Eowles, 430
V.
AVood, 25
v.
v.
Wood, 25
v.
Ridge, Be, 80
Sackville-West
St.
v.
Salusbury
Sandford
293
Roberts
Trood, 218
v.
Robertson
Robertson
Hartopp, 292
v. Norris,
428
Robinson
v.
Robinson
Robinson
v.
v. Litton,
Robinson v.
Robinson v.
Robinson v. Robinson, 403
Robinson v. Wheelwright, 478
Roe d, Bendale v. Summeiset, 399
Digitized
v.
Denton, 212
V.
Holmesdale, 179
Saltern v. Saltern, 73
v.
Roach
408
v. Ballard,
158
V.
Hargreaves, 292
Scott
V.
Scott
V.
Ex p.,
63
Hanbury, 486
Nixon, 444
Rape, 304
V.
Widows' Fund
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279
XXXV
v.
Knight, 124
Searle
v.
Seaward
Cooke, 279
WiUoook, 141
Seely v. Jago, 175
Sefton (Lord) . Lord Salisbury, 465
Selliok V. Trevor, 314
Selwyn v. Garfit, 242
Senhouse v. Christian, 303
Serff w. Acton Local Board, 302
Seton V. Slade, 224
Shakspear, Me, 481
Shalloross v. Finden, 265
Sharpnell v. Blake, 248
Shaw V. Ford, 331
Shaw V. Foster, 232
Shelley's Case, 173, 378
Shepard v. Jones, 235
Shephard, In re, Atkins v. Shephard,
259, 263
Shopland v. Rycier, 111
.
Shrewsbury's {Countess
Shurmer
of)
Spyer
Mayer, 9
v.
Stafford v. Stafford,
130
Be
Price,
Stansfield, Be,
Stanstield v.
406
Habergham, 53
Be Lambert, 436
Stanton
v.
Stead
V.
Hardaker, 397
Stead
V. Mellor,
Stedman
Steed
V.
Lambert,
178
Smith, 158
Preece, 491
v.
Stevenson
v.
Lambard, 275
Stevenson
v.
Mayor
of Liverpool, 185,
394
Be
Slockley
v.
Shuttleworth
Stogden
v.
Silk
V.
Simmons
Simpson
Simpson
Simpson
v.
v.
Norton, 68, 69
Dendy, 384
Hartopp, 273
v.
Simpson, 115
v.
v.
Strarjgways, Be,
v.
Strathmore (Earl
Tranter, 476
v.
Bowes,
t).
Vane, Be Bowes,
438
Stukeley v. Butler, 10
v.
Sturgis
Eoper, 476
488
Smith (Mary), Be, 158, 494
Smith V. Adkins, 213
Smith V. Claxton, 198
Smith V. Cowell, 259
Smith V. Eggington, 117
Smith V. Lucas, 478
Smith V. Matthews, 433
Smith V. Morgan, 267
Smith V. Odling, 245
V. Carter,
Champneys, 433
Lord St. Leonards, 409
v. Wharton, 436, 481
V.
Sugden
Surman
v.
Pakin, 397
Surtees
v.
Sury
Pigot, 301
V.
Sutton
Swain
V.
V.
Sutton, 450
Swan
V. Swan, 159
Swansborough v. Coventry, 302
Swansea Bank, v. Thomas, 273
Swansea (Mayor of) c. Thomas,
274
Sweeting v. Prideaux, 400
Symons v. Leaker, 454
V.
of)
Streatfield v. Streatfield,
Soper
Strang-
97
Smyth
of)
v.
97, 341
Northcote, 405
Somerset (Duke
Parsons, 435
Hickley
Smart
Parsons,
Skingley, Be, 66
Skrymsher
480
Case, 109
Sedgwick, 340
v. Le Fleming, 292
Prime, 264, 268
Hyatt, 439
v.
Squier
68
of) v.
Talbot
v. Jevers,
328, 329
Taltarum's Case, 56
Arnold, 315
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117,
XXXVl
Maconachie,
Treloar
Bigge, 101
v.
Trower
265
Tapling
Traiibrdj).
Be
Knightley, 219
v.
Agency Company
Trustees' and
v.
5c Moore, 331
v.
Short, 444
Tulk
Moxhay,
V.
53,
98
Goldsmith, 459
Turner, In
Taylor
v.
Taylor
v.
Meads, 431
Mostyn, 235, 245
Taylor
v.
Poncia, 183
Taylor
v. Russell,
Taylor
v.
Schura, 97
Tweedale
Taylor
v.
Twyman
Turner
v.
b.,
409
Wiight, 53
236
v.
v.
Tweedale, 238
Prickard, 117
Tyson
Undeehiij.
Uvedall
v. Silva,
Contract,
Be, 478
Cooper, 402
&
v.
ToUemache, 67
Tomkins
v. Jones, 16
Tomlin v. Luce, 243
Tooker v. Annesley, 67
Topham
v.
Towerson
Duke
v.
Vint
Von
V.
Padget, 238
Wade
v.
of Portland,
Wilson, 244
v.
Heyl, 483
Wait,i?e, 398
Ashcroft, 460
Todd, Exp.,
Toftw. Stephenson, 450
ToUemache
Wainford
Uvedall, 123
291
Titterton
v.
218
Jackson, 228
Digitized
Warden, In
Ware
b.,
389
490
v. Polhil'l,
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Eudall, 66
v.
v.
Wilkinson
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Willook
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V.
Williams
Symes, 238
Weatherall v. Thornhurgh, 328
Wehb 0. Bird, 298
Webb V. Russell, 130
Webster v. Overseers of Ashton-underLyne, 355
Webster v. Webster, 405
V.
Wedgwood
XXX VI
Denton, 408
Joberns, 162
(Esther),
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Williams
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v.
Duke
Williams
Williams
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v.
Williams
Williams
Williams
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Owen, 223
v. Pott,
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v.
v.
Williamson
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Wellesley
Willingdale
v.
Wellesley, 124
v.
Wells,
387
Foulkes
o.
of Bolton, 124
447
Walker, 474
Re,
Williams, 398
Williams, 268
Farwell, 215
Maitland, 291
Willion
V.
Berkley, 40
Wilson
V.
Duguid, 212
Wells
West
V. Kilpin,
258
Dobb, 97, 98
V.
v-
243
West of England,
&c..
Bank
v.
Murch,
188
Westhead
v. Riley, 259
Wheatley, Be, 478
Wheeldon v. Burrows, 301, 302
Wheelwright v. Walker, 83, 113
Whistler, Be, 393
Whitaker, Be, 482
Whitby V. Mitchell, 140
White V. City of London Brewery
235
Whitfield
Bewit, 123
Loomes, 364
Whitlock's Case, 271
Whittaker, Be, 432
Whiting
'dH'-'i
Wykham
v.
Wykham,
185
V.
to
Henning, 475
Wigan V. Roland, 390
Wigglesworth v. Dallison, 94
Wignall V. Park, In re Parker, 337
Wild's Case (Rep. pt. 6), 404
Whittle
Co.,
V.
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Xenos
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Wickham,
208, 362
YELLowLr
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York V. Stone, 160
York Union Banking Co.
Young V. Spencer, 68
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V.
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Astley, 244
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1539
1540
xl
A.O.
1705
xli
xlii
1833
&
4 Will.
1837
xliii
xliv
1844
1851
xlv
xlvi
1859
22
&
23 Vict.
28
c.
(Exoneration of executors)
96, 274,
30
s.
31
(Trustees,
application
195
Court).
23
& 24
(Indemnity of trustees)
s.
162, 296
256
105
150
wall)
C.98
....
(Limitation,
53
194
(Judgments)
c.
Partition, inclosure)
43
c.
1860
279
to
Duke
of Corn-
450
(Tithe commutation)
283, 286
260
c.
115
(Crown bonds)
c.
126
(Lease,
from
relief
for-
105
feiture)
c.
145 (a)
c.
62
(Limitation,
c.
114
134
242, 488
1861
24
& 25
Vict.
c.
1862
1864
25
27
& 26 Vict. c.
53
c.
67
u.
89
c.
108
c.
44
c.
112
c.
114
c.
15
c.
99
104
& 28
Vict.
(Wills)
....
Crown
(Bankruptcy)
(Land
(Land
register)
titles)
450
387
456
315
315
(Joint-stock companies)
497, 500
194
433
(Protection order)
(Judgments, order
suits)
for sale)
(Improvement of land)
(Crown debts)
260
176
260
296
287, 413
1865
28
&
29 Vict.
c.
1866
29
1867
30
& 30 Vict.
& 31 Vict.
(County courts)
(Crown debts)
(Metropolitan commons)
c.
122
c.
47
c.
69
c.
131
c.
142
(Lites pendentes)
(Mortgage debts)
(Contracts of companies)
(Courts baron county
.
31
&
32 Vict.
c.
40
1869
32
&
33 Vict.
c.
46
(6)
c.
71
176
u.
23
(Partition)
(Commons)
283, 296
abolished)
',,
\l870
33 Vict. c. 14
33 & 34 Vict.
(Bankruptcy)
(Naturalisation)
&e., abolition)
(a)
(J)
34
(Charities)
Commonly
Commonly
Digitized
208
456
465, 470
c.
498
courts)
1868
312
226, 251
called
called
by Microsoft
496
499
1870
xlvii
xlviii
1877
40
& 41 Vict.
16
18,s.
s.
34
s.
36
(Sales)
ss. 23,
24
(Parties)
- -i37,
76
76
12, 77,
113
(Investment of purchase-
money)
77
12,
....
(Restrictions on powers)
.
46
(Leases)
49
(Infants, lunatics)
76
440
s.
50
(Married women)
s.
57
489, 493
474
76
c.
31
(Date of settlement)
(Land improvement, water
c.
33
(Contingent Remainders
34
Act)
(Mortgage debts, charges).
(Tithe commutation)
137
c.
(Legacy duty)
(Ground Gtame Act, 1880)
(Customs and Inland Revenue Act, 1881)
(Legacy duty)
394
292
70
supply)
1878
1880
1881
41
&
....
42
42 Vict,
43 Vict. c. 14
43 & 44 Vict. 0.47
44 Vict.
c.
12
226, 251
283,
393
394
261
ss.
33-35
ss. 36,
44
& 45
Vict,
u.
41
(Succession duty)
41
(Meanings of terms)
(a), s. 2
286
4, 174,
372,
221, 318,
487
199
s.
(Conditions of sale)
s.
(Contract of sale)
s.
(Discharge of incum-
s.
(General words)
294, 368
s.
(Covenants
s.
(Erecution of purchase-
s.
(Acknowledgment,
brances)
deed)
for title)
363
title
deeds)
ss.
10-12
322
314
13
(Title to leaseholds).
8.
14
s.
15
(Transfer of mortgage)
s.
16
(Inspection of deeds
s.
17
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18
(Mortgage.leasing powers)
229, 235
(Mortgagee's powers)
mortgagor)
gages)
s.
ss.
19-24
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249
by
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.
242
25
gage)
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(o)
26 29
Conveyancing and
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....
Law
by Microsoft
243, 248
xlix
A.D.
1881
44
&
45 Vict
41
30
'
(
ss.
31-34
mortgage estates)
(Trustees, new, retirement
.
of,
6,
361
ss.
35-38
compounding,
vivorship)
ss. 39,
sur-
on anticipation, power
attorney)
ss.
41-43
40
(Infants'
and
estates
sales,
of
.
leases
management.
476, 478
1
A.D.
1882
45
&
46 Vict.
c. 38, ss.
(Investment or application
21-24
of capital
money)
1-',
87, 102
ss.
25-30
33
ss. 32,
B.
34
s.
35
s.
3G
s.
37
ss.
38-44
45
46
s.
s.
s.
31
s.
(Conveyances, &c.)
(Money
in court)
(Lease, reversion)
(Timber)
(Improvements)
60,
.65,
78
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81,
(Trustees of settlement)
(Notice to trustees)
(Courts)
not
feiture)
79, 195
86
412
assignable
SB.
53,
54
against
.
85
83
prohibitions ineffectual,
provision
07
193, 194,
(Land Commissioners)
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83
85
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48
ss. 50-52
65, 86, 87
47
s.
for-
88
195
li
A.D.
1882
45
&
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75,
mar.
s.
13
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s.
18
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19
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s.
23
(Personal representative of
anticipation, &c.)
435
482
484
435, 482
A.D.
1888
liii
Digitized
by Microsoft
TABLE OF ABBREVIATIONS.
A.
Law
commencing 1891.
Council), series
A.&E.
Adolpbus and
Ellis's Reports,
1840.
Amb.
01'
Amos &
Ambl.
Anderson
App. Cas.
Ferard, Fixt.
Anderson's Reports,
Law
Reports,
Common
Pleas, 1534^1605.
-.
Austin, Jurisp.
B.
&
A. or B.
&
Aid.
Bench,
King's
1817-1822.
B.
&
Bai-newall and
C.
Cresswell's
Reports,
King's Bench,
1822-1830.
B.
&
or B.
S.
Bac. Abr.
&
Sm.
et seq.
7tb ed.
1832.
Bacon,
Law
Lord Bacon.
Mines and Minerals, 4th ed., by
Archibald Brown, 1878.
Ball and Beatty's Reports, Chancery (Ireland), 1807-
Tracts
Bainbridge
Ball
&
B.
Bainbridge's
of
Law
of
1814.
Barn.
Barn.
Beav.
Bing.
Bing. N. C.
Bl.
Comm.
Sir
W.
England, 1st
Bligh
Bob.
& Pul.
Bourdin,
Bracton
Land Tax
Laws
of
ed. 1765.
House
of Lords, 1819-1821.
Bosanquet and Puller's Reports, Common Pleas, Exchequer Chamber, and House of Lords, 1796-1807.
Bourdin's Exposition of the Land Tax, 3rd ed. 1885.
Bracton de Legibus Anglise (temp. Hen. HI.).
Digitized
by Microsoft
..
TABLE OF ABBREVIATIONS.
Ivi
& Wife
Bro. C. C.
Bro. P. C.
Bright, Hnsb.
Brown, Fixt.
Broom, Legal Maxims
Burr
Burton
Burton's Elementary
Compendium
of the
Law
of Real
Property, 1828.
Bjth. Conv.
& P.
C.
or Car.
& P.
Bench,
Common
Pleas,
1841.
C.
C. B. N. S.
Common Bench
Common Bench
Reports,
Reports,
C.J
Chief Justice.
C. L. P. Act, 1852
Common Law
C.M.&R.orCr.M.&E.
C. P. D.
Law
Chance, Pow.
See Talb.
Ch. Ca.
Law
Ch. D.
&F.or
CI.
& Fin.
Co. Cop.
Coke, Inst.
Laws
of England,
Co. Lit.
(being the
Laws
first
1628
19th
ed.,
1832,
Com. Big.
Cooke on Inclosures
Coote, Mortg.
Copinger
Cox
&
Munro
Cro. Car.
Cro. Eliz.
The
Laws of England.
W. Cooke, 4th
Inclosm-e Acts, by G.
James
Cruise
Laws
Darby
Pleas,
temp. Charles I.
Croke's Reports, temp. Elizabeth.
Cro. Jac.
Cur.
1884.
ed. 1864.
I.
of
England respecting
ed. 1835.
& Bosanquet
& P.
Dart, V.
Digitized
by Microsoft
TABLE OF ABBREVIATIONS.
Dav. CoDT. or Davidson,
Conv.
De
G. P.
& J.
or D. F.
De
ii.
4th ed.
voh
pt.
v.
vol.
i.
5th ed.
voh
1859-1862.
& J.
G.
vol.
G-ex, Fisher,
& JDe
Ivii
or D.
&
J.
De Gex and
1860.
De
G. J.
&
Sm.
&
De G. M.
G. or D.
De Gex,
De
M. & G.
De
&
G.
Appeals, 1851-1857.
S.
1S4G-1S52.
Dick
Dig
The Digest
Dougl.
Drew.
Drew.
&
Sm.
or Pandects of Justinian.
Law
of
1884.
Dru.
&
War. or Dr.
&
....
War.
Dyer
(Ireland),
1841-1843.
Dyer's Eeports in the King's Bench, 1513-1582, ed.
1794.
E.
&
B.
East
Eden
Ellis
....
....
& Ellis
or E.
& E.
Ellis
Elphinstone, Conv.
Elphinstone,
Interpre-
tation of Deeds
Elphinstone
&
1885.
Clark,
Law
Searches
Elton,
Commons
Elton's (C.
J.)
Treatise
on Commons
and Waste
Lands, 1867.
Elton, Cop.
....
Eq.
Eq. Oa. Abr.
Exch.
Ex. D.
Elton's
(C.
J.)
Law
of Copyholds
and Customary
Tenures, 1874.
Equity.
Law
Farwell, Pow.
Fearne, C. E.
Notes, 1844.
Digitized
by Microsoft
Iviii
Finch
Fisher, Jlortg.
Fi'eem.
Freem. Ch. B.
TABLE OF ABBKEVIATIONS.
TABLE OF ABBEEVIATIOXS.
K.
&
J.
TABLE OF ABBREVIATIONS.
Ix
&G.
& Gor.
Mac.
Mac.
in Chancery,
1849-
1851.
M. & G.
Maddock's Reports
Madd.
in
the Vice-Chaiicellor's
Court,
Common
Pleas,
1815-1822.
& Gran.
Man.
Marsden, Perp.
May
Treatise on Pei-petuities,
May
on the
tions,
Law
2nd
by E. G. Marsden, 1885.
and Fraudulent Aliena-
of Voluntary
ed. 1887.
Mer
Law
Miller's
& Malk.
Mood & Bob.
My. & Cr.
My. & K. or M. & K.
Mood.
Ord
1883.
Owen
P. D.
P. AVms.
Law
Ph. or Phil.
Piatt
Phillips'
Piatt's Treatise
Piatt on Covenants
Piatt's Treatise
Plowd.
Pollock, Contracts
Poph.
4tlied. 1885.
.
Prec. Ch.
Prest. Abstr.
Prest. Conv.
Price
Q. B. D.
Comm.
.
Kobson, Bankruptcy
EoUe, Abr.
Division, 1875-1890.
Euss
S. C.
&
s.
s.
Bench
Eob
Bob. Gav.
Reports, Queen's
Eep. R. P.
Law
Earn, Assets
Bep.
Same
case.
Simon and
1822-1826.
Salk
Sand., Uses
Digitized
by Microsoft
TABLE OF ABBREVIATIONS.
Sob.
&
Ixi
Lef.
1802-1806.
Scriv. Cop.
Ch.
Sel. Ca.
Seton on Decrees
Forms
Shep. Touch.
Sheppard's Touchstone of
Jac.
Sim.
I.),
Common
Assurances (temp.
1852.
&
Sm.
G.
in the Vice-Chancellors'
Courts, 1852-1857.
Sm.L.
C. or S. L. C.
Smith, L.
&
T.
Smith's
(J.
W.) Law
of Landlord
ed.
1882.
Smith, Merc.
Law
Smith's
(J.
W.) Compendium
of Mercantile
Law, 9th
ed. 1877.
Solicitors' Journal.
Soh-B. J.
Spence
Steph.
Comm.
Laws
of
England, 11th
ed. 1890.
Stra.
Sug. Pow.
Sugden (Lord
St.
8th
ed. 1861.
Sugden, E. P. Stats.
Sugden (Lord
St.
Leonards) on
the
Real Property
Statutes, 1862.
& P.
Sug. V.
Sugden (Lord
St.
Leonards) on VendorsandPurchasers.
Swanst.
T. R.
East),
King's Bench
1735-1800.
Talb. or Gas. temp.
Talb.
Common
Taunt.
Taunton's Reports,
Tothill
Tud. R. P. Gas.
Pleas, 1808-1819.
Tudor, R. P. Gas
Tudor, L. G. R. P.
The Law
Tyssen
of Charitable Bequests,
by A. D. Tyssen,
1888.
&B.
Vaughan
Vent.
V.
Vern.
Ves.
Ves. Sen.
Vin. Abr.
W.
W.
Bl.
N.
AVeekly Notes.
Digitized
by Microsoft
..
TABLE OF ABBEEVIATIONS.
Ixii
W.
Weekly
1!
Watk. CoDv.
Watk. Cop.
Watkins on Descents
Reporter,
Watkins's
185'2.
Conveyancing,
Willes's Reports,
Commons
Williams
(J.)
Common
on Eights of
The
Pleas, 1737-1758.
Common,
Williams, Seisin
Williams'
Wilm.
Wms.
1845.
Willes
Wils.
9tli ed.
Williams on
commenced
Pi-inciples of
(J.)
1880.
Exors.
trators,
Wms. P. P.
Wms. E. P.
Wms. Pauud.
or
Wms.
Law
of Executors
and Adminis-
Williams'
(J.)
Williams'
(.J.)
Saunders
Wolstenholme
ner,
&
Woodfrill
Tur-
Oonv.
.
1889.
Y.
&
0. Ex.
Y'ear-hook
The Year-books,
or Reports in
the reigns of
Yool on Waste
1834-1840.
Digitized
by Microsoft
Edward
THE
LAW
OF PROPERTY IN LAND.
INTRODUCTORY CHAPTER.
Law
Property.
of
The
Law
of Property,
in
sense of
a wide
law that
Definition,
things.
rights of persons
or over
in
As meaning
things.
this
Rights
of Property.
Rights
prescribed
'
rights
of ownership
'
and
respectively. (5)
(1)
Bights of Ownership.
'
by the
may be
rights inferior to
law Two
styled
ownership
'
'
is
A
Digitized
by Microsoft
classes of.
of property,'
rights
(i)
Ownership.
THE LAW OF
I'llOPERTY IN LAND.
the person
who has
he may
is,
think
provided
fit,
powers in this
his
mode
modes
or
of
power of disposing of
it
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owner-
An
person
owned
may
are
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have a right of property in the thing condurowner ; and, where this is the case, the
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Ownership
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for the
is
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given to
term of
his
INTEODUCTORY CHAPTER.
life.
present
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possession,
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possession
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future, it is
is
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his
possession
in
'
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called respectively
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right of property
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things personal.'
also
distinction
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(i)
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Wms.
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E. P. and AVme. P.
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passim.
passim.
(I) See the definitions of property in the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), s. 2; and the Conveyancing Act, 1882
and in the Bankruptcy Act, 1883 (46
(45 & 46 Vict. c. 39), s. 1
47 Vict.
For other meanings of the word, see Austin, Jurisp., 817-820.
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48, 49.
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INTRODUCTORY CHAPTER.
Roman
able
Law and
Civil
Mov-
things personal.
As will
of
that in general belong to one of these classes will, in particular circumstances, fall
The terms
real property
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and
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class.
personal property,'
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personal estate,'
realty
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'
things
the remedy for the recovery of land being called a
action, and the remedy for the loss of goods a
real
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'
personal
'
action. (g')
difference
of
now
ownership, or
'
is,
the executor
(o)
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and
as to the
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meaning
Distinctions
jgafand
personal,
tlii^^-s
interest
in
things
on the death,
real,
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passes
interest
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(s)
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will.(i!)
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(vi.)
as
probate dnty()
is
payable in
land, &c.,
immovable things belong to the first class, that class inThe distinctions that obtain in
cludes also some movables.
the modern law of property arise mainly (except as regards
succession on death) from the physical differences between
immovables and movables hence, the present classification
;
is
may be
to land, or, as it
may
land,
as are regulated
law of property.
In its treatment as such in the present
work, the distinctions which arise from the division of things
into real and personal will also be discussed.
Law
Subjects of
Enumeration
"^^
of Property in Iiand.
cipal
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Money
term.
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of
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and mortgage
estates, see
'
INTKODUCTORY CHAPTER.
Moreover, certain subjects of rights of property that
being merely rights to
law.
objects are
do
acts,
subjects
law
the
of
relating
not specific or
among the
They comprise
included
land.
to
The
subjects
specified will be
Land.
Land,
the ground
legal
all
of-
pressed in the
and cujus
maxims
solum, ejus
est
ad ccelum
est -usque
et
ad
inferos. (a)
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trespass.
rule
is
timber,
ments, and
however, to the
(iii.)
Exceptions
^I'
another's ground, is
subject,
(i.)
'^
'
(iv.) fixtures
(y) Offices
{i.e.,
honour, are to
see 3
a few
Wms. P. P. 266
titles of
As to these,
New River Company and
to land.
&
o.
63,
s.
3,
'
(o)
(6)
Go. Litt. 4, 5, 6
2 Bl.
Comm.
Dart, V.
&
18, 19.
Digitized
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as to the
IN
LAND.
as where the tenure, having been copyhold, has been converted into freehold by statutory enfranchisement ;(/) or
under
under
land
panies purchasing
statutory
Timber in land
(ii.)
of
(iii.)
or crops
(c)
V.
IBl.
Morgan
W.
fully stated.
{d) 1
(e)
W. & M.
See^osf,
(/) ^bepost,
(g)
0.
30
W. & M.
u. 6.
p. 30.
p. 37.
()
v.
Co., 19
Ch. D. 559,
Sieepost, p. 30.
&
Ad. 105.
is
[l) 'The doctrine of emblements extends not only to corn sown, but to roots
planted, or other annual artificial profit but it is otherwise of fiuit trees, grass,
and the like, which are not planted annually at the expense and labour of the
tenant, but are either a permanent or natural product of the earth
2 BI.
Comm. 123.
;
'
(m) See
^josi,
Digitized
by Microsoft
INTRODUCTOEY CHAPTEE.
And on
with
it
will not
go
Fixtures.
land as are of
The
common law
case
all
The comprehensiveness
be
qualified, in a
Exceptions
as
(k) 1
Wms.
Exors. 719.
i.
Elwei
v.
Mawe,
Wms.
12 CI.
&
(r)
50,
Eioer
54 L.
J.
v.
Co. Litt. 48 b
44 Ch. D.
12.
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Beilly
v.
Booth,
l^'^P'^^^^''
10
Things detached from
land.
from land
won
minerals
as
or
And
accidental. (m)
trees
or excepted from a
Land
in
general realty,
but is
sometimes
personalty.
-^^^ ^^ ^-^^
things real
it falls
of
things personal.
subject of a
called)
'
'
'
chattel real
'
and
through the
Chattels real,
meaning
of.
subject
things or
latter
'
common
law, are
movable
being distinguished, however, from the
to
chattels
in that
'
they
'
or, in
other
The
principal
Certain rights,
at will.
also,
instances
of chattels
among
of.
right of property as
by a third person,
sessed
to
profits
chattels real.(2)
if
ix) Herlalcenden' s ease, Eep. pt. iv. 62 a Stulieley v. Butler, Hob. 168 ; Lee
Oashell, 1 Q. B. D. 700, 45 L. J. C. L. 640, 34 L. T. 759, 24 W. E.
v. Green, 1 C. P. D. 35, 45 L. J. C. L. 153, 33 L. T. 404,
;
cf. Lavery v. Purcell, 39 Ch. D. 508, 57 L. J. Ch. 570, 58
;
V.
824 Marshall
24 W. E. 175
L. T. 846.
(y) Co. Litt.
118
b.
Digitized
by Microsoft
INTRODUCTORY CHABTER.
11
process.
the tenant
thus necessarily
have
so
By
fell
and not
that
is,
to his
they passed
They
heir.
subiect,
in the follow- P^rfonaltym
>
some extent
'
equity.
on
and
that person,
is
for
is
The
(ii.)
interest
of the sale to
by the
rules
(c)
See post,
(e)
53
me
p.
is,
s.
f.
27
L.
iv.
u.
36,
f.
740.
233.
& 54 Vict.
in land
u. 9,
((Z)
See^^osf, p.l74.
39,
a.
p. 73.
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Partnership
p^g^gonalty'
12
IN
LAND.
ic-i-i
Money.
Money which is to be applied by trustees in the
c
purchase oi land, pursuant to the terms oi their trust, is
,_
-i
or, in
other words,
And
cable to land.(/)
is
subject to the
law appli-
land before
Meaning
its sale.
Title-deeds.
of.
usually
Deeds
called
documents of title
muniments of
and
title-deeds
or
of
'
to land
title
'
are
title.
while one
ship
is
who has an
entitled to those
relate to his
interest. (/)
Where
Eights of
the
muniments
of
title
relate
to
land,
or an
when
(/)
his interest
As
In the
40 & 41 Vict. c. 18 (Settled Estates Act, 1877) see ss. 34 and 36, and
post, p. 76
45 & 46 Vict. c. 38 (Settled Land Act, 1882) see s. 22, sub-s. 5,
and post, p. 87.
((/)
(7i)
Vict.
968
(i)
But the owner of a chattel interest in land has a right to such muniments
only as relate to that interest, and not to those that relate to the superior title.
As to the rights of an equitable owner in the muniments of title, see post, p. 180.
(/c)
p. 2.
Digitized
by Microsoft
As
to his rights in
INTRODUCTOEY CHAPTER.
Ig
damage them
destroy or
they are
if
left in
ments, and
Where
is
of
may
interest, the
dispose of
them
is
-,
-,
the
owner Where no
muni- ^ntg^ggt"*"
as he pleases.
an interest in land in com-
his hands, or if
Rights of
-,
community, as to.
title-deeds
terest, (o)
On
muniments of title pass to the transferree;(p) unless the muniments relate also to land retained
by the transferror, in which case the transferror may hold
transferror in the
Pass on
*<:.,of
l"^'^""'
them, and the transferree has rights of inspection and otherwise, as in the case of an owner in expectancy, (g')
And on
the death, intestate, of the owner of an inheritable interest,
term,
by
is
An
heirloom,
in
the
original
sense of the
virtue
of
is
owned
Madd. 322.
(o)
T.
{p)
'
Lord
Sitclchurst's case,
Rep.
pt.
1 a
i.
Sug. V.
&
P. 433.
&
(r)
Wms.
b,
185 b;
Digitized
2 Bl.
Comm.
by Microsoft
427, 429.
Original
'"^
'
mean
14
LAND.
IN
The
monuments
day.
la
tombstones
or
applicable to
rules
in
modem law.
such
by
special
vested in trustees in
are
articles
custom,
it
by
Meaning
Advowsons.
of.
An advowson
is
tical
that
is,
it,
comes an advowson in
gross,
i.e.,
ownership of a manor or
Advowsons
land,()
(s)
{t)
pt. xii.
105
as incident
Wms.
real, or, as
the subjects
Where
the right of
Wms.
and not
land.(?/)
E.xors. 729.
Exors. 730.
(u)
{x)
As
(j/)
2 Bl.
Comm.
217.
307 a
2 Bl.
Comm.
22.
They
are subject, however, to special restrictions on the right of alienation, as to which see p. 337.
(2)
(a) 3 Cruise,
tit.
21,
c. i. ss.
Digitized
24, 25.
by Microsoft
INTEODUCTOEY CHAPTEE.
15
regarded as a chattel
Franchises.
law of property)
real.(&)
meaning
franchise (as
a subject of the
Franchises,
is
of a grant
Many
tion, (c^)
of
little real
or, in
some
by prescrip-
cases,
value.
'
'
'
'
common
might
Other
franchises are usually annexed to manors, as rights to have
law,
In connection with
Tenements and
'^''''t'itaments.
of
the
terms
technical
'
tenement
to
and
'
these
'
hereditament,'
subjects,
may be
noticed.
{d)
2 Bl.
As
249 a;
Comm.
37
Wms.
Exors. 677
Burton,
1247.
2 Bl.
(/) 2 Bl, Comm, 39, By Magna Charta and the second and third confirmations thereof grants of free fisheries were proliibited, and those granted in the
reigns of Richard I. and John were laid open so that a franchise of free fishery
;
ought
now
to
II.
ibid.
&
See 2 Bl.
(h) 2 Bi.
Comm.
Comm.
38,
39
37.
Digitized
by Microsoft
'
16
Meanings
Tenement.
of.
Tenement,
or other building
and
in a popular sense,
means
a house
it is
Meanings
of.
by the law of
real property is a
As denoting
it
a right, a hereditament
to land
by the law
of
real
Corporeal and
incorporeal.
Burton, 3, n.
See Dashwood v. Ayles, 16 Q. B. D.
(i) 2 Bl. Comm. 16
295, 55 L. J. G. L. 8, 53 L, T. 588, 34 W. K. 53 Minifie v. Banger, 16 Q. B. I>.
302, 55 L. J. C. L. 10, 53 L. T. 590.
;
{](,)
Stat. IB
Edw.
(m) Ante, p.
a,
1, u. 1
19
t),
Co. Litt. 6 a
20 a
2 Bl.
Burton,
Comm.
17
see ante, p. 6.
Burton,
3,
1 Brest.,
6.
Shep.
939, 37
(o)
Vict.
W.
As
c.
E. 328.
Digitized
by Microsoft
stat.
17
&
18
INTRODUCTORY CHAPTER.
]7
hereditaments,
rights
it
will
as
either
meaning things
are
and
corporeal
incorporeal,
as
applied
hereditaments,
to
may
is
and an incorporeal
is
not a right to
the possession of
property
is
made the
Comm.
(q)
Co. Litt. 9
(r)
17,
20;
Wms.
E. P. Introd.
a.
B
Digitized
by Microsoft
18
ceding parts
The disabilities to
by the same rules of law.
which persons of certain classes are subject, with regard to
the enjoyment and exercise of rights of property in land, are
considered under the fourth head ; the law being treated of
under the previous heads, apart from any modifications due
their transfer,
to personal disability.
Digitized
by Microsoft
PART
I.
EIGHTS OF OWNERSHIP. ()
CHAPTER
I.
TENURE.
Feudal Principles.
system,'
kings,
as
established
in
'
feudal The
Norman
feudal
^y^'^-
subject of the
virtue of a grant
made by)
was
lord,
who
Crown.
The
interest
amounted
his lord
Tenant.
'
constituted the
(a)
As
'
tenure
'
of the land.
Digitized
by Microsoft
1.
The king,
Tenure.
'
20
supreme
as being the
Lord paramount.
was styled
lord,
tenant holding
paramount.'
lord
'
king was
of the
immediately
land
his
called
to
be
Tenant in
'tenant
capite.
Mesne
in capite.'
held of himself became a
lord.
whom
under
Tail, or terre
or
tenant.
Feudal rules
modern law.
he himself held
mesne
sion holding of a
Tenant para-
'
lord
was styled
'
tenant paravail
in
'
rules are
still
recognised as funda-
Varieties of
tenure
ancient,
'
'
freehold
'
tenure,
'
'
only
persons
for
of
condition. (c)
servile
It
eventually
modern.
of tenure
may
therefore be considered,
first,
with reference
tenure.
Knight-service,
Freehold
Tenure.
Knight -service.
Free Socage.
Freehold tenure was originally of two principal kinds, (rf)
namely, knight-service
also called
mihtary tenure,' or
tenure in chivalry
and free socage
a distinction based
mainly on differences in the services due from the tenants.
In the tenure by knight-service, the tenant held his land by
military service, or by payment of a pecuniary composition
'
'
'
'
(b)
Co. Liu. 1
(c)
2 Bl.
a, 1
Comm.
2 Bl.
'
'
Comm.
Digitized
'
4, o. 28,
As
by Microsoft
f.
207.
to the tenure of
Church land,
see
TENURE,
(called
escuage
'
')
21
He was
in lieu thereof.
also liable
for
guardianship
tenants,
and
liabilities
were
found to give
rise,
variety
this
of
abolished by
whereby
|*^*'
all
except
'
Free socage.
of land
been called
freehold tenure
'
'
est, or (as it
is
(c)
is
See 2 BI.
termed a
Comm.
Litt.
(A) 2 Bl.
8S.
' ;
(i)
117,
Comm. 86-89.
1.
The word
several
an
inhei-itable in-
and
if it
is
an inheritable
(/) 12 Car.
;
Bl.
distinct
it is
63-73.
118, 119
socage, see 2 Bl. Comm. 80.
(g)
fee
'
of
If
The interSeisin.
of Freehold Tenure.
usually called) estate of a tenant of land
of freehold tenure,
terest
has usually
simply.
Land
Estates in
it
Comm.
79.
As
2, c. 24.
to the origin of
term
fee
(or feud or fief) seems originally to have
merely land held of a superior lord, as opposed to allodium,' a
word used by the feudal lawyers to denote land that was not held of any
superior.
See Co. Litt. 1 a.
(i)
Litt.
B.
'
'
'
'
'
signified
'
Digitized
by Microsoft
Kstates.
22
known
an
'
to the law,
This estate
is,
called
it is
in fact, equivalent
'
'
next to
the
the
this,
feudal
'
rules
estate for
of
To
life.'
were
tenure
applicable.
All other
Seisin.
'
seisin.'(^)
SuUnfeudation.
SubiDfeuda*''
Originally
the
was
called
terests
by
l^r^.m-p^'^^"'
emptores.
'
superior
to
possession
monly
it
by
lords
which only
was
advantages
tenant
in
subinfeudation.'
the
of
abolished
abolished
a statute
of
who
man
entitled
Edward
I.
the
of
(a.d.
1290),
was
corn-
it
own
lord
in-
certain
subinfeudation
Quia emptores.
to sell at his
thereby
immediate
the
every free
lost
should
hold
the
same lands
or
enacted that
its
provisions
153 a
34 Edw.
3, c.
15.
Digitized
by Microsoft
TENUEE,
23
Its effect.
whom
it
was then
held, or (where
to exist) of the
no
At
Crown.
much
an
alienation.
'
'
J-
simple
'
mesne
Such
must of course have been
lord,
payable, a
'
relief,' i.e.,
'
rent, if payable to
originally reserved
And where
a quit-rent
Comm.
Co. Cop.
s.
31
As
to
92.
3, ch. 11.
Digitized
by Microsoft
is
relief,
24
suit of court.
nominal service of
suit of
'
The
Of other
eBtates.
is
court,'
also
or attendance
at the
is
may have been reno rent or service has been expressly reserved, a tenant for life or years holds by fealty
merely but it seems that a tenant in tail holds of the
grantor by the same services as those by which the latter
with any rent, or other services, that
served by the grantor.
If
Varieties.
hold,
or free
of
'
Grand
ser-
jeanty.
grand serjeanty,'
'
'
of the
Crown
'
gavelkind,' respectively.
by
It
honorary
socage, (s)
Petit serjeanty.
Tenure in
burgage.
may
Co. Litt. 23
(s)
Litt.
(t)
s.
153
a,
;
143 a
2 Bl.
160
Burton,
1002.
Digitized
by Microsoft
TENUEE.
25
is
that called
'
borough English
'
whereby
Ancient
'^^s^-
privileges
as,
that
proceedings respecting
certain
Gavelkind
subject to
toll
is
certain
styled
local
'
Hence,
it is
more
In the
gavelkind.' (i/)
,{v)
their
manor
to
i.e.,
liarities of
interests,
freed therefrom
gavelkind are
is
it
be shown that
has been dis-
The
statute.
chief pecu-
intestate,
upon males
as co-
heirs, contrary to
male
by
it
or that
it,
preferred
to
power
of
age as
644
(abolishing fines
Comm.
and
and
recoveiies.
recoveries),
& N.
The
82,
83
liider
v.
this cannot
Wood,
K.
&
Wm.
4. u.
&
36-38
(x)
See
1 Cruise, pp.
2 Bl.
Comm.
99, 100,
7, 8.
Digitized
74
this privilege.
(w) Local taxes, such as county rates, are not included in this exemption
E. 538.
T. Inhabitants of Aylesford, 2 E.
{y)
J.
653.
a.
&
be
by Microsoft
see
Gavelkind,
26
custom might be disposed of by will before testamentary disposition of land was allowed generally, and were
not subject to the former law as to escheat upon conviction of felony.
The custom of gavelkind is supposed to
be a remnant of the old Saxon law, preserved in Kent after
the Conquest.
It is doubtful whether all its incidents are to
be met with elsewhere than in this county, though in some
to this
Frankalmoign.
FrankalTTioign.
described, there
nature,
spiritual
is
called
frankalmoign,'
'
corporations,
hold their
or
'
alms,'
free
and
ecclesiastical
lands.
None
of the
kind
and
And
for neglect of these the lord has no legal remedy.
the
for
tenure
there is no escheat of land held by this
;
Nature of;
'
in capite or under
a mesne lord) in land of considerable extent, held part of
estate in fee simple (whether as tenant
Demesnes
demesne
'
'
(that
is,
{z)
2 Bl.
Gomm.
84,
85
who held
of
him
as
The stat.
2 Bl. Comra. 101
see post, pt. 4, ch. 6.
Quia emjriores in effect prohibited henceforth grants of land (other than Crown
grants) to be held in frankalmoign Litt. s. 140.
(a) Litt. SB. l.Sl-142
Comm.
91.
Digitized
by Microsoft
TENURE.
27
The tenure
gave
rise
to the lord's
'
seignory
or
'
lordship
'
'
that
is, Seiguory
of
holding
of
Court baron
judges.
called a
'
who were
the
court
leet.
The
by abolishing subinfeudation.
..
for
it is
essential to a
Not created
^'^"^ ^"*'
emptores.
as then existed.
The
characteristics of a
manor
at the present
The demesne
stitute
the manor,(/)
may
be
But
separately alienated.
Cruise, pp. 29-33, and authorities there cited ; 2 Bl. Comm. 90,
273.
The township of the Anglo-Saxon system was the
origin of the manor
and the court baron had its origin in the gemot or
Freeassembly of the township
see Stubbs, Const. Hist., toI. i. p. 399
See
(c)
91
Bl.
Comm.
s.
Comm.
92
Law
Early
1 Cruise, p. 33.
30 & 31 Vict.
52 Hen. 3, o. 10
(e)
See as
to courts baron,
and as
to courts leet,
Tbe Euglish
c.
142,
Edw.
s.
28
51
&
52 Vict.
o.
43,
4, u. 2.
(/) Besides the constituents above mentioned, various riShts may be incident
Digitized
by Microsoft
Extinguish-
^*j,
THE LAW OF PKOPEKTY IN LAND.
28
when
this
done, the
is
seignory becomes a
'
seignory in
still
exist. (^)
For the same reason, the manor
be destroyed by the estates of all the tenants being
purchased by, or escheating to, the lord or by his releasing
also cease to
may
to all of
them
manor is,
reputed
owner of the demesne retains what is called a
since
continues
to
he
manor,' or
manor by reputation
enjoy such other manorial rights as were previously incident
in these cases the
Reputed
manor.
But though
'
'
to the manor.('i)
ExtiBguishTiient of
maDorial
rights.
Copyhold
Tenure^in
Tilleinage.
Tenure.
Its
Nature.
The
ancient
to a
manor as
vowson (supra,
((/)
base
first,
original
an ad-
p. 14), franchises
Burton, 1024.
&
p.
1 Cruise, p.
34
&
51 Vict. c. 73, s. 7.
This Act repeals (s. 51) s. 7 of the stat. 21
22 Vict. c. 94, as to extinguiihment of hei'iots. As to heriots, see supra,
note
24,
(q), and infra, p. 34; and as to tlie proceedings for enfranchisement,
{j)
50
Digitized
by Microsoft
TENURE.
29
agricultural labour.(Z;)
who might
dispossess
them
at his
'
'
'
'
roll,'
which trans-
is
originally
held in villeinage.
o
"Z
to this tenure
No
1''?,
^''"^P'
lord s grant,
this
(Ic)
{!)
Litt.
4,
c.
s.
28,
(m) Litt.
The
(n)
James
(o)
Ip)
172
f.
o.
77
4, p. 19.
villein is in the
15th year of
I.
Digitized
2, c.
by Microsoft
24 (see
s.
7).
'^^
30
shall not
it
But
be law-
any manor
land
who,
are to have
same considerations
as are to be
in giving
regard to the
any inclosure of
and that, whenever any such grant has
been lawfully made, the land therein comprised shall cease
to be of copyhold tenure, and shall be vested in the
in giving or withholding their consent to
common
lands
Crown or other
The copyhold tenant holds of the
Copyholder
holds of lord
of manor, and
has quasi-
manor
is
seisin.
Kights of lord
in timber,
minerals
merely a quasi-seisin.(s)
The lord of the manor, moreover, has certain rights in
Thus, he is the owner of all
copyhold land of the manor.
{q)
Vict.
{r)
35,
S. 6.
Ford, 3 B.
v.
& Aid.
As
to the
Land Commissioners
for
See
see i
&
153
91.
.5.
2 Bl.
Comm. 148
Cruise,
t.
10,
y>.
1, b.
42, 126.
(t)
"Watk. Cop. 332, 333 ; Scriv. Cop. ch. 8, ss. 1, 2 DuJce of Portland v.
Eq. 765, 35 L. J. Ch. 439, 15 "\V. E. 38 ; Eardky v. Orm'
B Ch. D. 826, 45 L. J. Ch. 669, 34 L. T. 609, 24 W. E. 528.
1
Hill, L. E. 2
vllle,
Digitized
by Microsoft
TENURE.
31
if
purchase, or otherwise,
forfeiture,
such estate
the
estate
of a copy-
is
completely ended
that
estate
of
''^
if
is
demesnes. (y)
copyhold tenant
is
'
by
Copyhold
*^*'s
Customary
roll,
'
'
manor.
manor
is
court
'
'
this
'
who
suit of
{v) 2 Bl.
Comm.
97
Burton, 1341
Cruise,
t.
10, eh.
1, b.
62.
See post,
Cruise,
t.
&
4 K.
(x)
will
see 1 Cruise,
(y) Burton,
(z)
Litt.
s.
t.
10, c. 2, ss. 3, 4.
73.
Digitized
by Microsoft
''^^-
32
Under
tenure. (a)
modern
may be
requisite to a
is
rolls.
AH
the
and, as an authorized
Words
'at the
will of the
lord' are
The words
'
do not
Qf course
immaterial.
Customs
of the
above phrase,
the copyholder's
nature of
define the
to indicate
copyhold, (c?)
is
'
and
'
'
'
'
'
The existence of
must be proved by proper
a special custom,
questioned,
if
evidence. (e)
Estates.
CopyhoM
may be
By
Estates.
life,
But
(a)
Co. Lift. 58 a
& 5 Vict.
Burton, 1262
(6)
(c)
(e)
1 Cruise,
t.
10, c. 1,
way with
86, 91
c. 35, SB.
ss.
see 1 Cruise,
581, 53 L. T. 502, 34
W.
Digitized
t.
by Microsoft
v.
R. 10.
make
33
TENURE.
'
custom to
entail. '(^)
common
of
for
occurrence.
are allowed.(/i)
life
fealty is
Incidents of
t^""""^:^
to the lord,
rents
And fealty,
reliefs,
pay rents or
suit of
f;^f' ^g^^'^^j
forfeiture.
do suit of court, or to
fines, or to
is
make
Before seizing
manor (according
make
to the custom)
may
-that
is,
be seized as absolutely
By
his claim.
land
forfeited. (/)
1284.
As to the copyliold estate in fee
{g) Co. Litt, 60 b ; Burton,
simple conditional, in manors where a custom to entail does not exist, see
post, p. 41.
iji)
Third Eep. R. P.
(j)
Burton,
(/c)
post,
(?)
1263
Comm.
Burton, 1335-1341
pp. 465, 467.
1
14.
1 Cruise,
t.
10, c. 3,
2 Bl.
Scriv. Cop.
Seizure
2'""'^2"^-
s.
Comm. 284;
114
c. 5, e.
20
1 Cruise,
t.
ante, p. 23.
10,
u. 5, s.
et seq^.
Digitized
by Microsoft
see
F'es.
34
arbitrary,
improved value of
years'
the land.(m)
Heriot.
the
The kind of
chattel.
composition in
The
Customary
alienation.
money
chattel that
The form of
of copyhold tenure.
mode
also an incident
is
or,
is
given by
will,
the admittance
of the
interests
ground of
The Copyhold
Acts.
this is the
mode
is
in
for
is
Various
Extinguishment of Manorial Rights in Copyholds.
inconveniences incident to copyhold tenure have led to the
Acts,(r)
lord
affecting
copyhold
of the
land
1300
32
See
Stat.
210
Coram.
et eeq.; 2 BI.
55 Geo.
3, c.
97.
74;
Watk. Cop.
888.
5 Vict. 0. 35 (1841)
6 & 7 Vict. c. 23 (1843)
7 & 8 Vict, c, 55
21 & 22 Vict. c. 94 (1858), and other Acts
(1844); 15 & 16 Vict. c. 51 (1852)
and 50 & 51 Vict, c. 73
extending, amending, and continuing the foregoing
(the Copyhold Act, 1887).
(r)
&
Digitized
by Microsoft
'
TENUEE.
35
free
rents,
or
Enfranchisement of Copyholds.
Enfranchisement of copyis the conversion of the tenure by which it is held
hold land
Crown
is
It
may
life.(a)
(s)
(tt)
See post,
p. 412.
(i)
& 5 Vict.
c.
35,
ss.
52, 54.
(x) S. 79.
S. 52.
Burton, 1351
1 Cruise,
t.
(a)
&
'"^*
Enfranohise-
t.-.
Digitized
by Microsoft
at
common
'
S6
under the
Copyhold Acts.
Compensation
Acts.
amount of the compensation, or may have the amount ascertained by valuation under the superintendence of the Board
of Agriculture,(e) or may, by agreement, leave the amount
to be determined by the Board. (/)
The tenant may pay
enfranchisement
enfranchised
is
and the
rent-charge
twenty-five times
its
The owner
of the
may
enfranchised land
&
5 Vict.
(c)
4&
5 Vict.
94,
o.
(i)
s.
39.
c.
(d) 21
(e)
(,</)
j)
c.
35,
c.
57
s.
35,
s.
5 per
15
56
&
15
cent, per
16 Vict.
&
^.
51,
16 Vict.
c.
s.
annum,
7
51,
&
50
s.
or
by way
51 Vict.
21
&
c.
73,
22 Vict.
6.
& 22
Vict.
See post,
p.
c.
94,
b.
10
412.
50
& 51
(/)
S. 13.
S. 17
(7j)
;
see post
Vict.
S.
287.
Digitized
u.
73,
s.
22
see230st, p. 412.
Rs. 3, 43.
by Microsoft
14
see2MSt, p. 287.
TENURE.
of
terminable
And
annuity
37
on the
calculated
may be charged on
same
basis. (/i;)
lands settled to
The Copyhold Act, 1887, also provides that on the admittance of any person as tenant of copyhold land the steward
of the manor shall give him notice of his right to enfranchise
Notice of right
*" enfranchise,
the land.(m)
enfranchisement
all
and in which
it
is
who
Board of Agriculture
one-fourth in
(.)
number
number
the compensation in
is
to consist of a gross
of the copy-
sum
of money,
unless the lord and the tenant in fee of the land otherwise
among the
being apportioned
agree)
several
persons for
enfranchisement
differs
from that of enfranchisement at common law, which extinguishes all the rights and incidents of copyhold tenure.
And by the Copyhold Act, 1887, on any enfranchisement after
the passing of that Act, the lord continues entitled, in case
of escheat for want of heirs, to the same right and interest
in the land as
if it
(k) S. 23.
(m)
S. 1.
(o)
S. 47.
ment, see
s.
{I)
S. 24.
As to
rolls after
iq)
50
fp)
48.
ss.
45, 48.
Digitized
by Microsoft
Rights not
enfranohise-
ment.
38
Is in general
copyhold.
(r)
is
not distinguish-
of surrender
See
E. 88,
(r)
W.
Duke of Portland
14-17
(s) Scriv. Cop.
Huntington, 4 East 271.
(t)
v.
Bill, L.
1 Cruise,
Bs.
t.
9 et seq.
Ferryman's
Digitized
by Microsoft
-1,
o.
see
Doe
Williams, Seisin,
d.
Beay
129,
v.
132
;'
CHAPTER
II.
ESTATES GENERALLY.
Definition.
The
use of the
word
'
as denoting Estate
estate,'
and
defined.
it
has been seen that estates are divided into several kinds,
The quantity
'
extent of
its
An
duration,
estate
may
the
ways.
Estates
may be
Thus, they
may be
classified
distinguished
(i.)
in
different
with reference
or
(ii.)
as
(i.)
tail,
Under
or estates tail
estates at will
(a)
and
Ante, p. 21.
this
estates
estates at sufierance.
(6)
2 Bl.
Comm. 103
Digitized
by Microsoft
Division,
40
Definition.
several estates
an
The
interest
the
is
'
is
estate
in fee simple.'
The word
The owner
class.
At common
Conditional fee
ateommonlaw.
^^^
^-j^^
'
'
j^^^^.^
the grantee,
simple
is
'
if
j^-g
body,
he had
i.e.,
But
if
An
estate granted in
'
'
con-
Statute i)e
iio"**?*""^*"
statute
to estates
Upon
issue failed.
it
if
was
'
(c)
tion to a
(/)
{g)
Litt.
(7)
As
'
'
'
As to which,
13 Edw.
1, c. 1
Digitized
by Microsoft
41
ESTATES GENERALLY.
tail
'
The
Be
statute
hold tenure
Statute JDe
^ppiTcable to
and the heirs of his body creates a fee simple conditional oopyhoHa.
of the same nature (as regards its descent, and the power of
disposition, and reversion to the donor) as the like estate in
freehold tenure prior
of
la,nds
entail
')
special
Estate Tail.
deriving
ius
or
its
statute
that
to
indeed,
An
estate tail
may
unless,
'custom to
tail. (A)
be defined as an estate
(in lands of
(or
De
Definition,
donis conditionali-
'
in
'
is
tail.
tail,' or,
deemed
Quantity of
simple.
Estates
general
tail is
is
tail
are either
'
general
'
or
'
Tail
special.'
'
General
'
^^^'^
or
it
may be
body
(0 2 Bl.
(it)
(l)
2 Bl.
1
means
Comm. 112.
Comm. 113;
Cruise,
cut
t.
down
2, ^.
'
tail male,'
1, s.
12.
or restricted
The word
the descent of
b.
Fr.
taille)
(m) Burton, 647. At common law an estate in tail special was created by
a gift of land on the marriage of the donor's daughter or cousin, to hold in
frankmarriage (in libera maritagio). As to this form of donation (which has
long been obsolete), see 2 Bl. Comm. 115.
Digitized
by Microsoft
Classes of
or
i.2
'
An estate
in
an estate which
is
Definition.
An
life
Where
Estate pur
avtre vie.
Cestiii
que
is
vie.
the land
commonly
son whose
is
called
life is
an
'
the period of
life
pur
estate
its
autre
vie,'
duration
is
que vie.(p)
Special occupant.
him
granted to a
is
man and
heirs,
or to
whom
but as
'
is
deemed
is,
to take
one
it,
not as heir,
specially pointed
Where
his
is
to the grantee
called a
is
'
his body,
being
quasi-entail,'
vie
may be
limited to
for
The Owner of an
life.
for
or (less frequently)
life,'
life
lessee
'
of another,
'
for
life
'
tenant
'
where
or,
vie.'
() Burton, 649.
(o) An estate granted to A. for one hundred years (or any otlier fixed term),
he shall so long live, is technically not an estate for life, but a chattel inAs to this, see post, p. 47.
terest merely, although it ceases on the death of A.
if
(p) Litt.
B.
56.
Me Barber's
Williams, Seisin, 167 ; Atlein$on v. Balcer, 4 T. R. 229
but see
Settled Estates, 18 Ch. D. 624, 628, 50 L. J. Ch. 769, 29 W. E. 909
Burton, 731.
{q)
& War.
307
Be Barber's
3, c. 1, B8.
Digitized
by Microsoft
1 Cruise,
'
43
ESTATES GENERALLY.
An
is,
deemed in law
own life.(^)
Quantity of
to be less than
is
An
as to its duration, to
an estate limited,
and certain period of time
or a single year, or any less
some
number of
as a specified
an
fixed
years,
Definition,
may, however, be an
It
estate held
in the
sists,
'
yearly tenancy.'
This con-
first
Yearly
t^^^^y-
but unless due notice to terminate the estate at the expiration of the year (x) be given by either the grantor or the
grantee, it becomes an estate for another year, reckoning
from the completion of the first year ; and thus a new year
is
its
expiration
omitted to be
is
given.(y)
An
'
'
'
estate
'
lessee
'
or
'
'
lessor
'
or
'
landlord,'
and
tenant.'
An --estate
years
for
in a legal
is,
sense, inferior
in Quantity
of
pQ+.Q^"p
tail,
or for life
where land
tically a perpetuity, as
looo
years.
This inferiority
is
An
(0 2
at will
Bl.
is
an estate which
(u) 2 Bl.
law, see 2
estate
(x)
As
(!/)
Burton,
(a)
Co. Litt. 45 b
to
865.
54 b
2 Bl.
Comm.
Burton,
143.
897.
See ante,
Digitized
p. 10.
by Microsoft
Definition,
44
of
'
'
Tenant at
will.'
Quantity of
'
estate.
Estate at Sufferance.
Definition.
An
having held by a lawful title, continues in possession after his title has determined, without
the consent, either express or implied, of the person next
terest of a person who,
entitled
the possession
to
where a tenant
as
for
years
Estates
Estates of Freeliold and Less than Freehold.
estates of insimple and in fee tail are styled
heritance,' since they are capable of passing to the heir on
(ii.)
in
fee
'
hold
'
term
the
'
are called
life
freehold,'
this
in
Estates of
estates of free-
'
connection,
having
to these estates
seisin. (fZ)
'
'
'
'
'
'
present day.
is
in
and for
They
tail,
life
are,
freehold.
guished as estates
'
less
distin-
Burton, 19
1 Cruise, t. 10, c. 1,
2 BI. Comm. 145
Bichardson v. Langridge, 4 Taunt. 128 S.C, and notes thereto
Tudor R. P. Cas. 4; James v. Dean, 11 Ves. 383, 391.
(6)
Co. Litt. 55 a
c. 2, s. 1
1 Cruise, t. 10, c. 2
(c) 2 Bl. Comm. 150
S.C, and notes thereto, Tudor E. P. Cas. 1.
;
{d) Litt.
s.
324
Williams, Seisin,
(e)
See 2 Bl.
2, 4,
Cruise, t. 1, p. 19
5 ante, p. 21.
Burton,
House's case,
60
2 Bl.
Comm.
Digitized
by Microsoft
s.
IG.
Owen
27
Comm. 104
45
ESTATES GENERALLY,
real,(^) they
seisin,
but con-
(7i)
though in modern law there is practically
no difference between the seisin of land for an estate of
freehold, and the possession of land for an estate for years,
to the seisin
(iii.)
is
not
Ahsolute
be called
'
when
absolute'
subject
estate
may
Absolute.
to
An
estates.
may be given
estate
Conditional,
that, in
it
may then
be termed a conditional
estate. (A)
subsequent
efiect
tional
Conditions Subsequent.
'
condition subsequent
'
also
condition
'
that,
of
be void.
Its effect
that,
is
may
him
to the benefit
[g)
See ante,
(h)
Ante, p. 22
defeat (that
is,
p. 10.
;
2 BI.
Comm. 144
Litt.
o.
324.
An
(Tc)
estates""^
by the common law and estates subject to condilimitations having efiect as executory interests.
called a
is
of
See
Digitized
by Microsoft
Definition.
46
lancl.(^)
land
this
necessary
is
for,
till
this
takes
place,
the
the
to,
estate
it
condition subsequent
an estate in fee
simple
may be
if
the
sum
of
to a condi-
Common
may be de-
Definition.
Law.
class
may
which may or
(l)
Litt.
325
s.
2 Bl.
Comm.
of
if it
happen,
154.
Litt.
s.
347
and
effect of
(p) 1 Sand., Uses, 210. As to the effect in modern law of a devise in fee simple
subject to a condition subsequent, see post, p. 464.
{q) 2BI. Comm. 153.
freeholders has, however,
(r)
Post, p. 103.
Digitized
by Microsoft
for
;;
ESTATES GENEEALLY.
47
estate
made 500
these
life
till its
completion. (^)
to be distinguished
is
the termination of an
is
such words as
properly used
'
until,'
'
during,'
'
condition that,'
'
provided that,'
'
if,'
But though
&c.(?/)
'
upon
strict
is)
1 Sand., Uses,
155-157
In
re
Machu, 21 Ch. D.
838, 30
(t)
2 Bl.
(m) I.e.,
{x) 2 Bl.
(y)
Comm.
143, 155.
Comm. 155
(z) 2 Bl.
Comm.
155
see^jost, p. 119.
2 Bl.
from
g^^sequent
Comm.
155.
Digitized
by Microsoft
in operation,
Differs
in
words
^^ation.
of
48
Conditional
limitation not
applicable to
fee simple.
LAND.
IN"
and
and failure of his issue, or their
be tenants of the manor, or upon the falling of
G. D.
So
also, as
instance of an
an implied conditional
limitation. (5)
The right to the land upon the determination
of the estate so given could not, however, be granted by the
donor of the estate, to a third person, since it was not an
conditional,
of
the
And the
Quia
emiitores
was
an estate in fee
grantor
See ante,
(c)
Co. Litt. 18 a
(d)
p. 40.
;
1 Sliep.
140
p. 114.
Co. Litt. 98 b.
p.
'
Digitized
by Microsoft
49
ESTATES GENERALLY.
manor
land, held of a
which there
in
is
no custom
en-
to
tail.(/)_
may
conditional
Definition.
be
that
arise in a stated
will
it
a previously vested
estate,
The nature
and the
event,
in
of executory
It
may
con-
common
Distinguislied
law, V:
,",'.
.
common
the
law.
common
may
law,
be defeated by a limita-
Again,
or of limitation
may
be
Whether a
used.(Z;)
limitation in
to be construed as a con-
is
common
an executory
law, or as
will
be considered here-
the
after.(^)
(iv.)
may
modes
ship
Estates
le held.
with Hefercnce
Estates
may be
to
may be
enjoyed. (m)
Hence, estates
may be
either in
(k)
{I)
See post,
p.
(g)
15.
143, et seq.
p.
150.
149.
{m) Ante,
I)
Digitized
by Microsoft
Different
""'^estates"
^^
may
only.
Arrangement of Topics.
of
modes
in which they
may be
held,
Estates.
In treating of estates
under the first three heads, they are assumed to be held
without separation of the legal and equitable interests ; and
estates in possession, and in expectancy, are assumed to be
held in severalty.
and con-
the
mode
held
i.e.,
of holding
into existence
which are
i.e.,
As
regards the
them
the work.(w)
(k)
Digitized
Part III.
See ante,
by Microsoft
p. 17.
CHAPTER
III.
ESTATES IN POSSESSION.
Definition.
An
the tenant
is
r.
01
entitled to tlie
An
deemed in law
to be
an
'
when
Estate in
possession
defined.
estate is
tenant have not the actual seisin or possession of the subject, if it be wrongfully withheld from him by another
since he
may
process. (&)
The
rights of use
possession.
is
considered separately.
Sect.
I.
Creation or Acquisition.
land of freehold tenure
An
may be
as
where
is
no existing
has escheated
it
(a)
As
to
(c)
For the
definition of
an estate in
cf.
Leach
2.
v.
a'n.te,
p.
As
Digitized
by Microsoft
of.
52
manor may, as has been seen,(t!) renew copyhold estate in fee simple and
may
he
to certain conditions
also, subject
and
restrictions
in fee
only modes
the
made to
The ordinary (and only other) mode
created, in the sense of being
whom
of,
general.
in
an existing estate,
by whom
acquired.
it is
Rights
it is
estates.
of acquisition of an
from a person in
new
arise as
simple in land
The
freehold tenure
of
minerals
he
as
may
think
fit
subject
only
to
the
restrictions
in this veapect.(g)
Restrictive
covenants.
Jjj^jq
e.g.,
though
not at common \aw,(Ji) bind not only the covenantor, but
also every subsequent owner of the land, except a purcovenant not to build on the land
chaser
is
who has
acquired
it
Ante,
to the extent, at
As
restrained
least,
that
by injunc-
p. 31.
will in equity,
()
it
p.
29.
(7j) The burden of a covenant iloes not, it seems, run with the land at common
law, except as between landlord and tenant see post, p. 97 Austerhemi v. Corporation of Oldham, 29 Ch. D. 750, 33 W. E. 807 Third Kep. E. JP. Com-.
:
63, 54.
Digitized
by Microsoft
ESTATES IX POSSESSION.
tion.('i)
rule does
53
not apply to an
buildings. (^)
Where an
con- Where
liable
'"'^'''
ditional
limitation
The
rights in
And
by the
if
lord's
a copyhold
P.,
See ante,
B. D. 403, 51
South- Western
L. T. 449, 30
750, 33 W. E.
p. 49.
(m) Turner
V. Litton, 3
what
(0)
Ante,
p. 37.
Digitized
by Microsoft
Copyliold
fSiy for
waste,
54
Eights of in
general.
tenant in
Of
conditional
fee in copy-
fee
by
{i.e.,
by alienation
inter
or
In
will.
land, either
is,
To a
Conditions,
^"^'j?""*^*"^*
may be
restrained
by means
by
limitation
way
Thus, alienation to
But
if
may be
the restriction
is
the
absolute in
its
terms, or
if it
it is
tend to
deemed
Alienation
]Und^Acts.^
(p)
See ante,
p. 41.
Litt.
(r)
Seeposi,
s.
p.
He Morgan, 24
See po.^f, p. 77
(s^ 45 & 46 Vict. c. 38, s. 58 (ii.), (iii-)Ch. D. 114. As to the meaning of the term base fee, see post, p. 127.
;
Digitized
by Microsoft
55
ESTATES IN POSSESSION.
the land would have been held and have devolved
not been disposed of.(i)
had
Determination.
freehold
if it
of.
to,
feiture, (t^)
or
in,
otherwise.
its
passing by
since
it
manor
Estates
Sect. II.
Creation.
An
estate tail is
by
Tail.(26>)
of.
will.
The
rights of a
tenant in
all respects, to
tail. Eights
of.
those
Alienation.
enjoyed by a tenant in
some reference
tail,
as to.
The
origin of
the
tenant
any
estate to endure
(()
(a)
(u)
of
Ss.
As
22
(5),
of
his
life.
p. 87.
See ante,
p.
19.
tail,
Digitized
by Microsoft
Effect of tie
For
56
The
tail.(y)
'
strict entails,' to
life.
!-
virtually repealed.
Common
Court of
effect,
tail
all
subsequent estates in
Common
recoveries.
simple. (&)
This proceeding
or (usually,
and
in an action) a
'
fictitious suit,
tail
the statute
which was
to distinguish
common
from a
it
recovery
of,
'
an estate in fee
called a 'recovery
real
'
adjudication
'
'
(k) 2 Bl.
Edw.
Tn Taltarum's case
4,
19
case,
Rep.
pt. 6,
40
dis-
had
this
the
a.
Tudor L. C. E. P. 695.
(c) The proceedings were based upon the old law of warranty of title (as to
Warranties of title, having become obsolete,
which, see Burton, 675-681).
were, in effect, abolibhed by stats. 3 & 4 Will. 4, o. 27, s. 39, and 3 & 4 "Will. 4,
c.
74,
o.
14.
Digitized
by Microsoft
57
ESTATES IN POSSESSION.
by tbe tenant
pretended warranty.(^)
that purpose
the tenant in
estate tail
tail to
on whom the
and interests
estates
by the tenant
').(<;)
person,
this
defend the
in tail to
The
and he called
and the tenant
'
action
all
tail.
instance, conveyed
first
all issue
title
tail,
as above explained.
voucher.'
By
statutes of
tail
VIII., a tenant in
and
tail
ne.(^)
'
'
'
vouchee.'
The
(e)
commenced was
called
prax^ps quod
reddat.
(/) See hereon, and generally as to common recoveries, 2 Bl.
Barton, 683-697 5 Cruise, t. 36.
et seq.
(g)
4 Hen.
(/j)
7, c.
24, explained by 32
'
Comm. 357
Hen.
8, c.
36; 5 Cruise,
t.
'
Fines had been used for the transfer of land before they were made available for the barring of estates tail : see 5 Cruise, t. 35, o. 1.
(i)
(j) 5
etat. 11
Hen.
&
4,
e.
12 Vict.
clamations.
14
v;.
Kich.
3, c.
4 Hen.
Digitized
7, o.
deemed
to
24 23 Eliz. c. 3. By the
have been levied with pio;
by Microsoft
Fines,
58
MW
THE
OF PEOPEETY IX LAKD.
tail
common
subsequent to
the estate
and
tenant in
tail,
recovered
by the
person
Since an
land
might be
the
next
estate
estate in fee
a
Deed
to lead
or declare uses
of recovery or
fine.
base
'
the
of
the
whom
in
death
the
After
tail.
failure of issue,
it
was
in
simple
called
fee.'(^)
whom
'
'
declare
'
the uses of
The
action. (7?i)
of this deed was to pass the owneraccording to the law, hereafter explained,
efiect
from
the party to
whom
barring estates
Abolition of
fines
and
re-
Present
recoveries,
coveries.
Law
as to Alienation.
much
In
alienation
by
fines
and
the
(/.)
1 Cruise,
t.
2, c. 2, s.
14
5 Cruise,
t.
35, c. 9,
s.
52
Burton, 700-706.
also applied to
'
(m) If the deed was made prior to the fine or recovery, it was said to lead
the uses if made subsequently thereto, it was called a deed to declare the
'
'
uses.
32, 41.
Digitized
(0) 2 Bl.
Comm.
Burton,
by Microsoft
363.
1285.
'
ESTATES IN POSSESSION.
of no practical value.
unaltered, however,
by a
'
The law on
till
An Act
the
subject remained
when
it
was amended
Modes of
December
;(s)
styled
Assurance,'
1833
is
more Simple
Substitution of
this
59
tail to
Mode
ot bar-
of free-"
tenure,
as against himself
should
be
may
to a purchaser. (re)
under the
transferree, or a
&4
to vest an estate
is
{r)
Stat. 3
(<)
Will. 4,
The
simple.
c.
74.
and
of a deed
(s)
to
effect
S. 2.
15
and see
21.
(m)
S.
(v)
e.
Ixi. ,. 9.
Digitized
by Microsoft
Disentailing
^
'
^^
and
ia
resorted
to
to acquire
and
Mode
With
of bar-
copyholds.'' "
if
it
is
an estate at
It will
^''^^
will or con-
'"'i^l
tract.
may be
disposed
tenant in
tail
is
of.(c)
Yoid.(d)
sell
during his
life,
yet, if
modes by which an
estate tail
testamentary disposition by a
And
though,
may be
if
he contract to
enforced against
on
whom
the estate
tail
when the
sale is
him
might devolve, and persons claimThis rule, however, does not apply
made under
Convejauce by
iToTenroUereffect of.
(1/)
As
() I.e.,
tail,
as to which, see
2Mst, p. 181.
50
(a)
S.
(i)
S. 54.
370
S. 40.
(/) Seei^osi,
{<))
44 L.
Morgan
p. 62.
v.
J. Ch. 674,
Morgan, L. E. 10 Eq. 99
33 L. T. 158.
Digitized
by Microsoft
Mills
v.
ESTATES IN POSSESSION.
as against the tenant himself, during his
61
life.
And
it
may
afterwards become valid to all intents for the Act abolishing fines and recoveries provides that a voidable estate
created by a tenant in tail in favour of a purchaser for
;
or the
who
without
acquires
estate. (A)
And
leases
express
notice
made by tenants
of
the
voidable
in tail in possession,
by the
statute
of enrolment of the
deed.(y)
The
mode
prescribed by the
Right of aliena't'0".i?par-
ably incident
to estate tail,
notwithstanding any expression of a contrary intention on the part of the donor of the estate, or any
recovery or fine
tail to
Since
The right
&
(i)
As
to
'
128.
Digitized
by Microsoft
Birth of issue
not essential.
62
will
it
tenure
in
is
by a tenant in
some exceptions.
Estates tail
granted by the Crown, in reward of services, cannot be
of alienation enjoyed
subject, however,
tail is
to
of
inheriting, is living
(0)
for in
life
p. 40.
&
35 Hen.
&4
Will. 4,
{n)
34
(0)
8, c.
20
&
4 Will.
4, c. 74,
s.
18.
0. 74, s. 18.
See ivfra,
viri, i.e.,
by
p. C4.
gilt of
i;.
16).
74,
s.
(g)
See post,
(r)
45
&
p. 77.
46 Vict.
c.
38,
Digitized
s.
58.
by Microsoft
'
ESTATES IX P0SSES3I0X.
G3
Determination.
An
estate
where,
expires
tail
if it
had
of.(s)
estate, or of a
on the Modes
is
(if Failure of
the estate
is
the class
entitled
limited in special
possibility of issue
Where an
estate
And where
succeed.
to
the
on
tail,
to a condition Operation
having
efEect
failure of issue,
by
by way of executory
or
may be determined or
'^^"^"
estate is
tail, it
of.
succeeding
of
conditioaal'^
limitation,
tail
whereby he
In the case of an estate tail in land of copyhold tenure, EnfranoMsean enfranchisement at common law of the land, by con- * "^ ""p^"
hold.
veyance of the freehold in fee simple by the lord of the
manor to the copyhold tenant in tail, extinguishes the
But an enfranchisement effected
copyhold estate tail.(v)
under the Copyhold Acts has not this effect, but merely
converts existing copyhold estates into estates of freehold
tenure, (w)
Estates for
Sect. III.
Creation.
of a party
22
(s)
See
(i)
See infra,
ss.
An
(5),
in other words, by
or,
34
LiFE.(a;)
and post,
by the act By
means of an express
p. 87.
p. 64.
(u)
Dunn
V.
i?.i-
751.'
(lo)
&5
For
Vict.
c.
35,
definition of
a.
81
15
an estate for
&
16 Vict.
^.
51,
s.
46
An
life,
'
Digitized
by Microsoft
act of
P*'''^
64
THE LAW OF
ty operation
law
of
(in tliree
cases)
PJiOPEllTY IN LAND.
irvter
by
vivos or
is,
will
or through
for
'
'
of a
(1) estate tail
after possibility of issue
extinct,
widow
An
and the
interest
possibility
of issue extinct
special,(?/)
tail
occurs
and the
may
be)
respect
this
are
not
(a)
is,
'
this estate
(3) estate in
dower.
by
The
interest of a
estate is
after
(y)
See ante,
p. 41.
(a)
As
(6)
See 2 Bl.
Comm. 126
431-436.
et seq.
On
this
428, 429.
Digitized
by Microsoft
65
ESTATES IN POSSESSION.
death, for the term of her
lands.
which
This interest
it
is
life,
called
exists is copyhold)
'
freebench.'
In land subject
and occasionally in copyhold
'
fixtures.
General Pdghts.
(i.)
rights
and
use
of
enjoyment,
so
far
The
as
they
tenant's General
rights,
extend,
life
He
limited.
is
him
'
waste
Liability for
'
^^'^^*^-
been granted to him expressly without impeachi.e., free from liability for waste \{d) or unless
the estate be an estate tail after possibility of issue extinct
the exemption from liability for waste, in the latter case,
being due to the estate having originally been an estate of
estate has
ment
'
of waste,'
Waste, generally,
is
of things forming an
See
Comm. 129
2 Bl.
et seq.
On
c. 7, s. 2.
(d) 2 Bl.
Comm.
283.
see
ss. 6,
is
not
29, 35.
Co. Litt. 27 b
2 Bl. Comm. 125, 283.
remedy fur waste by a tenant for
or years was first given by the Statutes of Marlbridge (52 Hen. 3, c. 23) and
As to the remedy under these statutes (the writ
of Gloucester (S Bdw. 1, c. 5).
4 Will. 4, c. 27, s. 36, see 2 Bl. Comm.
of waste), which was abolished by stat. 3
283. The modern remedy is by action for damages, or for an injunction to re(e)
life
&
(/) Cornish
((/)
Ante,
y.
New,
Finch 220
p. 53.
E
Digitized
by Microsoft
'^^'^'^'^^
66
may
or
is,
person
by
called
is
felling or
'
voluntary
'
waste.
It is
act of a
committed
chiefly
permissive.
of husbandry.
as it is called,
'permissive'
to do acts, or,
waste, consists in
suffering
permissive
waste.
afforded
by the
and
modern
remedies
life
(/)
it
of such
respect
the
against
(n)
to the effect
stipulation or condition
that he
shall
keep
in
timber and
other trees.
the Settled
of land
life
'
is
settled land
Co. Litt. 53 a
Burton, 718
Coke,
53 a, 54 b
Saunders, 574.
Co. Litt.
( j)
1
Wms.
'
Jones
v.
Coke,
Inst., pt. 2,
145
see 2 Bl.
Comm. 281
(Ic)
,J.),
W.
In re
v.
Bowling (1881, Q. B.
Cartwric/ht,
Avis
Re
404 49 L.
E. 85
1).,
Lewin, 574.
Newman
W. R. 612.
v.
Digitized
Woodhouse
W. E.
by Microsoft
765.
v.
Walher, 5
Q B
58
'
&1
ESTATES IN POSSESSION.
tenant be impeacliable for waste in respect of timber provided the consent of the trustees of the settlement, or an
order of the Court, be obtained for the purpose.
Three;
is
is,
as a general rule,
is
And
timber
if
is
the Court
may
order
it
to be cut
and
sold,
and the
interest
life,
and the
The
common law
right to reasonable
'
estovers
'
botes,' that
is,
&
46 Vict. c. 38, s. 3.5. As to the life estates to which the Act applies,
{p) 45
As to trustees of the settlement,
see s. 2, sub-ss. 1, 5, and s. 58, and^osi, p. 77.
see s. 2, sub-s. 8, and ^josf, p. 84.
And as to capital money, see jiosi, p. 85.
Co. Litt. 53 a. See per Jessel. M.R., Honywood v. Hony[q) 2 Bl. Comm. 281
wood, L. R. 18 Eq. 306, 311, 48 L. J. Ch. 652, 30 L. T. 671, 22 W.B. 749.
;
(r)
Honywood
v.
v.
Mayniac
(1891),
W.
N.
17, 136.
(s) Tooher v. Annesley, 5 Sim. 235; Tollemachn v. TollemacJte, 1 Hare 456 ;
:Earl Coidey v. WeUesUy, L. E. 1 Eq. 656, 14 L. T. 245, 14 W. R. 528 ; Honywood V. Honywood, supra. By the Settled Estates Act, 1877 (40 41 Vict. c. 18),
This enact.s. 16, the Court may order the sale of timber on any settled estate.
ment, however, seems to be in effect superseded by the above provision of the
Settled Land Act, 1882.
&
(u)
where timber,
that
Gorges
v. Stanfield,
Comm.
;
the
5 Co.
Litt.
53
35, 122.
Saxon word
;
Simmons
Estover
iote is
v.
derived from
b.
Digitized
is
synonymous with
by Microsoft
''
68
may be
if above
It
whose premises a
loss
fire
in mines, &c.
accidentally begins,
is
for
gravel, lime, clay, brick, stone, or the like (unless for repairs-
of bilildings
on the land),
waste.
is
when
w)
Honywood
v.
v.
v.
HotcliTcin
Wdlesky,
Honyioood, supra.
{y)
(6)
309
(c)
(d) 2
(e)
v.
{/) Co.
3, c.
Litt.
Harl Cowley
v.
Spencer, 10 B.
14 Geo.
v.
&
Cole
v.
Green, 1 Lev
C. 145.
1 Cruise, t. 3, c. 2,
78, repealing 6
53 b
pi. 19.
2 Bl.
Anne,
Comm.
282
s.
24
2 Bl.
Comm.
Viner
v.
Tavghan,
Digitized
281.
c. 31.
by Microsoft
W.
Beav. 466
E. 528.
69
ESTATES IN POSSESSION.
Where an
for
estate
life
is
life estate
from
is free
is
liability for
Equitable
^^^
terms
the
of
In
grant.
{j)
And
waste.
of issue extinct,
as
to
of this kind
is
Waste
tenant for
'
equitable
such
possibility
tail after
restricted. (/i;)
waste
since
'
life,
But, by the
made
(ii.)
Fixtures.
to
life,
(cj)
Co. Litt. 53
a,
53 b
2 Bl.
Comm. 282
Simmons
v.
Norton, 7 Bing-
640.
(/(.)
(i)
(j)
Vane
Bolt
V.
Aston
v.
Lord Barnard,
Lord
V.
Aston,
(k) Attorney(I)
86
&
General
37 A^ct.
Vern. 738.
u.
ee,
25, sub-s.
3.
Digitized
Hibhert
v.
Cooke,
by Microsoft
S.
&
S.
552
70
given
Improvement
of Land Act,
1864.
to
especially
has,
this subject.
Acts,(p)
These
ments.
drainage
include
and
irrigation
works,
the making
piers
&c.-;
the erection
buildings
and
of gardens,
and other
market-places,
in connection with
the sinking of
pits,
^'
fssf
^''^'
note
(o).
&
{p)
See note
[q)
As
(n),
supra.
(r) See Improvement of Land Act, 1864 {svprci), ss, 26, 51, 63, 66.
And
51 Vict. c. 30), as
nee the Settled Land Act Amendment Act, 1887 (50
to the application of capital money arising under the Settled Land Act, 1882,
in the redemption of statutory charges fur improvements.
&
Digitized
by Microsoft
ESTATES IN POSSESSION.
71
life,
Emblements,
them.(i!)
pur
where an
as
voluntary act
who
as
well
as
determines
A.'s
emblements
the
except that,
(it)
under-tenant
is
entitled
to
he be a tenant of a farm or
under a modern statute, to
if
is,
till
the expira-
emblements
by
for
purposes of
may
be claimed
life,
his
tenant himself,
if
&
(s)
46
(<)
2 Bl.
47 Vict.
Comm.
c.
122
61,
;
ss.
See infra,
Co. Litt. 55
b,
56
And
As
a.
to
the Agricultural
p. 91.
strictness
(m)
2 Bl.
{v)
{x)
(y)
Co. Litt. 55 b
5,
116 a
D'Mjncoiirt
1 "VVms. Exors.
Gregory, L.
746
Brown,
1!.
Fixt., 191.
Digitized
by Microsoft
15 AV.
1!.
I8fi
Fixtures.
"^
years. (3)
Alienation.
Rights of
Of
legislation in the
be first considered.
And since, by the statutes referred to,
the effect of the system of strict settlement of land under
common
law
the
of alienation.
own
or less
life
that
may
is,
for
him and his executors or adminisand even though there be a further limitation to
another person on failure of his heirs, &c.
And where the
or heirs of his body, or to
trators
pur autre
and the
that
is,
to the tenant
(s)
46
vie
& 47
Vict.
u. 61, ss.
41 b; Saltern
heirs of his
34, 61.
v.
See infra,
Digitized
p. 91.
by Microsoft
1 Prest.
Abslr. 438-140
73
ESTATES IN POSSESSION.
of the
land, either
in his
without an owner
mon
for, so
vie.
occupancy,' or
called
'
com-
Until possession
general occupancy.'
'
was
If,
life
vi6.(c)
Common
of Charles II.
provision was
vie,
and
its
devolution in default
of the estate,
shall
if
it
it
as in the case of
be no special
occupant,
it
shall pass
and that
it
if
there
to the executor or
by reason
shall
if
it
come
of a special
be applied in the
(6)
Co. Litt. 41
(c)
Roll.
{d)
6. 9.
(e)
1st
its abolition.
b,
Abr. 511
342 b
;
2 Bl.
Comm.
258.
1 Cruise, t. 10, o. 2, s.
28
see ante,
this
ji.
to wills
January 1838.
Digitized
30.
b^-
by Microsoft
14 Geo.
made
2, o. 20,
before the
of estates
awtre
vie.
^wr'
74
vie,
by
will
The
Conditions,
inff'a^fenation
exercise of
any
either absolutely or to
may be,
extent,
less
in effect, restrained,
by means
of either
a condition subsequent,(c) or
common law
an execu-
or as
ing for
its forfeiture
pm-poser
under statutes,
Its formeffect
By modem
and
Strict Settlement.
settlement of land
strict
the chief
and
and, failing the estate of the eldest son, to the second son in
tail,
and
Until a tenant in
so to other children.
tail
under
land (that
is
is,
only
life estate
(/) Dillon V. Dillon, 1 Ball & B. 77 Allen v. Allen, 2 Dr. & War. 307 lie
Barber's Settled Estates, 18 Ch. D. 624, 628, 50 L. J. Ch. 769, 29 W. K. 909.
;
429
(i) But such a condition or conditional limitation will not prevent alienation
under the Settled Land Acts see post, p. 88.
:
j) 8
{h)
&
9 Vict,
11 Geo. 4
c.
&
Will. 4,
o.
47,
s.
12
c. 60, . 29.
Digitized
by Microsoft
&
3 Yict. C..60
13
&
14 Vict.
75
ESTATES IN POSSESSION.
tail, yet, being an infant, he cannot
Hence, the succession of the child on the death
of his father (the tenant for life) is secured during the child's
infancy.
On his attaining the age of twenty-one, he can,
with the concurrence of the tenant for life,(Z) bar the entail,
and thereby acquire an estate in fee simple, under the proYisions of the Fines and Eecoveries Abolition Act; {m) subject,
of course, to the preceding
life
is
is
Ee-settlement.
to his first
life,
vious settlement
and on Ms death,
tail,
as in the pre-
of
(h)
As
1,
257
et seq.
see
4 Ciuise,
t.
32,
c.
24,
es.
6-17
(o) By the statutes 12 & 13 Vict. c. 26, and 13 & 14 Vict. c. 17, validity is
given under certain conditions to leases made by a tenant for life in excess of his
leasing
(p)
ch. 21
As
;
andpost,
Comm. 344
p. 410.
Digitized
by Microsoft
1 Steph.
Comm.
76
The
Estates Act,
:Estates Act,
life
of a settled estate
that
are
the
subject
made
settlement was
i.e.,
of
settlement (?)
(provided
November
1856,(s)
the
and
one years
it)
for any
taking a
fine,
lease. (i)
And
may
By
settlement.(v)
may be
may, on the application of the tenant for life, and with the
concurrence (in most cases) of the other parties interested
in the hereditaments, order the sale of a settled estate, if
deem
it
power
The money
ment, (ly)
is
all
parties
entitled
arising
from the
sale is to
affecting,
unless
the
the
be applied,
upon, or of any
incumbrance
hereditaments
sold,
or
other
same way
as the
it is
(o)
to be invested as cash
40
&
the Leases
.subsequent
buccesbion
(s)
Act, 1856,
[t)
see
S. 57.
s.
2.
This
came
is
into operation.
S. 46.
(v) S. 4.
Digitized
by Microsoft
'
ESTATES IN POSSESSION.
may
for
77
is
life, (a;)
which confer upon tenants for life further powers of alienation, exercisable, in most cases, without the sanction of the
Court or the concurrence of any person entitled in succession
to the tenant for life.
These Acts apply to land of any
tenure, which is the subject of a settlement made either
before or after the date of the
Land
commencement
of the Settled
And
life, is
for life as thus defined, certain other persons have, under the
provisions
settlement, and
persons, and
to
settled land,
to the instrument
interest arises,
and
a tenant
life
and the
for life, to a
to the
The
life,
as well as
some other
(1) a tenant
45
& 46
Vict.
c.
(the Settled
55 L.
J.
8.
2, eub-ss.
5 and 10
E. 898.
(i.);
He
Paget, 30 Ch. D.
161,
W.
ante, p. 54)
other
life
{seepoet, p. 181).
Digitized
by Microsoft
g'^^'^^^^jj^f
of,
of
78
pur
liable to cease in
Powers under
the Acts.
leases
(i.)
(ii.)
(v.) partitions
Leasing
powers.
(iv.)
exchanges
mortgages.
(vi.)
The
Leases.
is
(if
any)
lie Pagetj
[c]
W.
35
v.
R. 83.
S. L. Act, 1884,
s.
8.
As
ceedings, being taken for the protection of settled land, or for recovery of land
being, or alleged to be, subject to a settlement, and may direct costs, &c., in
relation thereto to be paid out of property subject; to the settlement (s. 36)
.see Re Aylesford (Earl), 32 Ch. D. 162, 55 L. J. Ch. 523, 54 L. T. 414, 34
W.
E. 410.
S. L. Act, 1882, s. 6.
a term of years, the
(/)
is
ment
is
p. 94.
Digitized
by Microsoft
79
ESTATES IN POSSESSION.
in extent, the house is not to be
deemed a mansion-house
made to take
effect in possession
Requisites of
leases,
settled land,
With
life.(7i.)
1^^^^^-
peppercorn
may (within
among the lots.(y)
years, or less, of
five
first
may be made
rent,('i)
is
the term
contracted to be leased in
certain
specified
lots,
and
the
limits) be apportioned
S. L. Act, 1882,
46.
(h)
S. L. Act, 1882,
s.
(()
See post,
(?)
S. L. Act, 1882,
s.
8.
J30
S. L. Act, 1890,
s.
7.
p. 271.
Digitized
by Microsoft
leases.
80
made
or
the
them
money under
is
to be set aside
and invested
is to go
also
a power of
making
a lease
on the part of a
preceding owner, and which, if made by the latter, would
have been binding on his successors a power of leasing for
for giving effect to a contract for a lease
may
empowered
The Acts
tenant for
to
for
life to
make
periods, or
Powers
of sale.
(ii.)
the
Sales.
settled land,
any part
or
thereof,
or
any easement,
S. L. Act, 1890, s. 8
(I) S. L. Act, 1882, ss. 9, 11
i?c Jiidc/e, 31 Cli. 11
As to how the price of the
504, 55 L. J. Ch. 265, 54 L. T. 549, 34 W. K. 159.
minerals is to be assessed, see S. L. Act, 1890, s. 8.
;
(m) S. L. Act, 1882, sf. 12, 13, 14. As to the power of granting licences for
leases of copj holds independently of the above provision, see^Msf, p. 369.
()!)
S.
Act, 1882,
s.
10.
Digitized
by Microsoft
81
ESTATES IN POSSESSION.
and
by public auction
either
by private contract,
or
subject,
however, to the like restrictions as to the principal mansionhouse (if any) and the pleasure-grounds and park and lands
(if
as heirlooms,
tenant for
i.e.,
life
any
chattels or
sell
the
of them.(p)
Enfranchisements.
(iii.)
settled
Where
settlement
the
com-
Powers of en-
to effect
life
'^^"'^
isemen
Under the
Exchanges.
(iv.)
may be
privilege
exchange
exchange
for
may
be given or taken in
made
to be
is
Every
privilege.
land
tion of the
of
^^
and he
is
powers
Powers of
yj-jg^"^^"^'"
with
an exchange.
Every partition
is
made
to be
Mortgages.
(vi.)
Where money
is
part of
it,
life
is
empowered
to
raise
the
4
S. L. Act, 1890, s. 10
In re Brown's Will,
Ch. 921, 51 L. T. 156, 32 W. E. 894. Property which,
when vested in a tenant in fee simple, is by law inalienable, cannot be sold
tinder the Acts
Be Sir J. Rivett-Carnac's Will, 30 Ch. D. 136, 54 L. J. Ch.
1074, 58 L. T. 81, 33 W. E. 837.
(o)
S,"'L.
Act, 1882,
27 Ch. D. 179, 53 L.
ss. 3,
J.
s.
37
Re Earl of Radnor' s
As
S.
L. Act, 1882,
ss.
(s)
S.
L. Act, 1882,
6s.
(iii.),
to
seignories
and enfranchisements
s.
5.
F
Digitized
by Microsoft
of
of
"'
82
money
action,
of the trans-
Powers given
on mortgage
him
of other
and ancillary
incumbrance
A power
life,
to transfer
an
under the Acts, from that land to other settled land, with
the consent of the incumbrancer ; (u) a power on
sale,
ex-
money required
of exchange, or partition,
or any part of
it
by mortgage
and
Conveyances,
&c.
on
may,
partition,
same by deed
any
settlement, or for
of the
such manner
to the transaction.
as to give effect
extent to which
it is
intended
to,
the Acts, will transfer the land, &c., conveyed thereby, free
all interests, &c., under the settlement, except such as
have been actually created for value prior to the conveyance ;
but subject, of course, to estates and interests having
The tenant for life is also
priority to the conveyance. (a;)
empowered to make a conveyance or lease for the purpose
from
(i)
S.
L. Act, 1890,
11.
B.
(v) S.
L. Act, 1882,
S. L. Act, 1890,
s.
9.
b.
20.
(lu)
Digitized
by Microsoft
25 Ch. D. 651, 53
83
ESTATES IN POSSESSION.
made by
and which
if
made by the
title,
a preceding owner,
latter
(y)
make
is Sanction of
certain leases, or to
111
tru^tees^ re-
sell
and must
known
he be
requirement
to the tenant
But
for life.(&)
this
Such a lease
and notwithstanding that there
may
be
made without
notice,
And where
notice of an intention to
make
sales
or leases,
it
is
may be
proposed transaction
So also
{z)
and
sale of
timber
(a)
70
{b)
S.
L. Act, 1882,
s.
45.
(c)
S. L. Act, 1890,
s.
7.
Digitized
by Microsoft
Notice to be
frugtees of
settlement,
THE LAW OF PEOPERTY IN LAND.
84
notice
tenant for
life is
faitli
the
witli
The
Trustees of the
trustees
Acts are
of the
(3) the persons (if any) who, under the settlement, are for
the time being trustees with power of, or upon trust for, sale
to the
had, in exercise
oi powers, to
interests of all
paities.
The Acts
to be
life,
in exercising
'
^^
them.
But
it is
against
in
good
parties entitled
all
with
faith
the tenant
conclusively taken to have given the best price, consideration, or rent, as the case
may
Where
the Acts.(/)
all
the
life
is
S. L. Act, 1884,
{d)
(e)
new
S. L. Act, 1882,
s.
Ilaiten
v.
Sussell, 38 Ch.
Ccuvt.
(/) S. L. Act, 1882,
D. 334.
As
e.
ss.
Digitized
53, 54.
by Microsoft
s.
to
appointment of
by
38 (appointment
85
ESTATES IN POSSESSION.
The Acts provide that the capital money i.e., the money Payment of
produced by sale of the settled land or heirlooms,(A) or ^^^^ ^^g
received as a fine on the grant of a lease, (-i) or for en- -^"tefranchisement, &c., or raised by mortgage under the Acts,
or set aside under a mining lease, or on the sale of timber(y)
court,
it
may,
if
and where
fit,
it
be
Acts.(/i:;)
money
arising
from the
sale
as
the
chattels
invested or applied
it
capital
sold,(^)
money
to
is
be
tenant for
tion
life,
it
has been
in
securities or
authorized to
S. L. Act, 1890,
As
or
life
modes
These comprise (1) Government
the Acts.
other securities on which trustees are by law
invest trust money (?i) (2) securities author-
=.
(3) bonds,
mortgages, debentures,
12.
Money paid into court under the Lands Clauses Conany other Act, or in the hands of trustees of a settlement, and which is liable to be laid out in the purchase of land under a settlement, may be dealt with as capital money uniler tlie Settled Lands Acts (S. L.
Act, 1882, ss. 32, 33)
lie Mackenzie's Truxts, 23 Ch. D. 750
Be Maberly,
33 Ch. D. 455; Be Mundijs Settled Estates (1891), 1 Ch. 399.
(j) See supra, p. 67.
solidation Act, 1845, or
{k)
S.
L. Act, 1882,
[l)
8. L.
(n)
For
post,
p.
Act, 1882,
these, see
192.
s.
22
s.
37.
S.
L. Act, 1890,
=.
14.
Digitized
&
s.
53 Vict.
by Microsoft
22.
^.
31),
and
Its investment
or application.
86
Kingdom, incorporated by
special
having paid a dividend for ten years next before the investment on its ordinary stock; (4) the discharge of incumbrances on the settled land, including land-tax and
tithe rent-charge
(5) the payment for any improvements
authorized by the Act (o) (6) the payment of any sum for
;
copyhold,
life
ment
to
(9) pay-
of costs. (p)
Payment
for
improvements
Acts.
As regards
qj.
yVoti
'
&
redemption of a charge
(p)
S.
L. Act, 1882,
for
S9.
21, 23.
s.
See als^s to
26.
Digitized
by Microsoft
&
_^^^^
47 Vict.
costs,
s.
47.
u. 61
's. L'y).'
87
ESTATES IN POSSESSION.
ment
capital
money
to be applied
in pay-
scheme was
Devolution of
and''^tert!^
money
Settlement of
a'^der^Acts!''
The powers of
T
is
Acts not
p,
as-
and remain
alter
any signable, and
assignment, by operation of law or otherwise, of his interest cannot be
under the settlement and a contract by him not to exercise
assignable,
S.
L. Act, 1882,
s.
22, sub-ss. 5, 6.
{t)
S.
L. Act, 1890,
s.
9.
s. 34
28 Ch. D. 628, 54 L.
{v)
S.
L. Act, 1882,
s.
Be
J.
CottreU
Oriffith's Witt, 49 L. T. 161
Ch. 417, 52 L. T. 486, 33 W. R. 361.
;
24.
Digitized
by Microsoft
v.
88
But
liave
lie
if
assigned his
might
Provisions of
Acts as to
powers under
settlements.
so
operate.
life is
of
Determination.
An
whose
life it
was
on the death
held, whether
Where
vie.
having
effect
interest), it
or
by way of executory
its
D.
[x) S. L. Act, 1882, s. 56; and see 8. L. Act, 1884, ss. 6 (2), 7,
post, p. 182, as to the application of the above enactment to trusts for sale.
()y)
As
p. 103.
{z)
As
Digitized
by Microsoft
and
also infra'
89
ESTATES IN POSSESSIOX.
moire
vie,
cestvA
is
deemed
to be
to be
dead. (6)
Sect. IV.
Creation.
for years
is
vivos or
by
The
ordinary
mode
of.
is
an
annual rent (whether payable quarterly or otherwise), but no
term is expressly limited, impliedly creates a tenancy from
operation of law.
(c)
'
And
whereby land
is
demised
,J.
Ch. 248, 27
For the
definition of
lessor,' 'lessee,'
(d) Litt.
s.
58
'
an estate
for years,
at
(h)
W.
Now
lease
Co. Litt. 46 b
to the distinction
Richardson
Martin
v.
v.
Digitized
by Microsoft
Doe
d.
Yearly tesaiicy
^ ""^
90
and
Division of
subject.
may
terms
of
In absence of
express agreement.
created
is
and,
is
money
made
first,
relation
secondly, with
provision
be considered,
to leases
tenant
The
five
to
as
with reference
landlord
of
and
reference to long
lent- is secured.
of use
may be first
compensation for. imand rights to emblements.
considered
with
regard
to waste,
Waste.
of
liability.
With
same
Hence,
as that of a tenant for life.(y)
he is not, it seems, liable for permissive waste. (/c)
It is said,
however, that a tenant from year to year of a house is bound
to keep it wind and water tight
but it is not clear that he
for years is the
is liable
of his
Common
as
to.
own
Improvements.
law
years
is
consequences
acts.(/)
B.
&
C. 100.
(J)
(k) Ibid.
(I)
327
& T.,
Digitized
296.
&
P. 239
by Microsoft
Leach
v.
Thomas,
7 C.
&
P.
91
ESTATES IN POSSESSION.
ceeding owner, to any compensation, or charge upon the land,
for improvements effected by him ; even where such im-
Nor is he entitled,
provements are of a permanent character.
on the ground of his having no claim to compensation, to
remove a building or other erection (not being a mere
fixture) added by him during the term
for such removal
would be an act of waste on his part.
The lessee may, however, be entitled to compensation for
improvements by special local custom and such customs
;
Local custums.
exist,
with
respect to
in
tenancies,
agricultui-al
many
places. (m)
As
market
the
common law on
subject
this
is
altered
gardens,
by the
This Act
to
specified kinds,
made by
and
provents
consent
it
of
certain
im-
Also
for lives
cli.
46
20,
& 47
s.
5.
Vict.
c.
61,
s.
61.
And
Digitized
by Microsoft
Agricultural
(England) Act,
1883.
92
Gardens Act,
1887.
LAND.
IX
3 per
annum. (p)
cent, per
common law on
this subject
has
fruit
and for labour expended, and manure applied, since the taking
and for
drains, out-buildings, pig-styes, fowl-houses,
and other
structural improvements, made with the landlord's written
consent.
Eent due from the tenant, &c., may be deducted
from the amount of the compensation and the tenant is not
to be entitled to any compensation under the Agricultural
Holdings (England) Act, 1883, where he is entitled to compensation under this Act.((^)
of the last crop, in anticipation of a future crop
Fixtures.
(Jenerai rule.
lessee, for
the
pur-
may
be removed by him
during the term, or during the continuance of his possession
This
as tenant. (?')
use,
exception (established by a
land,(s)
was
common
series
of
law, that
effected
50
& 51
Vict.
0.
26,
&
798, 810;
c. 2
Leader
v.
Brown, Fixt.,
Ilobmvood, 5 C. B. N.
c.
5.
Digitized
(s)
by Microsoft
Co. v. Drake, 6 C. B. N. S.
546; Amos & Ferrard, Fixt,
See ante, p. 9.
S.
93
ESTATES IN POSSESSION.
may
before, or within
Act, (1883.
formed
all
all
his tenancy,
remove any
he has
Emblements.
Where an
by
was granted, the
a rule based on the
lessee is not entitled to emblements
view that, as he knew the expiration of his term, it was his
own folly to sow where he could never reap the profits. (it)
Nor can he claim emblements where the estate determines
through his own act as by forfeiture, or by notice given
by a tenant from year to year to his landlord. But the
estate for years determines
General
rule,
it
representative
is
entitled to
emble-
known
to the lessee,
as
&
() Litt.
68
2 BI.
Comm.
145.
Digitized
55b
by Microsoft
2 Bl.
Coram. 145.
Statutory
'^'^^*'"^-
94
who
lessor
the lessee
is
is entitled,
tinue to hold upon the terms of his lease until the expiration of the current year of his tenancy. (i)
And,
as has been
now
entitled,
by
statute, to compensation,
growing
crops. (i;)
Local customs
as to crops.
is
on the expiration
common
may
for
that purpose,
may
retain possession, or
re-enter.
In
other instances, the incoming tenant, or sometimes the landlord, takes, at a valuation, the crops raised
by the outgoing
tenant. (2/)
Express provisions as to
use and
enjoyment.
The nature
by which, in ordinary
and enjoyment are regulated, may be next considered.
The provisions of leases vary,
in this respect, according to the subject of the demise and
the purpose for which the lease is granted.
Of the several
of the
stipulations
rights of use
mining
lease.
'
building lease
of ninety-nine
'
is
a lease of land
sometimes for a
term of such length as to be practically equivalent to a perpetuity
'
ground-rent
')
An
Occupation
lease.
'
occupation lease
building, or of a farm
'
a lease
is
of a house
or
other
farming lease
granted for a term which, in general, does
not exceed twenty-one years, and at a rent which is usually
the full annual value of the building or land, and is then
'
'
called a
(io)
14
'
&
rack-rent.'
15 Vict.
u.
25
ante, p. 71.
(z)
Digitized
(c)
by Microsoft
ESTATES IN POSSESSION.
95
of a
'
royalty,'
i.e.,
sum
a fixed
'
dead rent
')
lease.
Mining
a fixed rent
Eeseryations.
be paid by the lessee, a lease sometimes contains reservations to the lessor of other rights, such as rights of
to
The following
To
pay
to
lease, the
entitled
do not
all
on the
(e)
of the term
and permitting the
and view the state of repair. (/) Covenants
as to insurance by the lessee, or for payment by him of the
premiums on an insurance effected by the lessor covenants
determination
lessor to enter
(c)
Woodfall,
As
ii. cli.
3.
but in reference
covenant is properly a contract contained in a deed
to leases tlie term is here used to denote any contract contained in a lease,
not.
made
by
deed
or
lease
be
whethei- the
;
p. 125.
By
5 & 6 Vict. c. :io, ss. 73, 102without allowing such deduction is made void
104.
By the Tithe Act, 1891 (54 Vict. c. 8), a contract by a lessee to pay tithe
:
rent-charge
(e)
As
is
made
to the
void.
As
expressly excepted.
'
Digitized
by Microsoft
Covenants,
96
without
The
Operation of
lessee's
covenants.
any
act or
any
of his covenants.
covenants are so framed as to be binding on him, and enforceable after his death against his estate, throughout the
But by a modern
empowered
all
But the
Act expressly preserves the right of the lessor to follow the
assets of the deceased into the hands of the persons among
whom they may have been distributed by the personal
retained assets of the deceased to satisfy the claim.
representatives, (g)
Indemnity to
lessee on
assignment of
lease.
Liability of
assignee of
lease
upon
covenants.
In consequence of the
breaches of
assignment to
another, he is entitled, on assigning the lease, to be indemnified by the assignee against such liability, (/i)
And, in
practice, an express covenant by the assignee for this purpose
is usually contained in the instrument of assignment.
In addition to his liability to indemnify the lessee, the
lessee's
liability for
assignee
of
a lease
is
liable
to
its
Covenants upon
which the assignee is so liable are said to run with the
land.'
They bind the assignee, on account, it is said, of
'
(g)
22
&
23 Vict.
c.
35,
Sug. V. & P. 37
L. J. C. L. (Ex.) 62.
{h)
Digitized
s.
27.
by Microsoft
97
ESTATES IN POSSESSION.
have
rights
of
the
both
against
action
and an
lessee
There
covenant.
tween the
is,
The assignee
lessee.
liability,
upon
ceases (except
for
his
breaches)
previous
personal
his
representative,(/v)
the
in
exemption from
to the
it
;
latter,
is
an
being
personally liable
same extent
save that he
may
as
Lessee's
representative
a" assignee.
an
claim
exceeds
the profits of the land which he has received, or with reasonable diligence might have received. (^)
Wliat cove-
^h\iig" ^nd
Covenants respecting
become part
of the subject of
demise (such
if
V.
&
(j)
Pitcher
1 Bos.
Mum,
[k)
v.
&
Tovey, 1 Salk. 81
Leleux, v. Nash, 2 Str. 1221
Pul. 21 ; Karley v. Jung, 2 C. M. & E. 18.
Tat/lor
v.
10, 11.
Wms.
G
Digitized
by Microsoft
instances
uf.
98
LAND.
to repair or leave in
upon
the land
But, at
covenants.
common
bound
assigns)
covenant
Covenants by
lessor.
is,
lease
in equity,
may
bound by
it.(t)
Long terms
fromordLai7
J^^''^'
()
Williams
v.
Earle, supra.
where assigns
Williams
v.
Woodfall,
Earle, supra.
(s)
Woodfall, 171.
(t)
See Tulh
v.
Morhay,
774
2 Ph.
(i)
Digitized
by Microsoft
covenants,
ESTATES IN POSSESSION.
99
of the person in
are restricted,
term, or such as
may be needed
to
No
peachment of waste
rent
reserved
is
is
the grantee.
Long terms
modern
Mortgages for
practice, not often) created for the purpose of effecting mort- ""^
^'"^^'
Terms
land
of
this
by mortgaging or
money
to children, or annuities to
payment of portions
widows or
others, or debts, or
Among
is
and C.
whole or
for the
is
limited to
To the
A.,
extent, therefore, to
tail,
&c.
trustees,
person in
ment
whom
an estate of freehold
superseded.
are
which
it
specified
was
in
The
term
is
trustees,
however, can
the settlement
for
only
purpose for
money
in events
the settlement
contains
manner
in
Hence,
money out
[v)
means
Digitized
by Microsoft
terms in
100
it
Alienation.
tenant
may
years
for
general
in
for the
Assignment of
term.
Underlease.
An
it
unexpired,
called
is
an
'
The
lease. '(/)
it is
'
and not
granted)
is
to the
whom
by
lessor
whom
is
is
an underbecomes in his
called
in
lessee,
If the alienation
assignment.'
the original
the
lessor,
lease
was
granted. ()
Liabilities of
assignee and
of under-
The
lessor is diiferent
latter, as
lease.
The
is
But the
has no remedy
original lessor
by him which
original lease.
is
a breach of
a covenant
The underlessee
is
contained in the
of these, he
is
immediate
and in respect
But if
lessor.
As
to wrongful alienations
by
et seq.
in effect,
(z)
an underlease
Qeepost,
p. 114.
(a)
Ante,
p. 96.
Digitized
by Microsoft
ESTATES IN POSSESSION.
101
Covenants
^p'^s*
may
lessor
by
the lessor.
licence of
obtain an injunction to
restrain
The
an intended
may
however
(as is
it is
If,
may be
providing for
estate, or a conditional
limitation
Conditions and
]7mHati'^
restraining
''
defeasance, in the event of alienation, or ^ ^"^
its
As
or limitation, (f?)
will
be seen, a lease
is
usually granted
ment
of
from a
sale or
Capital
money
arising
Hyde
Treloar
v.
Digitized
by Microsoft
To what
te''^;-
es-
* "y^^i'^s
applicable.
102
and investments
of such, capital
money,
are,
however,
manner as the land would have been held and have devolved
had not been disposed of.(/)
Enlargs'nient of Long Term into Fee Simple.
In connection
if it
Provisions of
Act^l8*8l"!fs
to.
may
be enlarged
and
(iii.)
one in
whom
the term
is
may make
term
be
simple and thereupon
incumbrance
or
to the
that
effect
not
is
subject to any
a declaration,
the
shall
enlarged
by deed,
into an
fee
enlarged
accordingly,
shall
be subject to
subject to
if it
all
so enlarged. ((/)
Digitized
by Microsoft
;;
103
ESTATES IN POSSESSION.
Determination.
on the
its
An
by the
of term!^
duration.
may
between the
expressly agreed
(unless
-SIbe
parties)
be otherwise
1
determined by
it
-I
(") Yearly
tenaDcy liy
notice,
any
by the Act
Where an
-,.,.
J,
J.
J.
may
if
(iii.)
Under
condition of
re-entry,
in this
it
as void.(Z)
way
at any
by the mere
rate, if
efiect
The determination of a
lessee's estate
any
niTiT
days)
after
it
has
Might
(A)
cient
'
(0 46
&
47 Vict.
u. 61.
A. 33.
(/;)
Ante, p. 45.
Im)
1 Piatt,
102.
Digitized
by Microsoft
condition.
of
104.
lessee's
cove-
nants.(?!,)
on non-pay-
ment
of rent.
At common
Enforcement
of condition
by nonpayment of rent, unless the sum due for rent had been
demanded, upon the land, before sunset of the latest day for
payment of the rent according to the condition, or such
other demand of the rent had been made as the terms of the
condition of re-entry, in case of a breach of covenant
lease required
(o)
And
strict
compliance
that half a year's rent was due prior to the action, and that
found on the demised premises countervailing the arrears of rent, the land may be
recovered in the same manner as if the rent had been legally
no
sufficient distress
was
to be
demanded. (2')
Waiver of
forfeiture incurred
forfeiture
under condi-
be
tion of re-
entry
by the person
knowing that such
does any act whereby he
impliedly,
If a lessor,
it.
period (r)
as
demand
or acceptance
(s)
of rent
later
accruing
is
implied.
its effect.
See {n re Andertoii
and JIdner, 45
Cli.
D. 470.
(p) Doe. d.
&
(j)
15
(r)
Dendtj
Harris
1(3
Vict.
v.
v.
u.
31asters, 2 B.
&
C. 490.
76
s.
210.
XicltoU, 4 C. E. X. S. 376.
&
(t)
Doe
Digitized
v.
IVoodlridge, 9 B.
by Microsoft
&
G. 37G.
105
ESTATES IN POSSESSION.
common
was held not to be expressly apporand on this ground, if a lessor expressly waived his
right of re-entry under the condition, or gave the lessee an
express licence to commit a breach of covenant within the
terms of the condition, or to do an act which would be such
a breach if done without licence e.g., to assign, where the
tionable
law, a condition
lost, or,
in
is
(unless
is
By
the early
common
But
of time, mitigated, to
now
statutory provision,(s)
()
Dumpor's
(V)
23
&
case,
24 Vict.
Peachy
u.
Eep.
38,
pi. i,
{y) Stat. 15
&
&
(z)
22
(a)
By 44 & 45
y.
16 Vict.
23 Vict.
u.
S.C.
c.
Sm. L. C.
1 Stra.
76,
ss.
5,
447
210, 212
6
23
&
43.
23 Vict.
23
&
24 Vict.
Digitized
&
22
(ip)
c. 35, ss. 4,
Vict.
119 b
s. 6.
Somerset,
Lead. Gas. Eq. 1245.
(a) See
repealed,(ft)
s.
c.
35, ss.
thereto, 2
24 Vict.c. 126,
u.
126,
s.
14.
by Microsoft
2.
1, 2.
W. &
ss. 1, 2.
T.
Belief against
106
against
fire.
relief
mentioned. (S)
Conveyancing
and Law
of
Property Act,
1881, as to
relief against
forfeiture.
may apply to the Court (c) for relief, and such relief
(which the Court may either grant or refuse), if granted,
may be awarded on such terms as the Court thinks fit.((i)
lessee
lessee's
est
{d)
I.e.,
to the
v.
Somerset, supra.
And
see Harroio v.
See Quilter
v.
Mapleson, 9 Q. B. D. 672
In re Walker, 13 Q.
B. D. 454.
Digitized
by Microsoft
107
ESTATES IN POSSESSION.
allowing the lessor to have access
to, or
to inspect, books,
And
forfeiture, or
relief,
in case of
non-payment
of rent.(/)
An
for
years
(W.)
limitation having
effect
Jf^itatioiT
estate
by way of executory
circumstances,
(or in
interest),(^)
some
may
Under
de-
limited, or
in
seven,
some other
event.(A)
Under a modern
become a
statute, (-i)
an estate
term is said to be
satisfied
when, having been created for some particular
purpose, such purpose has been performed or fulfilled, or has
exist if it
'
'
satisfied term.'
(v.)
Determi-
'
effect,
can become
satisfied
for the
when
the term
is
money. (y)
Prior to the
unless
it
was surrendered
so as to
merge
in the freehold.
lessee
(g)
As
(7t)
See ante,
(i)
&9
p. 47.
Vict.
u.
112.
Digitized
by Microsoft
law.
108
'
and
to
By
doing, he
so
for he
free
merely.
Aot abolishing
satisfied terms.
gQ^j-gg Qf trouble
therefore
by the
enacted,
statute
by construction of law, should, on that day, absoand determine except that, if attendant by
lutely cease
express declaration,
it
(vi.) (vii.)
Mer-
ment'of\ernf"
1 Cruise,
t.
12, c. 3, ss.
6-51
Burton, 860, n.
&
'
(m) As
'
to
merger, see
J30.si,
Digitized
D. 129.
by Microsoft
ESTATES IN POSSESSION.
under
power
tlie
109
for that
purpose given
V.Estates
Sect,
1881.(?z,)
at Will.(o)
Creation,
An estate at will may be created by a grant
upon the express terms that the grantee shall hold as tenant
at will, followed by his entry upon the land.(p)
And a
mere permission to occupy, or a grant which is not made in
such form as to create an estate for life, and does not expressly
limit any term, will create, on entry by the grantee, an
unless, by reason of the reservation of a
estate at will
rent, or some other circumstance, a tenancy from year to
Modes
of.
year
created, (y)
is
enjoyment, so
far
as
Eights of
*^''^' ^^ '-
own
his
act.(s)
A tenant at
Alienation.
;
for,
(n)
See supra,
(o)
For the
[p)
2 Bl.
E, P. 4
p. 102.
Comm. 145
liidiardson
v.
G.
&
an
(r)
As
of Shreioshury'n
2 Bl.
(i)
Bl.
Comm. 146;
Comm. 145
Cruise,
t.
9, c. 1, s.
Doe
d.
9 Q. B. 863.
Digitized
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Goody
v.
Carter,
right
of.
110
Modes
of.
And
estate.
of.
and
Estates at SuFFEEANCE.(a;)
Sect. VI.
Mode
Commencement. This interest arises through the continuance of a person in possession of land, which he has
by a lawful title, after the determination of
and without the consent, either express or implied,
of the person next entitled to the possession. (a;)
The
latter may, at any time, proceed to recover possession of the
previously held
such
Position of
tenant.
title,
as a trespasser. (y)
tenant pur
Liabilities of Tenant.
Liable to ac-
dZ^eT^^*"^
right
(m)
BaU
(k)
Pinhorn
{lo)
57
a,
Cullimore, 2 C.
V.
v.
M.
He may,
emblements, (a)
to
& E.
trespasser,
indeed,
be
made
120.
(x)
For the
()/)
Co. Litt. 57
(s)
(a)
Doe
Anne,
d.
to
b,
u.
18,
2 Bl.
Comm.
150.
o. 5.
Bennell
v.
Turner, 7 M.
& W.
226, 235
373.
Digitized
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ESTATES IN POSSESSION.
Ill
And by a statu be of
George II., a tenant for life or years, or a person claiming
under him, who wilfully holds over after determination of his
term, and after demand made and notice in writing given,
up
pay such person at the rate
is
And by
detained. (c)
determine his
to
lease,
up possession
II.,
it
is
any
gives
at the time
Alienation.
A tenant
at sufferance cannot
make
(except No
right
of.
Determination.
This interest
is
And a tenancy
through the continuance in possession
of a tenant
by
who has
is
enlarged,
(6) 2 Bl.
(c)
Comm.
4 Geo.
{d) 11 Geo.
(e)
(/)
p. 89.
2, c.
8hopland
Doe
d.
151.
2, u. 28,
v.
o. 1.
19,
s.
18.
Bigge
v.
BeU, 5 T. R. 471
Digitized
by Microsoft
See supra,
of.
'
CHAPTER
IV.
ESTATES IN EXPECTANCY.(a)
An
estate is said to be
in expectancy,'
Estate in
Definition.
expectancy
defined.
ment
'
when
and enjoy-
Vested or
contingent.
Classification.
The
term
'
estate in expectancy
An
vested,'
when
in existence
ship
is
and
complete
is ascertained),
that
is,
and his
is
is,
in
estate
is
certain
title to
'
(i.e., is
the owner-
to a person
Such
depends.
with
vested
subject, in
some
however,
interests,
estates,
estates
as
commonly
expectancy
same
respects, to the
are
in
rules
According to this
class.
as
(b)
classed
being
apply to
classification,
'
estates in reversion,' or
"
reversions
;
'
'
estates in remainder,'
'
remainders
'
'
'
'
interest
[a)
As
(6)
to
may be
(according to
Digitized
2 BI.
Comm.
by Microsoft
c. 11.
p. 2,
113
ESTATES IN EXPECTANCY.
the terms of the limitation) either a vested, or a contingent,
interest, (c)
upon "states
in expectancy.
in
life,
Effect of sale,
the
prior to
sale, similar
and
thereof
and
interests
money
capital
arising
The
visions. (e)
in
is
money
the capital
in the applications
and investments
provisions respecting
positions,
Sect.
Definition.
An
dis-
Reversions.
I.
reversion, or a reversion,
estate in
is Reversion
that
effect
is,
is,
an estate of
out of
same
it
and
less extent
it
than his
it
is
It
extent or
no longer an
(c)
Fearne, C. E.,
1,
(e)
(/) 40
(fj)
& 41
Vict.
to
c. 18, s.
34.
See ante,
p.
76
H
Digitized
by Microsoft
J.
'lefl"^"^'
114
revert, or
return,
to whicli
estate
the owner of
a future time, to
at
was
it
originally incident.
Thus,
tiie
if A.,
The owner
Reversioner.
'
reversioner
his estate,
Particular
'
Arises by
operation of
law.
'
and he
expectant on,' or
'
is
commonly
technically said
is
'
called a
to be entitled to
The
of,'
estate.
of an estate in reversion
latter estate
is
called the
particular estate.'(i)
him.
so,
where a tenant in
tail
life
makes
a lease
for a
Tenure of
reversion.
On
reverter.
left
in the grantor.(m)
If,
is
what
is
called a
possibility of
'
reverter,'
that
is,
is
no custom
in fee simple is
(I)
2 Bl.
Comm.
Ante, p. 23.
As
165.
Comm.
p. 23.
Digitized
by Microsoft
115
ESTATES IN EXPECTANCY.
to entail, (o) the grantor,
it
verter,
The
"^^P^
The
estates. (2)
'
a grant of an estate
grantor, a rent
is
made
is
Eights by
the grantor's
benefit.
o
'
life,
and usually on
in the
non-payment
same extent
An
as a
similar
estate
in
possession.
But the
See ante,
p. 41.
Simpson, 4
Biiig.
2 Cruise,
t.
17,
s.
N. 0. 333, 345.
iq)
(s)
(t)
(u)
(r)
Digitized
Post, p. 123.
by Microsoft
Simpson
uf.
116
Attornment,
and alteration
of law as to.
At common
tenant
Grant by
reversioner of
that
is,
such
imme-
less estate.
diately expectant
but will
itself
on the particular
life estate,
C.
Upon
the
alienation
(if
any)
has
this
subject
2, 0. 19, s. 11.
Litt. s.
(o) Litt.
(i)
As
(c)
B.
228; Flight
347
V.
2 Cruise,
Bmtley,
t.
13,
7 Sim. 149.
u. 2, ss.
(z)
4 Anne,
46-49.
Wms. Saund.
Digitized
by Microsoft
c.
16,
s.
10.
ESTATES IN EXPECTANCY.
117
was altered by a
under
is
modern Act, he
(e)
An
entitled,
and
and, under a
is
The
statute of
Henry VIII.
also
Obligation of
lessor's cove-
nants.
Provisions similar
of the statute of
'
Conveyancing
^''''
\^^^' ^^
to rent, eove-
nants, &c.,
above mentioned
and to such covenants therein as run with the land at *Itlw
law(7i)
are contained in the Conveyancing and Law of
Property Act, 1881, with respect to leases made (whether by
deed or otherwise) {i) after the commencement of that Act.(/i)
The Act provides that rent reserved by a lease, and the
benefit of every covenant or provision therein contained,
having reference to the subject-matter thereof, and on the
lessee's part to be observed or performed, and every condition
of re-entry and other condition therein contained, shall be
annexed and incident to, and shall go with, the reversionary
estate in the land, or in any part thereof, immediately
expectant on the term granted by the lease, notwithstanding
severance of the reversionary estate and may be recovered,
{d) 32
Hen.
8, c. 34.
(/) 22
((j)
&
23 Vict.
32 Hen.
8,
<j.
c.
35,
34,
s.
s.
v.
8.
(i)
(I)
Seejoosf, p. 346.
Digitized
by Microsoft
on
118
And
leased. (Z)
ceased
manner
in like
comprised in the
As
The Act
to obliga-
tion of lessor's
be),
had alone
obligation of a covenant
and
to
standing,
its
to be incident
and notwithand is to
whom the term is from time
the lessor has power to bind
originally been
nii
covenants.
may
lease. (m)
may
The foregoing
Statutory provisions,
it
be observed,
will
apply
to conditions of re-entry reserved on grants of
'^'-_
estates of inheritance, nor to covenants contained in grants
of such estates.
A condition of re-entry annexed to the
^q
^^^^^
'
common
is,
law, under
(m) S. 12.
v.
Smith,
(n) S. 11.
The
&
Ex. G35.
Digitized
by Microsoft
ESTATES IN EXPECTANCY.
119
land
possibility of reverter is
and executory
interests. (5)
Determination.
Estates
general, as regards
in
are
reversion
estate in
estate
certain
base
in
of.
a rever-
of the particu-
possession, (7-)
or
circumstances, of
fee,(^)
in Modes
rules as
And
subject,
same
Possibility cf
''^^erter.
an
into
estate in fee
expectant on an estate
tail
through an
or
where
it is
entail. (?i)
Remainders.
Sect. II.
As
two
vested remainders
and
Sub-sect.
remainders generally
first,
may be
will be
secondly,
Eemaindcrs Generally.
1.
An
defined, generally, as
it
;
to take effect, as
immediately preceding
Division of
i"'^''''^^''^-
some respects by
convenient to consider,
these
it
both estates
being created by
cited, note
(i).
(?)
Seepost,
p. 142.
()
Be&jjost, p. 129.
(s)
See ante,
p.
102.
()
See^ost,
p.
Digitized
by Microsoft
128.
'^''^'^'^^
120
grant to B. for
Thus,
if
life,
of B.'s estate,
C, who
estate in fee
simple in remainder.
Meaning
of
terms.
The
said to be
as par-
ticular estate.
of,'
or
'
is
expectant
The owner
mainder
ment
'
of an estate in reremainderman.'
An estate cannot be limited in remainder, otherwise than
at the time of the creation of the particular estate, and by
If a grant be
the instrument which creates that estate.
on,'
Remainder
must be created
by same instru-
called a remainder,
is
made
commonly
is
called a
'
subsec[uent grant
by the
latter of
tenure
between owner
of particular
and
remainderman,
estate
fee simple
whom
the
grantor held.(a)
Any estate
may be limited
in remainder.
Any
years
is
may be limited as an
been seen, if an estate for
limited to
commence mi
futuro,
the
by a grant taldng
common
Successive
estates in
remainder.
may be
{lo)
limited as remainders.
s.
(a)
V.
1
may be
limited
164.
As
215.
with remainder
Comm.
Thus, land
Ante, p. 89
&
Doe
Warden, 3 Ex. D.
d. Bawlings v. Wallcer, 5 B.
C. Ill, 118
Hiide
72, 84, 47 L. J. C. L. 121, 37 L. T. 5G7, 2(5 AV. K. 201 ;
Piatt, 444.
Digitized
by Microsoft
ESTATES IN EXPECTANCY.
A.
to
for
a term of
term, to B. for
life,
years, and,
121
on determination of tLe
tail,
with
all
in remainder.
estate of freehold
common
But, at
may
LimitatioBs of
By
may be
estate in the
the legal
trustee. (e)
An
(h) 2 Prest.
(d)
See
Abstr. 4, 5.
1 Piatt, 444.
Digitized
remainder after a
(c)
^eepost,
(e)
p.
147.
by Microsoft
in equity,
122
No
remainder
simpif^
preceding estate in fee simple, granted by the same instrument; there being no estate or interest beyond the fee
simple to form the subject of a limitation in remainder.
This rule applies, although the estate be a fee simple confor, as has been seen,
ditional in land of copyhold tenure
on the grant of such an estate, no estate is left in the
;
Remainder
mUea\o
^''
effect
services
tak
on ex-
p^^Xnf
estate.
do the proper
is
void, as a limitation of
an estate
in remainder.(y)
At common
(3)
An
m deieasance
of preceding
estate inTafid.
common
estate cannot, at
remainder, to have
p,
i.,
effect in
law, be limited as an
possession in defeasance
Aj?Ti!i.j.
-,
^f
common
period of
its
law,
duration. (i)
way
it
determine.(fc)
(i)
Ante,
p. 45.
Digitized
Cf.,
by Microsoft
v.
Broohe,
Cf., as to
as to executory interests,
Ante,
p. 47.
ESTATES IN EXPECTANCY.
Sub-sect.
Deflnition.
2.
Vested Bemainders.
vested remainder
an estate in remainder
is
The
Vested remain^"^
"
"^
'
vested remainders.
Creation.
vested remainder
by
will,
made
by a grant, Mode
created
is
of.
Rights with
''^^P^'=* t-
and enjoyment
use
of
Where
may be maintained
against
him
for
^^^
an injunction
to
or
commission of
waste, (w)
It is otherwise, however, with respect to the proceeds of Rules as
as timber ^^^^ ^
waste committed by the tenant in possession
cut by him, or the materials of a building which he has
;
The proceeds
pulled down.
vested
estate
of
inheritance
in
remainder
or
reversion,
{I)
(m) Svpra,
2 Bl.
Comm.
164.
p. 120.
(o)
Lewis Bowles's
case,
Digitized
b,
Tudor L. C. R.
P. 37
Wms
240;
Beioif,
2 P.
by Microsoft
Uvedall
v.
Farrant
v.
to
124
possession,
he
is
in fee simple
life,
Thus,
or
if
C,
with remainder to 0.
life,
com-
land be limited to A.
if
life,
commit waste,
but
if B.'s
An
Exceptions.
of waste committed
by the tenant
made
is
in the case
in possession, in collusion
or
possession of the
land.(s)
V.
(p)
As
to
is
Garth
()
Duke of
(.s)
Lushington
v.
Boldero, 15 Beav.
WeUesley
303
secus,
v.
Digitized
by Microsoft
Conv., 302,
ESTATES IN EXPECTANCY.
It
may
125
God
by tempest), or by a
trespasser, are subject, in general, to the same rules as apply
to the proceeds of waste, when the severance would have
been waste if committed by the tenant in possession but
that, if they might have been lawfully severed by the tenant
the act of
Rules as to
''"ngs aecisevered.
belong
to
the
Alienation.
tail
the
occurred, (-m)
vested remainder
tenant in
way
lord
may have
severance
in remainder
is
subject to
is
Rights
of.
striction
When
estates tail
in remainder expectant on a
whom
seisin should
life
since
it
the
action
abolition of recoveries
and
fines, it
{u)
Yool on "Waste, 29
(lo)
{x) 2 Bl.
{y)
&
(;).
Coram. 862.
4 Will.
4, c.
74
Digitized
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Alienation of
'"
remain*?
126
tail,(s)
the
Protector of
the settlement,
as such, be
protector. (6)
tioned,
any) who,
(if
if
is
office
empowers the
ever,
under the
vests,
any person or
being
aliens), to act in
the person
protector,
and
also to
And
Division of the
High Court
is,
for
The consent
Protector's
sitTfor Ihso^'
lute bar.
is,
by the
tail to alienate
The
may
not,
by agreement,
restrict his
{z)
Act,
is
to
is
protector
and he can-
but
irrevocable. (^)
(6)
(c)
S. 28.
23.
Digitized
by Microsoft
127
ESTATES IN EXPECTANCY.
tail
given,
Where
of
the tenure
is
by deed, executed by
to be given
is
memorandum
or entry of the
roll.(i)
all
is,
Where
and
tail
is
that
'
similar estate
tector's consent,
created by
fine.(/)
be
ggnt
expressed
'
the
may
under
Entail
against Issue
witliout pro-
Base
fee.
as already stated,
way
The Act
created,the person
where a base
fee has
been
power
the
to dispose of the
land (by deed duly enrolled under the Act),(?i) as against all
persons whose estates are to take effect after the determination, or in defeasance, of the
{h)
(J)
{k) S. 34.
(.1)
Ante,
p.
370.
p. 58.
(m) S. 1. The owner of a hase fee in possession has the powers of alienation,
&o., given to tenants for life and others by the Settled Land Ads, 1882 to 1890 ;
see ante, p. 77, note (h).
(ra)
See
ss.
and
41.
Digitized
by Microsoft
Its enlarge-
^''
128
protector
but
there be a
if
tail
was
created, his
The Act
;(o)
where a base
fee, created
under
be
ijjso
fee shall
if
might have
that
is
(in general),
an
No
created by
different in-
strumeuts.
The Act,
it will
Modes
of.
Determination.
remainders
is,
life.(r)
in general, the
same
is,
of course,
vested
remainder
may
base fee
may
through
its
union with a
(0) S.
5G L. T.
19
21,
Bankes
35
W.
v.
It
may
also
E. 288.
Prior to this enactment, the base fee would merge in the reversion,
(q) S. 39.
which would remain subject to any charges or incumbrances previously affecting
it.
But the enlargement nf tie base fee, under the above Act, excludes or
destroys the reversion and thereby all charges on the reversion are annihilated
6 Cruise, t. 39, ss. 104, 105. For the cases in which the tenant in tail cannot
create an estate in fee simple, see ante, p. 62.
ir) Berrington v. Scott, 32 L. T. 125.
:
(s) According to some writers, where the particular estate is granted subject
to a condition of re-entry, by the common law an entry for breach of tlie
condition puts an end not only to the particular estate, but also to any estate in
remainder expectant on its determination.
(See Lift. s. 723
Fearne, C. R,
Shep. Touch. 120, &c.) It seems, however, that the condition in such
383, n.
;
case would be void as being repugnant to the grant of the remainder (see 1
Sand., Uses, 155; Fearne, C. E., 270 ; 1 Shep. Touch, by Preston, 120), unless (as
would usually be the case) the words of condition could be construed as a conditional limitation (see ante, p. 47).
[t) See ante, p. 59.
Digitized
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ESTATES IN EXPEGTAXCY.
129
<t|onie to
*-^-ssion
Merger.
Merger
is
^ ^
"
or
and
fee simple,
and the
latter
becomes at once a
fee
simple in
life,
An
estate
pur
and another,
estate. (2^)
been
vie,
merge
in an estate of inheritance.
is
own
tenant's
autre
in the latter
life,
An
instances of
"^''S^^"-
estate for
A term of years will merge in the immethough the reversion be a term of years
also, and even though it be of shorter duration than the
former because a term of years in reversion is, for this
in a
life estate.
diate
reversion,
An
estate
tail,
Ante,
6 Cruise,
t.
39,
s.
87
p. 43.
But whether,
is
doubtful
if
ibid.
Digitized
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ExeeptioBs
Estate tail, &c.
130
THE LAW
I'KOPEKTY IN LAND.
Oif
actual estate
Sas
as an
merge
not
does
And an
terest
to
in
an immediate
in
estate
the
land.(^)
Merger does
not affect a
a derivative
estate.
An
which
merger.
for
by the owner of an
estate
is
Thus,
A., tenant
if
simple, lease to B.
in fee
C,
the
it
due
from owner
rent, &c.,
of derivative
estate.
Alter
ation of law
hereon.
Merger where
estates held
Where two
same
estates
right, it is immaterial,
in different
rights.
(s)
case,
()
6 Cruise,
Rep.
t.
39,
s.
62
6 Cniise,
t.
(in)
(.1;)
6 Cruise,
Webh
8
statute,
&
Rep.
t.
60 b
pt. 2,
9 Vict.
V. Sussell, 3
4 Geo.
Warden, 3 Ex. D.
v.
()
IViicot's case,
pt. 8, 73.
c.
106,
T. E. 393
s.
2, c. 28, e. 6,
Digitized
9.
Doe
7i, 84,
d. Bau'Uiujs v. Walker,
47 L. J. C. L. 121, 37
Conv. 447.
Burton, 1061.
similar
to lessees on surrender
by Microsoft
131
ESTATES IN EXPECTANCY.
as
where a
is
lessee succeeds,
place,
rights
in equity.(Z))
Contingent Remainders.
Sub-sect. 3.
contingent remainder
is Definition,
unascertained
estate. (c)
The
the remainder
is
{y) 6 Cruise,
are given.
39, ss.
t.
52-56
t. 39, 8. 53
See Chambers
L. T. 472, 27 W. E. 289.
(s)
6 Cruise,
instances.
v.
(a)
(6)
36
(c)
& 37
Vict.
c.
66,
s.
Sug. V.
Sug. V.
&
&
Kingham, 10 Ch. D.
;
6 Cruise,
t.
39, ss.
113-117.
25, sub-s. 4.
et seq.
ante, p. 112.
Digitized
whom
limited, or the
by Microsoft
132
it is
taking
effect, either as
have
to
eifect, is
remainder.(^)
Thus,
Instances.
if
life,
with remainder
their
joint
by the death
survivor.
remainder
with
lives,
is
contingent until
it
ascertained,
is
is
the
life,
of
either
with remainder to B.
gent, so long as
but
C,
B. die
if
is
before
contin-
it is
before A.
On
Remainder
becomes
vested
on fulfilment
of condition.
limited
is
becomes
vested
Uncertainty
make
contingent.
remainder,
because
it is
it will
remainder,
it
or, if
the
particular
an estate in possession.
be observed, is not contingent merely
To
effect in possession.
remainder
is,
does not
that
to a person
limitation
as to possession
tingent remainder
it
will
ever
take
the
since
before
the
determination
of
the
particular
estate.
As
regards the event of the remainder becoming an estate in possession, a contingent differs from a vested remainder, merely
in that the former
Comm.
while the
154.
'
vest.
latter
is,
capable of
(d) 2 Bl.
an
is not,
tory interests.
Digitized
by Microsoft
'
ESTATES IN EXPECTANCY.
lo3
may
determine. (c)
may
It
remainder
simple may be
as to A. for
re-
foii,^ o^o"'^^
tingent re-
become
if
Thus,
estate,
subsequently
thereto. (/)
Contingeucy
"
^g'
**
^t
of effect
as where land is limited to A. for life, and if
he have a son, to that son in fee simple, and if he have no
son, then to B. in fee simple
for, in this case, the substifail
tuted fee
is
a remainder
is
upon the
estate for
fee,
life.
simple,
prior
to
the
now
fee
simple
It seems to be
any
It is clear, at
fail,
rate, that
in
sion, if
2 Cruise,
t.
16,
c.
1, ss.
45,
56-60
ante, p. 122.
Fearne, C. E. 372.
2 Cruise,
Digitized
t.
16, c. 8, ss.
by Microsoft
In
whom
is
^ Testing'iu'^
to whether, remainderman,
the
in abeyance.
is
of the
case,
if
remainder,
of the
vesting
rules
l-lSj 2 Prest.
134
Failure of
conliiigent
remainders at
common
law.
Liability to Failure.
Statutory Alterations. It has
been seen that the feudal law required that there should be, at
all times, a tenant seised of the land; and that this requirement
was the foundation of the rule, applicable to remainders
in possession. (/b)
if
effect
his heir
it
would be then
living.(0
Effect of rule
class
of
on remainder
limited to a
class.
life,
and
if
twenty-one years,
attained the required age before the death of A., to the ex-
Effect of rule
on remainders
under
settle-
ments.
Abstr. 100 et seq.
The question does not ari.se where the remainder is limited
hy deed operating under the Statute of Uses, or by will: see post, pp. 150, 151.
(i)
See ante,
(1)
p. 122.
;
(/c)
2 Bl.
Digitized
Comm.
169.
Festinej v. Allen, 12
by Microsoft
M.
& W.
279
Hull
v.
Prltcliard,
ESTATES IX EXPECTAXCV.
13
his death.
no
feiture of his
to his son
life
would
fail.
So
A.
also, if
in
whom
to the person
^in
life
estate
(o)
pt. 1,
et seq.,
340
2 Cruise, t. 16, c. G
Digitized
by Microsoft
136
Exception in
case of copyholds.
not liable to
fail
T ruatees to
preserve contingent remainders.
manor
though the
lord's seisin
determination of the
during the
life
to be limited to
and
life estate,
life
by
life,
forfeiture or otherwise,
and
to continue
during
them upon
by the premature
For
was prevented.
would take
effect in possession
by any alienation
By
through-
life. (2)
Law Amendment
ever, a contingent
notwithstanding
effect,
of their estate
in possession,
the
determination,
by
forfeiture,
determination had
if
such
This enactment, in
effect,
It
2 Bl.
(r)
&
Comm.
9 Vict.
171, 172
c.
106,
s.
Digitized
2 Cruise,
t.
16, c. 7.
8.
by Microsoft
137
ESTATES IX EXPECTANCY.
did not, however, provide for the case of the regular determination of the particular estate, by the completion of the
period for which
it
was
contingent remainder
his
-as
life,
of his
desirable
was
Contingent
Act, 1877.
as a springing or shifting
it
had
it
not had
as a contingent remainder.
efiect,
in
all
re-
In the cases
to
upon which
it is
limited, irrespec-
estate
prior estate.
to A. for
life,
and
effect,
upon any
first
of his sons
who
shall
(s)
40
&
41 Vict.
Digitized
c.
33.
by Microsoft
^*^ ^^^'='-
138
IN LAXD.
will vest,
vest,
to
whom
the condition
be limited to A. for
life,
is
class
with respect
Thus,
eventually fulfilled.
if
land
who
But where
who subsequently
fulfil
cited, a child of
Thus,
it
of
the children
Where
niination
rents and
profits.
a contingent remainder
may
of the
of.
Creation.
made
Contingent remainders
vims or by
either inter
rules applicable to
will,
are created
by grant,
remainders generally
()()
and in con-
See ante,
p.
134
Wms.,
Seisin, 208.
Fearne, C. B., 241, n. ; Jarman, Wills, i. 651, 653, ii. 169, and cases there
cited.
It is otherwise in the case of a contiogent remainder in personalty, or in
realty and personalty blended in one gilt ibid.
(u)
[lo)
Digitized
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ESTATES IN EXPECTANCY.
(i.)
By
the
common
(that
is,
an estate for
a contingent remainder of an
law,(a^)
must
estate of freehold
liave
life,
139
or in tail) to support
it
is void.(?/)
Such, at
least, is
is
it is
Where, however,
not, indeed, as
a construction
The
rule in question,
to remainders, is
it
cannot
It is
should
is
[x) This rule does noi apply to tlie limitation of an equitable estate by
contingent remainder see post, p. 173.
way
of
(s)
See jiosi,
(a) 2 BI.
(6)
p. 148,
Comm.
If
an
hold "ifJlTst"
or, in have partiou-
remainder
(i.)
2 Bl.
Comm.
171
Goodrir/ht v.
cited.
167.
Digitized
by Microsoft
f,-eeholcl.
140
(ii.)
Cannot
(ii.)
An
tfat*person.
is
may be
but the rule in
a further remainder to
remainder
life,
rule
upon
settlements.
life,
of A. for his
life,
first
life,
of land in strict
and
namely,
estates
son of the
first
The ordinary
so forth.
settlement
life
limitations
limitations
of
life
unborn reprewhich
can
be made, consent the full extent to
j)rovision
sistently with the above rule, for the devolution of land from
ancestors to descendants. (e)
As will hereafter be seen,
of remainders in tail to their children, then
another rule,
known
as the
'
may
where land
as
limited to A. for
502
Momjpenny
114
Eep.
pt. 2,
Dering, 2
v. Derivrj,
21).
D.
M.
(e)
As
life,
51 a
& G.
Eep.
145
1
pt. 10,
Whithi
62 L. T. 771, 38
W.
\>
Fearne, C. K.,
Milchell, 42 Gh. D.
E. 337. This rule
50
v.
Coram. 170).
(/) See
poist, p.
324.
Digitized
(g)
See Whithy
by Microsoft
y.
MitclteV supra.
,
ESTATES IX EXPECTAXCY.
The
141
case of a
gift,
by
will, to
so far
as
aim
it
tail,
instead of
This rule
is
'^'"'^s-
life
called
'
the
is
simple
its
estates tail.
in a
confined to
application being
And
it
limitations
of
deed.('i)
Use and Enjoyment. The rights of a contingent remainderman with respect to the use and enjoyment of the
land, have reference, chiefly, to waste committed by the
tenant of the particular estate.
At common law, a contingent remainderman had no remedy for waste committed
by the owner of a particular estate. Nor was he entitled
in equity to any relief, where the
(7)
1 P. Wms. 332
King, 8 Hare 1
Ch. 248, 36 L. T. 287, 25 W. li
Vanderplanh
J.
v.
459.
-7.
Digitized
v.
by Microsoft
Rale
Eights with
"^^^P^^
*"
Eemedies
*^^'^-
for
142
And
owner
and the owner of the next vested
estate of inheritance, or where both these estates were
vested in the same person, the proceeds of the waste (which
otherwise would belong, as has been seen, to the owner of
the next vested estate of inheritance), would be secured for
the benefit of the owners of the successive estates.(0 Under
the present law, it seems that every contingent remainderman, whose estate is not liable to fail through the destrucmitted.(/c;)
is
entitled to
Rights
of.
Alienation.
At common law, a contingent remainder
was alienable to the extent only that where the person in
whom the remainder must vest, if it should vest at all, was
ascertained, he might release it to a person having a vested
estate in the land, or might dispose of it by will to any
person. (m)
In equity, however, a conveyance of a contingent
remainder, for valuable consideration, was enforced. (o)
But
by the Real Property Law Amendment Act, 1845, a contingent interest, and a possibility coupled with an interest, in
tenements or hereditaments of any tenure, are made alienwhether the object of the limitation of such
able by deed
And by
made
devisable,
ilodes
of.
and the
alterations
{I)
et seq.
Garth
made
in
Law Amend-
\.
(m) See
Kep.
(n)
Lampet's
(o)
ip) 8
&
case,
9 Vict.
0.
100,
s.
pt. 10,
;
to
Garth
40 a;
2 Prest. Abstr.
0.
Digitized
v. Cotton,
supra.
2 Prest. Abstr.
283
(q)
by Microsoft
Story,
1
283
Burton, 40.
Eq. Jnrisp.
Vict.
u.
20,
s. 3.
1040
b.
143
ESTATES IN EXPECTANCY.
liable to failure
the remainder
remainder that
liable to
entail. (if)
is
is
And any
vested.
expectant on an estate
tail
is,
which
contingent
of course,
remainder, as such,
on which
become
to
its
is
Sect. III.
Executory Interests.
Definition.
The term executory interest is used to
denote any estate in expectancy, created by express limita'
'
Executory
iu-
^'^^^^^ defined,
tion,
defeasance of (that
is,
(r)
(s)
(f)
See ante,
p. 50.
is
for
Digitized
by Microsoft
Distinguished
i-e^imier
'
144
Uses of land.
Origin.
and
The
distinctions
may
be explained by a statement
estates in remainder,
class.
present, it
;(s)
at
whom
common
bound
law,
vested in another
is
merely as a trustee
for the
equit-
able owner.
legal system
Under
equitable ownership,
'
of the land.
between uses
and common
law
estates.
Among
the
common
law,
were
those
that
conform to the
dealt with
limitations of
simple,
and not
remainder) a particular
might be so limited as
{y)
(2)
Ch. 6
(pt. i.).
Digitized
So
also,
the use
by Microsoft
ESTATES IN EXPECTANCY.
defeasance
the expiration
of, or after
way
estate limited by
And
of use.
was
also, it differed
alienable
by
145
a prior particular
of,
no
will,
will
and
estate,
than inter
less
in this respect,
common
The tendency
law.
ences
"^^^'
of
common
by the
equitable
rules of equity,
common
Z')
;(
others,
owner.((i)
occasioned,(e) statutes
purposes
and
commonly
superseded
*' ^''^
"
^"
statute
(a.d. 1535),
Alterations
Henry VIII.
of
which
legal estates.
The Statute
of
rise,
enacted, in effect,
any other
tail,
for
life,
estate that
use,
(&)
Burton,
(d) Bacon,
(e)
120.
Law
(c)
(/) As
Seepost,
11, c. 2, ss.
t.
27 Hen.
8, u.
10.
The
1,
statute specifies
'
171.
p.
et seq.
'
:
2 Bl.
41-45;
1 Sand., Uses,
Comm.
usually called
332.
'
The
K
Digitized
by Microsoft
The'Statute
"^^^'
146
them
By
are executed
whose favour the use has been declared, is called) immediately acquires, by force of the declaration of use, not
merely the beneficial
the legal estate
interest, as before
the
the
of
statute,
veyed to him (as to A. and his heirs, to the use of, &c.), the
effect of the superadded use is to make the limitation to the
grantee a nullity. (A;)
Recognition at
law of executory interests.
thus
estates, ceased to
ever, applied
by which
by a declaration
many
similar, in
use, rules
had
as equitable estates,
uses,
Among
governed. (^)
of
originally
been
those
way
wise than by
of remainder
or,
in other words, as
estates in expectancy.
Executory
interests
created by
will.
The Statute
of Uses, however,
(i) S. 1.
S. 2 enacts to the same effect, where several persons are jointly
seised to the use, confidence, or Irust or of any of them that are so jointly seised.
(/;)
2 Bl.
Comm.
333.
[l)
Mid.
Stat. 32
Hen.
8, o. 1,
explained by stat. 34
p. 386.
Digitized
by Microsoft
&
35 Hen.
8, o.
see 2^ost,
147
ESTATES IN EXPECTANCY.
by
were held to be
valid,
'
'
limited
by
of
Statute
the
will take
effect
And modern
Uses.(r)
of
decisions have
them.(s)
by the
by way of remainder. ()
(o) 2 BI.
Comm.
334.
(r)
&
Bodclington v. Abernetliy, 5 B.
Oundle, 1 A. & E. 283.
(s)
(t)
{w)
Rep.
Ante,
p. 44.
Manning's
pt. 10,
46 a
(u)
case,
Eep.
and see
;
and
pt. 8,
94 b
C. 776
B.
v.
Lord of Manor of
Fearne, C. R. 401-404
,
ante, p. 121.
Digitized
by Microsoft
Lampet's
case,
Executory
estateffor"
years.
THE LAW OF
148
may
Limitations of
It
^^ ^^
dedaratiou
executory interests,
of use.
when
as
LAND.
IN
PEOFEE'L'Y
A. for
life,
as shall
he should so long
live,
Mode
Creation.
of.
An
executory interest
is,
which
will.
it is
by a limitation
'
made by
it is
is
by way of
declaration of use
to the use of
'
to arise,
by
mfo?' vivos or
created by a grant
is
'
'
intended to arise
since, as
of
in this case
SpriDgiDg and
shifting uses,
and executory
use, as
devises.
(y)
1,
120 a
JR.
284.
(st)
189.
(cj)
Adams
v.
See ante,
Bawley
Sug. Pow. 36
(c)
v.
Holland, 22 Vin.
Abr
(/))
V.
p. 139.
Digitized
v.
to uses, post, p.
by Microsoft
Gore, 2 P.
352
et seq.
Wms.
28
Harris
ESTATES IN EXPECTANCY.
'
springing
uses,' or
'
Executory interests
shifting uses.'
149
executory devises.'
'
Springing use.
instrument.
Thus, if land be limited to A. and his heirs, to
the use of B. and his heirs after four years, or after the
grantor's death, or ten years after the death of a person to
whom
specified
heirs
is
life
is
limited, or in
some other
and his
a springing use.
is
remains
in,
no interest under
The use
when, on becoming
be substituted for, a prior estate
created by the same' instrument.
Thus, if lands are limited
to the use of A. and his heirs, and, if B. should pay a certain
sum, then to the use of B. and his heirs or to the use of A.
executed,
it
is
called
must
shifting use
Shifting use.
defeat, or
and his heirs until his marriage, and then to uses declared
by the instrument in these instances, the latter uses are
previously vested in
estate
A.((?)
Thus,
id)
(e)
(/)
Or
155;
2 Bl.
Comm.
Siig.
Pow.
334.
27, 28.
by way
svjira, p. 148.
Digitized
by Microsoft
Doctrine of
*''"''*^^'' ''"'''*
150
IN
LAND.
his heirs,
limited
should
use waa
shifting
was
difiSoulty, it
actual seisin
when required
use.
to the use of 0.
and
This
his heirs.
scintilla juris, it
was
in
Executory devises
Executory
devises.
gift to
the grantee
his favour
may be
that
is,
uses.('i)
tO'
and
and
analogous to springing
devises are
uses, inasmuch as they do not, on taking effect, divest preceding estates given by the will.
Until such a devise takes
effect, the inheritance vests in the person entitled to the
his heir-at-law.
but
if
{g) Sug.
&
(h)
23
24 Vict.
(i)
2 Bl.
(h)
Fearne, C.
c.
Comm. 334
38,
;
1G2
by the
will. (Z;)
s. 7.
Burton, 282.
1!.,
Digitized
by Microsoft
A
i4-.'.
effect,
devise
ESTATES IN EXPECTANCY.
to A. during his
of his children
life,
is also
as, either
151
On
if
testator's heir
who
An
and a
afterwards
of that event.(Z)
Executory
*'''^
'" "'
statute
is
use.(?7i,)
As
will hereafter
may be
Powers,
named
person,
interest.
Thus, land
may be
and
this
in effect, a limita-
is,
and
The authority
for
to
make an appointment,
'
powers,' which
are
The
J.1
on the
is
means whereby,
j.rj.i.*j.j_
grant of an estate or interest, a power may be reserved
of revoking
i_
the
grant.
For
less
may
declaring the
Thus,
grant revoked.
and
C,
if
A., tenant
in fee
(n Lechmere v. Lhyd, 18 Cb. D. 524 Milrs v. Jarvis, 24 Ch. D. 633 ; Bladcv. Fysli (1891), W. N. 1891, p. 99
ef. Festing v. Allen, ante, p. 134,
note (?n).
;
man
1.
ii.
cb.
Digitized
See post,
p.
390.
by Microsoft
Power of
revocation.
*''
152
of the
interests.
of re-entry
is
Rights witli
Astrwa^t
The
right
of the
owner of an
effect.
it
be limited to take
an estate for
owner
of,
those
of
upon a certain
will
life,
event, the
interest is to take
remainderman
contingent
remainderman.
If the
of a prior
same as
executory
estate
in fee
Eights
of.
seen,
Alienation.
The restrictions imposed by the common
law on the alienation of contingent remainders, and the rule
of equity by which effect was given to such alienations when
made
execu-
by
will.(i;)
(o)
Chance, Pow.,
ss.
279, 3211.
As
to conditions of re-entry,
See ante,
p. 53.
(q)
(r)
(.s)
(t)
1 Vict. c. 26, s. 3.
&
9 Vict.
c.
106,
s.
Digitized
ante, p. 142.
by Microsoft
See ante,
p. 142.
ESTATES IN EXPECTANCY.
Determination.
in
The
153
eifect
'
operation
the
after
December
31st
1882,
into
person
Modes
of.
^'"^^'^.^"'
veyancing
is Act, 1882.
determinable on
life,
or for a term of
with an executory
life,
age of twenty-one
if
and
shall
so soon as there
Thus,
years.('y)
if
is tenant in
whereas if the Act did not apply, it
would be uncertain, throughout A.'s lifetime, whether the
executory limitation to B. would take effect or not.
not liable to
failure, unless
it
or unless
cannot take
specified event
in
which
case, of
eflfect
it
of an estate
absolute
be limited conditionally
it
tail
bar
in
which case
of
when not
it
is
And
extinguished by an
since an
executory
an actual estate,
it is not subject to determination through the operation of
the law of merger, where it is held together with an immediate estate in possession in the same land.(a;)
interest,
(w)
(i)
45
& 46
Vict.
See ante,
0.
vested,
39,
s.
is
not, in law,
10.
p. 59.
493
e,t
seq.
ante,\-p. 130.
Digitized
by Microsoft
see
Other events.
CHAPTER
V.
ESTATES IN COMMCJNITY.(a)
Estates in
^T^'rt"^*^
Estates
when two
land, or
of
the
owners
or more persons are concurrently
entitled
them
is
of
and
no
one
other subject of ownership,
Definition.
Four
Of
in severalty
'
that
is,
as sole
Classification.^
different
kinds.
'
dif-
'
'
'
'
'
Sect.
Joint tenancy
defined.
Definition.
I.
Joint Tenancy.
Joint tenancy
may be
defined as ownership
Its character-
shall hold
istics.
(a)
As
to ownersliip in
Digitized
estate.
community
by Microsoft
155
ESTATES IN COMMUNITY.
co-tenants
held,
and
interests
By
'
unity of the
(at
;
common
title
unity of possession
meant a
is Unity of
'
'
'
oftitle.
'
'
their interest
But by means
at the
of limitations operating
tenants
may
be
The nature
is
made
of the
unity of possession
technically described as
the land
is,
(6)
(c)
Litt.
2 Bl.
2 Bl.
285
2 Bl.
Comm.
181.
Comm. 181.
Comm. 181.
Digitized
by Microsoft
of
my po^^^^^'""-
'
156
Survivorship.
'
Survivorship,' or (as
it is
chattel interest
remains
owner in
severalty.
and as
this interest is
Creation.
of.
survivor.(7i.)
by
will
it
only by grant,
mode
in
though, in
the
practice,
estate
is
commonly
limitation
is
tenants for
only,
and
life
as tenants
estate. (/)
in
common
in
tail,
man
limitation to
their
(if
any) of
their
Exceptions in
equity to
general rule.
to
(/i)
(i)
(7c)
2 Bl.
(m)
Litt 25
t.
184.
18, u. 1,
o.
3.
0.
Comm.
2 Cruise,
(/)
:
281
Comm. 180
Bl. Comm. 180.
2 Bl.
b,
184 a
2 Cruise,
b.
Digitized
by Microsoft
t.
18, c. 1, ss.
7-10
Forrest
ESTATES IN COMMUNITY.
joint tenaDcy,
is
subject,
by tbe
157
are to hold
will,
(i-)
Land held
^'^^ "^'^'
they
in equity, be tenants in
will be subject to
the survivors or survivor will hold in trust for the representatives of the deceased tenant, to the extent of his
This is an extension of a principle of the comlaw (the application of which was confined to chattels
belonging to partners), that between partners the rule of
share. (71)
mon
locum non
(ii.)
and
is
liabef).{o)
Where
land
common
tenants in
them
limited to
(ii.)
Joint pur-
''^^'^'
Where two
(iii.)
or
common,
or unequal proportions
is
Joint ad-
^ol-tsage
ex-
pressed, (j)
Use and Enjoyment. With regard to use and enjoyment, the rights of joint tenants, as between themselves,
Jackson v. Jaclcson, 9 Ves. 591 Lyster
() Jefferefjs v. Small, 1 Vern. 217
I Ves. 431, 434 ; and see 53
54 Viot. 0. 39 (Partnership Act,
1890), s. 20 (3), andyost,p. 174.
;
(0)
{p) See
Lahe
&
T. Dollancl,
v.
a.
Craddock, 3 P.
Wms.
158
thereto, 1
Lead.
et seq.
v. Styward, 1 Eq. Cas. Abr. 200 Bigden\. Vallier, 2 Ves. Sen. 252,
Edioards v. Fashion, Prec. Ch. 382 In re Jackson, 34 Ch. D. 732
(tenancy in common presumed, though the mortgage deed contained declaration
(q)
258
Petty
of joint interest).
Digitized
by Microsoft
Eights of joint
'^*^
'"
158
the land
latter.(i!)
Where an advowson is
possession. (!y)
all
the
clerk.(a;)
A joint
Waste by
joint tenant.
his co-tenant
ments.
(r)
but
an action be brought
if
for
in
common,
(s)
(t)
(w)
109
v.
Tyson
Porter
(x) 2 Bl.
({/)
3 Leon.
Stedman
2 Bl.
v.
Gomm. 182
Comm. 183
Martyn
v.
Job
V.
Sim.
4 Anne,
3 Cruise,
Arthur
t.
v.
St.
21,
v. 2, .
Lamb,
Hall, 7 C. B. 441
u. 16, .
v.
27.
Ballard, 30 Beav.
&
Sm. 428
Job
v.
Potion,
J. Cb. 262.
;
v.
v.
25.
Drew.
5 H. L. 464; Bailey
(a)
Hurray
142
Sandford
Lopes, 7 Ch. D. 358, 37 L. T. 824.
v. FairclougTi, 2
L. K. 20 Eq. 84, 44 L.
(z)
{v)
&
v.
Seward, L. R. 4 C. P. 328,
Potton, supra;
Digitized
Re Mary
by Microsoft
W.
R. 297.
"
159
ESTATES IN COMMUNITY.
the partition of the land, he will be allowed what he has
expended
necessarily, or with
tenant. (6)
Alienation.
will
joint tenant
may
But he cannot
undivided share.
may
of.
effect
although he
dispose of
it
And
is
title,
by converting it into
one of two joint tenants
a tenancy in common.
Thus,
if
common
of
common with
between themselves,
latter, as
But
if
alienee of one
tenants. ((^)
If one of
panion,
the
latter,
being the
tenant,
sole
com-
hold
will
in
Release to
'
^"^^
Application of
j^^^.^^^
1890, to estates
constitute
the
tenant
for
purposes
the
for
life
of
the
(c)
Litt.
B.
287
2 Bl.
Comm.
186.
This
is
Comm.
185, 186
304
The mode
2 Cruise,
(/) Co.
Litt.
193 b; 2 Cruise,
t.
18, c. 2,
Digitized
s.
t.
18, c. 2,
companion
24.
by Microsoft
is
s.
8.
a release
2332^0
^ '''^' y-
THE LAW OF PKOPEETY IN LAXD.
160
Acts;(5')
undivided share in
Modes
of.
land
'
'
land.(/i-)
(i. )
Alienation.
or,
severalty.
absolute, or
this
by one
estate in
whether
effect,
it
be
If a joint tenant
only.('i)
be binding on the
survivor.(A;)
will,
of course,
is
(ii.)
Sarvivor-
^ '^'
(ii.)
tenancy
Survivorship
for
where
is effected. (/)
determination of joint
of
all
by survivorship in one
mode
is
course,
holds in severalty.
(iii.) Acoessiono mteiest.
(iii.)
g,
Accession of interest,
also,
If the unity of
joint tenancy.
interest is destroyed
tenancy
dissolved,
is
and the
parties
hold as tenants in
common, (m)
(iv.)
Partition.
(iv.)
Partition, also,
Partition
is
mode
is
S. L. Act, 1884, s. 6
((/) S. L. Act, 1882, s. 2 (6)
Ch. D. 605, 31 Ch. D. 577, 54 L. T. 403, 34 W. E. 445.
;
(2)
Se
Atlinson,
30'
(i)
YorJe
(i)
v.
2 Cruise,
18, c. 1,
t.
s.
57
c. 2, g.
11.
2 Cruise,
t.
18,
c.
2, ss.
20, 21
(m) 2 Bl.
Comm. 186
2 Cruise,
Digitized
t.
by Microsoft
ESTATES IN COMMUNITY.
16]
by
Where both
or
all
Voluntary
P^'''''"'"-
him.(2')
Under
the early
common
by the
joint
Henry
the
act, of all
co-tenants. (r)
statute
of
remedy by action
at
In
later
(which
by a modern
(o)
As
seepost,^. 412.
to which,
187 a
2 Cruise,
t.
18,
o. 2, s.
2 Cruise,
(r)
Litt.
(s)
B.
29 8
life
&
9 Vict, c 106,
s.
3.
As
to
t.
290.
31 Hen.
8,
>;.
32 Hen.
8, c.
32.
the Supreme Court of Judicature Act, 1873 (36 & 37 Vict. c. 66), ss.
The County Courts have a similar jurisdiction when the subject-matter
16, 34.
of the action does not exceed in value 500 (31 & 32 Vict. o. 40, s. 12).
{t)
By
{x)
& 4 Will.
4, c. 27,
s.
3.
L
Digitized
by Microsoft
for
P^"^'' ^'
:
;
162
but,
subject to partition
By Board
of
AgriouHure.
release.(2)
Partition Acts,
By
to the extent of
unless
it
it
good reason
sees
sale,
of
the party
them, undertake to
requesting
purchase the
Prior
sale.(e)
on a
insisted
partition
might be.(/)
&5
Tict.
c. 35, s.
&
32 Vict.
c.
40,
of
the
85.
;
(o) 31
share
this Act,
sale,
partition,
to
if any of the
cohowever inconvenient a
if
fit,
or some
{/)
sale,
amended by 39
&
15 & 16 Vict.
412.
c.
79
22
&
p.
40 Vict.
c. 17.
I.e.,
(c)
S. 3.
L. T. 417, 24
L. T. 635, 27
S. 4.
(/)
Agar
v.
Digitized
by Microsoft
163
ESTATES IN COMMUNITY.
Tenancy
Sect. II.
Copakoenary.
in
Definition.
Tenancy in coparcenary may be defined as
ownership in community of an estate of inheritance, in equal
undivided shares, by co-heirs.
Coparcenary is distinguished, like joint tenancy, by the
unities of
and
interest
the tenants.
title of
Coparcen;iiy
^
"^
'
Its character-
Coparceners
(as the tenants are usually called) have also unity of possession,
inasmuch
coparcener
is
deemed
to be entitled to
But each
an undivided share
merely, and not (as joint tenants are) to the entirety also of
Hence, there
On
tween coparceners.
is
common law
at
coparcenary.(Z;)
Creation.
Tenancy in coparcenary differs from the other Mode
kinds of ownership in community in that it cannot be created
by grant
of.
by operation
under the general common
of law.
It
may
arise
either
custom.
By
an intestate owner in
for the
heirs. (wi)
Thus,
if
a tenant
females
daughters,
sisters,
((/)
{k}
SeejMst,
(i)
(i)
[l)
2 Bl.
Comm. 188
See Berens
B.
v.
241.
a,
other
164 a; 2
pt. 3, ch. 6,
(m) Litt.
b,
or
2 Bl.
Felhwes, 35
See post,
Digitized
Bl.
o. 1.
2 Cruise,
174 b;
relations
t.
19,
s.
6.
Coram. 188.
W.
E. 356.
p. 421.
by Microsoft
of
equal
THE LAW OF PEOPEETY IN LAND,
164
degree
And
may be
entitled as heir, to
By the custom
special
custom.
col-
Rights of
coparceners
as to.
Use and Enjoyment. With respect to the use and enjoyment of the land, or other subject of the tenancy, the
rights and duties of coparceners are, in general, similar to
those of joint tenants
except that coparceners have not the
remedy against each other by action of account, which is
given by the statute of Queen Anne, above referred to, to
joint tenants. (p)
Coparceners of an advowson are entitled
;
Alienation.
of.
coparcener
may
The
common with
by
will.
the other
unless, indeed,
all
one of
the other
coparceners
Modes
of.
Betermination.
Tenancy in coparcenary may be determined or dissolved in any of the following ways
(i.) Alienation of any of the undivided shares converts the
:
(i.)
Alienation.
[n)
See 2 Bl.
(0) Litt.
(p) 4
(5)
s.
265
Anne,
c.
3 Cruise,
or (where
t.
16
421, note
common,
{cj).
21,
Comm.
p.
all
ante, p. 158.
c.
2, s.
27
As
2 Bl.
to the
Comm.
mode
189.
188.
Digitized
by Microsoft
165
ESTATES IN COMMUNITY.
vested in one of the co-tenants) into ownership in severalty.
The alienation by a coparcener of a less estate than that for
hold,
(ii.)
Devolu-
iJ|gtacy.
By
them
(iii.)
Partition,
The
severalty.
be
effected
coparcenary.
Sect. III.
Tenancy
in
Common.
in
Hence
to be entitled to one and the same estate.
And
no survivorship between tenants in common.
neither equality of share, nor unity of interest, or of title, or of
time, is essential to tenancy in common. Thus, one tenant in
common may be entitled to two-thirds, and the other to onethird, of the land
one may hold in fee simple, the other in
tail, or for life
one may have acquired by descent, the
other by purchase or one by purchase from one person, the
and the one's estate may
other by purchase from another
have vested fifty years ago, the other's but yesterday.(2)
deemed
there
is
(s)
See ante,
(t)
p. 1(50.
2 Bl.
Comm.
191.
common by
Comm.
192
u. 1
8,
(y)
;
2 Cruise,
t.
See
t.
20,
s.
Digitized
by Microsoft
2 Bl.
Comm.
191.
Character-
^'
166
Modes
of.
Creation.
Alienation
arises
by joint tenant
(i.)
or coparcenei*.
(ii.)
Accession
of interest to
joint tenant.
(iii.)
Grant.
is
different estates,
In certain
cases,
however, as
It
Cross-re-
common.
may
common
in
tail,
'
cross-remainders
the tenants
is
that
is,
'
of their
respective
the
come
into possession
tail
limited to
till
they have
all determined.((?)
(a)
Ante, pp.
(6)
Ante,
p.
(c)
2 Bl.
Comm. 193
common,
(d)
Ifid,
164
2 Bl.
Comm.
192.
160.
;
ante, p. 156.
post, p. 381.
Ante, p. 157.
Digitized
by Microsoft
may
be implied
167
ESTATES IN COMMUNITY.
and Enjoyment.
TJse
The
rights of tenants in
common,
Anne
by the same
is,
And
mon. ((/)
tenants in
(already mentioned)
to
Eights of
co^^on"*
as to.
joint
commust join
common
of an advowson
Alienation.
tenant in
common
by
v^ill,
Eights
of.
as the
owner of an estate in severalty and the tenancy in common continues between the alienee and the other tenant or
;
tenants, (i)
or
dissolved
of.
in
estates held in
common. (m)
Tenancy by Entireties.
Sect. IV.
common
Tenancy by
eutiretie
'=*i"^'i's
defined.
law.
between this and the preceding forms of Characterownership in community, result from the principle of the '^
common law that husband and wife are, for certain purposes,
The
distinctions
^'^^'
(/)
(ff)
(/i)
(i)
As
4 Auue,
3 Cruise,
(j?)
t.
20, ss.
9-20
21, c. 2,
o.
32.
in
2 Cniise,
Tenants
317.
to 1890,
t.
u. 16.
2 Bl.
31
&
Comm.
atite, p.
159.
195.
32 Vict.
c.
40
{I)
39
&
40 Vict.
Digitized
c.
17
by Microsoft
168
Ms
tirety of interest,
husband and
wife.
of the interest,
make any
them could
common law
of limitation
to husband
and Tvife and
third person.
Grrantees
who
subsequently
Intermarry
not tenants
by
entireties.
Alteration of Law.
Married
Women's
Property Act,
1882.
The
Married Women's
Property
common law on
abolished tenancy by
which that Act applies.
limitation to husband and wife will, under the Act, make
this
and has,
subject,
entireties,
in
effect,
as regards estates to
them
made
()
since the
As
Act came
(o) 2 BI.
Comm.
182
428
2 Cruise,
husband and
ct seq.
t.
18, u. 1,
45.
&
(g)
(r)
45
(s)
In re March, Mander
380, 32
&
W.
46 Vict.
u.
See post,
75.
v.
p. 434.
Harris, 27 Ch.
R. U41.
Digitized
by Microsoft
1).
166,
54 L.
J.
Ch. 143, 51 L. T,
169
ESTATES IN COMMUNITY.
wife will be entitled to one equal moiety, and tlie third
person will take the other moiety, as before the Act, though
the husband and wife will not be tenants by entireties since
;
the Act has not altered the previous law except as between
husband and
wife.(^)
Digitized
by Microsoft
J.
Ch. 774,
CHAPTER
VI.
EQUITABLE ESTATES.
Sect.
I.
By
may
be en-
Equitable
Definition.
estate defirecl.
an
to
estate in land, or
an
estate is called
common law
the owner at
is
benefits of ownership
while the
'
termed the
are attached
bound
equitable estate
'
the
all
estate
advantages
owner
subject
termed a
is
'
'c^tid'me
trust:
trusts
Origin.
of the
trust ';(&) he
Uses,
or
owner
is
is
The
'Trust,'
of
To
legal estate.'
to hold
'
legal estate
himself
is
is
thus
called
estates, their
origin
already been
It has
legal
{a\ Story,
(6)
The
Eq. Jurisp.,
-word
'
trust
'
is
964
Ante, p. 144.
Digitized
Spence, 496.
As
by Microsoft
EQUITABLE ESTATES.
to a person capable of
holding
it,
171
with a declaration
or
made
owed
its
estate recognised
was that
common
The only
jurisdiction
of the person
whom
in
law,
was vested.
The
since, as has
been mentioned, the creation of a use was a means whereby
the rights at common law of feudal lords, creditors, and
others might be evaded by the actual owner of the land.
For uses were exempt from the restrictions imposed on the
legal estate, not only in the incidents mentioned in the preceding chapter, (^) but also, in that they were not liable
to the feudal burdens, and could not be taken in execution
for debts, and were transferable without any formalities. (A)
As has been seen, the inconveniences resulting from these
;
estates, (/i;)
Soon
(e)
as to A.,
to the
Ante,
p. 144.
(A)
2 Bl.
Comm.
(i)
Ante,
p. 145.
(7t')
27 Hen.
330, 331.
8, c. 10.
For
Digitized
by Microsoft
upon
172
was
as
void.(Z)
it
did the
It
first.
to
and
'
it
a use.'(m)
Statute of
Uses applies
only to passive
i-
uses.
him
to discharge specified
trusts
were declared
as
duties.
Where
active
uses
or
use,
legal
estate, as
discharge of his
interests, (o)
Trusts of
years and"^
copyholds not
affected
The Statute
of Uses, as has
limitation of a use
upon a use
is
by the
Statute of
^^^^^-
&
(m) 2 Bl.
Comm.
&
Oirland
Sluirp
835, 336.
() Id.
Digitized
by Microsoft
173
EQUITABLE ESTATES.
of an equitable interest in an estate for years
nor to the
In either
of
merely
'
to the use
whom
to
no
by
been limited.
some
respects,
Equitable
law.
Analogy of Equitable
to Legal Estates.
Equitable
by
General rulej^^'"^
"
'^^
the
in the
'
or at will
and in possession or
community
in severalty or in
and either
and their incidents are,
in expectancy
;
exceptions.
way
of
executory interest
chattels real
may
be so limited. (j)
by way of
estate, limited
(if it
Baher
v.
v.
Bewsey,
Digitized
by Microsoft
Exceptions,
174
The
Trusts for
conversion.
exceptions as regards
is
subject to important
its
is
Until
governed, in the
to
is,
may
the case
if
the land or
rules
money
(as
Where
land held by
partners in
trade.
Land belonging
(i.)
of
to partners in trade
contrary, to
an implied agreement
the
to
and
as such,
is subject, in
upon
among
the partners.
is
con-
it
The
missible accordingly.
is
trans-
Where
land held in
mortgage.
On
(ii.)
or for
for a debt
deemed
in land
life
vested by
is
whom an
estate in fee
of mortgage, as security
is,
missible accordingly. ()
served,
way
In this case
is
also, it
in equity,
and
is
will
needed to
trans-
be ob-
effect
the
conversion.
(iii.)
Where
Where
(iii.)
land
is
vert.
(J)
Ante,
()
53
&
p. 157.
54 Vict.
c.
39,
and as
&
s.
20
(3),
s.
22.
Digitized
by Microsoft
EQUITABLE ESTATES.
directed to be converted
is
on death, and
175
its
And
similarly,
where money
is
its
money
the
so directed to be converted
is,
in general, subject,
The
equitable conversion
by the mere
effected
is
maxim
must be an absolute
intention, on the
of desire or
to effect such
direction to convert,
eioa
direction
equity regards
But
'
mere expres-
part of a testator or
money
And though
there
absolutely
may
elect to take it
unconverted
(whether
state. (6)
its
money
be land or money) in
it
person
to arise
entitled in
from the
equity to
sale of land,
its
under
;(c)
money
may,
Where money
(iv.)
Where
't""^
^i^'^'
(iv.)
arising
'
'
J.
./
.;
thereto, 1
Lead.
241.
(a)
-40
Johnson
v.
-llyett v. 3Ieldn,
513.
cestui
(c)
Holhway
v.
Wms.
389.
Digitized
by Microsoft
chased under
compulsory
powers.
176
purchase,
is
who
deemed
to
is
sui juris,
it
is
is
money held on
Courts having
equitable
jurisdiction.
Since
Courts of
common law
him
But by the
common
commenced
in the
Trusts by
and trusts by
operation of
law.
all
High Court
may
be
of trusts, are to
declaration,
The Act,
Division of Topics.
In
that
is,
by actual limitation
operation of law
(e)
See 8 Vict.
to or in
may be
c.
ss.
C9,
70, 73.
{J) Kelland
v.
Prior to the year 1841 the Court of Exchequer had an equitable jurisdiction, but this jurisdiction was abolished by the stat. 5 Vict. c. 5.
(<jr)
(i)
Lewin, 677.
36
&
37 Vict.
(0 Id.
s.
34.
Qi)
c.
Digitized
by Microsoft
'
177
EQUITABLE ESTATES.
Equitable estates of the former class
Sect.
II.
OF Trust.
Creation.
favour
of,
The
may be made
an equitable
limitation of
a person,
is called a
'
by
is
and
either
his
or A.
heirs
may
C, who
And
fee simple,
case,
trust is thereby
qtce
the settlor
may
himself be
trust ; as
In the creation of a
trust, it
sufiice
'
express
'
or
'
any
In
distinguished as
this
implied.'
trust is express.
See Lewin, 67
Trust of laud
tTeviden'oed^*
by writing.
Secret trust,
if
made,
trust for C.
him by
[^j,^
upon
and, in each
declared in favour of
is
Declaration
creates an equitable
his heirs
and
who
0.
will
It
may convey
and
estate to, or in
declaration of trust.'
et seq.
Be
M
Digitized
by Microsoft
How
d'stin-
^"'^
^'
178
when
the declaration
trust.
Precatory
is
'
construed as imperative
they
apply
be
debts, &o.
(if
unless
certain) (s) as
sufficiently
declaration of trust
Trust created
by charge of
and
it
constituting
Another
with
by the
given
legacies
The words
will.
of charge
con-
may
i;reate trust.
or
devisee
whom
to
the
some
in
legal
annexed
estate
construed as a declaration
cases,
And
passes, (m)
to a gift of land
by
of
will
trust
'
children. '(?/)
Executory
trusts
when
enforceable.
and Uxecuted
Executory
Where
Voluntary
Trusts;
a valua-ble consideration
(s) is
Trusts.
valid
'
(()
Lewiii, lOS.
(s)
Lewin, 134.
()
Kniqlit
,'<lcad
V.
508 III
Lewin, ch.
;
(u)
{x)
()/)
\.
Knii/Iit, 3
'jVellor,
8, s. 2.
Lewin, 140.
Wright
v.
Wilhin, 2 B.
&
Sm. 232
Lewin, 140.
cited.
And
I.e.,
Digitized
by Microsoft
179
EQUITABLE ESTATES.
interest
is
an agreement, or
is
it is
settlement
strict
or
when
created
tained in a will,
is
who has
in
'
done.'(&)
voluntary trust
is
that Executory
not en-
it
enforceable if
voluntary and
contract.^
damages. (c)
trusts
declared
that
is,
is
An
*'^"^'"
exe-
a trust completely
estate or interest
owner of the
(a)
Lewis
t.
L. T. 747, 24
AV. E. 772.
legal estate
who has
W.
(c)
Ellinon
V.
and
note."!,
Digitized
supra.
by Microsoft
In re Anstis,
180
respects,
and the
trustee.
iaeiit.(6)
The
Eights as
against the
is,
the land
,..-,,
,-,
the
que trust
cestui
entitled
is
thinks
fit
him
to put
Where, however,
in possession. (7i)
all
juris,
they
may
The
as to iuspec-
tionandpossession 01 the
title-deeds.
que
trust,
cestid
who
is
fit
and a sole
and
documents relating
to the trust, which are in the
And where he is entitled to the
trustee's possession, (/t)
possession of the land, he has a right to the possession of
Q^^jjgj,
'
by the
trustee is
(i)
(7;)
W.
Lister, 5
In re
cited.
Coioin, 33
R. 735.
Digitized
by Microsoft
5S
EQUITABLE ESTATES.
Alienation.
181
and the
Rights
of.
rules as
in
effect,
abolishing fines
and
recoveries, equitable
common
resembling
of legal
recoveries
by proceedings
estates tail)
are
the land
If the tenure
freehold. (%)
is
be copyhold, the
may be
deed
to
is
by surrender
wise), (o) or
rolls,
mode
in the
applicable to legal
Oonveyance
m
.
may
***"
person, (q')
(o)
54
See
Honywood v.
W. K.
L. T. 738, 34
(p) 3
&
4 Will.
Foster, 30 Beav. 1
724.
4, u. 74, ss.
(q)
()_)
See ante,
p. 77,
note
50-54
(y).
Green
v.
ante, p. 60.
see
s.
'
tenant for
life
'
2 (10).
Digitized
by Microsoft
s.
2 (5),
and
182
subject to expenses of
management
the land, or until forfeiture of his interest therein on bankruptcy or other event, shall have the powers of a tenant for
Passes legal
estate.
On
whom
trustees in
to land held in
it is
vested. (m)
ProTisions as
life
of
Settled
land, were,
Land
Act,
1882, to
the
thereof should be
(m)
See
s.
20
(1), (2)
s.
55
(2)
Wolstenholme
244.
{x) S. 63.
But capital money arising under this section of the Act is not to
be applied to the pnrchase of land unless such application he authorized by the
settlement id.
:
(?/)
Ante,
p.
174.
Digitized
by Microsoft
18o
EQUITABLE ESTATES.
ment,
it
settled land
'
within the
'
sale.
the Act,
And
till sale,
life,
might
also prevent
Act
of 1882, that
or
settlement.
such leave
is
and
that, so long as
an order giving
nor any person (other than the person having such leave) may
execute any of the trusts or powers of the settlement for any
may
be registered as a
the settlement
lis
of 1882.
pendens
(c)
leave
trustees, or
(2) See III re Home's Settled Mt.ate,39 Ch. D. 84, .57 L. J. Ch. T'.IO, b:> L. T.
580, 37 W. K. 69, that where, by the settlement, the sale is postponed fur a certain
peiiod which has not expired, the trust is not a trust for sale within ihe Act.
(a)
S.56
(6)
But
20, 32
(c)
W.
Taylor
K. 335.
see
See post,
p.
v.
.J.
Ch. 409, 50 L. T.
312.
Digitized
by Microsoft
Alteration by
^^.^
jgg^
184
Modes
The
Determination.
of.
it is
is
to be affected
by
so registered, (ff)
to the determination
rules as
or
The
following,
An
Equitable
mainders.
equitable
been
of the
estate prior
particular
liable to
to
the
vesting of
the re-
mainder.(/)
Merger of
tlie
'"
th"'w'^
estate.
On
owner, in his
own
extent equal
to, or
latter is
merged
as distinct
Alienation by
in the legal
estate,
and no longer
exists
by conveyance from
chaser^ with'out
^^^ trustee,
notice.
for
is
estate
is
cestui qioe
cestui
que
The equitable
trust.
is
for his
For the
purchaser is deemed to have, under the circumstances, an
equal right in equity with the cestui que trust ; and he is
preferred to the latter by reason of his having the legal
ownership. (A)
And the legal estate affords the same protection to a sub-purchaser, with notice, from a prior purchaser
breach of trust in thus disposing of the land.
s.
53
&
54 Vict.
c.
69,
s.
19
In
re
Harding's
(e) As to the former distinction between legal and equitable estates in fee
simple with regard to escheat, and the alteration of the law on this subject by
the Intestates' Estates Act, 1884, see post, p. 467, 468.
I?.
17
Digitized
by Microsoft
185
EQUITABLE ESTATES.
without notice
The Trustee.
estates created
of the trustee,
notice,
sidered.
Estate of Trustee.
In the case of a trust created inter Extent
the legal estate in the land, held by the trustee for the
of.
vivos,
an
is
trust
is
created by
is
deemed
tent only as
is
Thus,
if
upon
trust to
tation to
extent,
sufficient to create
an estate in
con-
them
it is,
in practice, limited to
that,
On
survivors or survivor.
it
may
pass to the
The
(/) Harrison v. Forth, Prec. Cb. 51 ; Mertins v. JolUjfe, 1 Amb. 311.
protection thus afiForded by tlie legal estate was taken away by section 7 of the
Vendor and Purchaser Act, 1874 but this enactment was repealed by the Land
Transfer Act, 1875, s. 129.
;
670
Berry
Digitized
v.
by Microsoft
DeTolution of
*nf;f^^eath^*^
"186
representative.
it
if it
he had devised
it
or, if he had not devised it, to his heirBut the Conveyancing and Law of Property
Act, 1881, has provided, as to trustees dying after the commencement of the Act (i.e., on or after the 1st January
;
at-law. (71)
person
It has
chattel real.(o)
course holds
Estate of
trustee protected agaiDst
claims of his
creditors &c.
The
it
is,
in equity, protected
()
Lewiu,
&
seq.
22l.) et
c. 41, s. 30.
(See In re Pilling s Trusts, 20 Cli. D. 432,
W. E. 853.) This section (sub-s. 2) repeals s. 48 of the
Act, 1875, under which a fee simple, vested in a bare trustee,
passed on his intestacy to his legal personal representalive.
(o)
53 L.
44
45 Vict.
Cb. 1052, 32
J.
Land Transfer
(p)
50
Ch. D.
&
14,
(</)
See infra,
(r)
(s)
46
&
p.
47 Vict.
In.
re Milk'
Trusts, 37 Ch.
D. 312, 40
201.
c.
52,
s.
44.
Digitized
by Microsoft
EQUITABLE ESTATES.
Ofice of Trustee.
bound
retain
If,
may
lowing cases
Disclaimer or
acceptance of.
unless he pre-
The retirement
not
disclaim
it
is
it in which
to him as trustee is deemed to be
however, he accept the trust, he must
187
office.
(i.)
or
J^t
their
own
act,
by
(ii.)
new
trustee, or
new
may
virtue of a
trustees,
may
stances, a trustee
purpose
by
given
retire,
statute,
(iii.)
Under
by virtue
of a
without
the
(iv.)
certain circum-
cannot avail himself of any of the foregoing modes of discharge, he may be relieved from the trust by the Court, if
there be sufficient reason for his retirement. (.s)
may
(v.)
A trustee
office. (a)
trustees.
in certain events.
()
Edbmson
disclaimer
(x)
W.
is
In re
v.
Pett, 3 P.
usually
made by
AVms. 132
deed, but
Bircliall, Bircliall ,.
may
be
E. 387.
(y)
See ante,
p. 180.
the provisions of the Trustee Relief Act (10 & 11 Vict. c. 96) is not available
in the case of a trust of land, the Act being applicable only where the trust
estate consists of
{a)
money
or stocks.
cited.
A power of appointing
&
Digitized
by Microsoft
Conveyancing
^^^^'
f"^*'
hereon.
188
is
dead,(c) or
more
tlian twelve
months, or desires to
original or substituted,
United Kingdom
for
(if
or, if
there
is
no
if
may
shall
so appointed
trust.
of the
trustee
so that (except
Vesting of
uode/the Act
trust property, or
of the Act,
is
(c)
will,
but dying
44
&
370.
Digitized
by Microsoft
'
EQUITABLE ESTATES.
189
But
conveyance or assignment.
this provi-
Under the
trustee, or releasing
may
cannot, or will not, deal with the estate for the purposes of
may be
;(Z)
a course which
(/) S. 34. This section also applies to chattels and choses in action subject
to trusts, except shares, stocks, &c. which are only transferable in books kept by
a company or other body, or in manner prescribed by Act of Parliament.
,
&
{h) If the land be copyhold, the order will not have this effect unless it be
the consent of the lord of the manor 13
14 Vict. u. 60, s. 28.
made with
(i)
13
s.
&
34.
&
ss. 8-16 ;_ 15
16 Vict. u. 55, ss. 2, 8. Where the
(h)
trust estate or fund does not exceed in value 500, an order may be made undei'
52 Vict. "c. 43, s. 67 (5) and where the
the Act by the County Court 51
&
is
{I)
13
&
14 Vict.
c.
60,
s.
20
see
s.
28 as to copyholds.
Digitized
by Microsoft
Trustee Acts,
ip^p^fntmlnf
of new trustees,
^^'^'
&c^''under
190
Appointment
of separate
trustees under
Conveyancing
Act, 1882.
The Conveyancing Act, 1882, provides that, on the appointment of new trustees, a separate set of trustees (or if only
one trustee was originally appointed, then a separate trustee)
may be appointed, for any part of the trust property held on
from those relating
trusts distinct
to
trust property.(m)
Ketirement of
trustee under
Conveyancing
Act, 1881.
is
declares that he
effect,
of
retire-
trustee
Law
of
that where
them by deed
is
trust, and his co-trustees and the person (if any) who is empowered to appoint trustees, by deed consent to his discharge
and to the vesting of the trust property in his co-trustees
deemed
to be executed or done.
contrary intention
is
(if
any)
The pro-
by which a
retiring trustee
who
Appointment
is
empowered
or retirement
of trustees
visions of the
under Settled
relative to the
Land
Acts,
1882
to
1890.
&
(m) 45
46 Vict. c. .59, s. 5. .Sno In re Fame's 2'rusts, 28 Gh. D. 725 54
L. J. Gil. 735, 52 L. T. 323, 33 W. R. 561
Be Hetherington' s Trusts' 34
211.
D.
Gh.
;
(n)
(o
44
44
& 45 Vict.
& 45 Vict.
c.
41,
c.
41,
Digitized
s.
s.
32.
84
(2)
see ante,
by Microsoft
r>.
1S8.
191
EQUITABLE ESTATES.
person in
whom
depend on the
sole or
office
settlor's intention, as
Law
The
section of
all
powers and
heirs
his
devisee, in
and
upon
assigns,'
whom
trusts. ()
was limited
And,
to a person,
ip) 63
& 54 Vict.
c.
69,
s.
17
cntte, p. 84.
{q) Lewin, 258; Lulce v. South Kensington Hotel Company, 11 Cb. D. 121,
48 L. J. Ch. 361, 40 L. T. 638, 27 W. E. 514.
(r)
and see
s.
38 of
Conveyancing and
tlie
Law
of Property
Act, 1881.
deceased trustee, in oases
section 30 of the Conveyancing and Law of Property Act, 1881, as
amended by s. 45 of the Copyhold Act, 1887 (see ante, p. 186), or where the trust
(s)
within
estate
is
a chattel real.
(t)
Lewin, 230
(u)
44
&
et seq.,
45 Vict.
s.
c.
41,
s.
30, as
amended by 50
&
51 Vict.
c.
73 (the Copy-
45.
horne
Titley v.
to Rowlett, 13
&
Digitized
by Microsoft
192
Statutory
powers.
Poivers of Trustees.
his rights of dealing with the trust estate without the ex-
be
prescribed
statutes,
by the
however,
may,
instrument. (?/)
By modern
certain
qioe tricst,
trust
made
incident
trust
moneys,
As to investment of trust
moneys.
Thus,
power
trustee's
of
investing
which
formerly,
unless
expressly
as before
two hundred
years, at
a fixed rent
than
less
debenture stocks or
annuities
which
is
and
United Kingdom (a) the
term real securities including (in addition to mortgages of
estates of inheritance or for life) mortgages of leaseholds
held for an unexpired term of not less than two hundred
'
[y)
Lewin, 572.
(z)
Lewin, 314.
(a) See 52
&
53 Vict.
c.
of investment of capital
p. 85.
Digitized
money under
by Microsoft
193
EQUITABLE ESTATES.
years,
year, or to
payment
of rent.(c)
Law
1881, trustees for sale are given various powers for enabling ^^^
them to carry out the sale.(rf)
makes the
also
of
^^^
to give
^^'^^^^ ^'
same, and
any
It was originally a
some exceptions), that a
expressly
empowered the
unless the
trustee to give
receipts. (/)
The Conveyancing and Law of Property Act, 1881, also Power to comgives power to trustees to compound for things due to the
trust estate {g) and powers (hereafter described) of manage- Powers as to
ment of the lands of infants, and of receipt and application infants,
of the income of such lands, and of dealing with the income
;
Powers
of
of
insuring,
""
and
of renewing
(c)
See 51
&
52 Vict.
c. 59, s. 9 (the
conditions.
And see the Trustee Act, 1888 (51 & 52 Vict. u. 59), s. 2,
(e) S. 36.
authorizing the receipt of money, under certain conditions, by a solicitor on
power to trustees (under trusts expressed or implied) to
behalf of a trustee.
give receipts is given by Lord St. Leonards' Act (22 & 23 Vict. c. 35), s. 23.
Lord Cranworth's Act, supra, also contained a like power, but this provision is
repealed by the C. & L. P. Act, 1881, s. 71.
The Settled Land Act, 1882, s. 40,
contains a similar provision as to receipts given by trustees of the settlement.
S. 37.
(h.)
Ss. 42,
43
v.
Merryman, and
Eq. 72.
Digitized
by Microsoft
'^^^^^
191.
under certain
are
conditions,
given
to
by the
trustees
Under a modern
to sell
surface and
minerals
^f
^j^g
statute, trustees
ggjj ^j^g
j,^.
'
separately.
/7\
;
()
ized
Powers under
Copyhold Acts.
may be done by such lord, or tenant, or owner, notmay be a trustee for any person. (Z)
withstanding that he
Right of
trustees to
indemnity,
reimbursement
rf expenses,
.._-,.,,
^.^^
'
trust
or, if
It has recently
been decided
Settled
'
The
Settled
Land Act,
(i)
51
(7^)
25
(I)
50
10, 11.
45
& 46
Vict.
c.
Digitized
by Microsoft
W.
E. 891
cf.
In re
EQUITABLE ESTATES.
195
occur in
the
to insti-
"g^ fo^pj^t,.'
tection or
if
settle-
claims, (r)
all
Sect. III.
OF Law.(s)
Equitable estates created by operation of law merely.
through trusts that have their origin in the construe-
arise
this
trusts
; '
are
sometimes
term
is
'
resulting trusts
'
generally,
called,
and
'
'
Trusts
constructive
Equitable
constructive trusts.'
are here
class
Arise through
consjr "ftive
oftrasts.
considered,
as thus
divided.
Sub-sect.
1.
Trusts.
Deflnition.
rise
sonal estate
is
of the
part,
transferred
beneficial interest
in the
{p)
rr.
3,
s.
30
'
estate
result to
44
and see
46, sub-s. 3.
Sect.
(r)
Lewin, 358.
(s)
s.
the person
{q)
transferred,
')
Digitized
by Microsoft
Iv.
Resulting
trust defined.
196
no such intention
the transfer
is
Instances.
Instances.
Where
Purchase in
of
though
made.
The
estates arising
name
is
following
are
through resulting
instances
equitable
of
trusts.
another.
the purchase to
in the
conveyance
benefit, and takes the
of his
purpose
collateral
name of another merely for some
holds
as a
purchaser
nominal
own.
In such case, the
equitable
estate,
and
the
actual
purchaser
;
trustee for the
And
so, if
the limitation
is
one towards
whom he
stands in loco
parentis.{u)
Limitations of
joint tenancy
at law creating
tioned in
tenancy in
common
common
in
former chapter)
equity.
where limitations
that,
at
common.
Though
the legal
Imperfect
declaration of
trust, lapse,
failure, &c.
trust.
of
is
it
appears, or
may be gathered,
own benefit, a
(i)
The
(u) See
236
Dyer
Lewin,
cli.
v.
Digitized
by Microsoft
Lewau,
lljS.
197
EQUITABLE ESTATES.
who
lifetime
in
for
as
trustee. (?/)
On
the same
principle, where
^ or
,^
,..,,,
limited on trust tor a particular purpose as
have been
satisfied,
personalty
realty
'
and
is Surplus after
^
fulfilment of
%tor payment
trust,
If,
which
(as
is
is
implied
esta,te.(a)
It
may
'
money
>
into
^
Total failure of
*'""^' ^"^
convprsion.
land, fail entirely before the trust for conversion comes into
operation
as
where land
is
to sell the same, and pay the proceeds to A., and A. dies in
with
it
And
if
contained in a
is
will,
conversion
is partial
(i/)
Brigys
v.
Fenni/, 3
Mac.
&
Gor. 546.
(z)
L.
.J.
Bipley
v.
and
v.
Watei-worth, 7 Ves.
4'2r>
Digitized
Clarke
v.
Franklin, 4 K.
by Microsoft
&
.J.
257.
Partial failure,
198
the trust
as
money according
if
directed
by
will is
presumed
to be intended
For conversion
by the testator
Partial failure,
uader deed.
it
purposes,
all
if
hence, on a partial
by deed, the portion
according to the form into
at all
as to
which
Sub-sect.
Equitahk
2.
JSstatcx
Trusts.
Definition.
Constructive
trust defined.
-Where
legal estate to hold for the benefit of the person having such
is
Instances.
Instances.
interests arising
Where
Trusts under
and
this obliga-
The following
cumstances.
contracts for
sale of land.
are
through such
instances
of
equitable
trusts.
is
the land, as from the time the contract was made, as trustee
for the purchaser
though he is not bound (unless by express
;
of,
the land, or
Aiidreir.i^
V.
Franklin, 4 K.
&
.T.
5 Sim, 424
Griffith V. Sicletts, 7
257.
Digitized
by Microsoft
Hare 299
Clarke
199
EQUITABLE ESTATES.
account for
its profits,
purchase-money, (e)
upon
his
similarly entitled,
Hence,
tract,
if
The vendor is
heir-at-law or devisee.
from the time of the making of the con-
may
It
common
law,
on the
Legal estate in
to the ^"^
was
will pass,
if
(e)
Sug.
V.
&
P.
291
to
any
Lysaght
v.
Edwards,
(/) Sug. V.
50
{g)
44
(A)
32 Ch.
(i)
i).
44
&
& 51 Vict.
c.
see /) re Carpenter,
Kay 418 In
333.
45 Vict.
c.
41,
s. 4.
Digitized
by Microsoft
re Collvu/,
'^^^"^
200
other contract
sideration
thereto.
settle
Trust of land
purchased
with notice of
prior claims
for
It has
What
The
consti-
tutes notice.
'
'
Constructive.
notice
may be
actual
is
(that
express) or
is,
'
either
Constructive
constructive.'
title to
facts
And
notice to the
Conveyancinj!
Act, 1882, as
counsel,
is,
to notice.
fact,
instrument,
own knowledge,
or would
inspections
and
have come to his knowledge, if such inquiries
had been made as ought reasonably to have been made by
him or (ii.) in the same transaction with respect to which
or thing, unless
(i.) it is
within his
it
has come to
agent as such, if such inquiries and inmade as ought reasonably to have been
made by the solicitor or other agent. But a purchaser is
solicitor or other
(k)
(I)
Ante, p. 184.
V.
As
to
what
et seq.
is
&
P. ch. 15,
s.
Digitized
by Microsoft
201
EQUITABLE ESTATES.
not to be affected by notice, by reason of the foregoing pro-
vision, in
if it
Where
is
entitled
to priority, (p)
person
(that
is,
holds
it
who
acquires
land
a conveyance not
made
by voluntary conveyance
by
is,
in equity,
no better
title
J.
Gh. 662,
Lewin, 858
et seq.
Digitized
Trust affecting
by Microsoft
^^ p/j^^
claim,
PART
II.
Rights com-
EiGHTS
^lass.
In this
creditors
their
debtors
of others
rights of
common,
class are
rights of
of,
or
charged upon,
of use, merely, of
CHAPTER
I.
POWERS.
Power
defined.
Definition.
'
power,' or
'
power of
alienation,'
merely
to alienate
is
may be
entitled
power
is to
(c)
See ante,
(d)
p. 50.
s.
Digitized
Burton, 173
by Microsoft
203
POWEKS.
tion that
may
is
incident to an estate.
tinct
interest,
who has
even though
it
be vested
(as it
some
same land. Thus, A. may have a power of alienating the fee
simple, or any less estate, in land of which B. has the ownerbe) in a person
also
fji^aton'incident to
o^"ership.
Classiflcation.
common law
A power
may have
effect either
Hence, powers
may
by the
or
under
or
by
virtue
Four
classes of
P"^''^-
be divided, with
Powers;
(i.)
Interests
(iii.)
;
(iv.)
Connnon
(i.)
Law
Fowe,rs.
The
over land that have effect by the common law, or common ^^^^^ ^^
law powers,'(/) are powers given by will to the testator's of land,
'
executors to
sell
money
for
heir-at-law.
Such
is
exercised,
directions to executors
(e) See Sug. Pow. 45 (where powers given by statute are included under ihe
head of common law authorities); Chance, Pow., s. 4.
(/) 2 Prest. Abstr. 247 ; and see Co. Litt. 237 a ; but see Chance, Pow., f-s.
5-il.
power of attorney is sometimes regarded as an instance of a common
law power ; but as it merely nominates an agent to act in the name, and on behalf, of a principal, it is not a power in the sense of a right of property
see
Sug. Pow. 45, 46.
powers
Digitized
by Microsoft
^^^^
204
he had been
power
being
the exercise of the
named
therein as devisee
if
mode
This
of pro-
If copyholds
devised, for
sale, to
But
of the manor.(^)
if
empowered
by the
cation.
name
the person by
is
given,
whom
the sale
by implication,
is
to
be
to the execu-
by
them.(w.)
Nature and
instances
of.
A power may
its effect from the Act.(o)
be thus given to a person, either as the holder of some office,
An instance of the
or as having an interest in the land.
the power derives
Where incident
to an office.
(A)
32 Hen.
8, c. 1
(k)
[l)
34 Hen.
8, c.
5 post,
;
p.
386.
a,
Sug.
As
(ji)
Digitized
by Microsoft
E.
&
13.
836
B.
v.
205
POWERS.
former
is
power annexed
to
statute to trustees
land for the payment of a testator's debts, or legacies bequeathed by his will.
This Act provides, in effect, that
where, by a will coming into operation after the passing of
the Act (13th August 1859), the testator has charged his
real estate, or a specific part of it, with payment of his debts,
or any legacy, and has devised the whole of his interest in
made any
so devised to
them
vised such real estate, the executor or executors for the time
being, under his will, shall have the same power of raising
such moneys
and that purchasers or mortgagees shall not
be bound to inquire whether the powers so conferred have
been duly exercised by the persons acting in the exercise
;
thereof, (g)
to the case of a
sell or
for
As
may
and the powers given, as has been seen, to tenants for life
and others, by the Settled Estate Act, 1877, and the Settled
Land
(p) Post,
&
p.
460.
23 Vict.
(q)
22
(r)
See ante,
c.
35 (Lord
(s)
(t)
Ante,
p.
St.
Leonards' Act),
p. 178.
76
ei seq.
Digitized
by Microsoft
ss.
14-18.
206
Nature
Powers under
(iii.)
of.
The nature
the
Laiv relating
to
Executory Interests.
The person
limitation.
interest
whom
to
such authority
is
given
or reserved,
;
is
said to have a
it
Thus,
if
A.,
to B.
and
heirs, to
'
the
effect,
first
by way
instance,
effect,
by way
of shifting use, as
if
In these examples,
of,
by
Where
class,
(s) Post, p.
Digitized
o. 3.
by Microsoft
POWEES.
207
executory devise.
simple to 0.
Since an appointment, in pursuance of a power of declaring Appointment
^^
uses, vests the legal estate in the appointee as md%d que, use,, *? "^"'J^
an appointment under such a power to a person, to hold to
the use of another, operates as a declaration of a use upon a
latter.
him
may be
Powers of
The
effect as
is,
Powers
of the
successors.
of
present Powers
of
appointment of
copyholds,
(a)
(c)
See ante,
p.
151.
Digitized
by Microsoft
208
class,
referred to.
may be
pointing copyholds
by
of the land
may be
given, either
surrender,() or
upon
upon a conveyance
by will and,
devise
its
Nature
of.
(iv.) Equitable,
may be
land
Powers.
Equitable
estates
and
interests in
Such
cation resembling powers of the class last described.
powers are called
equitable powers
and the rules by
which they are governed are, in general, similar to the rules
applicable to powers taking effect under the law relating to
executory interests.
The person in whose favour an appointment is made, imder a power of the present class, is entitled,
as cestui que trust, to an equitable estate or interest of such
extent as is appointed to him and the trustee in whom the
'
'
estate
legal
is
vested
is
bound
to
hold
for
his
benefit
accordingly.(^)
Powers over
chattel in-
It has
some cases
terests.
by
Powers of
*^''-'
sale,
^ ^^^^^^'^^
g8gees.
will)
Where land
expressly
lease,
or
Ante,
(e)
As
p. 147.
by
(/) See Chance, Pow., 27-30; Elton, Cop., 30; Scriv. Cop. 12.5; Boddington
B. v. Oundle, 1 A. & E. 283. But it has been
V. Ahernethy, 5 B. & C. 776
held that the lord cannot be compelled to accept a surrender to uses to be
appointed by the surrenderee, and until appointment to the use of the latter and
his heirs, unless such a surrender be authorized by a special custom : Flacl; v.
Downing College, 13 C. B. 945.
;
(g)
(7j)
Ante,
4(5.
p. 147.
Digitized
by Microsoft
209
POWERS,
liim as trustee, but also the beneficial or equitable interest
in the land
eifect.
In
the Powers
here
"""^"^^"^^
They
appointment.'
of
'
'
'
ceding limitation.
a pre-
The person in whom a power of appointcommonly called the donee of the power,
ment is vested is
or (when he exercises the power) the
appointor'
and a
person in whose favour the power is exercised is called the
appointee.' Powers of revocation are, in practice, framed as
powers of revoking the existing limitations and appointing
new ones. A mere power of revoking the existing limita'
'
'
'
tions
(Ic) is,
it
Powers
'
general
'
powers, and
power of appointment
is
'
particular,' or
general,
'
special,'
when no
powers.
restriction is
Digitized
by Microsoft
Powers are
fpgcial.
210
whose
power uiay be
power has, accordingly, the
an owner and he may, morepower of apf)ointment is par-
The donee
exercised.
same powers
of such a
of disposition as
ticular, or
special,
when
it
some
for
land.(/)
power
or authorizes
as a
as to
an appointment
power
to lease or sell
Modes
Creation.
of.
as has
will,
take
successors. (n)
new
power
may
be
its
of appointment
with
may
be
p.
And
Ante,
sap
in settlements of land,
et
207.
p. 209.
Digitized
by Microsoft
211
POWERS.
For the donee of a general power of appointment may delegate the execution of the power to another, as his agent
or he may appoint to such uses as another person shall
appoint, and thus give to such person a general power of ap-
pointment.(s)
is
transfer
it
And where
to another.
it
named
them on
may
extended to the
is
as
by operation of
law.(^)
And where it is expressly annexed to an office (as
where it is given to executors by that description), it may
be exercised by the persons or person for the time being
donee,
it will
pass to
his
death,
power given
expressly
made
to
commencement
of that Act,
may
is
survivors or survivor,
unless a
contrary intention
is
ex-
(s)
(t)
Ibid. 180.
In re
126, 127
[1891], 2 Ch. 261.
(m) Ibid.
Forshaw
(.V)
(y)
44
(z)
45
Joint power,
exercisable
s.
b.
Coolce's
Oontract,
Cli.
D. 454
Crawford
v.
38.
(2).
As
to disclaimer of a
power under
Digitized
by Microsoft
this Act,
ConveyanciDg
^g^^
afto^"*^
212
THE
Execution.
Eules respecting.
OF PEOPEETY IN LAXD.
LA'\\'
The
execution of powers,
exercise
or, in
other words,
be considered with
(i.)
;
may
(ii.)
(iii.)
of.
power
to Exercise of Poiuer.
unexercised, at the discretion of the
Discretion of Donee as
(i.)
may be
exercised, or left
who
is
the power.()
necessary.
is
Power imperative, or
in the nature
of a trust.
must be distinguished,
by a
power vested in him as where land
of appointment
person by means of a
money
is
default of appointment.
'
'
donor of
General rules
as to.
it
may
Toilet V. Toilet, 2 P.
Wms.
(c)
Doyley
v.
Denton,
K.
&
%.
Diiguid,
J.
Ch. 82
?,
{d)
(;/:
J.
Digitized
by Microsoft
213
TOWERS.
and
made
person
as signa-
presence of witnesses, or
delivery, the
if it is
formalities,
as
subject to
aided
that
is,
whom
the person in
is
the land
is
vested
compelled to transfer
the appointment
is
Defective
^^^ere'aided in
it equity,
where
a charity
but only
the defect
if
is
not material
as if it
in
or
if
there
is
it
till
the donee's
death)will not
will,
however, the
eifect,
by
that no appointment
will
Hawkins
v.
Kemp,
3 East 410.
(/) Sug. Pow. c. 11, ss. 1-3 Toilet v. Toilet, 2 P. Wms.489 S.C., and notes
Cooper v. Martin, L. E. 3 Ch. App. 47, 17 L. T.
thereto, 1 Lead. Cas. Bq. 269
Kennard v. Aennard, L. R. 8 Ch. 227 ; /Smith v. Adidns,
687, 16 W. E. 234
L. E. 14 Eq. 402, 41 L. J. Ch. 628, 27 L. T. 90.
;
Digitized
by Microsoft
^f^^4iSi*of
in powers by
exercise of a
(e)
Wills Act,
will,
THE LAW OF PROPERTY IN LAND.
214
Statutory provision as to
execution intei
vivos of
powers.
some
person, or
the appointment
executing
Partial execution of power.
it
is
made
mode
of exe-
power from
full
only,
is
Reservation of
power of revocation.
(g) 1 Vict.
(h)
22
&
c.
2G,
23 Vict.
s.
c.
10.
Jhid. 3G9.
Digitized
by Microsoft
s.
12
215
POWEKS.
cation,
reserved,
of
the prior
this
to a grandchild. (m)
Grandchildren,
power
to appoint to
'
Where, in a
issue. '(o)
is
is
entitled to the
Appointment
po^^^r
ment.
is
Where the
power
Thus, under a
an estate of specified extent, the appointment of any other estate, whether of greater or less extent
than that authorized by the terms of the power, would be
entirely void ;(r) except that, under a power to lease for a
to appoint
EocUeij
V.
Mawhey,
20
W.
())
Collingwood
v.
45 Ch. P. 179, 59 L.
.T.
Digitized
by Microsoft
v.
De
Quetteville,
Excess as to
216
Excess as to
objects.
An
interests
who
children,
Excess as to
limitations.
upon
is valid,
in equity,
them
exclusion of any of
note
(o).
()
Sug. Pow.
(u)
Ante,
u.
10,
b.
1.
p. 141.
51
Sug. Pow.
4;iy.
(a) Sug.
Pow. 405-407
Digitized
Kenworthtj
v.
Bate, G
by Microsoft
Ve.s. 7'J3.
Ij}-
217
POWERS.
expressly authorized by
originally, it
was
tlie
And,
the
appointees should be more than a merely nominal share.
The
1830
;(c)
Under
cised
created
power
is
to be exer- Frauds on
it
was
power.
If the appointment
is
made
for
liable to be set
even though such purpose is not stated in the instrument by which the appointment is made, and the appointment is, literally, within the
terms of the power.
Thus, if an appointment is made to an
is
aside as a
'
upon a
'
it
is
contract, or even a
is
to receive
ment
(as
or a
sum
(b)
Sug. Pow.
(c)
1 Will. 4, ^. 46.
(d)
of money),
^. 8, s. 5.
exclusive, 37
Digitized
by Microsoft
P""'^''^'
218
LAND.
IX
the appointment
Modes
Determination.
of.
Exercise of
The
if
power of appointment
exercise of a
power
of revocation, or of revocation
;
Death of donee
wh^src"nse
is
requisite,
whom
it
consent
is
is
vested, unless
And
if
it
ex-
a person whose
its exercise,
is
deter-
mined. (i)
Aleyn v. Belchier, 1 Eden 132 ; S.G., and notes, 1
(e) Sug. Po^y. c. 1'-', f. 2
Lead. Gas. Eq. 437
Topliam v. Diile of Portland, 11 H. L. C. 32, L. E. 5
25;i,
.T.
Oh. App. 40, 39 L.
(_'h.
22 L. T. 847, 18 W. R. 235
Cooper v. Cooper,
L. I!. 8 Eq. 312, 5 Oh. App. 203, 39 L. J. Ch. 240, 22 L. T. 1, 18 W. K. 299 ;
In re Kirwan's Trusts, 25 Ch. D. 373, 52 L. J. Ch. 952, 49 L. T. 292, 32 W. R.
581
cf. Eoach v. Trood, 3 Ch. D. 429, 34 L. T. 105. 24 W. R. 803 ; Senty v.
JVrey, 19 Ch. D. 492, 21 Ch, D. 332, 53 L. J. Ch. 6l'.7
In re Turner's Settled
Estckes, 28 Ch. D. 205, 54 L. J. Ch. 690, 52 L. T. 70, 33 W. R. 205; In re
Deane, Brl/h/er v. Deave, 42 Ch. D. 9, Gl L. T. 492, 37 AV. E. 786 In re
Crawslwy, Crawshay v. Orawshay, 43 Ch. D. 615, 59 L. J. Ch. 395, 62 L. T.
489, 38 VV. R. 600.
;
p.
Sirley
v.
In
re Gossett, 19
Beav
214.
tlie
(!)
(7i)
of
Ante,
Digitized
by Microsoft
219
POWERS.
If a
Lapse of time.
of time,
time.
power of appointment
special
(I)
is
extinguished by failure
of the power.
pur^poses!
'
Failure of
appendant,' or
'
appur-
Effect of
alieDatioa of
in other words, if the power power appendsuch that any appointment thereunder must necessarily ^"jj^^^ appurtake effect out of the estate (m) as in the case of a limitation
an alienation
by the donee, by
as
owner
Thus,
if
power is extinguished.
But if the
power does not comprise the whole
the power (as if he be tenant for life, and
thereof, the
interest subject to
the power extend to the fee) the alienation of his estate does
and
it
may
gross
'
'
'
life,
with
Alexander
V.
R. 310 ; Hardaher
554, 32 W. R. 638.
W.
'
'
Digitized
by Microsoft
Distinction as
coHateral or^"^
in gross,
220
power.
The donee
an
estate
of a
the land,
in
deed
And
power by
If,
Acquisition of
estate.
deed.(ii)
seems,
is
extinguished. (a;)
(5)
(r)
lUd.
[s]
Ihid. 49, 82
(*)
44
&
45 Vict.
u.
41,
=.
52.
()
45
&
46 Vict.
i;.
39,
o.
6.
(x)
Cross
82, 83.
V.
Palmer
Hudson,
v.
Lode, 15 Gh. D.
As
3 Bro. C. C. 30.
Digitized
294.
But
by Microsoft
see Sug.
Pow.
98.
308.
'
CHAPTER
II.
EIGHTS OF OEEDITOES.
The
and
Different kinds
^^S^^^-
and debts
debts,
Sect.
Definition.
I.
A mortgage
of land
money
due, or to
payment
whom
to
'
Mortgage
defined.
of
the
mortgagee
termed the
;
is
mortgagor. '(c)
'
'
Where
is
Where
is
called a
'
legal mortgage.'
is to
(a) The rights of creditors under bankruptcies are not here considered since
on bankruptcy, the land ceases to be the debtor's, and passes to the trustee for
See post, pt. 3, ch. 9.
the creditors.
(b)
pledge.
mortgage
The
differs,
and
called,
distinctively, a
does not entitle the
mortgage is also to be
it
p. 250.
(c) In the Conv. and L. P. Act, 1881, the term 'mortgagee' incluc'es
any
person deriving title under the original mortgagee ; and the term 'mortgagor'
includes any person deriving title under the original mortgagor, or entitled to
redeem a mortgage 44 & 45 Vict. c. 41, s. 2 (vi.). In the present chapter, the
terms are used in these senses, except where the context shows that the orii'in.il
Digitized
by Microsoft
Mortgages are
'?,'^^ '^ ^'l"'*'"
222
LAND.
IN
th.e security-
The distinction
termed an equitable mortgage.'(cf)
between legal and equitable mortgages is important, as will
be seen, with reference both to the creation of the security,
and to the rights and remedies of the mortgagee.
'
is
gages
(3)
The Rights
of the
Mortgagee
(4)
The Determina-
Comrrwn
Mortgagor's Estate or Interest. Mortgage,
The rights and duties of the parties to a mortgage are
at
(1)
Laio.
and
mortgages,
legal
to
Under the
equitable mortgages.
also
early
give validity to
common
law,
to the
due thereon,
interest
-were paid
Vivum
vadium.
Mortuum
vadium.
mortgage
(e)
'
Litt.
'
is
s.
332
Coote, Mortg.,
7, 8.
mortuum vadium
5.
however (s.
uses the term
332J,
as meaning the ordinary mortgage by conditional conveyance.
See Glanville,
lib. 10, c.
Digitized
6.
Littleton,
by Microsoft
223
RIGHTS OF CREDITORS.
account. (A)
witliout
mortgage seem
of
Bcdcmption.
of
The
mortgagor's
to
liability
Its introduc''"'
forfeiture
was based on the principle that a mortgage was intended merely as a pledge, or security, for a
forfeitures at law)
debt.(i)
Even though
ment
J.
an An
is
^
mortgage.
no
redemption of
an absolute conveyance, evidence
will be admissible to prove that it was intended as a security
only, so as to entitle the mortgagor to redeem. (Z;)
Moreover, the right of redemption cannot be restricted by any
stipulation in the mortgage instrument as, that the mortgage
shall be redeemable only within a certain time, or only by a
certain person or class of persons (as by the mortgagor alone,
or the mortgagor and the heirs of his body, only) (I)
a rule
of transfer contain
in form
is
(7i)
GlanTille, ibid.
Coote, Mortg.,
6, 7.
'
mortuum vadium.
(i)
V.
Emmanuel
College
Evans,
{k)
Maxwell
Douglas
v.
Langton
v.
Horton, 5 Beav. 9
v. Cidvenoell, 3 Giff.
&
Digitized
by Microsoft
essential
'"'="5^'^*
the instru-
221.
maxim
'
LAND.
IX
a mortgage. '(m)
Limits to the
i-ight of
redemption.
the mortgage,
of
redemption barred, on
i.e.,
failure of
to
mortgaged
may be
estate
and
redemption
is lost.(o)
And
acknowledgment of the
a mortgagor
may
by omitting
to inform the
is
the mortgagee.
is
alienable
(either
absolutely, or
(m) Hoioard v. Harris, 1 Vern. 32, 2 Lead. Cas. Eq. 1178 ; per Lord Eldon
Marquess of Northv. Slade, 7 Ves. 265, 273, 2 Lead. Cas. Eq. 542
ampton V. Follock, 45 Cli. B. 190, 59 L. J. Ch. 745, 63 L. T. 136, 39 W. B. 66.
The equitable doctrine expressed by this maxim forms an exception to the
general rule that a person may contract himself out of the benefit of a legal right
(modus et conventio vincunt legem) Coote, Mortg., 15.
in SetoH
(ii)
See^osi,
p.
244.
(0)
Seeposi,
p.
241.
&
&
W. & M.
(2)
())
Cashorne
v.
c.
16,
s.
3.
Digitized
by Microsoft
225
KIGHTS OF CREDITORS.
ment.(s)
the land, by deed enrolled under the Act abolishing fines and
recoveries, the
thereby (unless
A mortgage
interest
in
may
subsequent mortgagee may redeem, and take a transfer to himself of, any prior mortgage ; while he is himself liable to be
to him
and the mortgagor has the ultimate right of redemption. (tt)
Formerly, the person to whom the mortgagor's equity of Incidence of
redemption passed on the death of the latter, was entitled, ^"deatii of
in that event, to have the mortgage debt discharged out of mortgagor,
such part of the deceased mortgagor's estate as was applicable
(in priority to the equity of redemption) in payment of his
general debts, (a;) and thus to free the mortgaged land from
the debt unless the deceased had signified an intention that
the burden of the debt should be borne by the mortgaged
Locke King's
out having, by
will,
mortgaged land or
hereditaments should not be entitled to have the mortgage
debt discharged out of the personal estate, or any other real
and that the mortgaged land or hereestate, of the deceased
(i)
& 4 Will.
4, c. 74,
s.
21.
t.
Morris,
Eq.
2 Sp.
Jurisd. 665.
{x) As to the order in which the assets of a deceased person are, as between
the persons beneficially interested in his estate, applicable in payment of his
debts, see post, p. 396.
{y) See Ancaster v. Mayer, 1 Bro. C. G. 454; S. C, and notes thereto, 1 Lead.
Where the deceased was not the original mortgagor, the above
Cae. Eq. 723.
rule did not apply, and the debt fell primarily on the equity of redemption
unless the debt had been adopted by the deceased as his own
1 Lead. Cas. Eq.
:
752
et seq.
P
Digitized
by Microsoft
'
226
1855.()
On
Construction of
it
was
Act.(.)
was
a sufficient sig-
by
But
operation. (6)
its
these points,
statutes
of a contrary intention
to all or
tenure (thus bringing leaseholds for years within the Acts) (d)
and also provides that a contrary intention, within the mean;
and personal
&
(s)
17
(a)
Moore
(6)
Hill
(c)
(d)
30
&
18 Vict.
v.
V.
113.
u.
Moore,
De
40
31 Vict.
& 41
G. J.
&
Sm. 602
In re Kershaw, Drahe
L. T. 512, 36
(e)
W.
v.
Eno
Tatham, 4
v.
J. Ch. 102,
In re Fkch, Colston
Kershaw, 37 Ch.
Eolerts, 37 Cli.
v.
T).
Giff. 181.
25 \V. K. 141.
674, 57 L. J. Cli
J).
677.
599 5S
E. 413.
Viol.
c.
34,
;
Digitized
by Microsoft
227
EIGHTS OF CEEDITOES.
Mortgagor s Rights of Use and Unjopnent. Since the mortgagor is, in equity, the owner of the mortgaged land, he may,
so long as he continues in possession of it,(/) take the rents
la equity,
cient. (A)
By
the
common
position at
p,
law.
Leases ly Mortgagor.
The
mortgagor
to grant leases by express provision of the mortgage instrument, or he may be entitled to do so under the statutory
power of granting leases, presently mentioned. But where
he is not so empowered or entitled, a lease granted by him
alone (that is, in which the mortgagee does not join) is invalid
as against the mortgagee, who may either treat the lessee as
(/)
As
(g)
Colman
to the
v.
mortgagee's right
Duke of St.
(h)
King
(i)
(/c)
Dougl. 21
S.C.,
and notes
thereto, 1
Sm. L. C.
546.
Ihid.
86
48 L.
(l)
37,
v.
&
87 Vict.
c. 66,
J. C. L. 146,
s.
25, sub-s. 5
39 L. T. 389, 27
Digitized
W.
Fairclough
E. 145.
v. Mnrsliall,
by Microsoft
4 Ex. D.
mortgagee,
228
Power
of
leasing under
Conveyancing
Act, 1881.
of this
power
is
&c.).
and no
lease can be
(m) Keech v. Sail, and notes thereto, supra; Coote, Mortg., 777; Corhett v.
Plowden, 25 Ch. U. 678, 54 L. J. Cli. 109, 50 L. T. 740, 32 W. E. 667 Towerson V. Jaokson [1891], 2 Q. B. 484.
;
[n)
W.
Tarn
v.
R. 276.
& 47 Vict. t. 61
& 51 Viot. c. 26
53 & 54 Vict. c. 57.
(o)
46
(p)
50
(j)
Digitized
by Microsoft
229
RIGHTS OF CBEDITOES.
it
shall
extend to an eariier
Legal Mortgages.
inheritance or for
mortgage of an estate of
legal
life,
redemption
'
that
is,
added a
'
proviso for
This
is
paid
make repayment by
or for
instalments.
&
[r) 44
45 "Vict. c. 41, s. 18. Under s. 10 of tlie same Act (as to -whioli see
ante, p. 117) the mortgagee will, on giving notice to the lessee of the mortgagor,
be entitled to the benefit of the rent, &o. under the lease: Municipal Per,
W.
Society
\.
Smith, 22 Q. B. D. 70, 58 L. J. C. L.
K. 42.
The
proviso for redemption has taken the place of the condition for re-entr
by the mortgagor on payment, formerly annexed to the grant of the estate
see
(s)
ante, p. 222.
As
157
In re Jackson,
a. 61, a simple declarahas the same eifect as the more elaborate statements that, prior
that Act, were introduced into mortgage deeds for the same purpose.
(i)
to this equitable
34 Ch. D. 732.
tion, as above,
to
of.
(i.)
Modes
Digitized
by Microsoft
of freehold
'*'^
estates inf
^^*^*^^
or for life.
230
Law
to
mortgages. ()
Of freeholds
lang'terms.
modern
is
Formerly,
it
be the fee
simple.(y)
Of leaseholds
or years.
some few
days),
24U
et seq.
(s)
See ante,
p. 100.
Digitized
by Microsoft
4i3U
p.
and as
249.
pt. 2
David-
231
KIGHTS OF CREDITORS.
for
the mort-
gagee.(a)
The
Conveyancing
and
Law
of
Property Act,
188L
Statutory
made
Legal mort-
by
mortgages of leaseholds, 2
pt. 2
(6)
44
& 45
(c)
As
(e)
See^Oirt, p. 376.
and sched. 3.
by surrender and admittance, see post, p. 370.
(d) See, further, as to the form of legal mortgages of copyholds, 2 pt. 2 DavidElphinstone, Conv., ICo, 161.
eon, Conv., 113-117
Vict.
c.
41,
s.
26,
Digitized
by Microsoft
232
Security
created by
trust for sale.
interest
and
costs
and
to
pay the
be distinguished from a
mortgage in the ordinary form, in that the creditor has no
debtor.
is to
by sale
any time
even though the deed should contain no proviso
before sale,
The
debtor, however,
may redeem
at
How
created.
Any agreement
By
deposit of
title-deeds.
is
to be a security
written evidence
is
land. {I)
may be observed
Equitable
mortgagee
of lease not
an assignee.
It
by deposit
of the lease,
is
not
liable,
as
And he
See Mussel
Cas. Eq. 773.
(/j)
(i)
v.
Mussel,
/Shato V. Foster, L. E. 5
(/c)
Mussel
(Z)
29 Car.
V.
&
v. Ch-ay,
L. E. 8 Cli. 932.
See post,
2, c. 3, s. 4.
G.
p.
374.
s. .;o4.
Digitized
by Microsoft
3Ioore
v.
Greg, 2
Dc
233
RIGHTS OF CREDITORS.
and
Estate
(i.)
that,
the result of
as
the creation of
been seen
It has
Devolution of
^''^'^
where the
mortgagee,
it
had devised
it
by
heir-at-law.
Act, 1881,
was enacted
it
December 1881)
of a sole
should
the estate
heritance,
representative, as if
vest
in
were a chattel
it
it is
Law
of Property
that,
his
real,
him.(?i)
legal
personal
notwithstanding
By
the Copyhold
it,
mortgagee's death, in
enactment.
mortgaged
estate
And
is
and
Law
it
in trust
On
'
joint tenancy.
(?i)
44
&
45 Vict.
0.
41,
s.
30.
50
&
51 Vict.
u. ''3, n.
45.
Digitized
by Microsoft
234
is
Documents
as
them
as
joint
may
money secured by
be provided
for,
by a declaration
the mortgage.(jp)
of
mortgagee's right
title
vested in
usually, in practice,
And,
tenants.
to.
any stipulation
of mortgage
security.
fit
Limits of bene-
he
is
is,
it,
further than
(t)
and
is
interest,
Liability of
mortgagee as
to accounting
ii
(p) Ante, p. 229. As to the resulting trust that arises in the absence of such
declaration, see ante, pp. 157, 196.
(q)
(r) Coote,
(s)
44
&
et seij.
Mortg., 796.
45 Vict.
See James
i;.
41,
s.
16.
v.
interest in arrear,
is
also valid
Clarlcson
v.
Ch. 289.
Digitized
by Microsoft
235
RIGHTS OF CEBDITOES.
chargeable with
And
rent.(2/)
lie
is
'
oar
1189
L. J.
et seq.
813 White
Ch. 855, 38 W. E. 82.
v.
City of London
Brewery
Co., 42 Ch.
D. 237, 58
See Taylor
813, 814.
v.
55 L. T. 651.
(c)
(d)
44
& 45
& 45
Vict.
c.
41,
See Shepard
s.
v.
(e) 44
Vict. u. 41, s. 18.
to the mortgagor, see ante, p. 228.
As
to the
Digitized
by Microsoft
236
Mortgagee's
power
to
insure under
Conveyancing
Act, 1881.
tlie
rules as to.
(ii.)
is
subject to
effect.
Priority
of mortgages
This,
is
depends on a principle of equity that a legal mortgage has priority over all others, and that, subject to this
priority, mortgages take effect according to the dates of
the securities.
But this rule is subject to various qualifications.
Thus, if, on the creation of a legal mortgage, the
mortgagee has notice (whether actual or constructive) {h) of
the existence of a prior security, his mortgage is postponed to
that security.
And if a mortgagee (whether his mortgage be
legal or equitable) assists in, or connives at, the fraudulent
[g)
44
(%)
As
&
45 Vict.
c. 41, B.
19
(ii.), o. 2;!.
Digitized
by Microsoft
237
RIGHTS OF CREDITOKS.
The
tlie
'
tacking
'
of mortgages Tacking
priority. (Zc)
as follows
(1st)
Where
of the
'
'
equitable mortgagees, the earlier may be postponed to the later, on the sjround
merely of carelessness or want of prudence on the part of the former National
Provincial Bank of England v. Jankson, 33 Ch. D. 1, 55 L. T. 458, 34 W. R.
597 ; Union Bank of London v. Kent, 39 Ch. D. 238, 57 L. J. Ch. 1022, 59
Farrand v. Yorkshire Banking Co., 40 Ch. D. 182
L. T. 714, 37 W. E. 364
58 L. J. Ch. 238, 60 L. T. 669, 37 W. R. 318.
:
(k) The Vendor and Purchaser Act, 1874 (37 & 38 Vict. c. 78), abolished
tacking with respect to estates created thereafter (s. 7)
but this section was
repealed ab initio by the Land Transfer Act, 1875 (38 & 39 Vict. c. 87), s. 129,
except as to anything done thereunder before the commencement of the last Act.
And the Yorkshire Registries Act, 1884 (47 & 48 Vict. c. 54), s. 16, abolishes
tacking as to lands within the three Ridings of the County of York, in every
case in which priority might have been obtained thereby but for the Act (as
amended by a subsequent Act, 48 & 49 Vict. o. 26) except as against any
estate or interest which may have existed prior to the commencement of the Act.
;
(I)
(m)
696
Brace
v.
Digitized
by Microsoft
allowed,
THE LAW OF PROPEETY IN LAND.
238
With
Effect of
notice on the
right to tack.
it is
respect to
tlie effect
of notice
to tack,
he can-
not tack.(w)
And
when he made
second, or subsequent,
Meaning of,
and general
rules as to.
Gonsoliclation of Mortgages.
'
(n)
See
Marsh
v.
Mopldnson, 3 De G. & J. 177, 9 H. L. C. 514 Menzies v. Licihtfoot, L. R. 11 Eq. 459, 40 L. J, Cb. 561, 24 L. T. 695, 19 \V. R. 578
London
and County Banhing Co. v. Batdife, 6 App. Gas. 722, 51 L. J. Ch. 28, 45 L. T.
E.
"W.
109.
See
Bradford Banking ComiKiny v. Briggs (mortgage of
322, 30
shares in a companj'), 12 App. Gas. 29.
(o)
Molt
V.
&
(p) Coote, Mortg., ch. 68: Fisher, Mortg., 597-608; Watts v. Hgrnes, 1
G. 240 ; and other cases cited in notes to Marsh v. Lee, supra,
H.
iq)
Neve
v.
BemielJ, 2
(r)
Vint
V.
Padget, 2 D.
Digitized
by Microsoft
D. M.
23 Beav. 341.
239
EIGHTS OF CEEDITOES.
case,
Consolidation
'^y^g^^^gg'
^f
equity of
"
^'"P*'"-
mortgagee of the equity of redemption had acquired it without notice of the existence of any other mortgage, that could
be available for consolidation. (s) But it has been decided
that, where one of the mortgages has been created after
a purchase of the equity of redemption of the other mortgage,
the mortgages cannot be consolidated to the prejudice of the
purchaser (f) and also that, even though both mortgages
were created before the equity of redemption of one of them
has been assigned for value (whether by way of sale or of
mortgage), yet if they were made to different mortgagees, and
become united for the first time in one person after the assignment of the equity of redemption, they cannot be consoli;
mortgage.
The
Law
Conveyancing and
where the
'
'^
is
made
after the
31st
ConveyauciDg
^'"' ^^^.\' ^'
to consolidation.
deem. (a;)
(iv.)
The various
modes
of
Tlie various
modes.
(s)
See Beevor
Jennings
E. 369.
(t)
W.
(m)
W.
Sarter
v.
v.
E. 484; Bird
(x)
44
&
v.
45 Vict.
c.
41,
s.
17.
The
Digitized
J. Ch. 129,
J. Ch. 481,
45 L. T. 593, 30
46 L. T. 154,
.-.0
terra>. mortgagor
here includes any
See ante, p. 221, note (c).
'
'
by Microsoft
240
profits, of
tKe land
Where
(a)
(a) Possession
and receipt of
rents and pro-
g^^
fits.
into
^^^ '
is
in the mortgagee, he
may,
during:
the continuance of the security, enter
^^^^g
its
rents and
profits, unless
liabilities
Appoint-
receiver
(j3)
The appointment
who
or who
^ mortgagee,
possession,
of a receiver
is
means whereby
may
Formerly,
1881, to appoint,
the land
gagor,
who
unless
the
W.
R. 61.
(a) I.e., the High Court of Justice, or, where the sum secured does not exceed
500, the County Court. See 51 & 52 Vict. u. 48, s. 67.
.
(I)
Langton
v.
Lmujton,
Digitized
B. M.
&
G. 30, 37.
by Microsoft
241
EIGHTS OF CKEDITORS.
This power may, however, be negatived
or varied
until the
power of
The
(7)
sale (presently
mortgaged
sale of the
estate,
(7) Sale of
estate.
power
to sell the
{d)
44
(e)
See ante,
45 Vict.
c.
41,
ss.
19-22.
(/) The Act empowers the mortgagee, when the power of sale has become
exercisable, to recover from any person not having an interest prior to the mortgage, such documents of title to the land as the purchaser would be entitled to
require from
him
s.
21
(7).
Except
Q
Digitized
by Microsoft
;;
242
wliicli
the sale
is
needed.
^g,^^
is
not necessary,
and cannot be required by the purchaser, (i) And the purchaser is not liable to the mortgagor in case of any impropriety or irregularity in the exercise of the power, of
the mortgagor's
only remedy, in such case, being against the mortgagee personally. (Z;)
But if the purchaser buys with knowledge of
facts that render the sale improper, the transaction
may be
saie.(Z)
1881,
Corder
(i)
(k)
Hoofe
And
v.
See Dicker
V.
&
&
v. Hanhury, 1 Dr.
Sm. 143, 2 D. J.
S. 450, L. R. 2
Selvnjn v. Garfit, 38 Ch. D. 273, 57 L. J. Ch. 609, 59 L. T. 233, 36
W. R. 513 ; In re TJwmpson and Bolt, 44 Ch. D. 492, 59 L. J. Ch. 651, 62 L. T.
651, 38 W. R. 524.
(I)
H. L.
See Parkinson
1
Digitized
by Microsoft
243
EIGHTS OF CREDITOES.
own
claims
of mort-
^*^^
his duty,
"^
"'^'
sale will
be
and as
sell
^|^ou*t?ue
priorities. (o)
any
been
living, will
of redemption has
As
become
whom
the equity
gagor's death,
Law
Sale where no
is
ex^pr^elTpower;
cannot
sell,
(o) Coote,
Wright
&
sale is
Commercial Bank
Ch. D. 954.
44
v.
Mortg., 283
(p)
to
^"^^^^.'1^^".'*'^^
vested. (|))
made
Right
v.
v. JSose,
2 S.
&
S.
323
Bourne
v.
Bourne,
Hare
35.
45 Vict.
0.
Digitized
by Microsoft
of the
veyancinff Tct
1881, hereon.
'
244
Sale by order
*^"'^'^
?f
sell
trustee after
sale.
(5)
(S)
Foreclosure.
The
right of foreclosure
Foreclosure
gage.('!6)
failure in
payment
a certain
period,
is
of the
the
every mort-
incident to
is
judicial
by which, on
process
a mortgage, within
equity of redemption
is
barred or
thenceforth held
by the mortgagee
in the
A mortgagee
any time after
as owner.(.i)
for foreclosure at
An
the security.
account
(s)
rr.
73-77
and seepost,
p. 462.
An
equitable mortgagee, selling under the power given by the Conveyancing and Law of Property Act, 1881, cannot himself convey the legal estate to
the piu'chaser by virtue of his power of sale In re Hodson and Howes' Contract,
35 Ch. 1). 668.
(t)
[u)
But
securities
by way
vadium
Digitized
by Microsoft
245
EIGHTS OF CREDITORS.
ascertained, within
default in
be opened
redeem, (s)
that
is,
To proceedings
made
should be
the mortgage
may
closure. (c)
It may be here mentioned that the different remedies of a
mortgagee, including his right to sue the mortgagor personally for the debt, may be all pursued at the same time ;
Lees
v.
W.
R. 94.
As to where this will be done, see Fisher, Mortg., 956 Coote, Mortg., 1107
CampbeU v. Solyland, 7 Ch. D. 166, 47 L. J. Ch. 145, 26 W. R. 109 Taylor v.
(z)
(6)
(c)
Ante,
p. 243.
Digitized
by Microsoft
Mortgagee
ig^i.g]^e^eg'^
concurrently,
246
is,
the estate.(e)
Modes
of
(^)
Transfer of Mortgages.
A mortgagee may
inter
vivos
or,
as
it
by
An
will.
alienate his
absolute alienation
is
The
Where
redemption.
to the transferree
memorandum
Where mortgagornota
fer.
If the mortgagor
is
on the court
rolls. (^)
debt,
transferree. (A)
(d) That, in such case, the mortgagor has a right to rerleem, even though he
has previously transfeiTed the equity of redemption to another person, see
Palmer v. Hendrie, 27 Bpav. 349 Kinnaird v. Trollope, 39 Ch. 1). 036, 57 L. J.
Ch. 905, 59 L. T. 433, 37 W. K. 234.
;
(e) Loclcliart v.
(/) See as
(o
Hardy,
9 Beav. 349.
p. 370.
{(j) See further as to the forms of transfer of mortgages, 2 pt. 2 Davidson,
Elphinstone, Conv., ch. 9.
Conv., Introd. s. 4
;
Digitized
by Microsoft
247
EIGHTS OF CREDITORS.
transferree of a mortgage,
the amount
claiming the
"
'"
^^fj|^j
secured by
mortgage.
Transfer of
orymoi
f^^^_
gift,
An
alienation of a mortgage
'
Mortgage by
transferable
parol
iiy
Sub-mortgage,
Determination of Mortgages. Redemption and ReThe various ways in which a mortgagor's equity
of redemption may be lost or extinguished have been already
The determination of a mortgage through renoticed. ()
demption of the estate by the mortgagor, and the right to
a reconveyance of the estate on redemption, are here con(4)
cenveyance.
Modes
of
s"^'"^*
""
sidered. (0)
at
(j?)
anytime
[k)
& 45
44
Vict.
Re
p.
c.
41,
s.
27,
and sched.
3.
As
to the statutory
74tj,
(to)
form of mort-
231.
34 W. E. 286.
;
Elphinstone,
Coiiv., 205.
See ante,
(n)
p.
224.
estates
see pt.
As
3,
ch. 8.
to the persons
Digitized
by Microsoft
248
Redemption
enforced by
the Court
or sale under
Conveyanciug
Act, 1881.
The mortgagor
(1,1)
may,
if
tion
is
mortgage. ()
(2)
rown
(r)
Letts
L. T. 240.
(s)
(t)
(u)
15
&
V. Cole,
V.
14 Sim. 428.
16 Vict. C.76,
s,
pi. 34.
In
re Alcock, 23 Ch.
D. 372, 49
219.
&
(i/)
44
(s)
See 2
45 Vict.
pt. 1
c.
41,
s.
25
ante, p. 243.
44L. J.Cb.302.
Digitized
by Microsoft
249
EIGHTS OF CEEDITOES.
When
off,
Kecoaveyance.
mortgage
is
vyho
may
if
any, vested
in the mortgagee,
is
Where, on a mortgage
of
off,
(6)
Transfer iu
some
demption contained a stipulation to that effect.(^) But the
Conveyancing and Law of Property Act, 1881, as amended
by the Conveyancing Act, 1882, provides that the mortgagor,
or any incumbrancer, may, on redeeming, require the mortgagee (unless he is, or has been, in possession) to assign the
debt and convey the estate to any third person, notwithstanding any stipulation to the contrary.(A)
to
Statutory re'=^^y*"'^''-
As
s.
29,
and note
and sched.
3.
(/),
p.
230
and
as to
p. 108.
As
to the
statutory form of
See Teeoan
(A) 44 & 46 Vict. c. 41, s. 15; 45 & 46 Vict. c. 39, s. 12.
Smith, 20 Oh. D. 724, 51 L. J. Ch. 621, 47 L. T. 208, 30 W. K. 716.
Digitized
by Microsoft
v.
jg82'
250
Sect. II.
AND Liens.
Definitions.
An equitable charge may be defined as an
agreement, declaration, or direction, whereby real or personal
estate is expressly or constructively made liable, otherwise
Equitable
charge.
'
'
same.(i)
Equitable
lien,
An
created
equitable lien
by express
difiers
'
ment. (Z;)
As being recognised
common
and
charge or
A
lien,
security
in his
it
favour, to
secured
the
;
is
valid
by
and
arges.
which
is
sum
realisation of the
Instances of
mortgagee.
a lien
till
i.e.,
another's chattel,
Effect of
lien,
chattels only,
engage-
in equity only, it is to be
it
may
is
enforceable by sale
Court.(fli)
An instance
Instances.
occurrence,
(i)
is
Ihid. 107.
An express contraci for a lien excludes such a lien as, but for
the contract, might have arisen by foixe of law {ihid.).
(/;)
(1)
Sittincjbourne, cDc,
liij.
IloiJe r.
Co., L.
()
As
to
Digitized
p.
178
by Microsoft
251
RIGHTS OF CREDITORS.
created, also, as
security
for
a debt,
lieu of a
in
mort-
gage.
As an
lien of a trustee
upon the
may
be mentioned tbe
Instances of
(o)
of two joint owners of land on the whole of the land, for the
The vendor
of
land has a lien on the land for the whole, or any part, of the
purchase-money remaining unpaid even where the land has
been conveyed to the purchaser, and possession has been taken
by him and though the vendor has, in the deed of conveyThis
ance, acknowledged the receipt of the purchase-money.
Vendor'a lien
pjj."^^gg'
money,
lien binds the land, not only as against the purchaser himself,
The
known
as
it.(^)
Application
of
1''^^ '^"S ^
and the subsequent
amending
& Acts, to a vendor's lien for Act to ven^
unpaid purchase-money of land, may here be noticed.(7-) A dor's lien,
vendor's lien having been held not to be a charge by way of
mortgage, within the meaning of the principal Act,(s) the
first amending Act enacted that, in the construction of that
Act and the principal Act, the word mortgage should be
deemed to extend to any lien for unpaid purchase-money
upon lands or hereditaments purchased by a testator. This
enactment was held not to extend to a lien for purchasemoney on land purchased by a person who died intestate, (i!)
)
(p)
See Lahe
v.
Gibson,
J.
Ch. 228, 48
the vendor's lien, see Mackreth v. Symmons, 15 Ves. 329 S.C, and
notes thereto, 1 Lead. Cas. Eq. 355; and see, as 10 notice, ante, p. 200.
c.
(2)
As
to
{r)
17
&
34.
As
&
31 Vict. c. 69,
18 Vict. 0. 113, amended by 30
to these Acts, tee ante, pp. 225, 226.
(s)
Hood
(i)
Harding
V.
Hood, 8 Jur. N.
v.
and 40
&
41 Vict.
S. 684.
Digitized
by Microsoft
252
The
later
or entitled
of,
to,
unpaid purchase-money. The efEect of this legislawhere the price of land purchased, or contracted
to be purchased, has not been paid at the death of the
purchaser, the purchase-money will not, as between the
different persons claiming under the deceased, be payable (as
it was before the Acts)(t(.) out of that part of the deceased
lien for
tion
is that,
is
who
Purchaser's
hen for pur^^
meaning of the
Acts.(j^)
deposit.
Charges or
is
''^"1
d"^bts^^'
Mode
Alienation.
of.
the same way, and subject to the same rules, as other equitable
interests, (a)
Sect. III.
Definition.
Definition of
judgment
debt.
'judgment debt'
is
sum
of
money ad-
(m)
W.
Hudson
V. CooTc,
E. 407.
2(j
{y)
V.
L. T. 180, 20
{z)
v.
Si/nwwns,
786; svejmt,
Digitized
pp.
Lead. Cas.
373-375.
by Microsoft
Eij.
355.
253
EIGHTS OF CREDITOKS.
person. (&)
record,' as
It
is
being due by
'
debts of
are, practically,
At
the only
Crown under
recognizances, (d)
Modes
creditor
is
of Enforcement against
-that
is,
a person to
Land.
debtor's interest in
judgment
Remedies of
jlt^.
making the
is
if it
process
(ii.)
(iii.)
sale of the
(h)
Ab
(c)
2 Bl.
Comm.
Comm. 23
Bac. Abr.,
tit.
Courts.
465.
(e)
By the stat. 1 & 2 Vict. c. 110, s. 18, decrees and orders of courts of equity,
common law, and orders in matters of bankruptcy or lunacy, whereby
rules of
money is payable to any person, arc to have the effect of judgments in the
superior courts of common law ; and the persons to whom moneys are so paySee also 27 & 28 Vict,
able are to be deemed judgment creditors within the Act.
c. 112, =. 2.
(/) The superior courts of record are the House of Lords and the Courts constituting the Supreme Court of Judicature also the Court of Chancery of the
County Palatine of Lancaster, and the County Courts as regards their jurisdicThe inferior courts of
tion in bankruptcy (see Bankruptcy Act, 1883, s. 100).
record are the County Courts, except as regards their jurisdiction in bankruptcy.
;
(cj)
s.
&
2 Vict.
c.
110,
s.
22
18
&
19 Vict.
c.
15,
s.
51
&
52 Vict.
c.
43,
151.
(7i) As to the rights of creditors with respect to lands alienated by the debtor
in fraud of creditors, see post, p. 338.
Digitized
by Microsoft
254
writ of
'
is
a writ of
elegit.'ii)
Process under.
it
jury
creditor
is
entitled to
is
valued.
satisfied
land in
;
for on
resume
the writ of
Extension of
^deqlt by"i
Si
Vict. c. 110.
Estates in ex-
pectanoy
iiow far liable
under 6%i.
elegit is
^^^61^
at
But
all.
elegit ;
this
''
conimunity
Jiable under
elegit.
the writ.(w)
The
-j^g
co-tenant, (o)
(t)
writ, it
was provided,
in effect, that it
have a writ ol fieri facias against the debtor's goods, or the remedy
afiforded
by
{m)
xli.
2 Bl.
46
1
Comm. 161
2 Cruise,
t.
14.
Rules S. C. 1883.
(n) 2 Cruise,
t.
14,
b.
59
(o) 2 Cruise,
t.
14,
b.
73.
Digitized
1 Rolle,
Abr., 894.
by Microsoft
255
EIGHTS OF CKEDITOKS.
Equitable estates in land, arising under bare or simple
under provisions of the Statute of Frauds and the
trusts, are,
Act of 1838,
liable to execution
Liability of
^^"g^'^g
^jj,jpj.
elegit.
Where,
judgment, or &fter-
wards, the debtor has any power of alienation over land, &c.,
which he might, without the assent of any other person,
exercise for his own benefit, the land, &c., subject to the
power
by the Act
made
Liability of
p^o^^f.^'^un^ei.
elegit.
be taken in
be observed that
the power need not, for this purpose, have been executed by
is,
execution by
of 1838,
elegit, for
his debt.(r)
liable to
It will
Where
Liability
"^J^^^ 'under^
elegit.
Eents, &o..
^^^
Statutory pro-
pufc^^ggrg
29 Gar.
2, u. 3, e.
10;
&
2 Vict.
y,.
110,
11
2 Cruise,
Dart, V. & P., 541 Dighy v. Irvine, 6 Ir. Eq. Eep. 149.
of execution against sucli interests, see post, p. 258.
(?)
(r)
&2
Vict.
(s)
As
[t)
Sug. V.
c.
110,
t.
As
14,
s.
to the
68.
mode
11.
e.
(m) 1
&
&
P. 525
2 Vict. c. 110,
18
e.
01
to registration of
s.
19 Vict.
u. 15, s.
11.
15.
in lliddlesex or Yorkshire
der tc affect subsequent alienees, see post, p. 820, and note (6), ibid.
[y)
in
As
&
11.
Digitized
by Microsoft
256
TITE
LAW OF PROPERTY
IN LAND.
Judgments
entered prior
to 23rd July
1860.
and now in the Central Office of the Supreme Court, and such
registration has been renewed where five years have elapsed
And
Land Charges
Registration
and Searches
Act, 1888.
(2)
Judgments
entered be-
July 1864.
bound by
so far only as
it
he would have been bound under the law prior to the Act of
1838, previously mentioned. (a)
Moreover, under the Land Charges Registration and
Searches Act, 1888, any writ or order issued for the purpose
of enforcing such a judgment, and every delivery in execution or other proceeding thereunder, will be void as against a
purchaser for value (a term which, in the Act, includes a
mortgagee, or lessee, or other person acquiring an interest or
charge for valuable consideration), unless such writ or order
is, for the time being, registered, in pursuance of the Act, in the
register of writs and orders affecting land, established thereby
and kept at the Office of Land Registry, or unless the proceeding in which the writ or order was issued is, for the time
being, registered as a
tween 23rd
July 1860
and 29th
is
not-
purchaser, or mortgagee
lis
2xndens.(a)
its
in force
registration. (&)
The
6.
(s)
18
s.
19
ss.
&
3 Vict.
4, 5, 6.
u.
By 4 &
11, ss. 4,
& 4
W. & M.
c.
20,
Vict.
v;.
82,
judgments
28
&
24 Vict.
c. 38, ss.
Digitized
1,2; 27
&
28 Vict.
by Microsoft
c.
112,
o.
3.
257
EIGHTS OF CEEDITOES.
tion
this class
(3)
Judgments
29th jlafy""^
1864.
The Act
Land
at the
was
unnecessary
An
its registration
may be taken
but also under
elegit,
Estates for
'^^^^^ ^1?^'?
facias as well
^^ <^^S"*-
(c)
27
& 28
Vict.
c.
112,
s. 1.
(d) S. 3.
(e)
See Guest
(/) See 51
(</)
v.
& 52
Cowbridge By.
Vict.
Co.,
c. 51, ss. 5,
and supra,
p. 256.
2,Cruise,t. 14, s.63. But a purchaser without notice of the judgment is not
by it, unless there has been an actual seizure under the fieri facias :l^
bound
20 Vict.
&
c.
97,
F.
1.
E
Digitized
by Microsoft
258
which he then,
power of disposition which he might
exercise for his own benefit; (A) and the creditor was entitled
to such charge in addition to his remedy by elegit, where the
sessed, or entitled, at law or in equity, or over
or afterwards, had a
taken by
elegit.
But
was
this charge
till
affected
V^ct.
c.
112.
it
men-
for
As
creditors.
How
the
And
that Act, as
tion, (i)
Equitable exeCUtlOD.
commouly
is
called
'
equitable execution.'(?i,)
&
(A) 1
But as to judgments against mortgagees, Bee
2 Vict. 0. 110, s. 13.
the Stat. 18 & 19 Vict. o. 15, b. 11, already referred to, ante,^. 255.
(i)
{h)
27
As
& 28
to
Vict.
what
c.
112,
supra, p. 257.
[l)
W.
Digitized
by Microsoft
259
EIGHTS OF CEEDITOES.
1888, a creditor to
whom
thereto,
and
it
As
already
men-
is
Sect. IV.
Mode
Crown
is
under which both the land and the goods of the debtor may
be seized by the Crown.(2) And, by a statute of Henry VIII.,
debts due to the Crown by bond, or other contract under
seal, were, in effect, made recoverable in the same manner. (r)
And, by other statutes, the lands of certain persons bound to
account to the Crown in respect of ofSces held by them, are
due on their accounts, as if the same
seal.(s)
is,
contract
Smith v. Cowell, 6
252, 49 L. J. Ch. 7, 41 L. T. 565, 28 W. R. 127
WestJiead v. miey,
Q. B. D. 75, 50 L. J. C. L. 38, 43 L. T. 528, 29 W. R. 227
L.
T.
776, 32 "W. R. 273
In re Pope,
25 Ch. D. 413, 53 L. J. Cli. 1153, 49
Shephard,
Atkins
v.
43
Ch.
D.
131, 59 L.J. Ch. 819, 63
supra ; In re Shepliard,
L. T. 335, 38 W. R. 745.
;
'
(o)
27
& 28 Vict.
i;.
112,
ss. 4,
and supra,
p. 257.
Comm.
(q)
a Bl.
(r)
33 Hen.
(s)
13 Eliz.
420.
8, c. 39.
c.
4; 43 Geo.
3, c.
99,
e.
41
Digitized
&
6 Will. 4,
c.
by Microsoft
20,
s.
13.
of extent.
260
not under
seal), are
have been
taken for that purpose. (i)
What
interests
till
after they
by proceedings
Under a
writ of extent,
of freehold tenure to
extmded''^
Statutory pro-
against
cha'sers^&c""^'
Crown land,
debts.
Crown debts
registered in an index of
it
affect
has been
curred since the 5th July 1865, it does not affect any land,
as to a bond fide purchaser or mortgagee, unless a writ of
extent, or other process of execution, is issued
and
regis-
Official dis-
fram^Crow
debts.
officers,
of
(i)
1 Cruise, t. 1, s. 61.
(m) 1 Cruise,
t.
10, c. 3,
Comm.
(x) 3 Bl.
s.
21.
420.
&3
28
& 29
Vict.
16
&
17 Vict.
0.
s.
0.
104,
10
107,
Digitized
s.
s.
35,
s.
22; and as
11 (ante,
p. 255),
to
ss.
&
13 Vict.
196, 197
c.
89.
23
&
by Microsoft
24 Vict.
i;.
115,
s.
Crown debts
wMoh
48.
12
u.
1.
applies
';
261
EIGHTS OF CBEDITOKS.
Succession Duty. Money due on account of succession The Succesduty is a Crown debt, subject to special statutory regula- ^ggg-'^"*^
tions.
This tax, whicli was first imposed by tlie Succession
is
real
same
acquisition. (e)
is
By
is
confers
'
succession
'
(c)
16
&
[d)
As
to the valuation of the succession for assessment of duty, and the instalwhich the duty is payable, see ss. 21 et sec^., and s. 22 of the Customs
ments by
17 Vict.
c.
51.
a,nd Inland
would be exempted under the Legacy Duty Acts, viz., gifts by husband to
wile, and vice versd, gifts to the Eoyal Family, and to certain charities.
And
by the Customs and Inland Kevenue Act, 1881, the duty of 1 per cent., on
the succession of descendants and ancestors, is not payable in respect of succession to property which has paid probate or administration duty and the
iixed duty of 30s. on estates not exceeding 300 covers legacy and succession
duty (44 Vict. u. 12, ss. 36, 41).
;
(e) By the above Act (ss. 1, 19), leaseholds (which previously were chargeable with legacy duty) are made subject to succession duty. As to legacy duty,
see post, p. 394, note (h).
transfer by way of land fide sale does not create a succession within
(/)
the Act Fryer v. Morland, 3 Ch. D. 675, 45 L. J. Cb. 817, 35 L. T. 458,
25 W. R. 21.
:
[g) S. 2.
Digitized
by Microsoft
*"
262
tions taking effect on deaths after the above date, the Act,
in effect, provides that,
is
be deemed to be entitled to
the interest appointed, as a succession derived from the
donor of the power; and that, where the power is special,
thereof shall, on exercising
it,
upon
lEmd*"^^^
of sale, exchange,
or partition, exercisable as
is
in
the Act
upon the
money
any succession duty paythough he be a purchaser for value without notice of the charge, (m) But under
for
(h) Ss. 3, 5.
As
()i)
S. 42.
Sug. V.
&
P. 556.
Digitized
But by
s.
by Microsoft
263
EIGHTS OF CllEDITOKS.
a recent Act, land does not remain subject to this charge, as
against a purchaser or mortgagee, after the expiration of
twelve years from the happening of the event (whether
1889), then after the expiration of six years from that date
or, in certain events, after
Money
duty, are
made
Liability of
g^f^^f
j^^^
and money to
jg^^^ j^
^^ty"
Sect. V.
Deceased Persons.
or
(s)
it
Crown
EeTenue Office that the duty has been paid protects a bond fide purchase
from any claim for the same see Howe v. Lichfield, L. E. 2 Uh. 155, 36 L. J.
Ch. 313, 16 L. T. 436, 15 W. K. 323.
:
(m)
52 Vict.
c.
7 (Customs
{p) 16
{q)
[r)
&
17 Vict.
51 Vict.
An
c.
Ki.
De Lamey
W. E. 441.
interest in a rent-charge,
tithe rent-charge,
s.
21.
right of common
existmg apart Irom ownership of land, is liable fur the debts of the person in
whom It is vested, on his death, to the same extent as a corresponding right
of ownership, or estate, in land vested in him.
As to the lights of creditors
with respect to land appointed to a volunteer in exercise of a general power
of appointment, or alienated in fraud of creditors, see post, pp. 338, 339.
or
(s)
see
63 L. T. 335, 38
W.
E. 745
Ord.
xlii. r.
Digitized
23
(a).
by Microsoft
^'^
^f^^
mortgage,
in judgment, &c.
.
which may
debt,
Liability,
^""^
264
At common
Liability for
unsecured
debts
(1)
law.
was
Statute of
Fraudulent
Devises.
(2) In equity
equitable
it
is
expressed in
may be open to
remedy, where it exists, is available for
creditors, as well by simple contract, as by contract under seal.
If the deceased debtor has, by his will, devised the land subheir-at-law
or
creditors
and
of
this
payment
of his
debts, the creditors are entitled, as cestuis que trust, to have the
payment
of debts are
Lands thus
termed equit'
An
Charge of
debts on land.
or
to,
(x) 3
;
be paid
Coram. 243, 244. This remedy is not available against the heir or
copyhold land
1 AVatk. Cop. 140.
2 Bl.
devis-ee of
14
created by
(m)
may be
W. & M.
Will.
&
(!/)
44
iz)
Silk
4,
L-.
c.
47
45 Vict.
V.
0.
41,
Prime, Dick.
Digitized
s.
59.
38.'.
by Microsoft
3, o.
265
KIGHTS OF CREDITORS.
cient for this purpose
unless
it
is
Parohaser not
charge, except
of partiealar
such a
no such
and
liability,
seal)
of,
or entitled
to,
debts,
Sliallcross v. Finden,
1 Bro. P. G. 511
Britnell, 2 Ves. Sen. 313; CooJev. Dawson, 3DeG. F. &J.
127 ; In re Bailey, 12 Ch. D. 268, 48 L. J. Ch. 628; Me Tanqueray-Willaume
and Landau, 20 Ch. D. 465, 51 L. J. Ch. 434, 46 L. T. 542, 30 W. E. 801.
{a) Lecjh v.
3 Ves. 737;
(6)
Eari of Warrington,
Merryman,
Colyer v.
78; S.C., 1 Lead. Gas. Eq. 72
Cartwright, L. E. 7 H. L. 731, 45 L. J. Ch.
Tanqueray-Willaume and Landav, supra; Sug. V. & P. 658
Elliot V.
Finch, 5 H. L. 905
605; Be
Thomas v.
1 Barn.
Corser
v.
et seq.
(c) 3 & 4 Will 4,
had made estates
seal.
That the rents and profits accruing after the debtor's death iire assets, as
well as the corpus, see In re Hyatt, Bowles v. Hyatt, 38 Ch. D. 609, 57 L. J.
(d)
Digitized
by Microsoft
(3)
By
statute
266
from
this liability,
The remedy,
Remedies
in ex^ectanc^^
under
seal,
is
at
common
by contract
law, of a creditor
estate is a reversion
estate of
estates in possession.(/)
The
Eemedies
prcefertur oneri'bus.{g)
in
to
fiemedies
against equit51
By the
nip p^t?ltp^
But
by
contract under
To what debts
sn jec
Estates Tail.
-g
On
(jijargeable, as against
the heir on
whom
tail,
it
the estate
devolves, with
judgment and Crown debts due from the deceased, to the same
extent as an estate in fee simple but it is not subject to, or
applicable in discharge of, debts of any other kind.(^')
;
Not subject
On
^aidrTvie!'
(/)
Kam
the
29 Car.
(jfc)
2, c. 3,
Cruise,
tenant in
life,
to debts.except
tail,
t.
2,
2 Cruise,
s.
t.
18, c.
I, ss.
10.
c.
2,
ss.
33-38.
Digitized
55, 56.
(J)
As
Lewin, 827.
to the effect of
p. 225.
by Microsoft
a mortgage by a
267
EIGHTS OF CREDITOES.
vie in the lifetime of the cestui que vie, the estate is liable for
the debts of the tenant. If it were limited to his heir as
special occupant, it is liable in the same way as an estate in
fee simple
debts, as if
and otherwise
it
it is
were personal
estate.(Z)
Subject to
^"'
^'
^s^"^""
an estate
Rights
Creditors.
all
kinds.
Formerly,
estate
of
in
deceased
^'fj.'^'^j;^^
insolvent person,
creditor
j,
Judicature
*'
''
"
'
it
valued,
deficiency. (m)
Where
[1)
Ante,
(m) 38
&
on
c.
77,
s.
10.
affect
the priority of
Smith v. Morgan, 5
judgment debts in the administration of legal assets
Inre Maggi, 20 <Jb. D. 545, 51 L. J. Ch. 560,
C. V. D. 337, 49 L. 3. C. L. 410
46 L. T. 362, 30 W. K. 729.
:
(?i)
See 46
& 47
Creditors
generally.
p. 73.
39 Vict.
Secured credi-
Vict.
u.
Digitized
by Microsoft
2, rr. 9, 10.
268
liis
vests,
it
LAiJD.
tration of
legal assets.
and is subject
legal assets
'
In adminis-
'
is,
payment in preference to others. Thus, funeral and testamentary expenses, and the costs of administering the estate,
are payable in the first place and Crown debts,(s) and debts
secured by registered judgments, or judgments recovered
;
made
contract
i.e.,
had
priority
contracts not of
Assets under
4 W.
Stat. 3
4, u. 104.
&
Does not
rights of
year.('2i.)
Equitable
ailect
who succeed
As
between persons
under
creditors.
'
(r)
CooJc V. Orecjson, 3
(s)
See In re
Lord
Drew. 547.
Churchill,
Manisty
v.
3(5
W.
K.
805.
(()
Wms.
See 2
&
Exors. pt.
bk. 2, ch. 2.
3,
(x)
33 Vict.
Wolstencroft
judgment
&
c.
v. Lonrj, 1
debts, see 2 P.
4 Will.
(!/)
(s)
See Cummins
4, c.
v.
Ch. Cas. 32
Wms.
104
32
iSilk v.
416.
Cummins,
Digitized
by Microsoft
including
269
EIGHTS OF CREDITOES.
his will or
on his death
assets consti-
The order
by
will.(a)
It is here to
be
them
See post,
p.,
396.
Manning
v.
Digitized
by Microsoft
CHAPTER
III.
RENTS.
Rent
defined.
Definition.
Eent
may be
by the owner of an
as a charge thereon.
by the
Estates in
land the only
subjects of
tenant.(a)
As
Thus, rents
rent.
may be due
(except such as
to the
Crown by
prerogative, or
common, easements,
&c.(c)
sum payable
periodically, in
Kinds
of rent.
by virtue
'
and
interest.(c?)
and
'
'
rent-
charge.'(e)
Sect.
Rent-service
defined.
I.
Rent-service.
Rent-service
Definition.^
of the tenure of
(a) Co. Litt. 142 a
(i)
A rent may be
remedy by
the estate
(c)
distress (as to
falls into
Co. Litt. 47
Comm. 41
2 Bl.
Burton,
1050.
possession
a,
142 a
3 Cruise,
t.
28, c. 1,
s.
when
16.
and
to the rent
power
a
to distrain for
may be created
by whom it is given,
rent,
by express stipulation,
and those claiming under him. But the goods of other persons could not (as in
the ordinary remedy by distress) be distrained upon under the power.
(e) Kent-seek was formerly a kind of rent distinct from those above menbut the distinction has been abolished, in eifeot, by statute see post,
tioned
is
p. 274.
Digitized
by Microsoft
271
EENTS.
land
is held.
It
may
or
Rents payable by freehold tenants in fee simple or copyhold tenants, are commonly called
frequently)
also
'
rents of assize
distinguished
Where
as
'
(i)
'
chief- rents
'
Quit-rents, &c.
quit-rents,'(^) or (less
'
or
'
fee-f arm-rents.'(A)
granted by lease free of actual rent, the relation of lessor and lessee is sometimes indicated by the reservation of a peppercorn rent,' that is, a rent of one pepperland
is
'
"
in special custom.
reversioner
(/) Ante,
142
(i)
Ante,
b,
143 a
Burton, 1055
ante, p. 115.
p. 23.
Eents
'
assized,'
i.e.,
Com. Dig.
Rent.
is also, by modern usage, applied to a rent-charge
chief-rent
{h) Tbe term
payable by the purchaser of land to the seller, as a consideration for the sale
And the term fee-farm-rent is sometimes used
see Copinger & Munro, 18.
'
'
'
in this sense
(I)
As
2 Piatt, 82.
(m) 18 Edw.
(m) Litt.
s.
1, 0. 1
215
144
'
a.
2 Bl.
Comm.
42, 43
Bradbury
v.
8,
69
b.
Digitized
by Microsoft
Kent payable
,272
A rent-service
estate for
years
life,
is
art
(q)
tail.
Where no
reversion.
-^
rent-service payable
estate
If,
grantor, (r)
When
payable.
Eent
is
not
payable
Not apportion-
'
mon
la
Apportionment
'
{q)
See ante,
p. 63,
note
{x), p. 95.
s.
10,
126
284.
& 34 Vict.
V.
3S
Ogle, L.
Digitized
by Microsoft
273
RENTS.
1870,
all
rents,
part, is payable
or, in case of
or otherwise,
when
the next entire portion of the same would have been payable,
if it had not so determined.
But, in the case of rent reserved
out of, or charged upon, land, the whole rent (including the
apportioned part) is recoverable by the heir, or other person
next entitled to the rent and the apportioned part is re;
coverable from
him by the
to the same.
It seems that, under this Act, rent is apportionable, not
only as between different persons entitled to the rent, but
also as between the landlord or other person to whom the
rent
is
whom
where the
days, (y)
At common
payable
is
it
Apportionment
fandlordTad
tenant,
as
Eecovery.
Arrears
Distress
distress. (a)
are
rent-service
of
recoverable
the enforcement of
is
payment
by
by
any
()
11 Geo.
2,
<;.
19,
s.
1.5
&
5 Will.
4,
u.
payment
22
of the rent
and see 14
&
15 Vict.
c. 25, o. 1.
(y)
See Swansea
W. E. 491 ;
558, 27
Oldershaw
{a)
As
v.
Be Lucas, Parish
Holt, 12 A.
&
v.
Hudson, 55 L.
J. Ch. 101,
E. 590.
non-payment of
rent,
under a condition of
ch. 11
As
;
to the
Simpson
Digitized
by Microsoft
Distress,
274
Action at law.
Alienation.
sion or seignory to
incident, although
it is
e y.
separately
may be
or
case.(rf)
It
may
also
be not
it
be granted
or reversion.
was annexed,
'
statHte of
Geo.
II.
is
At Common law
Eent-seck at
as to.
therefore called a
rent-seek
'
'
now no
practical distinction
between a rent
Hence, there
that, at
is
common
Apportionment
'
of
mrt'of
reversion.
^^^ reversion
is
the apportionment
(c) 2 W.
Vict. c. 21.
&
M.
c.
is
necessary, unless
11 Geo.
2,
c.
19
35
&
it
be
36 Vict.
c.
92,
s.
13
51
& 52
See ante,
(e)
(/)
Litt.
Ig)
4 Geo.
(7j)
s.
Burton,
1096.
2, c. 28, s. 5.
3 Cruise,
Miss
p. 116.
218
t.
28,
c. 3, s.
32.
&
v.
Collins,
5 B,
Digitized
by Microsoft
"
275
EENTS.
Determination.
Tlie
riglnt to rent-service
may be
ex- Modes
of.
ways.(/tf)
Eviction of
(i.)
*^"^''
destruction of buildings
by
uninhabitable, or an eviction
fire,
by
becoming otherwise
or their
On
(ii.)
the
rent.('?i)
the(ii.) other
estate
ceases to be payable.
mine
of,
If,
''^*j^P'"f;*""'
by the
is
apportionable, and
cause the rent to be apportionable, unless with the reversioner's consent, (jp)
(iii.)
part,
by the reversioner or
(iv.)
By
1881,
As
therein,
by payment
to a person abso-
As by
to
Baynton
3 Cruise,
t.
28,
(iii.)
Release,
(iv.)
Eedemp-
lord.(j)
t. 3, 8. 6.
Digitized
by Microsoft
v.
Morgan, 22
276
IN LAND.
empowered
to dispose of
it
At common
law, as has
reversion.
The
Alteration of
the law hereon.
Law Amendment
on this
Sect.
Eent-charge
defined.
Definition.
Eent-charge.
II.
Rent-charge
is
Interests in
rent-charges.
made payable
the vendor and his heirs, and charged upon the land.(2/)
charges in
Mode
of.
tail
Creation.
to
Rent-
A rent-charge
by
is
created
()
by a grant,
either
will, of
its
&
ir)
44
(s)
Ante,
(i)
&
45 Vict.
9 Vict.
() 2 Bl.
u.
41,
s.
45
and see
413
130.
p.
c.
106,
Comm. 42
(x)
3 Cruise,
(y)
See Copinger
t.
28,
c.
ante, p. 130.
Burton, 1056.
2, bs. 1-8, 24.
& Munro,
29.
As
As
(6)
Digitized
by Microsoft
(c)
See ante,
p. 274.
277
EENTS.
for the
of
remedy by
for
to rent created as
was not
been
distress
But, as
tliis class.((^)
by law,
power to
incident,
seen, a
lias
to rents
distrain
common
at
law,
;
distress. (()
It has
cases
granted.(/)
is,
in fee simple
g^j(.
as grant
of rent-charge,
Reservation of
by the
effect as a
rent-charge. ((/)
Under
modern
and
Court of
Common
Supreme
Pleas,
But
Court. (/i)
validity of
or mortgagee
rent.('i)
Recovery.
remedy by
And
of a rent-charge has a
II.
above
Burton, 1056.
4 Geo.
(/) Ante,
(17)
rent-service.(/i;)
distress
Litt.
2, c. 28, s.
p.
s.
272.
217
Bradhury
v.
WrigU,
Dougl.
f>i\.
(?:)
Greaves
Rules as
v. Tofield, 1,4
Ch. D. 563, 50 L.
.J,
Ch. 118.
Digitized
by Microsoft
Distress,
to.
278
Usual pro-
referred
seouring'rent-
*^ ^^^^ 1882, to insert in an instrument creating a rentcharge an express power to distrain. And, as an additional
charges,
to,(Z) it
hereon.
satisfied, (m)
Provisions of
,t
j_i
j.
Sale by order
raising amars
of rent-charge,
(I)
Ante,
p.
274.
As
remedy by
to the
distress, see
sale
supra, p. 273.
(o) I.e.,
High Court
Digitized
by Microsoft
of Justice.
279
RENTS.
granted,
an
In addition to the foregoing powers of enforcing a rentcharge as a right of property, the person entitled to the rent
Action at law.
By
modern
statute, provision is
made
deceased
person,
to,
or
made
Alienation.
A person
A rent-charge
may
on Covenants, 475.
[r) Piatt
(s)
Thomas
VV. R. 912
v. Sylvester,
Graham, 42
D. 343, 38
L. T. 189, 37 W. R. 730.
()
(it)
22
&
Cli.
23 Vict.
See ante,
W.
R. 178
Searle
v.
Society,
Ex
parte
c. 35, s. 28.
p. 96.
s.
28.
As
to alienation
Digitized
by Microsoft
of.
rent, as
of.
280
(i.)
Expiration
of interest.
IN"
LAND.
Where
(i.)
it
ceshoi
it
was
rent
pants
vie in a rent-
charge. (&)
(ii.)
Deter-
Tstate'chafged.
ment,
(iii. )
Merger.
(iii.)
it is
owner-
thus extinguished.
is
The
rent-charge
(iT.) Release.
apportioned, (c?)
is
rent-charge, by
law, a release of
As
to escheat of
(a)
Co. Litt. 41 b
(6)
Bearparli
v.
Under
an interest
2 Bl.
owner of an
Comm.260. As
common
to
;
1 Vict.
i;.
s. 3.
See ante,
p. 73.
p. 73.
(d)
Litt. s.
(e)
Burton, 1123.
(/) 22
&
23 Vict.
c. .35, s.
Digitized
10.
by Microsoft
^^^
EENTS.
unreleased part of
tlie
land
(fl)
W.
Booth
V.
K. 142.
(A)
Supra,
p. 275.
Digitized
by Microsoft
(y.)
Redemp-
CHAPTER
IV.
Sect.
Tithe rentcharge defined,
Definition.
Tithe Rent-charge.
I.
Tithe rent-charge
is
payable by the owner of land in lieu of tithes, under the statutes for the commutation of tithes, and charged upon the land.
Tithes,
Tithes.
for
and vegetable,
of land
as the tenth
animals, the milk of cows every tenth day, the tenth sheaf of
corn, &c.
tithes
'
'
mixed
'
predial
'
personal
sum
property.
By
the
common
(o)
3 Cruise,
(6)
Burton, 1188
t.
22,
Digitized
b.
2 Bl.
2 Bl.
by Microsoft
1173, 1174.
283
The
Henry
;((^)
King
Grants from
_*"
i^y^e
Many
'
impropri-
Commutation of
Tithes.
amended by subsequent
By
provision was
statutes,('i)
made
for
the commutation of the tithe of every parish into a rentcharge, and for the apportionment of the rent-charge among
was appointed for the carrying out of the commutaThe amount of the rent-charge, in each year, is regu-
ture) (k)
tion.
This was
(c)
tlie
Barton,
1205.
3 Cruise,
(e)
t.
22,
(/) 27 Hen.
8, c.
(g) 3 Cruise,
t.
s.
28
31 Hen.
Viot.
69
c.
&
&
(/j)
&
&
&
&
;
(ii)
&
See post,
&
Will
&
&
412.
Digitized
4, c. 71.
& 4 Vict. o. 15 5
14 & 15 Vict. c. 53
41 & 42 Viot.
c. 42
3
p.
384.
8, c. 13.
2 Vict. c. 64 ; 2
3 Vict. c. 62
10 Vict. c. 73 ; 10
11 Vict. c. 104
6 Vict. c. 54 9
32
Vict.
c.
31
37 Vict.
23
24 Vict. c. 93
89 ; 36
45
c. 42
46 Vict. c. 37, ss. 9, 10 54 Vict. u. 8.
1
(i)
Comm.
1 Bl.
by Microsoft
284
Extraordinary
charge.
Tithe
Acts,
charge
(in)
is
tuted for
Lay
Similar to
estate ir land,
,-,-^g^y
annum on
it.(n)
Tithe
rent-charge
titijgg
^g^g
modes
and
holding, to
of
estates in land.(o)
No
Where
mei'ger of
in land,
when
which
hoth vested in
same person.
owner
and therefore
on a grant of the land, unless expressly included
interest,(p)
is also
it is
in the grant.
Modes
of.
Every right
to tithe rent-charge,
it
origin, as has
payable.
half-yearly
Tithe
rent-charge
it is
is
payable
apportionable, under
for
and in arrear
of the rent-charge,
(I)
&
r>
7 Will. 4,
annually in the
(;)
&7
c.
London
Will
The
&
March
4G Vict.
c.
is
1891),
puhlished
18 ; 36 & 37 Vict.
24 L. T. 908, 19 W.
s.
c.
(p)
[q)
3 Cruise,
(n) 49
(o)
Land Acts
(r)
33
&
Be
3 Cruise,
22,
t.
Chapman
v.
67.
t.
34 Vict.
'
u.
35.
Digitized
See ante,
p.
273.
by Microsoft
'
285
tlie
on the land,
if
it
forty days,
recoverable, to the
it is
same extent, by
are satisfied.(s)
is situate,
sum
and such order is to be executed by an officer of the court,
by distraint or execution as above mentioned, if the lands
are occupied by the owner thereof and in any other case
the order is to be executed by the appointment of a receiver
of the rents and profits of the land.(i) The foregoing are the
application of the person entitled to such
is,
between land
after the passing of the Act, for the payment of the tithe rent-
charge by the tenant is void. ^Vhere, however, such a contract has been made prior to the passing of the Act, the
tenant is liable, under the Act, to pay to the landlord such
sum as the latter has properly paid on account of the tithe
rent-charge. (y)
(s)
()
&
7 Will. 4,
54 Vict.
(m) 6
&7
49
&
8,
c.
s.
71,
;
Cli.
ss.
67
D. 84, 54 L.
50 Vict.
c.
81, 82
and see
"Will. 4, c. 71, s.
Badham, 30
{x)
c.
54,
s.
s.
54 Vict.
Griffinhoofe
J.
u. 8, a.
10.
4.
Oh. 1067
(5).
Digitized
v.
Bauhuz, 4 B.
54 Vict.
{y)
& B. 230
Bailey v
c. 8, s. 2 (1).
54 Vict.
by Microsoft
c.
8, s.
1.
of.
286
(i.)
Expiration
^
dufation
(i.)
^^
^^^
period of
(ii.)
Merger.
(ii.)
its
duration, (s)
who
is
tenant for
of tithe rent-
life
same
seal,
(iii.)
Bedemp'
tioD.
Tithe rent-charge
(iii.)
By
may be redeemed
in certain cases.
is
it
to be
of the charge.(c)
By
Eemission of
tithe rent-
charge.
it is
Sect. II.
this head.
of charges under
in various
other
cases. ((')
(z)
As
p. 467.
to escheat of
As
to its extinguishment
(a) 6
ss.
c.
64, ss. 1, 2,
&
3 Vict.
o.
62,
&
50 Vict.
(c)
49
{d)
54 Vict.
(e)
u.
c. 8, s.
54,
=.
&
5.
(1).
Digitized
by Microsoft
ch. 9,
And
287
Money
Money
raised
raised
meats secured
by-
money
for
and
assignable. (/)
is
It is personal estate,
Under
the
Copyhold
Compensation
^^'
^^^ ''^^
secured by.
seen, the
Act
with compensation-money or expenses paid for enfranchisement, and charges of certain land or rents with the lord's
Such charges are to be made by way of mortgage,
expenses.
with, and subject to, the powers and provisions of the Conveyancing and Law of Property Act, 1881.(t)
see the
Housing
of the
(/) 27
ig)
&
28 Vict.
See ante,
& 51
'
Working Classes
&
50
(i)
Vict.
54 Vict.
c.
70), ss.
114,
ss.
59-65.
See ante,
p. 86.
(h)
./
c.
See ante,
p. 36.
Digitized
by Microsoft
Costs of impra^ements
secured by.
288
Eent-cbarge
secure
y.
Under
the earlier
land-tax, a person
may be
thereon. (Z)
Registration of
Under Land
^,^j[ff^^^S^'"
Searches Act,
1888.
Land Charges.
By
land charge
'
a term
it
Land Charges
the
provided that a
is
after the
commencement
of the
Act
Land Eegistry
created
is
registered in a
first
&
(Ic) 46
47 Vict. u. 61, ss. 29-32.
See ante, pp. 91, 92.
creation of such charges, see post, p. 411.
(1)
(m)
As
(n) 51
to the
&
meaning of purchaser
52 Vict.
c.
51,
Digitized
ss.
As
to the
mode
ed.).
by Microsoft
of
CHAPTER
V.
RIGHTS OF COMMON".
Definition.-
'Common,'
or 'right of common,'
is
the
name
Right of com-
given to the right that a person may have of taking some part
of the natural produce or substance of another's land, or of
The
is also
Varieties of Common.
i^rendrc.ict)
Different
'
men of pasture,'
'
wood on
right of cutting
'
itself ;(e)
game on
right of
of preserving,
another's land.(/)
As
(6)
to the
term
'
This right
(c)
^eeveral iishery.'
of the soil
See
is to
As
Co. Litt. 4
Mayor of Saltasli
b,
122 a
v.
683, 43 L. T. 464 ;
Neill V. Duke of Devonshire, 8 App. Cas. 135.
(d)
313,
(e)
See Robinson
E. 21.
Duleep
v.
Slncjh, 11 Gh.
27W.
Gomm. 34
Elton,
ch. 21,
T
Digitized
1156.
by Microsoft
cited
290
Maybe
annexed to
ownership of
land
;,
or in
gross.
A right of common over land may exist either as an appendage to the ownership of other land, or as a merely personal
right that is, independently of the ownership of any land.
A right of common annexed to the ownership of land is called
;
either
'
common appendant,'
mode in which
or
'
common
appurtenant,' ac-
cording to the
common
called
is
is
'
acquired.
common
in
gross.'
Modes
of.
Creation.
law merely
independently of any act of a person to which the
that
is,
Common
appendant.
common
may
It is to rights of
be referred.
The tenants
applied. (^)
'
appendant
of manorial freeholds,
i.e.,
'
is
lands of
manor (/i) such of their cattle as are necessary for the ploughing or manuring of their lands, viz., horses, kine, and sheep
which are hence called commonable beasts. '(i) This right,
'
therefore, is
claimed,
by usage, in respect
Common
appurtenant.
it
may be
it
may be
upon
or con-
though
common
all
of any descrip-
by exby local
custom.
Grant.
A right of
over land
and
see
& E.
Duhe of Somerset
696, 6 A.
Elton,
See ante,
(i)
v.
Fogwell, 5 B.
&
C. 875
Bird
v.
Higginson, 2 A.
p. 27.
Co. Litt. 122 a; 2 Bl. Comm. 33; Burton, 1133; TyrringhairCs case,
36 a Tudor R. P. Cas. 120 Bennett v. eeve, Willes 227.
pt. 4,
(k) Roll.
Tyrringham' s
Commons.
(I)
824.
Commons,
(gr)
(h)
Rep.
& E.
As
to the
Digitized
p. 345.
by Microsoft
case,
291
EIGHTS OF COMMON.
and occupiers
time being of
for the
be ap-
purtenant thereto.
Prescription, or acquisition
by long usage,
is
considered
Prescription,
by
'
reason of vicinage.'
of^jg^,j^(og
Another
resembling the
right,
last,
but Common
of
by
appurtenant.
2 Bl.
3, ch. 8,
Commons,
Comm. 33
(p) Elton,
Eep.
pt.
&c.
7,
Commons, 30
7,5a;
2.
Elton,
Eohin, 10 Q. B. 581
case,
s.
Corhefs
Baylis v. Tyssen
((/) Elton, Commons, 5, 7 ; GatewarcVs case, Eep. pt. 6, 59 b
Amhurst, 6 Cb. D. 500, 46 L. J. Ch. 718, 37 L. T. 493; Willitigaie v. Maitland, L. E. 3 Eq. 103, 36 L. J. Ch. 64, 15 W. R. 83 Ohilion v. Corporation of
Lotidon, 7 Ch. D. 735, 47 L. J. Ch. 433, 38 L. T. 498, 26 W. E. 474; Lord
Elvers V. Adams, 3 Ex. D. 361, 48 L. J. C. L. 47, 39 L. T. 39 Tilbury v. Siha,
45 Ch. D. 98, 63 L. T. 141.
;
482.
Digitized
by Microsoft
292
geese, (s)
mon
common
(called
by express
unless, perhaps,
grant.(tt)
Common
gross.
Common
in
Grant
jj^^y \^q
'
or prescription.
or by prescription
Extent
in Gross.
acquired
as
'
of.
where
entitled to a right of
com-
righ.t.{y)
common of
A person
(as in
it
make
Lord may Jeal
b^ Tt'^
commoners'
rights.
Modes
rights.()
of.
Alienation.
or by will,
pass with
all
it,
inter vivos
or appurtenant to
it
will
(s)
(*)
Burton, 1135-1137
Burton,
Benson^. Chester,
that
is,
as
1135.
ScJioles v.
Margreaves, 5 T. E. 46.
8 T. E.
3 Cruise, t. 23,
Game Act, 1880).
(2)
&
ss. 54,
C. 346
55
3 Cruise,
and see 43
&
t.
44
23,
s.
58.
A''ict. c.
47,
=. 1
(2)
(Ground
Digitized
by Microsoft
293
KIGHTS OF COMMON".
And on
tween the
an alienation of part
common may be
apportioned be-
Common appendant
different parts.(c)
cannot be
annexed
is
it
all
same extent
as estates in
land.(c^)
Formerly, on an alienation inter vivos of land, the description of the land in the instrument of conveyance
'
General
""""
' ;
'
common had
'
existed (/)
right which
land.((/)
December 1881,
is
deemed
to include,
and
Kep.
Wild's case,
pt. 8,
Eights of common,
(d) See Cooke on Inclosures, 54 ; Elton, Commons, 128.
see Act of 1882,
&o., are 'land' within the Settled Land Acts, 1882 to 1890
But the Acts do not authorize the sale of any interest which,
s. 2, sub-s. 10.
when vested in a tenant in fee simple, is inalienable Re Rivett-Carnac's Will,
30 Ch. D. 136, 54 L. J. Gh. 1074, 53 L. T. 81, 33 W. R. 837 ; Re Earl of
Ayhsford's Settled Estates, 32 Ch. D. 162, 55 L. J. Ch. 523, 54 L. T. 414, 34
;
W.
K. 410.
(e)
(f)
As
to
(o) Elton,
V.
Lambert,
extinguishment of a right of
Commons,
1
125, 126
Taunt. 205.
common
Bradshaw
Digitized
v.
by Microsoft
Clements
Conveyanoing
Act, 188], as
^^ General
words.
294
now
usually inserted in
such conveyances.
Modes
Determination.
of.
Eights
of
common
determine, or
are
most important.
Expiration
of period of
(i.)
duration.
(i.)
A right
of
common, granted
for
an interest of limited
its
Unity of
ownership.
(ii.)
is
the right of
common
the right
(iii.
Release.
(iii.)
though, on a purchase
appurtenant, or in gross,
is entirely extinguished.(A;)
right of
common may be
and a release
of part of the
(iv.)
OoiDyhold Acts.(7)i)
(v.) Disuse.
to
{h)
(j)
44&45Vii;t. C.41,
See as to escheat,
s. 6.
j'ost, p.
467.
(Z)
Elton,
Commons, 129
Elton,
Commons,
Burton, 1142.
p. 37.
Digitized
by Microsoft
120,
123,
127
Burton,
295
EiaHTS OF COMMON.
right.
will
disuse
effect, (w)
(vi.) A right of common over waste of a manor may be lost (vi.) Eacroaohthrough an encroachment on the waste it being provided by ^"
statute, that a person who has taken part of waste land
(though he have no original title to it), and has held it for
twenty years, thereby acquires an absolute title to it, so as to
extinguish all rights of common over it;(o) and encroachments made by a lessee of land are presumed, if they adjoin
the land, to be made for the benefit of his landlord. (p)
(vii.) An inclosure, legally made, of land subject to any (vii.) Inclo'
right of
^""^''"
inclosed.
By
Henry
a statute of
i.e.,
of pasture
in
under
^''^*^^-
gross)
And
bT^Jgg'^*JJit
.ind
it
all
may
be
persons
Moore
()
cf.
Carr
(o)
Viot.
u.
v.
v.
&
&
9 Vict.
7 Will. 4, c. 115, ss. 19, 20; 8
15
16 Vict. c. 79, s. 13.
Ill, s. 3
c.
118,
ss.
50-52; 10
&
11
&
Doe
&
{q)
20 Hen.
(r)
As
to
3, u.
13 Edw.
1,
;.
46
&
4 Edw.
6, u. 3.
By
stat.
39
(s)
As
to the Inclosure
Acts prior
to the
Act
ch. 9.
()
&
9 Vict.
u.
118.
Digitized
by Microsoft
&
40 Vict.
to
make an
Commons,
inclosure Acts,
296
amending that
of Agriculture
(a;)
common
may make an
be waste of a manor),
among
the land
Title aurl
allotment
is
entitled
of
the party
allotted in respect of
Inclosure of
common
fields.
may
the owners
freed from
all
rights of
&
common
&
&
&
(w) 9
10 Vict. c. 70; 10
11 Vict. c. Ill
11
13
12 Vict. c. 99 ; 12
Viof. C-. 83
14
15 Viot. c. 53 15
20
16 Vict. o. 79 17
18 Vict. c. 97
21 Vict. c. 31
22
23 Vict. c. 43 31 & 32 Vict. c. 89 and 39
40 Vict,
c. 56.
The last-mentioned Act also contains provisions for the regulation and
improvement of nninclosed commons, and special provisions as to suburban
;
&
&
&
&
cpmmons,
i.e.,
such as are
thousand inhabitants.
commons, i.e., such as are
which are subject to special
subsequent Acts.
&
si.x
&
The
As
{z)
to
(a) Sug.
10
(6)
(c)
c.
118
Vict.
c.
&
who
V.
&
are
deemed persons
interested, see 8
&
9 Vict.
c.
118,
s.
16.
P. 372.
11 Vict.
u.
Ill,
&
6.
&
&
&
&
Digitized
by Microsoft
&
&
&
CHAPTER
VI.
EASEMENTS.
Definition.
'
'
pation in the
soil or its
particular use of
it. (a)
Basements resemble rights of common appendant and appurtenant, in that they are annexed to the ownership of land
Servitudes
^^^"
)^g^"g
'
produce of
la,nd.(d)
Instances.
rights of
Easements
way (whether
include
lands of others
(7/.
Goddard,
2.
(b)
Gale, 1
(c)
Inst. Just.
ii.
3.
(d) Gale, 8.
Digitized
by Microsoft
Instances of
easements,
298
;;
upon
by neighbouring
buildings
soil,
or buildings
The foregoing
a right to
number
and rights restricting the use or enjoyment of land in other
ways (as by preventing the owner from erecting build-
ings that interrupt the passage of air,(/) or obstruct a prospect), (^) cannot be acquired as easements. (7i)
Not annexed
ownership of
land.
to
in Gross.
Licence.
it is
The
enjoyed. (*)
right exists
May
be
annexed
to
ownership of
land.
may be imposed
covenantee. (^)
See Gale on Easements, 19-22, where a list of the chief easements will
Dalton v. Angus, 6 App. Cas. 740, 50 L. J. C. L. 689, 44 L. T. 844
Lemaitre v. Davis, 19 Ch. D. 281 Moody v. Steggles, 12 Ch. D. 261, 48 L. J.
Ch. 639, 41 L. T. 25 Bass v. Gregory, 25 Q. B. t). 481 (right to passage of air
through a defined channel).
(e)
be found
58 a; Attorney- General
v.
Douglity, 2 Ves.
Sen. 453.
(7j) Keppell v. Bailey, 2 My. &K. 517, 535
Aclroyd
Sill V. I'upper, 2 H. & C. 121 ; Goddard, 105, 106.
;
(i)
Ackroyd
Wood
v.
Smith, 10 C. B. 164
Leadbitter, 13
11; Goddard, 505.
(i)
(Z)
V.
See ante,
Thorpe
M. & W. 838
p. 52.
Digitized
by Microsoft
v.
v.
Smith, 10 C. B. 164
Ackroyd
v.
Smitli,
supra; Gale,
299
EASEMENTS.
differs from an easement in that the right to enforce the
covenant is not a right of property affecting the ownership
and
whether the owner of the land has notice of it or not, but is
merely an equitable right enforceable against the covenantor
and subsequent owners of the land who acquire it with
notice of the right, or by voluntary conveyance.(m)
Incidents of Otunersliip.
Rights to which the owner of
land is entitled, merely by virtue of, and as incident to, his
ownership, as against the owner or owners of neighbouring
land, are to be distinguished from easements.
Such rights
which, as opposed to easements, are sometimes called
natural rights of property
arise from the duty, to which
of the covenantor's land at law, as well as in equity,
'
'
all
Exist by
^^"^3^;
rights,
The
by adjacent or
owner and the
belonging
subjacent land
to a
different
does not
prejudicially affect
riparian owners
the
way
provided he
Puhlic Rights.
Easements
J'"^'^'
(0)
particular
by virtue
field, (p)
Meanings of Terms. Lands, as the subjects of an easement, are commonly termed the dominant tenement,' and
The dominant tenement is the
the servient tenement.'
land to the ownership of which the easement is annexed
and the servient tenement is the land on which the burden
of the easement is imposed.
'Dominant
g^^"!'
'
'
(m) See per Mellish, L. J., in Leech v. Schioeder, L. E. 9 Ch. App. 463, 474^5,
As to acquisition with notice, or by voluntary
L. J. Ch. 487,22 W. E. 633.
conveyance, see ante, pp. 200, 201.
43
(n)
See Goddard, 2
(0)
ante, p. 2.
v.
167.
[p)
Goddard, 24.
Digitized
by Microsoft
W.
E.
tenement.'
dis-
;'
300
An
Easements
'affirmative,'
or
negative
';
easement
said to be
is
affirmative
'
'
when
entitles
it
a right of way.
m the case oi.,
as
when
-r
it
'
negative,'
it
'
Continuous,'
tinuous
;
'
while
if it
'
tinuous.'
^]jgj,g g^pg
And
an easement
and
external signs
of
way
it is
called
'
said to
to light
as
'
as
is
its
of,
discon
be 'apparent,' where
existence
a right
as a right
external signs of
window
for a
'
a right
to discharge water
through an
or
How
made.
(ii.)
(i.)
Creation.
of.
JExpress Grant.
An
may be
easement
granted either
If, in an instrument by which an estate in land is conveyed inter vivos, an easement is expressed to be reserved to
the grantor of the land, this reservation operates as a grant
of a newly created easement by the grantee of the land to
the grantor.(i!)
(ii.)
Implied Grant.
a grant
is
On the alienation of an
estate in land,
As
to the
p.
345.
(t)
Goddard, 140.
Digitized
by Microsoft
301
EASEMENTS.
over other land of the grantor, as accessory to the land that
is the subject of the alienation.
posing of part of
disposed of
is
(u)
Dig.
A rule
viii. 2,
expressed in the
Eoman law by
the
maxim
'
nvili res
sua serviV
26.
Digitized
by Microsoft
;;
302
same time
at the
Easement
that
is,
of
particular way,
is
is implied.(c)
Thus, where land is granted with an exception of the minerals, and the minerals cannot be gained otherwise than through
the land granted, a reservation to the grantor of a right to
land,
Prescription.
(iii.)
Easements
may be acquired by preThis mode of acquisition is conhereafter, in treating of the transfer of rights of
Prescription.
sidered
property, (e)
(a)
Bolton
(6)
See supra,
v.
300.
610.
&
Earl of Cardigan
v. Armitage, 2 B.
C. 197 ; Bainbridge, Mines, u. 7,
similar right would be implied in favour of a grantee of minerals, over
the land of the grantor ibid.
{d)
8.
1.
(e)
s.
Digitized
2.
by Microsoft
303
EASEMENTS.
Extent
of.
burden imposed on the servient tenement. Thus, if a person have a right of way over land, to a particular place, he
may not go beyond that pl&ce,(g) or divert the way. (A) But
except for the purpose of preventing the imposition of such
an additional burden, the owner of the servient tenement
may
Eepairs.
Alienation.
On
alienation of the
of.
dominant
it
'
'
'
(/) Senlwuse
v.
December 1881,
Ward,
See Lawton
(li)
v.
Newson
v.
Codling
v.
Johnson^ 9 B.
&
C. 933.
Digitized
conTCjanoing
Act, 1881,
hereon.
Christian, 1 T. E. 560.
(g)
nature of
by Microsoft
304
unnecessary, have already been menThe general words formerly emj)loyed, and also
Modes
Determination.
of.
An easement
may
same
and
owner.(|?)
determine, or be ex-
Expiration
duratimi
(i.)
By
granted
where
it
period
for
which
it
was
duration.
(ii.)
Release.
By
(ii.)
of'
ment, (g)
(iii.)
Abandon-
raent.
By abandonment
of the easement
that is, non-user
under circumstances evincing an intention not
to resume the enjoyment of it for, in such case, a release of
the easement is implied.
But mere non-user, unaccompanied by circumstances from which a release can be implied,
will not extinguish an easement. (?)
(iv.) By the union of the dominant and servient tenements
in which case, if the estates in the two
^^ |^jjg Same owner
tenements are co-extensive, the easement is merged in the
ownership (s) but if the estates are not co-extensive (as where
one is in fee, and the other for life or for years) the easement is merely suspended during the unity of ownership, (i!)
(iii.)
qJ
.j-j^g
riglit,
(iv.)
Unity of
ownership.
(o)
See ante,
p.
293.
((jr)
Goddard, 496 Gale, 498. An Act of Parliament may have the
a release, e.g., the General Inclosure Act (41 Geo. 3, c. 109), s. 8.
;
effect of
H. L. C. 290
(s)
Gale, 502.
{t)
Thomas
v.
Thomas, 2 C. M.
Digitized
&
E. 34.
by Microsoft
305
EASEMENTS.
By
(v.)
easement
tlie
(v.) Cessation
^'"^^
the cottage
(vi.)
is
By
(vi.)
Cessation
^''^^^' y-
having a way
of necessity to his land, afterwards obtains a way to the land
over other land acquired by him. (as)
(vii.) By an act done by the servient owner, with the con- (vii.)
case of an easement of necessity
as
where
,0,1-,..
dommant owner, which oi
1
sent or the
J?
A.,
-J.
J.1
owner consent-
ing.
(ij)
National Guaranteed
Manure
{x)
(!/)
Liggins
B., in
v.
Co. v. Donald, 4
H.
& N.
Digitized
Act of
servient owner,
by Microsoft
per Parke,
PART
III.
Subject of the
present part.
The
Consideration of
tlie
CHAPTEE
I.
Definition.
consists
(c) Acquisition by common occupancy, on the death of a tenant pur atdre vie
in the lifetime of the cestui qtte vie, was formerly an exception to the rule that
every acquisition of a right of property takes place by transfer of the right. As
to common occupancy and its abolition, see ante, p. 73.
Digitized
by Microsoft
307
law.
by act
by operation of law.'
by act of a party, the right
IS sometimes said to be acquired by purchase
whether
'; (c^)
the occasion of the transfer be a sale or not.(e) The term
alienation,' also, is commonly used as meaning, in a general
sense, any transfer by act of a party. By alienation simply
'
of a party/ or
Where
'
Act of party:
'
'
'
is
'
Alienation,
'
alienation.'
Arrangement of Topics.
In
follows
First,
alienation
(which
is
and
by
will)
secondly, extraordinary
modes
of transfer
by Hargrave, 18
b,
note (2).
'
'
Digitized
by Microsoft
Transfers by
"P^i'^'' "^
CHAPTER
II.
ALIENATION GENERALLY.
Valid alienation,
what
necessary
for.
Requisites.
perty in
For
land,
by
alienation,
it
is
necessary
is,
object or purpose
Of these
vsrhich
(5) that it
The
with reference to
with ui the
fifth is dealt
Sect.
-Consent pre-
sumed unless
contrary
shown.
I.
third,
Presiunption of Consent.
is
presumed to
have been made with the free consent of both alienor and
alienee, (a)
But the contrary may be shown (with the effect
of invalidating the alienation), by proof that either party
was in error as to the real nature of the transaction as,
where he has executed a deed which he was told, and
believed, was a deed of another kind (h)
or that his consent
Digitized
by Microsoft
309
ALIENATION GENERALLY.
by him,
may be
disclaimed
Disclaimer,
by
as joint tenants
trustees
or one of
them
claimer
dis-
made by
is
as
only, will
deed.(^)
Sect.
Definition.
II.
By
the
title
'
'
is meant the
by virtue of which
of the alienor
Meaning of
On an alienation by way On
is not,
in
or to
title,
1,
Contracts,
c. 8.
648, 33 Ch.
300, 55 L. J.
T>.
(c)
As
Cli.
773, 65 L. T. 562
Pollock, Contracts,
c.
see Pollock,
9.
260.
4 Cruise, t. 32, c. 27, ss. 1-5 ; Townsmi v. Ticlcell, 3 B. & Aid. 31 ; Peacock
Eastland, L, E. 10 Eq. 17, 39 L. J. Ch. 534, 22 L. T. 706, 18 W. R. 856.
(e)
V.
2 B\th.
&
J. Conv.
837
p.
220.
Digitized
by Microsoft
sale or
^^
^^^^'
310
require
tlie
com-
marketable
in
general,
'
title to
the alienee
And,
alienation.(/(;)
in such case, to
entitled,
also
is
him
delivery to
of the
documents of
title.
The
rights of the
How
title is to
be proved.
and
it
make
is
able to
Expenses of
proof of
title,
ancing and
Law
the expenses
and inspection
of the production
of,
and of
The same
Act provides that, on a sale in lots, a purchaser of two or
more lots, held under the same title, shall not have a right
(which he previously had) to more than one abstract of the
vendor's possession, are borne by the purchaser.
common
Provisions of
Purchaser Act
1874, and Conveyancing Act,
1881, as to
proof of title.
title,
except at his
own
expense. (i)
{k)
(L)
Sug. V.
See
& P.
Dart, V.
337, 387
&
P., c. 8,
s.
Sug. V.
& P.
16.
44 & 45 Vict. c. 41, s. 3, sub-ss. 6-11 but see In re Johnson and Tustin,
28 Ch. D. 84, revd. on appeal, 30 Cli. U. 42, 54 L. .T. Ch. 43, 889, 53 L. T. 281,
33 W. B. 43, 737 2n re Moodt/ and Yates' Contract, infra; In re Ebsworth
and Tidy's Contract, 42 Ch. 1). 23, 58 L. J. Ch. 665, 60 L. T. 841, 37 "W. R.
(ni)
657.
Digitized
by Microsoft
^1-^
ALIENATION GENERALLY.
the contrary, stateraents and descriptions of facts, matters,
and parties, in deeds, &c., which, are twenty years old at the
date of the contract, shall, unless proved to be inaccurate, be
And,
such facts, &c.(n)
by the Conveyancing
of the receipt for the rent last due thereunder before the
(o) 44 & 45 Vict. c. 41, s. 3, sub-ss. 4, 5, 8-10 ; see Be Moody and Yates'
Contract, 28 Ch. D. 661, 30 Gh. D. 344, 54 L. J. Oh. 886, 53 L. T. 845, 33
W. E. 785.
(p) 1 Dart, V.
(2)
(r)
2 Bl.
&
Comm.
196.
Oottrell t. Watkins, 1
&
1>.
438
The Conveyancing
8.
2.
Digitized
by Microsoft
rp^yg
^^
^^re posses-
Searches in
pWic
312
the
title is affected
estates
tail,(<)
arrangement.(&)
lAtes pendenies, law as
to effect of.
the Court of
of
the
(0 Ante,
p. 59.
Ante,
(y)
Ante, p. 288.
p. 277.
(2) Post, p.
473.
Post, p. 365.
(c)
Ord.
(ti)
&
Ixi.
r.
9,
3 Vict.
Rules S. C. 1883.
0. 11, 8. 7
Abstr. 354
L. T. 842, 35 W. R. 386.
(e) 3 Prest.
(/) 51
&
52 Vict.
0.
51,
Digitized
and see 30
Price
ss.
&
v. Price,
7-9
31 Vict.
c.
47,
2.
35 Ch. D. 297, 56 L.
by Microsoft
p. 365.
J.
Ch. 530, 56
'^^^
ALIENATION GENERALLY.
Yorkshire, the public registers of deeds, wills, iudgments.
&c., relating to, or binding, land in those counties (of which
n, ,.
Jright to proof of the alienor s title, he might investigate it tor
J.
-A.
Register of
]^-'(}a}"sex
and
Yorkshire,
Convey.inciug
toVischarge^rf
incumbrances,
Former period
of investigation
^f t;tie.
his lease
it
did
Heepost,
p. 320,
note {d).
As
(I)
Sug. V.
{m) 37
&
& P.
367, 368
38 Vict.
o.
78,
s.
Mowatt, 28
1 Prest.
Abslr. 250.
1 Dart, 331.
1.
() S. 2
Digitized
v.
by Microsoft
this
Alteration by
Vendor and
purchaser Act,
1874.
314
is
precluded
Conveyancing
Act, 1881, as
to title to enfranchised
copyholds.
manor
And
as to
evidence of
matters prior
commencement of title.
to
of,
the
commencement
from
of the title
sale, for
The
Cases in which
title exceedwhich
ing forty years
of
may be re-
commencement
quired.
commences
&
44
45 Vict. c. 41, ss. 3, 13. That a I'reeholder granting a lease cannot
bo required (unless by express stipulation) to show his title, see Jones v.
Watts, 43 Ch. D. 574, 62 L. T. 471, 38 W. E. 725.
lessee granting an
underlease is still, however, liable to show his title under his lease, though not
(ci)
now
his lessor's
title.
(j) S. 3, sub-ss. 3, 9.
&
V. & P. 366
SeUick v. Trevor, 11 M.
() Sug.
AV. 722
PhiUips v.
Caidcleuyh, L. E. 4 Q. B. 159, 38 L. J. U. L. (Q. B.) 68, 20 L. i. 80, 17
W. E, 575.
;
(s)
See supra,
()
37
&
() Sug.
p. 313.
38 Vict.
V.
&
c. 78,
Dart, V.
&
P., 293.
P. 367.
Digitized
by Microsoft
315
ALIENATION GENERALLY.
except for the forty years preceding the alienation. (a;) Similarly, on the sale of a term of years created more than forty
years before the date of the sale, or on a grant of a lease
derived out of such a term, the title should commence with
the original lease; and the subsequent dealings with the
omitted, (y)
It
may
and
titles,
Titles
under
'^^^^^^f^^^''
thereby established.
Act
i.e.,
title
may
a qualified
title,
i.'e.,
title
merely,
i.e.,
title
subject to
or as a possessory title
and interests
This registration,
however,
titles
Covenants for Title. li, after the completion of the aliena- Use
the
title
ix) Sug.
V.
{y) Sug.
V.
& P.
& P.
367.
370
Frend
W.
v. Buckley, L. K. 5 Q. B. 213, 39 L. J. C. L.
E. 680.
{a)
Such fraud
&
It
may
&
Digitized
by Microsoft
of.
316
Defiaition
of.
Obligation to
give such
covenants.
What
cove-
nants usually
given.
alienor
of the premises as
may
subject of alienation
usually added,
is
will
make such
further assurance
Where
reasonably be required.
the
is
viz.,
rent has been paid, and the covenants in the lease have been
Covenants for
acts
or omissions
they extend.
title
may, however, be
title
may
qualified, as
require,
alienation,
may
subject of
own
nants to his
circum-
where the
and an alienor,
e.g.,
acts or interest.(/)
And
usually, in the
liability of
or omissions of himself,
title will
extend to the
Covenants
(c)
foi'
title
have taken the place of warranties in deeds of conveyAVarranties, having fallen into disuse, were, in
& 4 Will. 4, o. 27, s. 39 ; c. 74, s. 14.
ance
(d)
(e)
V.
&
& P.
Sug. V.
As
P.
573.
to the construction
c.
of,
Sug.
15.
&
Digitized
by Microsoft
Hood,
317
ALIENATION GENEEALLY.
not further.
For if, on the purchase by the first testator, the
then vendor gave similar covenants for title, such covenants
run with the land for the benefit of every subsequent owner.(^)
But the covenants in mortgages and other securities for
money are unrestricted, and amount to a warranty with
respect to the acts and omissions of
A trustee,
subject of alienation,
^"^"^ ^^^'
is
be paid to
cestuis
it.
On
A lease for
for quiet
enjoyment by the
lessee,
'
by implication
quiet
enjoyment
'
-1
'
of law,
the lessor
liable
is
expressed by the
maxim
express covenant
is
The
lessor.(^)
Prior to the enactment next mentioned, every covenant for Covenants for
title except that implied by the word demise,' and formerly ^^jgr^on!'^
some others that were implied (/) ^was necessarily an express veyanoing Act,
'
1881.
(</)
&
Sug. V.
p. 677, 578.
(7t)
{!)
Su?. V.
&
P.
.574,
575.
away by the Eeal Property Amendment Act, 1845 {8 & 9 Vict. u. 106), s. 4
except where grant implies a covenant by force of any statute.
{Ic)
'
'
Digitized
by Microsoft
'
318
companying instrument.
conveyance (m) made after the 31st December 1881 (not being
a lease at a rent, or a customary assurance, other than a deed,
nants for
or,
are
title
deemed
The following
are, in effect,
beneficial
owner.
is
expressed to convey,
'
is
By
In a conveyance by way of settlement, by a person who conand is expressed to convey, as settlor,' a covenant for
further assurance by him, and persons claiming under him, is
settlor.
veys,
'
implied. ( J))
By
trustee,
mortgagee, &o,
'
to convey,
as trustee,' or
'
'
as mortgagee,' or
'
is
expressed
as personal re-
as committee
of a
by inquisition, or 'under an order' of the
Court, a covenant by such person that he has not incumbered
presentative
'
of a deceased person, or
'
'
lunatic so found
is
By owner
directing con-
veyance.
implied. (2)
Where
a person
another person,
expressed to convey
is
'
'
by
direction of
as beneficial owner,'
is
as beneficial
&
s.
2 (v.).
S. 7, sub-B. 1,
mode
A, B, C, D.
for title,
(p) S. 7, Bub-s. 1, E.
See supra,
p. 317.
F.
See suxira,
p.
{q)
S. 7, sub-s.
1,
317.
(r) S. 7, sub-s. 2.
Digitized
by Microsoft
319
ALIENATION GENERALLY.
que trust, and this is expressed in the conveyance according to the Act, the usual covenants for title on the part of the
cesttii
Where
be implied. (s)
a wife and her husband respectively convey, and By husbaad
and
to convey,
'
to be expressed to convey,
deemed
by direction of the
conveyed, for the benefit of the person for the time being en-
of
'^P^'^'i "o^^"
titled thereto.(%)
words, (ic)
Since the 31st December 1881, these provisions have been Now
usually relied on in the conveyance of land, in lieu of the in-
usually
''^'^ '
covenants.
Registration of the Instnmient
of Transfer.
This
to where a
is,
security for
(s)
See supra,
(i)
S. 7, 8ub-s. 3.
p. 317.
(m) S. 7, 8ub-ss. 6, 7.
{x) See
(!/)
(z)
E.
7, sub-s. 4.
See ante,
In some
p.
277.
is
essential
the
to
Digitized
by Microsoft
Middlesex
I''gis''^y-
320
deed or conveyance has been registered before the regisby a subsequent purchaser or mortgagee, of a memorial
of the instrument under which he claims
or unless a memorial of any such will be registered within six months after the
death of the testator (except in certain events mentioned in
such,
tration,
the Act)
such
And
been
restricted,
rules as to
"
'^'
Alteration by
the Vendor
and Purchaser
Act 1874.
And
it.(rf)
,,
ijj?j.-j.i
a defect
the j.-j.i
title arising
mortgagee, to some extent, against
from a will not having been registered within the period
,
unregistered
will, shall
fsf?*"^^
Lands in Yorkshire, and the town and county of Kingstonmade subject, by statutes of Queen Anne,
But these statutes have
to a similar system of registration.
been repealed by the Yorkshire Registries Act, 1884, by
upon-Hull, were also
&
39 Vict. c. 87, s. 127. By the Land Registry (Middlesex Deeds) Act, 1891
& 55 Vict. c. 64), which comes into operation on the 1st April 1892, the
Middlesex Registry is transferred to the OfSce of Land Registry.
(54
(6) The Land Registry, &c., Act, 1891 (see preceding note),
unnecessary the registration of judgments and recognizances.
s.
6,
renders
That a deed of enfran(c) See Sug. V. & P. 732, as to the aboTe exceptions.
chisement of copyholds requires registration, see Beg. t. Registrar of Deeds for
Middlesex, 21 Q. B. D. 555.
{d) LeNeve v. Le Neve, Amb. 436
S.C., and notes thereto, 2 Lead. Cas.
Eq. 26. On the other hand, registration is not in itself notice and, therefore, a
purchaser who has the legal estate is protected thereby against a registered
equitable interest, of which he had no notice by searching the register or otherwise Sug. V. & P. 546.
;
(e)
37
& 38
Vict.
c.
78,
Digitized
s. 8.
by Microsoft
321
ALIENATION GENERALLY.
new
provisions
wills, &c.,
Under
except that
testator has priority according to the date of his death ^and
fraud. (</)
Eigiita of
'^
'^"^^
''^
"'
On the alienation of an
any ex-
documents
which
is
documents
retained by the
relate also
In the
alienor.('i)
be an estate in
documents
by him was of
him
by the Vendor and Purchaser Act, 1874, where any part of the
land is retained by him.(^)
Where a vendor retains the documents of title, he is, in Covenants for
of which Ki'^"^''j'' ^j
general, bound to give the purchaser undertakings
the benefit will run with the purchased land, and the burden undertakings
with the land retained to produce, and deliver copies of or ""yanck^Act
extracts from, the documents, at the request and expense of 1881.
any person interested in the land sold, and for the safe
custody of the documents.(m) Prior to the 31st December
this right, unless the land retained
had not
(li)
but
it is
expressly given
(/) 47
& 48
Vict.
c.
((/)
47&48Vict.
(A)
(i)
Sug. V.
(k)
{I)
Sug. V.
37
&
& P.
& P.
38 Vict.
{m) Sug. V.
&
c.
54
54,
a.
48 Vict.
14.
c.
48
& 49
Vict.
c.
26.
aiiie, p.
237, note
433, 434.
434.
0.
78,
s.
2.
P. 450, 453.
X
Digitized
by Microsoft
s.
2.
(/,).
322
covenants under
wliicli
sea],
Law
knowledgment
But
writing, given
in
under
of Property
by a person who
retains
the
and
same operation
documents, has, in
title. (?i)
A purchaser is
Bight to
attested copies
oj
documents
retained.
documents of
title
delivered to him.
making such
sion of the*^^
title-deeds.
lie is
Alienee should
copies
him
entitled, exposes
of the
documents
satisfactorily
is
to
for
to
who has
other person,
risk
some
title
44
& 45
Vict.
them with
(p)
44
c.
41,
the originals.
&
9.
s.
45 Vict.
&
0.
41,
3, sub-s. 6.
s.
V.
P. 772
p.
236.
Digitized
by Microsoft
323
ALIENATION GENERALLY.
Sect. III.
of,
objects
common law
or purposes
invalid, either
are
opposed
Alienation
""account of
its
purpose,
by the
to public policy),
fore, in
eflfect
It is voidable
and
is,
when
it
has
until it is rendered
ditions
In what cases
""
alienations of advowsons
or
certain limitations
guigj^g'^''""
there-
accumulation of income
void-
titles.
In what cases
^"^ *
^'
will
be here considered
Perpetuities.
^By
'
perpetuity
is,
'
is
meant any
limitation Perpetuity
or
may
be,
Period for
on
alienation,
a period
is
fixed
Digitized
by Microsoft
324
the
alienation
interest.
But
for this
simple might
of the fee
be
in settlements of land,
Limitations of remainders,
^g^-^gp^ ^^
^.-jjg
are
already explained
above-mentioned Act;
common
-[^g
is
known
follows
grated as
'
as the
time,
and which
not,
is
'
all others,
to the rule
limitation of
.
with
any
estate or
,
effect,
there
is
its creation,
if,
a vested
at the time
when
life
or
(s)
(t)
&
& War.
1,
28
Monypenny
v.
Bering, 2 U. M.
&
F. 372
S.C.,
cli.
and notes
12
thereto,
Digitized
by Microsoft
325
ALIENATION GENERALLY.
iirst son of A. who shall attain the age of
twenty -four years (A. not then having a son of that age) is
void, since it is uncertain whether any son of A. will attain
And so,
that age within twenty-one years after A.'s death.
if the limitation were to the first unborn son of A. who should
take a degree at a university, or marry, or do any other act,
limitation to the
by the
it
not
is
void
remainders, (a)
applicable to contingent
is
since
it
the rule.(&)
And
A.
for life,
In re Haroey, Peek
V.
(z)
(a)
(b)
(c)
See ante,
(),
supra.
p. 173.
Digitized
by Microsoft
326
as,
either
who
When
It will
the
by"he mle**^
commences.
at
when the
the time
which
is
it is
testator's death,
powers, (c)
Further period
in case of
exist. (/)
(d)
Leake
v.
Pearks
v.
(/) Cadell
V.
Palmer,
I CI.
Digitized
&
F. 372,
Tudor L. C. E. P. 424.
by Microsoft
327
ALIENATION GENERALLY.
Tke
lives
the rule are not restricted to those of persons taking inter- measure
ests under the instrument, but may be taken arbitrarily ; and period,
of the
there
of,
estate tail,
not affect
|j"easanee of
estates tail,
effect,
prevent for
Trusts for
*'^'''i^^-
Powers
of sale,
to the
power
ceases.
upon
((/)
Cadell
(/*)
See Palmer
(i)
V.
v.
Came
v.
was
7.
to trusts for
709
Digitized
by Microsoft
perpetuities,
328
The Thellusson
Act,
accumulated
or
(3) for
life
of
the grantor or
And
v.
Tudor L. C. R.
P. 497
The
112.
testator's land
(p) 39
((/)
land
As
is
& 40
Geo.
3, u.
98.
improving the
Vine v. lialeu/h
in
See Harbin
v.
284,
(s) Under this clause accumulation may be directed during the minority of
Marsden, Perp., 337, 338; Jagger v.
A person unborn at the testator's death
Jagcjer, supra.
:
Digitized
by Microsoft
329
ALIENATION GENERALLY,
person or persons wlio would have been entitled thereto,
the accumulation had not been directed.
Provisions for payment of debts
if
(f)
Exceptions,
any person taking an interest under the instruand directions touching the produce of timber or wood
upon any lands,(M) are respectively excepted from the opera-
testator, or of
ment
Effect of the
Act.
Act, and
by way of resulting
trust, to
and
income of
income of personalty,
consists of
it
so far as it consists of
real estate
to his
next
Application of
^gl-^^trnties
v. I{eble,
L. E. 3 Ch. 691, 16
W.
E. 1213.
(m) This exception probably originated partly in the fact that the produce of
timber is not usually dealt with as annual income of laud, and partly in a desire
to encourage tbe planting and growth of timber for shipbuilding purposes
JIarsden, Perp., 346 ; Hargreave on the Thellusson Act, 206.
:
(x) S. 2.
{ij)
(z)
Tudor L. C. E.
As
to the rights
P. 497.
of
a residuary devisee or
Houghton
v.
James,
H. L.
C. 406; ilarshall
v.
Holloway,
2 Swans t. 432.
Harhin v.
(b) JIarsden, Perp., 318, 333 ; Saunders v. Vautier, 4 Beav. 115
Masterman, L. E. 12 Eq. 559, 40 L. J. Ch. 760 Talbot v. Jevers, L. E. 20 Eq.
A trust for accumulation of income for
255, 44 L. J. Ch. 646, 23 W. E. 741.
payment of debts is not within the rule against perpetuities, since creditors
their
claims
against
the corpus, and thus put a stop
enforce
can at any time
;
to the accumulation
Bateman
v.
Hotchhin,
426.
Digitized
by Microsoft
10 Beav.
330
Effect
of.
A limitation of an
that
estate
is, a
condition upon the fulfilment of which the estate is to become
vested (c)
is void, if the condition itself be void
whether
the estate be limited to take effect by way of remainder, or as
an executory interest. And any prior estate, which, if the condition were valid, would be defeated by its fulfilment, will be
absolute
also, if
void, there is
no right of re-entry
as
an uncon-
ditional limitation.
(/)
Conditions
falfiiment "
impossible
;
marries her
woman
dies,
who
marry without
marries. ((/)
A condition is void,
illegal
is
civil
positively forbidden
by
law,
also, if it require
which
is
commit a
trespass. (7i)
(c)
See ante^
{d) Co.
Comm.
(e)
Litt.
p. 132,
206 a
note
[tl).
2Ianj Partington's
case,
Kep.
pt.
35 a
10,
2 Bl.
157.
See ante,
p. 45.
a,
218
Comm.
a.
157
Walker v. Walker, 29 L. J. Ch. 856
Grmjclon v.
JJaicson v. Oliver-Massey, 2 Ch. D. 753, 45 L. J. Cb. 519,
Hides, 2 Atk. 16
34 L. T. 120, 24 W. K. 340.
((/)
2 Bl.
(/()
2 Bl.
Comm.
157.
See Morley v. Bennokhon, 2 Hare 570, and other cases cited in notes
Scott V. Tyler, 2 Lead. Gas. Eq. 120.
[i]
Digitized
by Microsoft
to
331
ALIENATION GENERALLY.
But
only
marry a
or shall not
a limited extent
partici:ilar
person,
And where
valid, (/c)
is
it
is
construed
executory
although
such,
it is
same
valid
(/)
its
tendency and
and, as
effect are
On
the
grounds
void.(o)
On
man
the same
or
it,(ci)
if it
become
liable
W.
V.
&
Lewis, 3 De G. M.
Bennoldson, 2 liare 570, 580.
{I)
(m)
Heath
V.
Wren
v.
Bradley, 2
De
&
is
valid
see per
&
Wigram, Y.C.,
in
Morley
G.
G. 954
J.
J. 221.
(o) See per Lord Selborne in Ayerst v. Jenldns, L. E. 16 Eq. 275, 282, 29
For other instances of acts opposed to public policy,
L. T. 126, 21 W. E. 878.
see Pollock on Contracts, c. 6.
(p)
Egerton
v.
1.
Co. Litt. 223 a Bradley v. Peixolo, 8 Ves. 324; S.C., and notes thereto,
Tudor L. C. R. P. 968; Shaw v. Ford, 7 Ch. D. 669 In re Machu, 21 Ch. D.
838, 30 W. R. 887 ; la re Parry and Daggs, 31 Ch. D. 130, 55 L. J. Ch. 237,
54 L. T. 229, 34 W. R. 353 In re. Rosher, Bosher v. Eosher, 26 Oh. D, 801,
53 L. .J. Ch. 722, 51 L. T. 785, 32 W. R. 820. As to the invalidity of a condition
restraining the barring of an estale tail, see ante, p. 61.
As to invalidity
(g)
Digitized
by Microsoft
in restraint
* '^* '"'
332
But a condition
otherwise, (r)
may be
LAND.
restraining alienation to
valid
as,
And an
sell
lease
for
for
years,(^)
on breach of a
forfeiture
for
life,(ii)
the estate
is
subject
restraint of marriage
(.-);)
namely, that if an estate for life or
years {y) be limited to a person ^mtil he shall attempt to
alienate, become bankrupt, &c., with a gift over in that event,
the limitation is valid.
But such a conditional limitation
Brandon
v.
see 3 pt.
cited.
(s) Co. Litt. 223 a ; Large'n case, 2 Leon. 82, 3 Leon. 182 ; In re Machay,
L. R. 20 Eq. 18(3, 44 L. J. Ch. 441, 32 L. T. 142, 23 W. E. 718.
But see
Attioater v. Attwater, 18 Beav. 330 In re Bosher, Bosher v. Eosher, supra.
;
(t)
See 5
pt. 1
(n.),
cited
ante,
p. 101.
223 b
s.
3G2
p.
332.
pt.
et
seij.
(z)
See ante,
p. 48.
Jn
Digitized
by Microsoft
; In re Dvgdale,
L. T. 581, 36 W. R.
P.
J.
17, 60 L. T.
59 L. J. Ch. 159, 61
(n.)
333
ALIENATION GENERALLV.
to public policy, as being a fraud on the bankrupt law, and
is
void. (5)
Dispositions
'
Pmyoses.
Charitable
for
when
made
it is
disposition
is
What are
charitable purposes,
community generally, or of a certain class of the community (as distinguished from particular individuals), (c) and
of the
for
ment
advance-
end.(cZ)
to
that
is,
gifts
could not be
made by
will,
and
'
and
or not,
The Act
(i)
of George II.,
Hujinhotham
Of. Soliiies
v.
and
certain Acts
Peniiei/,
V.
1
;
amending
it,
have
(c)
See further, as to
(d) 3 Steph. Comm. 82.
to Corlijn V. French, Tudor L. E. C. P. 519.
what
(e) In connection with gifts for charitable purposes, personal estate consisting
of an interest in, or arising out of, land or money, &c., directed to be invested
in land, is commonly called impure personal estate.'
'
(/)
9 Geo. 2,
c.
30.
498.
{g)
See post,
(/)
entitled
'
p.
An Act
v.
inalienable.'
Digitized
by Microsoft
Gifts of land
fj;han*y t
restrained,
I^estnctions by
334
Mortmain and
from the
(as
13tli
IN"
LAND.
re-
Acts 1888 and enacted, witli amendments, by the Mortmain and Charitable
1891.
Uses Act, 1888. (i) As regards charitable gifts under wills of
persons dying after the 5th August 1891, however, the restrictions imposed by the previous statutes have been relaxed
this
with respect to dispositions for charitable uses made otherwise than by will, or made by the will of a person who has
died on or before the 5th August 1891.
Provisions of
Act of 1888.
in effect,
any charitable
same be made in accordance
with the following requirements
(1) That it be made to
be
uses, shall
(2) that it
(3) that
unless
it
(i')
51
&
52 Vict.
(7;)
54
&
55 Vict, c.73
{I)
Doe.
V.
c.
42.
see
Wrighte, 2 B.
Digitized
&
s.
9.
A. 721
C'hurcher
by Microsoft
v.
Marlm,
42 Cli.D. 312.
335
ALIENATION GENERALLY.
within six months after
of the
Supreme Court
Assurances
its
of Judicature. (m)
by deed
Exemptions,
This exemption
a public museum except that if the assurance is made otherwise than for valuable consideration, it must be executed not
less than twelve months before the death of the assuror, and
be enrolled in the books of the Charity Commissioners within
;
six
gift
months after that event and that not more than twenty acres
be given by will for a public park, or two acres for a
museum, or one acre for a school-house. (o)
Assurances to,
or in trust for, any of the following institutions are also within
the Universities of Oxford, Cambridge,
the exemption
London, Durham, and the Victoria University, and any of
;
may
the colleges of those universities the Colleges of Eton, Winchester, and Westminster (where the assurance is for the
;
support of their scholars), and Keble College. And an assurance inter vivos, for valuable consideration, to trustees for any
society formed for religious purposes, or for the promotion of
education, art, literature, science, or other like purpose, of
exemption. (^)
'
{m) S. 4. Where the oliaritaljle uses are declared by a separate instruOmission to enrol withiu the
ment, that instrument must be enrolled s. 4 (9).
requisite time may be remedied in certain cases : see s. 5.
:
(re)
see
affected
s.
S. 6.
The Act (s. 8) saves any other existing exemptions from the
S. 7.
provisions of the Act of George It. ; as to such exemptions, see Tyssen, co. 27,
28.
{p)
Digitized
by Microsoft
586
after the 5tli
by
as to personalty given
by
will for
purchase of
land ;
as to retention
or acquisition
of land, by
order.
Meaning of
land under
the Act of
George II.
'
'
The Act
any personal
estate,
by
will
The
'
savoured of the
realty.'
the Act:
Money to
& 65
(2)
54
(r)
S. 7.
(t)
Page
Vict.
c.
73,
ss. 5, 6
and see
(s)
v.
(0).
S. 8.
;
Aslmorth
v.
Blunn, 15
Cli.
D. 363,
47 L. J. Ch. 747, 28
519
Digitized
by Microsoft
337
ALIEXATION GENERALLY.
use of land ; (x) money given to pay off a mortgage debt
affecting land belonging to a charity. (2/)
But shares in, and
to
within the
equally
Alteration by
p.*"^*^^? ^""^
'
'
Alienations of Advowsons.
If an advowson be alienated Where
during a vacancy of the benefice, the next presentation will
{y)
Corbyn
v.
French, supra.
[a] Notes to
(5)
1888,
(c)
54
s.
&
10
Corbyn
55 Vict.
c.
a.
v.
Act of
(iii.).
Bishop of Lincoln
of Lincoln, L. R. 10
W.
T.
73,
v.
C. P. 518,
R. 829.
Y
Digitized
by Microsoft
void,
338
Where
Yoid.
of
void
is
unless
and
Voidable under
and
or the purchaser
made
unlawful,
and
is
profits,
in lawful
profits. ((')
Alienations in
s a^.
12.
is
]<]jj2abeth (
Fraud of
Creditor!^.
statute
of
Queen
made
or purpose.
Effect of the
statute.
The
j^^y.
under a general
which would
made by
who
is
no party to
The intention
of
the
alienor
to
inferred.
&
As to what
Kennedy v.
(/) 13
Eliz. 0. 5.
(17)
Twyne's
(7*)
(i)
BoUnson
v.
II'Donnell, 2 B.
&
Aid. 134
Bessey
v.
Windham, 6
166.
(/s)
Digitized
v.
Otedhill \_18n],
by Microsoft
Ch. 31.
Q. B.
339
AIIENATION GENERALLY.
creditors
And
insolvency. (^)
fraud
An
made
in fraud of Alienation
for
^^^
may
words, was
settlement
made
prior
to,
and in consideration
Hence, a
of,
marriage,
Act,
As
is
technically a purchaser. ()
410
Colomhine
(re)
46
Acraman
v. Coriett, 1
Johns.
& Hem.
cf.
(o)
Kevan
v.
v.
Penhall, 1 Sm.
&
Crawford, 6 Ch. D.
Seejjosf, p. 459.
Digitized
by Microsoft
Alienations
^aukruptCT
law.
340
Stat.
27
Eliz.
statute
Queen Elizabeth
alienations of land,
made
(jp)
enacts,
with, intent to
in
Purchasers.
effect,
that
all
statute also
makes
same persons,
all
con-
veyances with any clause or condition of revocation, determination, or alteration, at the grantor's will, of the whole or
part of the interest granted
What
aliena-
inthirs^taliite"
(q)
Twyne's
case,
Eep.
pt. 3, 80, 1 S.
L. G.
Sug.
Pow. 467.
As to what is a
Townend v. Toler, L.
notes to EUison
Digitized
v.
&
by Microsoft
The voluntary
is
necessary to
341
ALIENATION GENERALLY.
claim upon the purchase or mortgage m.onej.{u) But it is
only by a subsequent alienation for actual value that the
donor.(a)
Alienations in
prior to the
man became
on marriage, to
and personal estate, (c)
And if a woman, after entering into a contract to marry, but
before the marriage, made, without her intended husband's
knowledge, a disposition of any of her real or personal estate,
to the prejudice of his interest in her estate on marriage,
such disposition was liable to be afterwards set aside at his
instance, as a fraud upon his marital rights. (li)
But, as will
be seen, where the Married Women's Property Act, 1882,
applies, marriage gives the husband no interest in his
wife's estate
and she may therefore dispose of it, either
before or after the marriage, without his knowledge or
entitled,
consent, (f)
{u)
Daldng
(x)
Dolphin
(y)
Sug. V.
v.
v.
& P. 719,
& P. 720
Clarhe
Sug. V.
;
and Spicer [1891], 2 Ch. 127, 39
(s)
&
P. 714;
(a)
Sug. V.
(6)
45
(c)
See^osf, ch. 7,
&
46 Vict.
i;.
Lewis
In
re Briggs
Bees, 3 K.
& J.
132.
s. 1.
of Strathmore
Lead. Cas. Eq. 471.
(e)
t.
E. 377.
75.
(d) Countess
v.
W.
v.
Bowes,
Ves. 22
S.C.
Digitized
by Microsoft
and notes
thereto,
Where void-
342
Voidable in
certain cases,
whereby
are
may have
work
f)
and
are incurred.
Certain
they render the estate
The cases in which an aliena-
Forfeitures
voidable, in
that
forfeiture generally
is
pages of this
considered in a subse-
Digitized
by Microsoft
a.n(i.
post, p. 498.
GHAPTEE
INTER VIVOS.
ALIEJSTATIOjSr
The
III.
more commonly,
conveyances.'
'
'
assurances,' or,
Assurances,
"'^
"""^^^y-
Sect.
Classification.
Forms of CoNVEyANOES.
I.
chiefly,
classes,
may be adopted
and
legal or equitable
also
is,
Sub-sect.
1.
Land
Classification.
of Freehold Tenure.
Conveyances under
this
common
veyances at
common law
Digitized
by Microsoft
Three classes
;
'
344
and they
b&
will
considered.
Principal
conTejances at
common
law.
,
'
grants
'
;
called,
'
;
The
assignments
feoffment
principal convey-
respectively,
leases
Feoffment .{cC}
Feoffment
defined.
Conveyances at
'
;
the
is
'
mode
feoffments
'
releases
surrenders.
>
of conveyance
It consists in
that
is,
accompanied by words
is
it
aTcommon'^'
''^
^iture!""'
made
either
on
(livery in law)
The
transferred.
and the transferree the
estate intended to be
called the
'
feoffor
;
'
feofree.'(6)
feoffment;
though,
evidenced by a
law.
livery of seisin
Writing not
'
'
in
in evidence of a
the transaction
fact,
charter of feoffment.'
was usually
What
interests
^
ftofftnent
The
feoffment
is
evidenced by a deed.(e)
accompanied by
in possession.
(a)
2 Bl.
(i)
(d)
limits
'
an estate in
to give
one a feud
c. 3, ss. 1, 2.
Digitized
by Microsoft
345
may
A freehold
years,
may
also limit
owner
seisin is in the
by passing a greater
might
have a
tortious
'
J^
tor-
^^ f^^^_
had in the land.(^) Thus, a tenant for life or for years might,
by feoffment, convey the fee simple. The estate thus conveyed was, however, immediately forfeitable to the person
having the next vested estate in remainder or reversion
though it would defeat a contingent remainder expectant on
the particular estate, unless prevented from having that
effect, by means of a limitation to trustees to preserve contingent remainders. (A) But this peculiarity of a feoffment
was abolished by the Eeal Property Law Amendment Act,
gj^t^j/
1845.(i)
i'eoff-
ordinary
whereby an
common
at
a conveyance Grant
law, is
interest,
may be
land,
grant,
transferred.
ceremony of
transfer,
defined,
requioi e
of the deed, is
required.
common
accompanied by the
interests
seisin of land, as
"eyedby^^ant.
estates of freehold in expectancy, rights of common, rents,
(/) 2 Bl.
((/)
Comm. 314; 4
Cruise,
(i)
&
t.
9 Vict.
32,
c.
(m)
t.
32, c. 4,
s.
21
Burton,
22.
{h)
{I)
Cruise,
Such
&c.
c. 4, ss.
106,
and
s.
30-32
Comm. 346
Comm. 310-317
made by
Staph. Comm.
post, p. 486.
As
4.
Digitized
4 Cruise,
c. 4.
by Microsoft
; ;
346
interests
to
'
by
transferable
lie
'
IX
LAND.
in grant,'
is,
Lease defined.
lease
a conveyance whereby an
is
estates
estate
for
'
'
applicable to the transfer of freehold estates in land, a socalled lease for life
is
to be distinguished
is,
interest, (p)
How
made.
is
however
(as a right of
common, rent-
merely. ()')
Writing not
required at
common law.
Alterations by
statute.
At common
term of
law, a deed
years, only
() 2 Bl.
Comm.
317.
See ante,
p. 17.
(r)
Co. Litt. 49 a.
(.s)
deed of grant is the appropriate iustrument for the creation or transfer
of any in terest in an object lying in grant see Co. Litt. 49 a 2 Piatt, Leases, 1
Dulce of Somerset v. I'bgwell, 5 B. & C. 875, y^'J.
:
Digitized
by Microsoft
by
an
347
Amendment Act,
is (if
made
made by
deed.(i6)
at will
An
instrument intended as a
of estates
but not made by deed. Where inlaw under the Act last mentioned, Ses effecras
may nevertheless operate as an agreement to grant a lease, of an agreement
which specific performance will be enforced, (a;) An agree- ^^^^ '^^"''
and
lease,
'^
(<)
29 Car.
(w) 8
[x]
p.
&
2, ^. 3, ss. 1, 2
9 Vict.
Parker
v.
0.
106,
e.
Tasicell, 2
3.
De
G.
&
27 L. J. Ch. 812
Ante, p. 89.
J. 559,
(y)
and
see ante,
(s) In cases where a deed is not requisite to the yalirlity of a lease, difficulty
sometimes experienced, owing to the form in which the instrument is expressed, in determining whether it is intended as a lease, or merelj' as an agreement for a lease. On this subject, see 5 pt. 1 Davidson, Conv., 1-18, and cases
is
Boe
d.
Bigge
v.
Digitized
by Microsoft
Effect oe
uder such an
agreement.
348
specific
Assignment
^
Assignment.
''^'
An
created.
an
interest (including
chattel
A conveyance
whole term vested in him is, in effect, an
assignment, though it be expressed to be an underlease ;(e)
while, on the other hand, a conveyance of a part only of the
original term, is, in law, an underlease, though expressed to
but parts with his whole estate or interest. (f?)
by a
WritiEg Eot
necessary for,
at
common
law.
tions
Altera-
by
lessee of the
be an assignment. (/)
At common law, assignments of chattel interests in land, as
--^i
t-t
-,
Isut,
o
by the btatute
i
by the assignor
to the
Release
Ilelease.
interest, in
made by
is
deed.(i)
defined.
(h) See per Jessel, M.E., in Walsh v. Londsdale, 21 Cli. D. 9, 14, 15, 52
L. J. Gh. 2, 46 L. T. 858, 31 W. E. 109 Furness v. Bond, W. N. 1888, p. 78
Lmotlicr t. Heaver, 41 Ch. D. 248, 264, 58 L. J. Ch. 482, 60 L. T. 310, 37 W. E.
;
465.
Swain
(c) Coatsworth v. Johnson, 55 L. J. C. L. 220
585, 21 Q. B. D. 289, 57 L. J. C. L. 428, 36 W. E. 798.
;
{d) 2 Bl.
Ayres, 20 Q. B. D.
Woodiall, 270
91, 19 L. T. 282, 17
(e)
v.
an assignee, as
P.)
the
(/)
IlieJcs V.
((/)
See ante,
{h)
29 Ch.
Downing,
p.
346.
2, u. 3, s. 3.
&
As
to the etieot
Digitized
by Microsoft
349
in.
whom,
it is
For
made).(/)
this conveyance, a
quired by the
deed
is
^'
simple
A release being,
mode
of con- Cases
in
wh ch
the land.
tithe
rent,
by
its
exists, (p)
lease,
(it)
(J)
2 Bl.
reversion, expectant on
being released to him, after he had entered on the
Comm. 324
Burton, 45.
(m) 2 Bl.
Comm. 324.
Comm. 824
() See 2 Bl.
(0)
(p)
See 4 Cruise,
t.
Burton, 50-54.
2 Prest. Abstr. 61
32,
c. 6, .
39
As
Burton,
to
317.
See ante,
Digitized
by Microsoft
p.
129.
pt. 1, ch. 5.
Lease and
eommon'law.
350
Surrender.
Surrender.
life
A surrender
is
is
whom
it is
made).(s)
It takes effect
And,
of possession. (<)
in every case, be
at
common
it
was, in
or other writing.
effect,
But,
enacted that an
in writing signed
Implied
surrender.
'
(5)
(s)
2 Bl.
Comm. 325
{t)
2 Bl.
Comm. 326
(r)
As
Burton, 751.
disclaimer by a trustee in bankruptcy
of an estate or interest of tbe bankrupt (as to which, see post, p. 461) is analosuiTender.
gous to a
(m)
29 Car.
4 Cruise,
t.
32, c. 7,
s. 1.
2, c. 3, s. 3.
&
Digitized
by Microsoft
under
351
commence immediately,
lease, to
term
Other
be implied. (//)
is to
Gonvcyancci
common law
Conveyances
Common Law.
at
at Exchange,
1845,
it
It
is
now
is
essential
usually
at
Bargain and
of alienation
usually in
power to
sell
the testator's
deed
is
is
established, or
made
unavoidable.(yj)
13
M.
Burton,
& W.
904
285
Walker
Richardson, 2 M.
v.
Nicleells v. Atherstone,
(s)
(6)
&
9 Vict.
c.
106,
(a) 29 Car.
s.
&
9 Vict.
u.
106,
s.
2, o. 3, ss. 1, 3.
p.
joint-tenants or tenants in
:
ih'd.
344, note
(f).
(e)
Comm.
2 pt, 1
ante, p. 203,
325.
Digitized
by Microsoft
Confirmation,
352
Defeasance.
Defeasance, whicli
re-entry,
may be
The Statute
affected
operation and
forms of conveyances.
is
estate
defeated. (i)
(ii.)
Implied uses
before the
Statute.
whereby an
their forms.
Although,
(i.) Operation of Conveyances under the Statv>te.
before the Statute of Uses, a use was, in general, created by
express declaration, (Z)
arise
by
it
If a conveyance
imiDlication.
presumed to have
own use and a
or,
other
in
To rebut
Owner.
this
presumption of a
'
resulting use
it
(as a
'
was necessary
by
its
'
'
'
the alienee,
'
'
the
to the use
alienor's favour,
Upon
Implied and
resulting uses
since the
Statute.
it
conveyance
unless
it
As
to the effects of the Statute in these respects, see ante, pp. 146, 171.
See ante,
p. 144.
Digitized
(m)
Sand., Uses, 60
by Microsoft
Burton,
126.
353
made
'
to the use
of
the alienee, or of a
third person, or to
Moreover,
nullity.(w)
if
a conveyance be
declared
person
as
is
of less
where the
cfu,e
fee
simple
life
the
is
legal
declaration of use
And
by the
life estate,
Transfer of
Jf='^^ ^^j?!'^
^^
use.
''
Digitized
by Microsoft
354
times,(??)
Limitation to
alienor and
another.
may
limit to
Each
of these limitations
may
And
first, viz.,
Conveyancing and
Law
of Property
Conveyancing
Act, 1881, as
to.
Act,
mon
jointly.
At com-
none of
B. solely
limitation
;
by A.
to A.
estate in
with remain-
estate, as
Two
Conveyances
between husband and wife.
life,
&
Digitized
by Microsoft
355
husband
by the wife
directly
person.(<)
be observed
It will
Uses,
application
its
by the terms
that,
is
any
is
Effect of limi*^'^(,
Hence, of
to the use of A. and
his heirs,
and the
he does
of the Statute of
tUg use
the alienee
beneficial interest in
not,
use
use of
'
the alienee.
Under
Estate of cestui
exceed limita^
tion to grantee
As
to
sei'vices,
x'ents,
hereditaments.'
44
&
45 Vict.
are,
u.
41,
e.
But
50.
See hereon 1 Sand., Uses, 43, 89 Webster \. Overseers of Ashton-underlAine, L. R. 8 C. P. 281, 306', 42 L. J. G. L. (C. P.) 38, 21 \V. R. 171 ; Peacock
V. Eastland, h. R. 10 Eq. 17, 39 L. J. Ch. 534, 22 L. T. 706, 18 W. R. 856.
(!/)
(s)
Digitized
by Microsoft
interests
gt^tute.
me
THE
0? l^EOPERTV IN LAND.
LA\\^
another,
is
by way oi use,
under ConveyancinsAct,
By
Law
A.
is
seised to the
to the Statute of
operation
of a limitation to uses, according
'^
'^
December 1881)
may
person
any
thereof.(c^)
its
already created,
use, as being a
though,
it
rent-
limitation
(ii.) Forms of Conveyances under the Statute.
of an estate or interest in fee or for life, by a feoffment or
other
common law
conveyance,
may be accompanied by
and
Such
is said to operate
by transmutation of possesinasmuch as actual transfer of possession to a person,
to hold to the use declared, is an essential part of the conThus, an estate in fee simple may be conveyed to
veyance.
of a feoffment to X. and his heirs to the use
by
means
A.,
a limitation
'
sion,'
(i)
(c)
Ihid. 275
{d)
44
&
(e) 2 Bl.
4 Cruise,
45 Vict.
Comm.
(/) 27 Hen.
u.
41,
t.
s.
32,
l-.
9, s.
18
62.
330.
8, c. 10, es. 4, 5.
Digitized
by Microsoft
Fox's
case,
Eep.
pt. 8,
93
b.
;
;
357
And where
a use
a power of appointing
is
power
is created
that is, which limits the estate to the
uses to be declared by the exercise of the power is, in
form, either a common law conveyance, or a conveyance in
common law
are
said
sion'
that
operate
to
is,
'
without
without
such
transmutation of
actual
transfer
of
Conveyances
'"'"i'*
tvm^
possession,
possesposses-
'
'
with a
common law
Bargain and
limitation superadded.
Sale.
Prior
on payment of the
^*'^-
And,
ante, p. 353),
(7i)
(i)
Ante,
p. 212.
Digitized
by Microsoft
Statute of
^"'o'^^"*-
358
life,
made
Law Amend-
ment Act
as to a deed, in the
ci-eation
of
an estate
for
years.(/)
Consideration
*"
sale^'''^''
made
Except
Its use in
practice.
for the
common
law,('rt)
of entry
by the
lessee as
required at
little
used
in practice.
Covenant
to
stand seised.
use declared
{k)
(/)
()?!)
(?i)
Digitized
27 Hen. 8,
c. l(i.
.56,
57.
by Microsoft
359
is rarely, if ever,
employed in modern
practice, (o)
This
mode
of conveyance
is
based on
the lease and release of the common law, which has been
already mentioned (p) and it takes effect in the same way
Le
ise
and
release,
necessary.
It consists of
two
and
term of years
for a
one year)
which, by
any entry by
immediately followed by the
second instrument, which is a common law release to the
alienee of the alienor's reversion exiDectant on the term created
by the preceding bargain and sale and the alienee thus
acquires the whole estate of the alienor.(?')
legal estate in possession for the term, without
upon the
him.
This
land. (2')
is
conveyance, by which
it
modern
statutory
modes of its
any of the other modes of conveyance. (s) Its chief advanwhich were considered to counterbalance the inconvenience of a conveyance by two distinct instruments were,
first, that the estate was thereby transferred without livery of
seisin, or entry upon the land, as required at common law
and, secondly, that as the bargain and sale, which formed
part of the transaction, passed an estate for years merely, it
did not require enrolment under the Statute of Enrolto
tages
ment. (<)
(0) 2 Bl.
Comm. 338
Ante, p. 357.
though
was
(s) It
&
May
Digitized
by Microsoft
use in
Pt'''i<'e.
360
LAND.
IN
'
statutory release,'
of
and
'
Stahttory Beleasc.
By a statute of the year 1841, () it was
provided that every instrument, executed on or after the
Statutory
release.
15th
May
and expressed
estate,
if
such bargain and sale or lease had not, in fact, been executed.
This enactment merely simplified the conveyance by lease
and
release,
by rendering the
lease unnecessary.
The
statu-
Statutory
grant.
It has
mode
'
'
Application of
Statute of
I
Uses
to.
&
(it)
statute of the year 1844 (7
8 Viet. c. 76) authorized the conveyance
of freeholds by any deed ; but this Act, after being in operation during niiie
months only, was repealed by the stat. 8
9 Vict. c. 106, s. 1.
'
'
&
(ic)
&5
Vict.
{y)
See ante,
(z)
(a)
&
p.
9 Vict.
See ante,
p.
c.
21.
345.
c.
106,
s.
2.
356.
Digitized
by Microsoft
'
861
consideration,
a use or uses
must be declared
'
statutes.
An
property,
by the assignor
assignment of chattels
real, or
to himself
Assignment of
peisonalty to
alienor
and
another,
other personal
co-owner.
vesting
'^!,''^'^
Tinder Uouvtjy-
ancing Act,
'^'^^^
By the same Act, as has been seen, the fee simple expectant on a Ions'
term of years may, under certain conditions, be,
effect, transferred, so as to enlarge the term into a fee
'
'
'
'
simple, by a
entitled to
Enlargement of
*?''"""*<' f^^
simple under
Conveyancing
Act, 1881.
Under
this
head are
Divisions of
subject.
352
(i)
See ante,
p.
(c)
See ante,
p. 307,
and post,
p.
Wms.
E. P. 217.
410.
s 50.
(e)
See ante,
(/) 44
((/)
&
Jhid.
p. 354.
45 Vict.
s.
c.
41,
65; ante,
b.
p. 102.
Digitized
by Microsoft
Law
of Property
& 45
Vict.
c.
41,
362
considered
and
Deed
defined.
Signing.
(ii.)
Sealing.
'
sealing.(7v)
The
Delivery.
is
I deliver this as
my
act
and
it is
it
made,
it is
trans-
usually
is
same time,
by him
to a person, to be held
(as the
(/i)
payment of
2 Bl.
Comm.
any language
295.
It
may
see
Aveline
v.
(/c)
And
if it
be delivered
of money),
it
may
be in
ibid. 297.
29 Car.
[i)
But
sum
till
4 Cruise,
t.
Jachson, 33 Ch. D.
32,
c. 2,
s.
80
Banh of England
National Provincial
v.
1.
(m) 4 Cruise, t. 32, c. 2, s. 79; Burton, 525. When two deeds relating to
the same subject-matter are executed on the same day, the Court will inquire
which was executed first but if anything appear therein to show the order in
which they were intended to be executed, they will be presumed to have been
executed in that order, in order to give effect to the manifest intention Gartside
V. Silkstone, &c., Co., 21 Ch. D. 762, 51 L. J. Ch. 828, 47 L. T. 76, 31 W. E. 36.
;
Digitized
by Microsoft
36
as a deed
time
A person is
illiterate, to
executes
it is
have
it
read to him
if
or, if he be blind or
he so requires, before he
Escrow.
Reading,
it.(o)
who
subscribe their
Attestation,
deed, unless
it
ment must
lunacy
^before
event be
unknown
such
Women's Property
Sliep.
ss.
86-93
Wathins
2 Bl.
Comm. 304
pt. 2,
a.
4 Cruise, t. 32, 0. 2, es. 95-98 Burton, 445, 450. By the Conveyancing and Law of Property Act, 1881, on a sale the purchaser cannot require
(p)
s. 8.
&
48
())
44
(s)
See 4 Byth.
{t)
See
b.
45 Vict.
1 pt. 1
&
c.
41,
h.
46.
ei
Digitized
ed.).
by Microsoft
Execution by
^^'^^'"^y-
364
Law
from
is
protected
acts
and given for valuable consideration, notwithstanding anything done by the donor of the power, or his
or her death, marriage, lunacy, unsoundness of mind, or
bankruptcy ; and a similar protection is given for the period
to be irrevocable,
where
it is
not created
An
Alteration, &c.
in deed.
breaking
it,
made
or the
And
is
the date, or
An
deed.()
is
presumed, in
made
penalty.
(w)
44 & 45
{x)
45
((/)
Mathewson's
& 46
Vict. ^. 41,
s.
title to
47
and see 22
&
23 Vict.
c.
35,
s.
26.
Rep.
pt. 6,
1,
26 b; 2 Bl.
27,
Doe
.
d.
Tatham
v.
W.
v.
Cornwell, L. K. 3 Q. B. 573,
R, 1045.
4 Cruise,
t.
32,
14.
(6) See Whiting to Loomes, 14 Cb. D. 822, 17 Cli. D. 10, 50 L. J. Cli. 463,
44 L. T. 721, 29 W. B. 435; cf. Ex parte Birlcbeck Freehold Land Society,
24 Oil. D. 119, 52 L. J. Ch. 777, 31 W. R. 716.
Digitized
by Microsoft
365
of a proper
legal
operation of a deed.(c)
indenture.'
word on one
Afterwards, indenting
part,
merely,
in
Burton,
Stamp
4ol
Act, 1891).
enrolment
(cZ) See, as to enrolment of deeds, &c., barring entails, ante, p. 59
of deeds of bargain and sale, ante, p. 358 ; registration of instruments of transfer
TransferA
Land
ot,
post,
under
the
1875,
413.
Kegistration
registered
p.
of land
of a conveyance of land situate in the Bedford Level is required by the stat.
15 Car. 2, c. 17, to entitle the grantee to certain privileges given by that Act.
As to registration of acknowledgments of conveyance of land by married women
;
37
W.
K. 499.
a,
note
Digitized
(2).
by Microsoft
indenture.
or
'
366
is to
have
ll^T
LAND.
effect as such,
though not
actually indented.(7t)
Originals
Where the
and
^
indentures.
executed by
Formerly,
all
'
counterparts
'
but
if
each part
all originals.('i)
it
Deed-poll.
polled, or
'
Estoppel by
Estate
by estoppel.
deed.
It
is
hence called a
deed-poll.'(0
executes
in general,
is,
it
that
is,
(A) 8
&
9 Vict.
c.
106,
s.
5.
())
2 Bl.
Comm.
4 Cruise,
t.
30
it
9 Vict.
106,
t.
s.
5.
296.
32, u. 20,
s.
;
64
Exparte Morgan,
Burton, 850
2 Brest. Abstr. 217.
An estate cannot, it
(o) Co. Litt. 47 b
seems, arise by estoppel under a deed-poll because estoppels under such a deed
cannot be reciprocal Burton, 850 Co. Litt. 363 b.
;
Digitized
by Microsoft
367
Next
in order, is the
(i.)
The statement
ledgment of
its
receipt
by the
Operative
g^e'i4t*ion'-
receipt
words
is
alienor,
And
Exception,
same Act,
(r)
On
513-592
Davidson, Conv.,
c.
4 Cruise,
t.
32
Burton,
() By the Conveyancing and Law pf Property Act, 1881, s. 53, a deed expressed to be supplemental to a previous deed, or directed to be read as an
annex thereto, is, as far as maybe, to be read and have effect as if it were made
by way of indorsement on the previous deed, or contained a full recital thereof.
(i) Recitals may explain, or even control, the operative part of a deed.
See
Burton, 530; Jenner v. Jenner, L. R. 1 Eq. 361, 35 L. J. Ch. 329, 14 \V. R.
L.
Ex
parte
Dawes,
D.
55
T.
17
B.
275,
114,
34
305
Q.
W. R. 752 Banhj v.
CoiMs, 29 Ch. D. 500.
;
Digitized
by Microsoft
General words,
368
made
words, in conveyances
Estate clause.
December 1881,
a form
whereby every right or interest of the alienor in
the subject of the conveyance was expressed to be transferred
was formerly added after the general words but under the
in general, unnecessary. (m)
is,
Tlie
'
estate clause
'
of words
Habendum
above Act, it is, in effect, implied in every conveyance executed after the 31st December 1881, unless the contrary be
expressed. (a)
(iv.) The 'habendum,' which Umits the estate
to be taken by the grantee, thus
to hold the said jDremises
'
unto and to the use of the said 0. D. and his heirs ';(?/)
or (in a conveyance of a chattel interest) to hold the said
premises unto the said 0. D., his executors and administrators.'
But where the grant is not to the use of the grantee,
but to some other uses, the habendum is merely to hold unto
'
'
the said C. D. and his heirs to the use (or uses),' &c.
trusts.
and
Declarations of is
uses and of
followed by
(v.)
the
'
declaration of uses.'
(vi.)
'
;.
The
Reservation, or (vii.)
re
en um.
-^^i^gpe ^^j^g
reservation,' or
'
service,
Coven.ants for
title, &c.
(viii.)
if
& 45
(u)
44
{.,-)
S. 63.
Yict.
c.
41,
s.
6.
(r.)
(o)
See post,
See ante,
y. 373.
p.
317
et seq.
Digitized
by Microsoft
369
usually
usually inserted.(5)
title are
an acknowledgment of
named
therein
statement of
and
its date.
it
The
the
also,
muniments
of
is Conclusion.
the case
also, in
deed-poll,
are set at the foot of the deed; and the witnesses, if a^yj
*"
^ita^gses^.
ment
it.
An
(if
acknowledg-
any), indorsed
Indorsed
''^"^'P
'
Sub-sect.
2.
in
Land
Modes
Special
of Cojjyhold Tenure.
of Conveyance.
In
by any
of the
rule,
modes
To
to
S^^' '-
it
this
(i.)
By
(i.)
general custom, the tenant may, with the lord's licence, demise ^
by lease in the ordinary form and he may so demise for one
Leases
licence,
(ii.)
p. 322.
(h)
Ante,
(c)
See as
&
to these receipts, 1
by a
(e)
44
45 Vict.
solicitor
(ii.)
Convey-
"
c.
of a deed
Dimes
v.
Q. B. 469.
general, licenec
2 A
Digitized
by Microsoft
370
Amendment
Convey-
by deed.(^)
(iii.)
On
isettleTLand
Aets.
for life
1890, of copyhold
trustees under
power.
-they
i(iv.)
CoDvey-
(to
to admittance
will.('i)
Surrender and
admittance.
to
the purchaser, in
tance.
interests in copyholds is
The
'
by
legal estates
and
surrender,'
'
and
admittance. '(A;)
to
his
of the
heirs, or to
This surrender
'
(o)
own
interest in the
(i)
(Ti)
As
(j)
45
(h)
(I)
in
D. 217.
to usee declared
()i)
&
5 Vict.
This right
u.
35,
may
e.
90.
be enforced by
mandamus
The
1276.
Digitized
by Microsoft
'
371
bound
to
fine to
the
same transaction
lorcl.(7j)
upon the
follow immediately
either
(as is usual), or
may
for,
back
is
Admittance
""^
^o"^''*-
in
writing, (s)
by
by
surrender. (i!)
surrenderee,
He
of
course,
may, however,
sell,
cannot How
or devise
far sur-
^jJ^^^^^
j^^J^.g
admittance.
'
'
life
life
and
D. 642
(</)
Except
it
see
&
&
5 Vict. c. 35, o. 88 ; 50
generally, see Scriv. Cop. ch. 3, o. 2.
(s)
(t)
70
Doe
51 Vict.
c.
73,
d. Tofield v. Tofield, 11
et sal.
s.
2.
As
to
admittance
East 246.
White'.ey v. Taylor, 35 L. T.
187.
(x) Scriv. Cop. 121, 123.
joint-tenants, see ihid. 164.
As
to the fines
Digitized
by Microsoft
^"^^^"'i^''-
'
372
THE
Copyholder
to use of vik.
own
wife, or to his
court
The
roll.
-^
use.(?/)
Surrender, or a
memorandum
and, on
(z)
payment
and a memorandum
it,
^^
of
rolls
com
roiL^
OF PEOPEETY IN LAND.
anor
Entry of
admittance on
LA-\V
as a
muniment
by the steward,
of these entries,
the cof)y of the surrender being liable to the same stamp duty as a deed of conof title to his estate
veyance. ()
Ooveuants for
given on
coil-
-leyance of
Covenants for
title,
render,
it
Where
this
the surrender
make
conveyance
within the meaning of the Conveyancing and Law of Property
Act, 1881, and the covenants for title may be implied, under
that Act, by the use of the words as beneficial owner,' &c.,
in the deed.(c)
But if the deed follows the surrender, it is
not a conveyance within the Act, and the covenants for title
must be expressly inserted, (r^)
;
(b)
is
it
'
'
How
made.
How
conveyed.
Conveyance of
C'listouiary Freeholds.
As
to the
law on
The mode
of convey-
(s) In s. 3 of the Statute of Frauds (29 Car. 2, c. 3), requiring writing on the
assignment, grant, or surrender of an estate, an express exception is made of
copyhold or customai'y estates.
(a)
54
&
55 Vict.
u.
ss.
65-68, &c.
The
bound
to
admit
(5).
As
7 of the Act,
&
Digitized
by Microsoft
373
Sub-sect.
3.
Interests.
Under this head are considered the forms of instruments What instruby which trusts of land may be declared, as well as of those ^^^f^ ^^Ig
by which equitable estates, previously created, may be trans- head,
ferred
in effect, a conveyance of
is,
trust.
Statute of
^"''^'
^[^^
^ fo-
writing
statute
deed of conveyance
though
And where
instrument.('i)
it
upon a use
must
is,
an
of,
or (as
trust.
to
it
is
usually
{(j)
29 Car.
(/t)
Lewin, 55, 56
2, c. 3, s. 7.
;
aiiU, p. 177
Dije
v.
Dije,
13 Q. B. D.
C. L. 442.
(t)
is
(/)
for,
is
is
expressed) in trust
is
the
tation of a use
is,
Where
(that
it
See ante,
p.
368.
Digitized
by Microsoft
147, 53 L. J.
374
of,
Uses
would vest in the latter the legal estate (li) unless, indeed,
the conveyance to the trustee were a bargain and sale under
the Statute of Uses (in which, as has been seen, a use is
implied), ( Z) or an appointment in exercise of a power of
;
leaseholds;
appointing a
But
use.(?)i)
being
signed
by the
settlor.(o)
Trusts by
operation of
Iliw.
eifect,
no actions
enacts, that
shall
Generally,
.(/t)
{I)
Ante,
p.
p. 357.
207.
p.
17'-'.
(p)
See
[q)
s. 8.
(() S. 4.
(s)
See Lester
McMamis
v.
V. Coolce,
754.
Digitized
by Microsoft
375
Statute of
Conveyauees of Equitable Estates already created.
The Statute of Frauds enacts, that a grant or assignment of '^^^ ^'
any trust or confidence (by which is meant an equitable
estate or interest) shall be made in writing, signed by the
'
'
Copyholds,
Sect.
Construction or Interpretation of
II.
Conveyances.
are considered
(ii.)
(i.)
words of limitation
and
(iii.)
operative
Division of
^"'^J^"'*-
(i.)
rule of construction
if possible, to
be
is,
The
first
general The
effectuated.(6^)
The next
is,
(t)
29 Car.
(m) 3
2, c. 3, s. 9.
& 4 Will.
{x) Ibid.
{y) Scriv.
W.
technical
a.
77
4, c. 74, s.
:
40
Cop. 80
Hall
v.
and note
(e),
ibid.
K. 659.
()
(o) Burton,
503
90
;
see
Green
v.
Paterson, 32 Ch. D. 95
Digitized
by Microsoft
and
leading
^'^ *^'
is,
see p. 474.
A
;
37G
some
the
qualifications
mode
thus,
if
is
any
effect in
it will, if
possible,
subject to
And
evidence
is
biguity,
i.e.,
an ambiguity that
the instrument
as
Words
of
fined.
(ii.^
Words
of Limitation.
it
defined or
is
and whereby
is
(if
distinguished
common.
They
and
copyhold
interests in land of
estates
and
tenure
Freehold Tenure.
is
equitable
(y)
interests.
Fee simple.
and
At
common
and
Interests in
Land of
'
and his
heirs
'
(or
heir
')
'
(6)
289; Jie
(/) Co.
The
reverse of this
is
Litt. 8 b.
Comm. 107, 108 which see, as to the grounds of this rule. In some
instances, however, the fee simple will pass without the use of the word ' heirs
as iri a release by one joint tenant to another, seised in fee, &c. (see 2 Bl.
[g) 2 Bl.
'
Digitized
by Microsoft
377
'and assigns
or
assigns,'
commonly-
An
common
law,
by a
'
'
'
'
'
'
'
'
'
'
'
'
'
'
'
A limitation to the
is
&c., of
limited, passes
&c., of the
tail to
et seq.)
heirs of
and
preceding
Comm.
(7i)
whom no
a person to
an estate
mean
estate will
in conveyances to corporations,
Co. Litt. 8 b.
&
ik)
{I)
Co. Litt. 20 b, 25
a.
See supra.
(m) Litt.
o.
31
Co. Litt. 27 b
2 Bl.
Comm.
115.
Digitized
by Microsoft
Estate tail
378
descend as
if
himself. (?j)
Alterations by
how-
i.
1881
'
heirs
'),
'
in fee simple
in the limitation of
'
words
'
'
The important
The
rale in
Shelky's case.
to
This rule
inheritance.
known
rule of construction,
estate of freehold
is
limitations
certain
may be stated
as follows
estate, or
is
'
rule in
of estates of
Where an
as the
by the same
after
'
'
Examples
of
its applica-
that
tail
is,
it
&4
"VViJl. 4, u.
106,
& 45 Vict.
(2)
44
(r)
SheUey's case
s.
0.
41,
(23
of.
Moore
v.
Simian, 31
Cli.
See
D. 95.
^wst, p. 419.
s.
51.
Eliz.),
Eep.
pt.
1,
93
b,
Tudor L. C. E. P. 589.
but
rule in Shelley's case, it is of much greater antiquity
the rule is stated in the arguments in this case in clear terms, and has thence
As to the origin of the rule, see Fearne,
received its appellation (Tudor, siq}.).
On the rale generally, see
Tracts, 551.
C. E., 83 et seq.; Hargi'eavo,
Law
Digitized
P.,
by Microsoft
c. 3.
379
the same, though more than one estate be interposed between the limitation to A. and the limitation to his
effect is
heirs.(s)
The
where the
limitation.
remainder, (i!)
The
tail.
Again, the rule applies, although the remainder to the Where rebe a contingent remainder. Thus, Xngent
if land be limited to A. for life, with remainder to B. for life,
with remainder, if A. die before B., to the heirs of A., A.
heirs, or heirs of the body,
life interest in
possession) a contingent
remainder in fee simple. () And similar in effect is a limitation to A. and B. for their joint lives, with remainder to the
If the interposed estate be conheirs of the survivor. (3/)
tingent (as on a limitation to A. for life, with remainder to
B. for life if he shall survive A., with remainder to the heirs
of A.), the ancestor takes, in the
in possession
estate, if
first instance,
the inheritance
and when
it vests.(0)
(s)
Fearne, C. E.,
()
_".).
Ihid. 37.
Digitized
by Microsoft
380
application of
the rule.
It is to
Eequisites for
limitations
(1)
Limitation of
estate for
life.
and
of A.
life
his heirs,' or
'
'
'
;
'
heirs of his
'
to the use
life of
'
or,
grantor
is
able to
(e)
but
if
he be
life,
or in
tail,
'
'
Limitation of
estate for
must be stated
years.
as,
'
for
twenty-one
years,' or
(oj But in the case of a limitation to the use of the heirs of the body of the
grantor, without any previous Kmitution of a life estate to himself, a life estate
arises in the grantor by implication (either from the tbrm of the limitations, or
by way of resulting use), and the rule accordingly applies in such case see
It'earne, C. E,, 41, &c. Sand., Uses, 137; Burton, 342-344 Pi/bus v. Mitford,
1 Vent. 372.
:
(6)
4 Cruise,
t.
s.
9.
4 Cruise,
t.
{d) 2 Bl.
(e)
Md.
Comm.
121.
(/) Burton,
((/)
Liii.
120, 121.
s.
729.
1.
Digitized
by Microsoft
381
ascertainment, as,
'
'
'
And, by analogy
'
and administrators.'
where an estate
his executors
life.('i)
A tenancy from
'
from year
'
.;
year to year
to vear,' or
'
'
ygar to year.
limitation
'
for
least. (Z)
them and
pressly
'
as joint tenants,' or
limitation to them, or to
'
by a
Limitation in
J^''*^*''y-
by a
any
create a tenancy in common,
in joint tenancy
them and
'
or
'
'
'
'
him who
dies
mon
confined to the
life
is
com-
but
may be
it
of
first. (m)
A tenancy in common
by a
is
'
I.
and as
as,
'
as
to
(I)
46
Woodfall,
Doe
d.
2 Bl.
Co. Lit. 54 b
Cpmm.
Burton,
143.
849.
c. 6, s. 2.
Chaclbm-n
v.
Green, 9 A.
;
4 Cruise,
& E.
t.
Digitized
658.
by Microsoft
See ante,
p. 151).
Limitation of
tai'=y ^
common.
382
necessarily tenants in
shall so
Similar to
limitations of
freeholds.
same
to the
rules, as respects
freehold tenure;
by special customs.
of inheritance
'
Tectnical
terms not
required.
heirs.'(o)
In the alienation of
(y) Limitations of Ecjidtahle Estates.
equitable estates, the use of technical words of limitation is
not necessary (p) but where (as
;
usual) the
is
words of
same way as
may
ever,
in conveyances of legal
estates. (')
be construed more
an ante-nuptial agreement,
especially as regards
case.
Thus, where by
it is
'
With
settlement.(s)
strict
this
the rule in
qualification,
tions,
If one estate
be
legal
heirs
d.
legal,
(n) 2 Bl.
Comm. 193
Mood
(o)
V.
Burton,
1278
Burton,
(r)
See ante,
1383
p.
Litt.
s.
298
4 Cruise,
Hayes, Conv., 96
1 Brest.
Abstr. 144
t.
50-58
Goodtitle
et seq^.
Lewin, 109.
178.
Digitized
v.
by Microsoft
383
the
and
first
The 'operative
Operative Words, and Other Terms
generally
conveyance,
words
of
the
act
of
words,' or
expressive
used in conveyances of land, differ according to the form of
Thus, in a feoffment, the proper operative
conveyance.
(iii.)
Constraction
^o^^g'^^g^^
words are
'
;'
in a gi-ant, the
;'
'
'
'
'
;'
;'
;'
'
'
assurance,
'
'
considered. (y)
'
'
'
(if
'
may
pass.
'
Messuage,' or
and
its
if
any. (a)
'
'
'
must
it
A strip
(m) By the Conv. and L. P. Act, 1881, the use of the word grant is declared
not to be necessary for the conveyance of tenements, &c., corporeal or incorporeal
'
44
&
45 Vict.
41,
c.
a.
49.
(2)
s.
Ante,
'
Davidson, Conv.,
Burton, 539-543.
p. 7.
Co. Litt.
b.
&
ways Co., 9 Ch. D. 425, 438 ; cf. Wright v. WaUasey Local Board, 18 Q. B. D.
The word tenement is sometimes used as denoting a
783, 56 L. J. C. L. 259.
house, as well as in its legal sense see ante, p. 16.
'
'
(6)
As
to the
a,
Digitized
by Microsoft
"
with
it
the
soil of
may
carry
And
of the land.fr/)
(c) Elphinstone, Interpretation of Deeds, 178 ; Simpson v. Dendy, 8 C. B.
(N.S.) 433
Berridge v. Ward, 10 C. B. (N.S.) 400; Beckett v. Corporation of
Leeds, L. R. 7 Cli. 421.
The rule applies though the parcels refer to a plan
;
[d)
44 L.
W.
Digitized
by Microsoft
'
CHAPTER
IV.
ALIENATION BY WILL.
present subject maybe considered under the following
heads
(i.) The definition of a will, and the sources of the
law of testamentary alienation (ii.) the formalities required
The
DWisions of
^"^J^<='-
in the
(iv.)
making
of wills
(iii.)
and ademption
of testamentary gifts
;
;
(vi.)
and
(v.)
the con-
the revocation
(vii.)
of wills.
(i.)
Deflnition.
may be
Sources of Law. A
will, or
'
testament
'
Will defined,
which
Alterations
in, or
additions
to,
a will already
'
made
codicil,'
are
Codicil,
which
may
The word
'
will
'
is,
including codicil.(a)
By
the
common
was alienable by
will
X'j,^^^'
aud statutory
extensions,
(a)
(h)
2 Bl.
Comm. 491
c.
26)
see
s.
et seq.
Digitized
by Microsoft
2 B
1.
386
except where, as
was sanctioned by
common
ence of the
was alienable by
The Statute
will.(e)
of Uses,
by converting
Henry
was extended to
testamentary disposition.
Henry VIII.
but,
will,
them
As
regards wills
made
will,
and personal
may
which he
thereby
be
law or in equity, at the time of his death
(notwithstanding that he may become entitled to the same
dispose of
all
real
estate to
shall
entitled, either at
(c)
{d) 2 Bl.
(e)
Coram. 374.
See ante,
(/) 32 Hen.
Hen.
8,
0.
p. 145.
8,
c.
Under
5.
&
this
(j)
(7t)
were devisable
See ante,
p. 73.
i>.
26,
55 Geo.
s.
Digitized
by Microsoft
Hen.
made
8,
and
before
387
ALIENATION BY WILL.
it
testator's death,
Under
by him
after that
it
by
(ii.)
Wills
Formalities
made
before
Wills
'
j!4r
tenure, were required by the statute of Frauds to be in writing, signed by the testator im the presence of three or four
(i)
See^osi,
(m) S. 3.
418.
p.
As
S. 24.
see I)oe d.
York
to
v.
(0)
ip) 29 Car.
(2)
2, 0. 3, b. 5.
(r) Except wills of personalty of soldiers and seamen on service (ss. 11, 12),
which may be made without the ordinary formalities, and are the subjects of
And see 24 & 25 Vict. c. 114, as to wills made by
special statutory provisions.
Digitized
by Microsoft
under Wills
'"
888
THE LAW OF
unless
it
IX LAND.
J'ltOPERTY
be in writing, signed at
foot or
tlie
end thereof by
revival/
Alterations or
'''^'
to have been
made
words or
is to
have any
made
effect (except so
such alteration,
such alteration be executed as a
will is thereby required to be executed ; but the will, with
such alteration as part thereof, is to be deemed duly executed,
far as the
or opposite to, a
niemorandum
and
How
will is to
be signed.
requisite
same
See In re James ChirJi, '2 Cur. 329, where signature in the name of the
(.s)
person who signed at the testator's request was held to be sufficient.
'
names
(x)
p.
as witnesses.'
1
[u) S. 22.
It
is
See ante,
364.
The initials of the testator and witnesses are a sufficient signaS. 21.
(.!/)
1 Jarman, Wills, 78, 82.
Although the
ture for the purposes of this section
section applies only to alterations made after the execution of the will, alterations made previously arc usually authenticated as required by the section, in
ordei' to obviate any question as to when the alteration was made.
:
Digitized
by Microsoft
ATJENATIOX BY WILL.
389
be
it
be placed
at,
it
or after, or
that
it
it, or which
be inserted after the making of the signature. (6)
By a strict interpretation of the requirement of the Statute
shall
will, or
who was
a creditor,
entitled,
under the
the benefit of
will, to
all benefit
made on
Under
(c)
In
28
W.
Field, 3 Cur.
b.
2 Rob. 110
In
l-fyl
b. Blciritt,
this enactment,
R. 520.
(a)
In
h.
[h]
15
&
Benjamin
Warden,
2 Cur.
334
See JJarrjary
16 Vict. c. 24.
Hughes, 12 P. D. 107.
Comm.
(c)
2 Bl.
(e)
1 Vict. c. 26,
377
s.
Burton,
265.
y.
Eobinson, 12 P. D. 8
[d) 25 Geo. 2,
14.
Digitized
by Microsoft
u.
6.
hi
h.
witnesses to
7'^'^' "^"'^^ *^
390
is void,
although
be incompetent as a witness to a
being executor of the will. (A)
shall
Distinctions
will,
on account of his
With Besped
Operation
generally as to
real estate
estate
to
Heal Estate.
,
given thereby,
as
will operates
upon
real
j.i
a conveyance to the person or
j.
whom
persons to
of the testator.
will alone.(/)
Uses declared
^ ^'
As
by
will.(ni)
But
since, as will
be
seen, a will takes effect according to the testator's intention,(7i) as far as possible, limitations to
(f/)
(h)
(i)
(A-)
Wigan
v.
Iloidand, 11 Hare
1.57.
S. 17.
Ante,
5.
p.
Jnte, pp.
10, 11.
Reo poM,
p.
151.
p. 397.
Digitized
by Microsoft
391
ALIENATION BY WILL.
and the
estate,
similar
effect of a declaration of a
limitations
deeds,
in
testator's
customary
Devises of
^"Pyliolds.
heir.(?')
death, to
01 his
1-11
his legal
sonal repre-
personal representative,
i.e.,
his
sentatiTe.
to their
will.(s)
istrator,
office of executor,
he
is
the same
*"''*
subject to
executor dc son
An
executor
tort, i.e.,
is
of his
whom
the
Office of
(o)
the
act of
Baker
v.
Wliite, L. R.
20 Eq. 166,
171.
(p)
Feame,
[q)
See
(r)
B.
40 L.
J.
C. E., 390
1 Vict. c.
26,
s.
Burton,
&
282
5 Vict.
c. 35, ss.
89, 90.
()
Wms.
Exors. 636
et seq.
(t)
Wms.
Exors. 261
et seq.; 2 Bl.
Comm.
Digitized
507.
by Microsoft
execu-
392
deemed the
and
it
as
no executor
If there be
the
the executorship
will, or
is
it
is called,
granted to some
is
office of legal
personal representative
as
of
Proof of will
personal
estate.
In common
form.
of
'
'
to his belief in the validity of the will, together with the oath
In solemn
form.
or
by the oath
of the
appear by an attestation
clause, appended to the will, that all the requirements for
execution have been complied with (5)
or in solemn form,'
by the oaths of both witnesses, and any other evidence the
if it
case
may
(m) 2
Wms.
(x) Ibid.
Exors. 950
2 Bl.
21
&
(rj)
See
()
20
in the Ecclesiastical
(&)
Wms.
95,
s.
Courts
l',i.
Exors. 329-337
Digitized
entitled to
506.
(!/)
u.
who would be
et seq.
Comm.
22 Vict.
'
oil.
2 Bl.
Comm.
505.
59.
by Microsoft
(t).
393
ALIENATION BY WILL.
the estate of the deceased, in case of his intestacy, have been
cited to be present at the proceedings.
Proof of a will in
When
the will
is
deposited in the
is
High Court
Probate,
and a
copy and
'
probate
'
of the will,
and
it
tax, called
'
will, so
probate
power to
sell
or
Wms.
Subject to
Exors. jJ7-..ii7.
&
&
{d)
Digitized
lie
by Microsoft
of
executor over
estate,
A
594
How
passes
Devises and
bequests,
specific
and
general.
(iv.)
The
by will
mentary gift
gift
'
of real estate is
personal
of
legacy. '(/i)
and
company.('i)
is
is
is
a 'devise.'
called
called
'
'
'
situate
testa-
or
bequest,'
specific
'
when
is
land
testator's
estate
devise or bequest
called
at,'
as,
the
Residuary
devise or
bequest.
devise or bequest of
testator,
'
all
residuary
'
devise or bequest.
Wms.
Exors. pt.
3,
bk.
3, ch. 4, b.
will, is called
(/)
'
prior to the
least,
as regards
Burton, 932.
(7t)
tax called legacy duty is payable under the stat. 36 Geo. 3, u. 52, and
subsequent Acts, in respect of every bequest of personal estate, or any personal
estate under an intestacy, upon the amount or value of such bequest or succession ; except that, under the present law, no duty is payable where the whole
personal estate is of less value that 100 (43 Vict. u. 14, s. 13) ; nor where the
fixed probate duty of 30s. has been paid on an estate not exceeding 300
The rates of duty are the same as those
(44 Vict. c. 12, Bs. 33-85 ; see supra).
ot succession duty, and there are similar exemptions from the duty in favour of
husbands and wives, and the Eoyal Family, and from the duty of 1 per cent,
where probate duty has been paid see ante, p. 261. The duty is paid by
the executor or administrator, and is deducted by him from the amount of the
legacy or succession, except where a legacy is bequeathed free of legacy duty,
:
(i) 2 Wms. Exors. 1163 ; see Botliamley v. Sherson, L. B. 20 Eq. 304, 308,
311, 44 L. J. Ch. 589, 33 L. T. 160, 23 W. E. 848.
Digitized
by Microsoft
395
ALIENATION BY WILL.
land of freehold tenure) only that which constituted the
residue of the testator's real estate at the date of his will,
a residuary
gift of
after the
And
is
devise of freeholds.
a will
real
made on
as to wills
and personal
made on
may
take
effect, as
to both
estate, as
was
was altered by
(l)
Ante,
(Mi) 2 Bl.
own
trary intention
will.(2')
But
this rule
p. 387.
(m) Ihld.
(o)
See ante,
1
(2))
p. 387.
Vict. c. 26,
8.
25.
As
p. 405.
(q)
Digitized
by Microsoft
396
JX LAND.
or persons
As between
Marshalling of
assets as be-
tween parties
entitled to
estate of
interests
assets
(s)
debts.
Consequently,
'
or a part of that
claim.
any other pa,rt.{t) But subany such direction, the assets are applied (in accordance with the presumed intention of the deceased) as follows
Debts secured by mortgage of, or charge or lien
upon, any lands or hereditaments of the deceased, are now
payable, as has been seen, out of such lands or hereditaments,
in exoneration of his other estate. (m)
In discharge of debts
'
any
legacies
specific
&
1 Will.
() 11 Geo. 4
606, 45 L. J. Ch. 590.
(s)
As
(t)
See Ancaster
to the
4, u.
40,
Mayer,
1.
o.
'
See WUliams
v.
ArJde, L. R. 7 H. L.
(</).
Lead.
As
Digitized
by
by Microsoft
'J.
397
ALIENATION BY WILL.
real estate given by the will of the deceased, but
charged thereby with the payment of his debts (including any
land so charged, which passes to the heir-at-law through
4'tlily,
failure of a gift
by the
will)
and
{z)
real
which are applicable ratably, (a) 7th ly, real or personal estate over which the deceased had a general power of
appointment, which he has exercised by his will.(&)
of
all
(v.)
Construction,
or Interpretation, of Wills.
This Dmsion
may be
subject
of
^^"J^"'-
of testamentary
Constrii-ction.
rules
Wills
deeds, (c)
And
effectuated.
words of the
construction
of
is, if
applicable
to
possible, to
be
from the
though, as in the interpretation of
will itself
(,i/)
As
Stead
them
in another
y.
sense
W.
is
E. 258.
to charges of debts
(z) In Re Bate, Bate v. Bate, 43 Cb. D. 600 (Kay, J.), the porti.m of the
personal estate required for payment of the pecuniary legacies was held to he
applicable in payment of the debts before real estate charged with debts could
he resorted to for that purpose but in otber reported oases (which were not
cited in the above case) the order of liability in this respect has been held to he
see Foster v. Cooh, 3 Bro. C. C. 347
Paterson v. Scott,
that stated in the text
1 De G. M, & G. 531 ; Surtees v. FaJdn, 19 Beav. 406.
;
(a)
Hensman
Lancefield
v.
v. lejrjidden,
(5)
Holmes
v.
CogJiiU, 12 Ves.
206
Flemivg
v.
is to
be
deemed
specific as
Biielianan, 3 D.
M.
&
(i.
976.
(c)
As
375
et seq.
v. Hiscoclcs,
5 M.
Digitized
& W.
363
S.C.,
by Microsoft
(e).
398
THE LAW OF
PKOPElt'lV IN
apparent. (e)
LAND.
and expressions
are, in
But
some
is
neces-
by deed,
these rules modify, to a large extent, the general rule resjiecting the observance of the testator's intention. (7(.)
Operative
words.
The
Gifts ty Implication.
(P) Operative Words of Gift.
operative words usually employed in wills are give,' or
'
vise,'
Under
Effect of
general devise
general power
of appoint-
ment.
'
de-
'
'
(e)
Gretj v.
114; Bhode.1
W.
effect,
that in a will
made on
1st
v. lihodes, 7
or after
testator's
Jllildlctou, 7
P. C. 53,
R. 709.
(Ii)
For a summary
v.
Jarman,
(0 eCruise.t.
(li)
Jarman,
Cloves V.
Mills
B.
2.
Awdry,
12 Beav. 604
Ee Mills,
v.
Mills,
Digitized
by Microsoft
399
ALIENATION BY WILL.
real estate, or of
real estate in
liis
any
described in a general
manner
or otherwise
will,
or a bequest of
his personal
manner
be construed to include, in the case of a general deany real estate, or any real estate to which such descrip-
shall
vise,
may
tion
extend
In some instances,
...
implied,
'
'
his
life. (2")
And
bequest of chattels
real, or
But
if,
the
will
or
if,
legatees were not the testator's next of kin, or the will con-
(n)
259),
t.
As
v.
and notes
Cruise, supra.
Vaughan, supra.
Balph v. Carrick, 11
Bendale v. Summerset, 5 Burr. 2608
()) Roc d.
Ch. D. 873, 48 L. J. Ch. 801, 40 L. T. 505; In re Smith's Trusts, L. R.
Humphreys,
L.
R.
Eq.
L. T. 557, 15 W. R.
4
15
v.
575,
Humphreys
1 Eq. 79
;
391.
Digitized
by Microsoft
4*^^
an
for,
IX LAND.
during his
life,
would not be
first case,
second, (s)
Further
if
a devise or bequest be
and
if
death'wHhout
issue.
Before
to a person,
and
if
'
issue, &c.,
any devise
in
'
words
want or
failure of issue of
any person
mean
want or
Horton T. Horton, C'rn. Jac. 74; Aspinall v. Peiiin, 1 S. & S. 544; but
In re Blake's Trust, L. E. 3 Eq. 799, 16 L. T. 279 In re BaioUns' Trusts,
(s)
see
45 Ch. K. 299, 59 L.
J. Ch. 599.
Campbell, 2 CI.
()
Candy
{x)
v.
Digitized
& F. 421
Damon
v.
by Microsoft
'
ALIENATION BY
4.01
^VILL.
liis
tail,
issue
will,
by
or of a pre-
ceding
gift
should be born, or
if
if
who should
issue, the gift over will not, as formerly, be void for remoteness,
Implication of
^e?in
tail.
(z)
Vict.
As
0.
26,
s.
29.
the restriction on suck an executory limitation under the Conveyancing Act, 1882, s. 10, see ante, p. 153.
(a)
(6)
to
ch. 41.
Jarman, Wilis,
ch.
2 c
Digitized
by Microsoft
Construed
^'^
;^j^tjf
402
by deed,
as
regards
What
words of
will pass
by the
'
'
of,'
Effect of
ot'
'
land
'
Under the law prior to the Wills Act, leaseholds for years
would not pass under a general devise of the testator's land,'
or lands, tenements, and hereditaments,' if the testator had
any estate in fee simple to which the words might apply
though if he had only leaseholds for years, they would pass
by such words as otherwise the devise would have no operation. (/)
But, by the Wills Act, a devise in a will made on
'
&c.
'
any
his land in
any person, or
General devise
of
real estate,
'
estate,'
'
Words
Words of Limitation.
(S)
of
limitation.
will.r/.-)
In accordance with
the general
words of
real estate, of
possession of a stranger
ful
L. T. 242, 27
W.
Leach
v.
But a devise of
38, ch. 10, ss. 69-74.
seised, will not pass land in the wrong-
E. 99.
(/)
(//)
(7()
Butler
E. 192.
(i)
W.
(/.)
Gully
V.
V.
197, 52 L. T. 90, 33
Digitized
by Microsoft
W.
E. 265;
403
ALIENATION BY WILL.
limitation nsed in wills have, in general, the same interpretation
and
effect as in deeds.
by
will,
Shelley's
'
'
'
'
'
heirs,'
or
'
deemed words of
may
As
heritance
may be
limited
by
will,
Teehnioal
*'^^ '.
necessary in
Umitaiions by
^"""
the fee simple, (p) Under the law prior to the Wills
Act, however, a devise without any a c~TiToanying words
j)ass
Effect of
out words
held
pass
an
to
estate for life merely (like limitation
A. B. Simply was
But this was altered, as
a similar limitation in a deed).(^)
regards wills made on or after the 1st January 1838, by
Bowen
v.
'^,
'
Lewis, 9 App,
(m) See per Cockburn, C.J., Jordan t. Adams, 9 C. B. (N.S.) 483, 497
Perrin v. Blake, 1 W. Bl. 672 S.C, 6 Cruise, t. 38, ch. 14, ss. 76, 77; Bohinson
Jeason v. Wright, 2 Bligh 1.
V. Bdbinson, 1 Burr. 38
Doe
Gallini v. Gallini, 5 B.
(n)
See
(o)
See Ooodtitle
d.
&
d. Sioeet v. Herriruj, 1
East 264
2 Jarman, Wills,
388.
{p) See 6 Cruise,
t.
See 6 Cruise,
t.
(2)
Digitized
by Microsoft
382-
01
404
LAXli.
by
will.
restricted
in
devisee.
'
and
the
of
his issue,' or to
him and his heirs lawfully begotten,' will pass an estate tail
and a gift to a person and his children may have the same
'
'
'
effect.(s)
A limitation,
Rule in Wild'i
case.
by
will, of real
estate to a person
and his
known
construction,
that
if
the rule in
as
him and
the devise be to
when the
simple, (tt)
A devise to
Devise to one
and
his heirs
male.
a person
'
estate
As has been
testator.(a^)
seen, a limitation
by deed, in
sucli
Bowen
E. 633.
v.
&
alty
see
Uiiderhlll v. .Rodeii, 2 Ch. D. 494, 45 L. J. Ch. 266, 34 L. T. 227, 24
574.
:
(u) See
Vict.
c.
26,
s.
28, suxna.
Ante,
.T.
M'ild's
{t)
W.
p.
377.
Digitized
by Microsoft
W.
K.
405
ALIENATION BY WILL.
Vesting, Lapse, and Ademption of Testamentary
(vi.)
Gifts.
by
gift
testator
Vesting.
will,
of the
contingent
is
post-
The death of the devisee or legatee before the gift has Lapserule.
vested, causes (except in the cases presently mentioned) a S^^^al
and such failure is called lapse.' (a)
In the case of a testamentary gift to two or more persons Where gift
^'^^^^^ tenancy
concurrentlv,
the death of any one of the devisees or legatees,
o
"
in common.
'
'
named
the
gift,
if
the
common as
'to my five
personal estate.
Thus,
if,
But
if
the gift be
made
time will not lapse, but will pass, by survivorship, to the others
And
or other, (c)
as
'
to
my
where the
so,
children,' or
'
of a
member
a share
who
Shrymsher v. Northcote,
Ch. D. 817, 49 L. J. Ch. 662
(b)
(c)
Webster
v.
He
Webster, 2 P.
Wms.
347.
Digitized
by Microsoft
in
"^ S'ft
creating joint
tenancy, or to
'^^^
^'
406
who may-
in case of
deyise or
bequest to
child or issue.
effect, in
devisee or legatee
testator's death.(/)
happened
had
who
testator's
The
The
through
its
commonly
is
called
'
ademption.'
(d) See for the rules as to gifts to a class, Hawkins, Wills, ch. 7 2 Jarman,
Wills, 154 et seq,
Viner v. Francis, 2 Cox 190; S.C., and notes thereto,
Tudor L. C. K. P. 798.
;
(e)
S. 32.
(/) S. 33.
(f/)
Johnson
y.
Johnson, 3 Have
157
In re
Ileiisler,
19 Ch. D. 612, 51
L. j. Ch. 303.
Cheyne, 2 K.
(7j)
JEccles V.
(i)
Griffiths V.
& J.
G76.
W.
Hohjland
E, 443
v.
disapproving Frene
v.
5.-!
Clement, 18
Digitized
by Microsoft
407
ALIENATION BY WILL.
Thus,
if
testator
(l)
destroyed
or
if
tlie
a cliattel
hold house, the testator took a new lease of the same house,
the bequest was adeemed because the renewed lease was an
;
by the
will.
And
so,
if,
upon the
(/)
Weeding
v.
Weeding,
&
J.
ibid.
H. 424
;
it
was intended
is
to pass
completed
(m) Ashhurner V. Maguire, 2 Bro. 0. C. 108; S.C., and notes thereto, 2 Lead.
Cas. Eq. 246 et seq.
{n) Ibid.
(o) S. 23.
(p) S.
24
ante, p. 387.
350, 42 L. T. 556, 28
See Boyes
W. R. 754
v.
Airey
Digitized
v.
by Microsoft
J.
Ch.
408
LANii.
making
the will.(2)
Modes of
Revocation of Wills.
(vii.)
will or codicil
may
made on
be revoked
in
the
The marriage
(a)
in exercise of a
to the heir,
testator or testatrix.(s)
subsequent
(p)
will or codicil
;
is
may
will
also be
codicil,
deemed part
But
as a codicil
terms.
will further
than
And though
a will, or last
is
will,
yet
if it
its
as a codicil
that
is,
destruction
ardmo
revocandi.
(-y)
will
it
will
will.(^()
may be revoked by
executed in
writing
will,
and declaring
(r)
ch. 6
As
;
to
modes
Burton,
261
t.
38,
&
circumstances.
iy)
508
(,x)
(s.
S. 20.
Lemaije
In
v.
h. I'ctchell,
S. 20.
Digitized
by Microsoft
409
ALIENATION BY WILL.
with the intention of revoking it, it is therebyrevoked according]y.(?/) But the destruction of the will, not
animo rcvocandi, will not be deemed a revocation and, in such
direction,
case, the
evidence
contents of
(z)
though
the
will
may be proved by
other
On
trary.(rt,)
the
destroying
it
will not
Although a
by the
actually
be a revocation. (&)
codicil is
will,
As to what is a
Jarman, Wills, 139 et
(y) S. 20.
cited in 1
(a) Ibid. ;
E..
James
v.
cases
seq.
Shrimpton,
1 P.
D.
1,54,
45 L. J. P. D.
P. D, 431, 45 L. J. P. D.
&
&
A, 49, 34
A. 85, 24
W.
740.
(b)
Cheese
v.
Lovejoy, 2 P. D. 251, 25
W, E.
453.
Blaeh
v. JohUncj,
&
Digitized
by Microsoft
^^^?^
will.
^I-
CHAPTER
V.
modes
of
alienation,
meaning and
classes of.
The
addition
to
and
depend for their efficacy upon special acts of the Legislature,
or upon acts of legal tribunals, or of other public authorities.
These extraordinary modes of alienation include (i.) Private
Acts of Parliament (ii.) Transfers by the operation of judgments and orders of courts (iii.) Awards, &c., of the Board
of Agriculture (iv.) Charges and transfers under the Land
whicli are applicable under peculiar circumstances only,
re-
sorted
to.
(i).
Acts of Parliament.
Private
Special
Acts
are
Formerly,
for this
Where
able.
applic-
purpose
is
(ii-) Transfers
by the Operation of Judgments and
Vesting orders, Ax., tender Tncstces Ads.
Orders of Courts. (c)
The provisions of the Trustee Acts, 1850 and 1852, ((/) under
(a)
As
to private
Steph.
Comm,
21;
Burton, 482-485.
(b)
(c)
Conveyances by
&
"Will. 4, c. 74,
(d) 13
&
14 Vict.
c.
60, 15
Digitized
&
16 Vict.
c.
55.
by Microsoft
411
conveyance,
may
of convey ance.(f7)
Writ of Elegit.
As has been
Estate ae-
by a judgment
i"'"^^"! "y-
creditor,
writ. (A)
of
an incum-
make
sale.(i)
Charging Order for Improvements. A charge on the inherit- Under Agriance of land, under the Agricultural Holdings Act, 1883, for ?ult"ral Holdthe cost of improvements effected by the landlord, is created
by an order
of the
Order for Exemotion of Conveyanee, &e. By the Supreme Under JudicaCourt of Judicature Act, 1884, where any person neglects or. *"'-'^ '^<='' l^^*(e)
Ante,
{g) 15
189
p.
(h) 2 Cruise,
(i)
44
(Tc)
46
(7i;),
(/) 13
& 45
& 47
t.
ihid.
19.
41
Vict.
c.
Vict.
^. 61, x.
s. 5.
Digitized
by Microsoft
412
purposes available, as
if it
(iii.)
Board of
Agriculture.
it.(Z)
deeds,
Board
contracts,
shall
England. (?i)
Enfranchise-
ment and
extinguishment of
manorial
rights, by.
Inclosures,
exchanges, and
partitions by.
Awards,
&c.,
The enfranchisement of
now
confirmed
exchanges,
by the Board
or
Agriculture,
of
of
lands
all
subject
of
inclosures,
to
persons, as to
inclosure
all allot-
47
...
{m) 45
manorial
&
9 Vict.
c.
118
(the Inclosure
Digitized
by Microsoft
subsequent Acts
'
413
purposes.
Under Tithe
^'
certificate of
must be registered
in the Office of
Land
Iiegistry.()
(;)
(s)
(t)
(m)
See ante,
p. 161.
p. 286.
44
order
of
re.spect of
the
Court.
See
ante,
improvements of land,
70.
For other statutory charges in
p.
&c., see Elphinstone and Clark on Searches,
ch. 9.
Digitized
by Microsoft
Registration
of.
414
lease. (a)
(a) 38 & 39 Vict. u. 87, sa. 22, 29, 34, 40
see also the Eules and Forms
under the Act. As to registration of title under this Act, see ante, p. 315.
;
Digitized
by Microsoft
CHAPTER
VI.
SUCCESSION ON INTESTACY.
As
property,
sonal pro-
guccessfon
intestacy,
under the
Sect.
latter
transmission on
What
interests fall
stated. (5)
estate
'
'
descend upon, or to be
to
'
'
it.
Descent
<^^'i8'J-
'
An
inherited
'
an in'
heritance.'(c)
On
of,
or entitled
pur
whether
to,
tail,
an estate
(o)
See ante, p.
(6)
(c)
2 Bl.
Comm.
5.
10, 11.
201
3 Cruise,
Digitized
t.
29,
c.
2, p. 1.
by Microsoft
Leading rule
or for an ^^f^'
*<>
416
of,
such estate or
Kxceptions,
31st
December 1881)
in
representative,
personal
belong
estate
to
the
intestate's
widow
abso-
l-atelj.(g)
Charge of
widow under
Intestates'
Estates Act,
1890.
such an intestate as above mentioned exceeds 500, his wido^^shall be entitled to 500, part thereof absolutely and exclusively, in addition to her interest in the residue of such
real and personal estate, and shall have a charge upon the
whole of such real and personal estate for that sum, with
interest from the death of the intestate at the rate of 1 per
cent, per annum until payment and, as between the real and
;
is to be
borne and paid in proportion to the values of the real and
The
{d}
Wms.
(e)
&
54 Vict.
(fj)
53
(/()
Ss. 2-4.
Digitized
u.
29,
s. 1.
by Microsoft
p.
may be
SW.
subject to
i^7
SUCCESSION ON INTESTACY.
the interest of a widow (independently of the above Act), or widow or
widower of the deceased, in the lands of the latter. Under J^J^^H^
the law as altered by modem statutes, these interests are, in
effect, rights of succession on intestacy.
It is convenient,
Heir-at-law.
The
heir-at-law
is
among
from
whom
intestate,
the succession
is
traced,
The
^"'"^*"
**"
is,
presently stated.
Definition of
relationship
must be the
result of
Relations of
l"^lf '^lo<'<i-
collateral relations.
title
by descent cannot
the
Title
by
by descent cannot
the maxim nemo est heres viventis. A person on whom an of tlie intes'^*^"
estate will descend, in case he survive the present owner and
the latter die intestate as an eldest, or only, son is called
an heir apparent.' A person on whom the estate would Heir apparent,
descend in that event, should the present owner die immediately, but whose chance of succession is liable to be
defeated by the birth of another person as a brother, whose
possibility of succession is liable to be destroyed by the birth
person from
whom
the descent
is
traced
a rule expressed
'
(i)
As
(h)
Birtwhisth
(I)
Litt. 8s. 6, 7, 8.
Chapter VII.
Vardill, 2 CI.
&
of this part.
F. 571.
Comm.
227.
Digitized
by Microsoft
418
cliild
or a daughter,
Heir presump-
Posthumous
tive.'(o)
'
teir.
and
profits
Amendment
of
byX^nhlrit- <3escent
ance Act,
'Purchaser.'
(i.)
As
to
the
is traced.
The
purchaser,' as defined
'
by the
who
Act.(s)
last acquired
partition, or inclosure,
become part
&4
by the
3 Cruise,
on Descents, oh.
Will. 4,
effect of
or descendible in the
Comm. 208
(o) 2 Bl.
(p) Wailiins
iq) 3
of,
c.
106,
'
4.
t.
29,
3, s, 2.
cli.
An Act for
Amendment
tlie
p. 135,
of tUe
note {).
Law
of Inherit-
ance.'
(r)
For the
on Descents, ch.
Comm. oh.
2.
(i)
S. 1.
Digitized
by Microsoft
419
SUCCESSION ON INTESTACY.
have been
to
tlie
purchaser, unless
Thus,
inherited. (m)
if
it
be proved that he
who can-
The Inheritance Act contains other provisions as to the Persons accharacter in which a person shall be deemed, in certain cases, g"^'^ ikoitato acquire the inheritance.
under a
tious to be
who
^jjg^^yg/"^
"
the heir took as heir, and not as devisee. () The Act also
enacts, that under a limitation of land, hj any assurance, to
the person who has thereby conveyed the land, or to his
heirs, such person shall be considered to have acquired the
land as purchaser, by virtue of such assurance, and not to
be entitled thereto as his former estate, or part thereof (a)
as he would have been at common law.(&) It also enacts,
in effect, that where a person acquires land by purchase,
() S. 2.
33
W.
In
re Douglas, 28 Ch. D.
.327,
hi L.
{x) 3 Cruise,
R. 890.
t.
J.
29, ch. 5,
s. 2.
Qua;re, wlietber the Act applies where the heir disclaims all
(j/)
Bicldey v. BicJcley, L. E,. 4 E(j. 216.
interest under the will and talies as heir
S.
3-
2 Bl.
(s)
Oomm.
242.
(a) S. 3.
'
(c)
S. 4.
Iloore
V.
Digitized
by Microsoft
420
descent
to be traced
from person
last entitled.
ancestor's heirs
the person
last entitled to
Thus,
heirs.
the
if
if
but no other blood relation, and the son die intestate, and without leaving issue, his mother, or (if she be dead)
a blood relation of the son on his mother's side, may, under
son,
who
persons
have inherited
who
has acquired by
Similarly, if a person,
side,
side,
Order
of suc-
cession
generally.
These rules
for Ascertainment of the Heir.
different
relations
by blood
which
the
prescribe the order in
(ii.)
JRuIes
whom
the descent
With respect
to inherit.
is
special
customs of descent
may be stated,
to whom the
estate tail
being
noticed
hereafter
it
succession
inherit
is
and
that, in the
latter case, in
ancestors,
who, however,
of the father
relations, (c)
succeed in default
The
rules in question
side,
Descent to
and
(a)
(d) 22
his mother.
Where
&
23 Vict.
c.
s.
whom
the
19.
Prior to the Inheritance Act, ancestors of the person from whom the
descent was traced, were entirely excluded from the succession.
See Litt. s. 3
2 Bl. Comm. 208.
(e)
;,
Digitized
by Microsoft
421
SUCCESSION ON INTESTACY.
descent
traced would,
is
(if
if living, be the heir, Ids heir lineallyany) represents him, and is heir in his
application
(/3)
from
be a
whom
the descent
is
it
the purchaser), and a brother of the half blood (by the same
by a different wife of the father), the purchaser's
father, but
brother.^If all
male paternal ancestors, and their respective descendants,
have failed, the estate descends on female paternal ancestors
and their respective descendants, according to the rules applicable to male ancestors and their heirs save that the mother
of a more remote male paternal ancestor, or her descendants,
is preferred to the mother of a less remote male paternal
;
ancestor,
her
or
descendants.(/i;)
Comm. 217
Burton,
The
issue
of
female
315.
one of two coparceners die intestate, leaving a son, her share will
devolve on her son as heir, by the above rule of representation. See Wms.
R. P. Appendix B.
ig) If
(A)
As
&
((')
3
4 Will. 4, u. 106, ss. 6, 7, 9 ; 1 Steph. Comm. p. 402. As to exclusion of the half blood under the law prior to this Act, see supra, p. 417.
_
{k) 3
line of
& 4 Will.
descent
4, c. 106, ss. 7, 8.
may
Digitized
by Microsoft
(/S)
Descent to
l^vT^^l th^'"
issue.
422
whom
(7) Descent to
^storrand"
their issue.
the descent
issue, or paternal
be no person entitled as
(y) If there
whom
the descent
from
be a
maternal ancestors and their
is
descends to
fee simple)
from
traced. (Z)
is
his
as
it
apply to paternal
subject, however, to
may
of descent that
The
is
title
of
borough
English inheritances.
it
ceases to be
The general
by the
(1) Hence, the Inheritance Act provides that the place of succession of a relation of the half blood, shall be next after any relation in the same degree of the
whole blood, where the common ancestor shall be a male, and next after the
'
common
&
4 Will.
() Burton,
165, 30
ancestor,
(m) 3
W.
106,
4, c.
1307
&
s. 9.
4 Will.
4, c.
106,
e.
5e &mart,
18 Ch. D.
R. 43.
Qj) 2 Bl.
&
see 3
shall be a female,'
ss. 6, 7, 8.
Comm.
5 Vict.
(2)
(r)
Ante,
p. 25.
(s)
Ante,
p.
25
quousque
in
371.
35,
s.
79
Litt.
s.
165.
c.
But
Digitized
15
&
16 Vict.
by Microsoft
c.
51,
s.
34;
423
SUCCESSION ON INTESTACY.
Sect. II.
Estate.
of Administrator. On the death of a person intesthe right of administering his personal estate is granted
by the Probate Division of the High Court of Justice, to some
person, who, by virtue of such grant, becomes the legal
personal representative of the deceased.(<) Until letters of
OflEice
tate,
Grant of
^."^iiiinistra-
sonal estate
intestacy,
'
personal
estate vests in
administration
is
is called)
The
;
but if the deceased was a
married woman, it is granted to her husband. If none of the
persons thus entitled will obtain a grant of administration, a
creditor
may do
so.(ic)
must
Distribution of
pg^ggnaltv
tribution. (&)
Rules of Succession.
(0 Burton,
(u)
.;.
B.
19.
(y)
As
(z)
to
Wms.
the residue of an
957.
&22 Vict.
See 1 Wms. Exors.
21
The succession to
p.
As
to the
appointment of an
393.
1, ch. 1.
As
to
which see
ante, p. 391.
(J) Shares in the residue of the personal estate of an intestate are subject to
legacy duty, in all cases where legacies are so subject. As to legacy duty, see
ante, p. 394, note (A).
Digitized
by Microsoft
Statutes of
Distribution
THE LAW OF PROPEETY
424
of Charles II.
and James
commonly
II.,
LAND.
IN
married
woman.
is
distributable as follows
estate,
if it
The
Eights of
children or
remoter issue.
died in his lifetime, take twothirds of the residue, if there be a widow and, otherwise,
the whole. If there be children, and no issue of a deceased
child, the children are entitled in equal shares {per capita).
any
of
child
But
if
(c)
22
&
23 Car.
2, c.
3,
=.
25)
Jac.
2, c. 17.
u. 3, .
25
1, s. 1,
mi post,
(/) ^'^^ estates of freemen of the City of London, and of persons Iiaving
their residence within the archicpiscopal province of York, or in some parts of
Wales, were formerly subject, in case of intestacy, to peculiar customs of
distribution, which were not affected by the Statutes of Distribution ; but these
stat.
19
&
20 Vict.
u.
1)4.
See
Wms.
pt. 3, ch. 4, s. 2.
See ante,
p. 416.
22
(A)
&
23 Gar.
2, c. 10, s.
Digitized
by Microsoft
425
SUCCESSION ON INTESTACY.
If the intestate has, in his lifetime, made any settlement of
land on, or advancement of a portion to, any child other than
Advancement,
shares of
all
of
1890.(7ft)
brother or
sister, of
but not
other-
wise, (o)
If the
intestate
leave no
by the
relations, in
equal
her rights,
if
Be-
be
to
{I)
cli.
'
Blackborough
v.
Davis,
P.
Wms.
41
Wms.
Exors.
pt. 3,
hk. 4,
1, 8. 4.
Wms.
Wms.
344.
(o)
Wms.
Exors. supra;
p.
416.
Jac.
2, c. 17, s.
Comm.
Digitized
Keyloiay
515, 516
Burton,
by Microsoft
v.
Keylway, 2 P.
1403.
of kin.
"l-^fj
uncle or aunt,
who
is
IN LAND.
who
is
in the
fourth degree
for,
progenitor. (2)
No
preference
efcTr^'^^'r
whole'blood.
[q)
(r)
22
&
Wms.
Watson,
23 Car.
2, u. 10, ss. 6, 7
Exors. supra;
M.
& K.
Moor
t.
Burton,
Barham,
665.
Digitized
by Microsoft
1408
cited
(n.)
1
P.
CHAPTER
VII.
statutes, the rules of the common law and equity Law hereon
respecting the acquisition of rights of property through ^'^^^^^''^
some
extent,
by the
earlier law.
Sect.
I.
Restrictions on
man
real
The
subject
is
statutes.
here con-
husband;
wife.
At common
"S'^*^-
common
law,
first,
their application
may be
limited
by the
by the
is subject, also, to
Act,
if
modifications by
Women's Property
by the
last
Act, 1882
mentioned
will,
Digitized
therefore, be considered
by Microsoft
Restrictions,
428
Arrangement
f subject.
(i.)
rules of equity
common
(ii.)
Different
rights.
Husband's Eights at Common Law, and by anaEules of Equity. Eeal estate, chattels real, and
(ii.)
logous
money
husband.
Estate during
joint lives.
In Real
Estate.
As
life,
is
and
belonging
by her during
In legaL language, the husband and wife
continuance.
its
are said to be
'
and may
; '
lives,
Estate by tbe
curtesy.
life (i.e.,
is
(&) of
freehold tenure, of
common,
rent-charge,
oh. 2,
(c)
a.
may
(cT)
pro-
JRohertson v. Kvrris,
ih)
tillie
alive,
and
t.
5,
16.
See OihUns
Eager
v.
649.
(d) Co. Litt.
(c)
inheriting
186a
2 Cruise,
t.
The husband
Bh Comm.
will not
128.
Digitized
by Microsoft
429
is
is
an
called
by the curtesy
estate
'
till
of England.'(/')
nevertheless,
that event, he can convey only for the joint lives of himself
and
his wife.(^)
The
estate by the curtesy does not extend to land of copyhold tenure, unless by special custom of the manor. Where
.
it
obtains,
Curtesy in
it is
'y
opylil.<i^
by special
custom,
,1
jT,
r!
vo n\
c
01 leasing thereby given to tenants tor liie.(/)
A
J
And
a /
tenant
,
Settled Estates
Act, 1877, and
Land
Settled
alienate his wife's real estate to the extent only of his interest
^^
''"?''*'?'^
by the
life
it
(Z)
Burton, 1311
&
5 Vict.
0.
Co. Litt. 30 a
40
35,
;
s.
79
15
&
Comm.
2 Bl.
(m) 45
Burton,
350.
46
s.
58
16 Vict.
c.
51,
s.
34
2 Wiitk.
Cop. 75.
128.
Digitized
by Microsoft
{n) S. 61 (3).
Mortgage by
?"f
wite ot wire
realty,
s-
430
husband and
the land.(o)
all interest in
Absolute
terest,
In
in-
except
as to testa-
his heirs
it is
Chattels Real.
As regards an
the coverture,
the
mentary
marriage,
alienation.
or
And
if
be such that
it
Absolute interest, if
reduced into
possession.
interests, of
The husband
entitled to reduce
is
it
But
if
he die in her
lifetime,
lie
Reversionary
personalty.
(0)
See JItttitiHf/don
v.
VA\.
Bracebridcje
D. C20, 53 L,
((/)
DulerUy
M,
211
W.
II.
Bank of
where
l(j
Beav.
it is
S.C.,
subject to
and notes
tliereto,
4(i
:M.
\. Doij,
is,
lliniliiujdon, 2 Bro. P. C. 1
Thiirxmi v.
Coult,
v.
that
3:!,
Litt.
W.
351a; In
re Bellamy,
'i:>
R. 358.
Davidson,
Conv. 219.
Cii.
Litt.
]io3srssion,
Digitized
by Microsoft
431
it,
And
defeat
the husband,
it
so as to
so,
v?here
land
is
by
money
husband
to receive
it
woman
absolutely, she
as personalty,(i!)
may,
entitle
subject
jon,^ion^
her
Equitable
i-<^s'"'="^-
By the
rules of equity,
where a
'
can be operative
(i/)
is
the trust
Women's Property
in any
Act, 1882,
the time of
its creation,
same right
equitable interest, as
much
(s)
woman
Franks
v.
alienation, &c.,
in the
But, inas-
merely to secure to a
R. 1158.
(<)
See ante,
(it)
Oldham
48 L.
if
married
lew.
and enjoyment,
of use
p. 75.
v. Hufilies,
J. Ch. 382,
27
W.
v.
(x) As to what words will suffice for this purpose, see Lewiu, 756 ; notes to
Sidme V. Tenant, 1 Lead. Gas. Eq. 536.
[y] As to which, see ante, p. 427, &nipost, p. 434.
S.C, and notes thereto, 1 Lead. Cas.
{z) See Hvlme v. Tenant, 1 Bro. C. 0. 16
;
Digitized
by Microsoft
Effect of.
;;
432
entitled, as
to say,
is
absolute
How
created.
either as a provision
the
use.
woman
herself,
In the
husband
constructively a
is
trustee for the wife, to the extent of the estate that vests in
him
Where
arises.
it
at
common
law.(c)
By other rules
JEquity to a SettUjnent.
common law
of equity, a husband's
under
some circumstances, to her equity to a settlement.' Wherea husband cannot recover, otherwise than by action, an
interest to which he is entitled in his marital right, the
rights in his wife's estate are subject,
'
is
(if
any) in
if
whom
the
the subject
of any party, will grant the husband relief upon the terms
only of his
his wife
making a
and any
by settlement,
suitable provision,
for
(c)
Digitized
by Microsoft
433
and it may be
husband himself, but also, in
general, against persons claiming under him
as a trustee
under his bankruptcy, or a person to whom he has assigned
the interest, even though for valuable consideration. (/) The
portion to be settled is fixed by the Court in its discretion, What
portion
and,
under special circumstances as where the husband has abandoned the wife, or is not in a position to maintain her, and
the subject of the claim is not more than sufficient for her
maintenance the whole may be settled. (,9')
Protection
Matrimonial
(iii.)
first
Divorce atd
''"^^^
*"
then, or
is at
reversion
{/) Lewin, 742. An exception has been made in favour of a purchaser for
value of the wife's life interest, unless the husband has deserted the wife (Lewin,
742) ; but she is entitled to a settlement, even of a life interest, as against the
Tauntony. Morris, 8 Ch. D.453, 11 Ch. D
husband's trustee in bankruptcy
779, 27 W. E. 718, 48 L. J. Ch. 408.
:
&
2 E
Digitized
by Microsoft
Property
ot
wife judicially
separated.
43 i
tlie
rate. (^)
By
Married
Women's
Property Act,
1870.
the Married
Women's Property
woman, gained
August
These
become
Provisions of
the Act as to
separate
property.
may have
(i) That this enactment does not apply to property to which the wife
was
entitled in possession at the date of the decree, see Waite v. Morland, 38
Ch. D. 135, 57 L.
J.
[D 20 &
21 Vict. c. 85, s. 25
55 L. J. Ch. 437, 54 L. T. 470,
(I)
33
&
34 Vict.
(n)
c.
Jn re
93.
See Ashicorth
W. E. 896.
(m) S. 1.
L. T. 85, 25
34 W.
v.
W.
E. 565.
It has heen decided that the separate use created by this provision extends only to rents and profits which may come to a married woman,
so as to be personally enjoyed by her and not to the inheritance
Johnson
(o)
Ibid.
V.
45
&
46 Vict.
c.
75,
Digitized
s.
22.
by Microsoft
435
sole,
commencement
title to
which
whether vested
-accrues (s)
after the
made
The
effect of
woman
it
inter
(j)
S. 1 (1).
S. 2.
W.
(<)
S. 5.
(u) S. 19.
[x)
See post,
-p.
482.
Lewin, 751
Digitized
by Microsoft
effect
on
"^'^'t^i^S''''^-
436
entitled,
estate. (0)
before
as
And
not clear) he
Sect.
Dower, and
rights on in-
testacy of
husband.
II.
the right
is
'
'
is virtually
estate,
Dower
Its nature.
at
Common
'
which (if it
on her husband's death, in one-third part in value
of the lands and tenements (d) of freehold tenure, of which he
was seised in fact, or in law, at the time of the marriage, or
subsequently during the coverture, for a legal estate in fee
for life to
entitled,
simple or fee
for years),
(j/)
(a)
L. T.
()
tail,
and
in severalty or as tenant in
common
(not
J. Ch. 927,
59
Elphinstone,
Conv. 270; Wolstenholme & Turner, Conv. Acts, 184 (5tU ed.); Solrs.
See also pos, p. 481.
vol. xxxiii. p. 394.
t.
as-
&
4 Will.
4. u. 105.
(b)
(c)
6 ch.
Digitized
by Microsoft
Jl.
(s).
tithe rent-charge
Cruise,
437
and
might possibly
inherit. ()
her issue,
wliicli
any,
by the husband,
The
In gavelkind
Under the law prior to the above Act, the right to dower None in equitable estates
does not extend to the husband's equitable estates (/i) nor
to land which, though real estate at law, is personalty in
;
equity
The
Act,
is
trade.('i)
Not defeated
VIVOS or
,.,,,.
by will for
she
may compel
alienation, or
debts,
husband's death, to assign her dower. Hence, her concurrence in her husband's alienation is necessary to extinguish
her right to dower. And her right is paramount to claims on
the land in respect of her husband's debts.(/j)
Jointure.
The right to dower may, however, be barred by Dower may
^^''^^^ ^^^
the wife's acceptance of a jointure,' in lieu of dower.
jointure was originally a provision made for the wife, in
cases where the husband's estate was a use, or equitable
'
(e)
Go. Litt. 31 a
2 Bl.
Comm.
129
Cruise,
t.
6,
oh. 1
Burton,
349.
s.
((/)
(/j)
(i)
Burton, 349.
Ihid. 1363.
PUlliiis
V.
Phillips, 1 JI.
&
K. 649.
Burton,
'
p.
146.
Digitized
by Microsoft
te
438
'
all
legal jointure.'
'
'
way
of rent-charge.Q?)
In order to prevent the inconvenient right of dower from attaching, under the law prior tothe Dower Act, conveyances of legal estates of inheritance
Limitations
In couTeyances.
to
Bar
Doiver.
all
had
not,
technically,
To
alienee
and
another
jointly.
Uses
to bar
dower.
'
[n] 27
Hen.
8,
<..
{p)
iii
pt. 1
Digitized
et seq.
by Microsoft
Temp, Talb.
17G, S.C,
and
439
By
the
Dower
Under
1834,
its
is
provisions, a
woman married
by
will
(?)
and
absolutely,
of
and
in
his
lifetime
interests, charges,
is subject,
are
made by deed
January
any lands which
dower out of
not entitled to
*"*> -^^
any land to
which such declaration extends. Her rights are subject to
any terms imposed by the husband's will.(i;) And if he
devise to her, or for her benefit, any estate or interest in
land out of which she would otherwise be dowable, she is
not entitled to dower out of any of his land, unless the contrary be declared by his will.(it)
In some respects, however, the widow's rights are extended
by the Act for it gives her a right, in equity, to dower out
of land to which the husband was beneficially entitled for an
such
interest that would not entitle her to dower at law
interest, whether wholly equitable, or partly legal and partly
entitled to dower, will exclude her right thereto in
(?)
Fearne, C. R. 347.
(r)
& 4 Will.
4, 0. 105, s.
Lacey
v.
Hill, L. E. 19
215.
(s) But, notwithstanding this provision, and the statute 3 & 4 Will. 4, c. 104,
the right to dower has siill priority over oidinaiy creditors of the deceased
husband Sjfytr v. Hyatt, 20 Beav. 621. This distinguishes it Irora the mere
right of fcuccebsion on intestacy.
:
(i)
Ss. 6, 7, 8.
Digitized
by Microsoft
Dower extended to
estates
&c.
440
LAND.
IN
of land in
arrears recoverable
statute to
The power
is,
Freebench.
In copyholds.
The right
to
custom
dower, obtains
which
a
special
in
'
is
But, by a
tenure.
existing
Dower
Act, 1833,
is,
in general,
life estate,
a certain portion
In general,
it
the land,
{x) S. 2.
(y)
ment
[z]
Wms.
127
t.
see
6, ch.
Boinr
3
v.
(6)
(c)
(d)
See
(a)
Cruise,
1.
10, ch. 3,
1 Cruise,
1.
s.
Digitized
J.
Cb. 215.
26.
22-48
Burton, 1311.
by Microsoft
v.
Bradijl, 1 P.
R. 1013.
W.
44]
(e)
&5
Vict.
c.
35,
=.
79
15
&
16 Vict.
Digitized
u.
51,
a.
34
by Microsoft
Watk. Cop.
69.
CHAPTER
VIII.
AND PRESCRIPTION.
Under
Operation of
Limitation! and
Prescription,
nguis e
.
some
Section
Old law of
limitation.
I.
Statutes of Limitation.
32 Hen.
Digitized
113 a-114 b
8, c. 2
2 Bl.
21 Jao.
Comm. 263
1, c.
by Microsoft
16.
et itq.
1^43
of entry
simplified.(c)
Crown)
to in this
Their
Operation.
The
g^^w
interests
all
^^^
other corporeal
all
out
land. (A)
of,
Where
which another
(i)
and
(if
them
necessary) to enforce
as
by the
at
expiration
in
effect,
&
of
that
transferred
Will. 4,
c.
27.
(d)
37
c.
67.
(e)
c.
27,
(a)
(/)
time,
& 38 Vict.
& 4 Will. 4,
to
entirely
s.
extinguished
&
Bosanquet,
pf. 5,
l-.
the
being,
person in possession
the
See Darby
is,
of
the
1.
1.
S. 30.
{(j)
37
(/<)
(i) The possession of one coparcener, joint tenant, or tenant in common, is not,
under the Statutes of i/imitation, the possession ot any other nor is the posession of a relation of the heir deemed the heir's possession, 3 & 4 Will. 4, c. 27,
Jie Mobbs, Hobbs v. Wade, 36 Ch. D. 553, 57 U. J. Ch. 184, 58 L. T.
88. 12, 13.
That the statutes do not apply vrhere the possessor is the
9, 36 W. E. 445.
claimant's agent, see Lyell v. Kennedy, 14 App. Ca. 437, reversing C. A. 18
Q. B. D. 796.
;
Digitized
by Microsoft
Effect of the
Statutes,
^^4
Periods of Limitation.
The
(i.)
may
land;
in
(ii.)
advowsons;
payable out
Action
for
recovery
of.
judgment;
rents,
(iv.)
monies
(iii.)
or
lien,
of,
land.
(i-)
by him was
an estate in reversion or
remainder, or other future estate, and the person last entitled
to any particular estate, on which such future estate was
expectant, was not in possession of the land at the time when
his interest determined, then within twelve years next after
estate claimed
originally
the time when the right to recover the land first accrued to
the person whose interest has so determined, or within six
years next after the time when the estate of the claimant has
whichever
of those
two periods
shall
&
4 Will.
4, c. 27. s.
34
& War.
388
Dawldns
304, 39 L. T. 583,
27 W. E. 173 ; Trustees' and A/jency Com^Jany v. Short, 13 App. Ca.s. 793,
58 L. J. P. C. 4, 59 L. T. 677, 37 AV. K. 433. The effect of the statutes
as respects rights to land is different from the operation of Statutes of Limitation
barring rights under contracts for, as respects the latter, the remedy only is
()h) 3
4 Will. 4, c. 27, ss. 33, 34.
barred.
_
&
An
{p) 37
&
38 Vict.
c.
57,
s.
2.
Digitized
by Microsoft
445
at Extension
or
in
ability,
whom
of infancy, coverture,(2')
under
to be
disability, or
provided
the
after
the
time
action
at
be
which
the
right
bring
to
it
first
accrued, (r)
A special provision,
is
land
may
Provision as to
^oJ.jLtree
money
or interest secured
may have
Under
the land
first
accrued, (s)
the date
of,
Where
{q)
(r)
37
&
stituted,
by
tail to
recover possession of
The periods of six and thirty years are subc. 57, ss. 3, 5.
this Act, for ten and forty years respectively, allowed by the earlier
38 Vict.
Act. The later Act also deprives a claimant of a similar extension of time, preIf the claimant
viously allowed, on the ground of his absence beyond seas, s. 4.
die under disability, no further extension of time is allowed on the ground of the
4 Will. 4, c. 27, s. 18.
disability of any other person, 3
&
(s) 7
(t)
51 L.
(m)
W. 4 &
1 Vict. u. 28.
math
V.
v.
Ashhernj, 18 Uh.
Puc/h, 6 Q. B. D. 345, 7
Digitized
by Microsoft
After fore'=1"^" ^
mortgage.
446
Provisions as
to estates tail.
land
IS extinffinsliecl
^
, ^
,
., ,
And
extinguished.
possession
a tenant in
if
of land, die
tail,
_.
entitled to recover
of the time
can recover the land, but within the period during which
tail might have done so, had he continued to
the tenant in
live, (a;)
Provisions as
to base fees.
Where
a tenant in
tail
has
made an
of,
the
an estate to
of,
As
at the expiration of
as against
accrues-
then,
is effectual
tail
(z) or,
in
to the time at
is
the estate
first
accrues (which,
it
will
be observed,
General rule.
Where
pos-
Where
(jS)
a person
(rr)
is
& 4 Will. 4,
c.
deemed
to
have
first
accrued either at
Aberqavennyv. Brace, L. R.
20 W. E. 462.
(t/)
See ante,
p. 127.
(2)
37
&
38 Vict.
&4
Will. 4,
27,
this rule, see supra, p. 445.
(6)
c.
Digitized
ss. 3, 4, 6.
As
to
by Microsoft
c.
Morgan
J.
57,
s.
6.
Morgan, L. E. 10
33 L.T. 158.
v.
Ch. 674,
447
deemed
land, is
the
first
to
have
first
where he
^^j'''.
is
'^*'''
when any
received. ((Z)
(8)
Where
a person
is
^^tiar-'"
at
is
Where an acknowledgment
of the title of the person where acknowbeen given to him or his agent, in writing signed '^.'^s^'!'
by the person in possession, the possession of the latter is
deemed to have been the possession of the person to whom,
or to whose agent, the acknowledgment has been given, and
that person's right to recover the land is deemed to have first
accrued at the time when such acknowledgment (or the last
of such acknowledgments) was given. (/)
(f) In case of concealed fraud, the right to recover land of where conwhich the claimant, or any person through whom he claims, sealed fraud
has been deprived by such fraud, is deemed to have first
accrued at the time at which such fraud has been, or with
reasonable diligence might have been, discovered except as
(e)
entitled has
But no mortgagor or
See Day v. Day, L. K. 3 P. C. 751.
(c) Ihid. s. 7.
cestui gut trust is deemed to be a tenant at will, within the meaning of the
above provision, to the mortgagee or trustee, b. 7. But after payment of the
mortgage money, and before a reconveyance has been executed, the mortgagor
holds as the mortgagee's tenant at will within the statutes ; Bands to Tlujmpson,
22 Ch. D. 614.
(d) 3
(e)
& 4 Will.
Ibid.
s.
4, 0. 27, s. 8.
Williams
v. Pott,
L. E. 12 Eq. 149.
&
Digitized
by Microsoft
448
LAND.
IN
who had
not notice of
is
(rj)
Where
has
valuable consideration, the right of the cestui que trust to recover the land
is
deemed
have
to
first
This provision
for
it
rule that the right of the cestui que trust is lost as against a
purchaser
for
value without
who
notice,
has
the
legal
estate, (t)
Equitable
claims.
The Statutes
this rule did not apply to the claim of a cestui que trust
money charged on
tioned) of
With
land.(Z)
this exception,
by operation of law.(m)
is
own use
the defendant
statute of limitation as
is to
if
ceeding
is
And
money
for recovery of
if
is
&
W.
N. E. Sailway
&
4 Will.
(A)
(i)
Darby
(/c)
(J)
Co.,
4, c. 27, s.
& Bosanquet,
25.
342, 343
Lewin, 876.
See infra,
p. 450.
Digitized
by Microsoft
OPEEATIOfr OF
449
ETC.
latter's
Equitable rules
^
g^\uteg^*
(or, in
Provision as to
redeinptkin
effect,
unless the
Crown be
Enactments as
a rule ex-
(o)
son
V.
s.
In
re
Bowden, Andrew
v.
Lewin,
Cooper, 45 Cli. D.
i;.
30,
b. 1
Thom-
27 AV. E. 889.
(q)
Kinsman
v.
v.
Ratterson, 17
Ch. D. 132
s.
57
5 Cruise,
t.
s.
2.
2 F
Digitized
by Microsoft
50
<=laims
&c.
of
450
been limited to
first
sixty-
held, or
Advovjsons.
(ii.)
enforce riglit
to.
An action
an
tion to
all
or to
amount
to
Recovery
of.
(iii.)
Za-nd.
or Cliarge, Licn,{io) or
of,
Money
so secured cannot
be re-
covered but within twelve years next after the right to receive the
or
if,
acknowledgment of the right thereto has been given in writby the person by whom the same is payable or
ing, signed
Statute
extends to
^
mortgagor per-
ment.(2/)
And, since the 1st July 1879, no money or legacy,
charged upon, or payable out of, any land or rent, and
secured by an express trust, is recoverable, except within the
time within which the same would be recoverable, if there
were not any such trust, (s)
The above period of limitation extends to the remedy
against a mortgagor personally, on his covenant for payment
of the mortgage money, (a) as well as to any remedies
sonally.
(s)
9 Geo. 3,
(<)
&
(m)
Toft
{x)
Watson
598, 28
W.
^.
16
23
&
V.
Stephenson,
v.
,,.
D. M.
&
53
G.
&
24
25 Vicl.
c.
62.
28,
&
5 D. M.
&
G. 735.
E. 767.
&
38 Vict. c. 57,
Gas. 423, 61 L. T. 814.
{y) 37
24 Vict.
&
ts.
8; see
(z) 37
38 Vict. c. 57, s. 10
1047, 51 L. T. 226, 33 W. E. 27
11.
33AV.E.
215,
NewhouU
Hughes
v.
v. I'imith,
Coles,
27
Ch
1).
231, 53 L. J. Ch.
J.
Cb.
Digitized
by Microsoft
451
may be
money. (&)
Hents and other Periodical Sums Charged upon, or
(iv.)
PaycMe
Land.
oiit of,
Kecovery
of.
been men-
of,
land,
distress
and
may
'
...
'
(6) As to tlie remedy by foreclosure, wbich is a remedy to recover the land, and
therefore not within the above provision, see supra, p. 445.
&
4 Will.
(c)
See 3
(d)
Dean of Ely
Q. B. 328, 355
(e)
4, c. 27, . 1.
v. Bliss, 2
D. M.
& G.
459, 472
Doe
d.
Angell
v. Ancjell,
Commissioners of Irish
Church Temporalities
( f)
33, 95
((/)
Grant y. Ellis, 9 M.
Sag. V. & P. 477.
&4
Will. 4,
c.
27,
&W.
s.
113
42.
Digitized
by Microsoft
& Lef.
452
remedy by
under a
lease.(7i)
rurtherlimitar
and ty Tithe
Act, 1891.
The remedy by
distress
is,
sum became
at
which the
payable. (/)
PEESCEiPTioN.(m)
Common Law. The common
Sect. II.
Ecciuisites for.
Prescription at
law as to
by an owner of land and precedingowners thereof, as incident to the land, or by a person and
his ancestors,(o) for a period extending as far back as that
actual or presumed,
(7i)
Woodfall, 454.
&
The
statute 3
4 Will. 4, u. 42, o. 3, under which twenty years' arrears of
rent are recoverable on a covenant for its paynaent, in a lease made by deed
Quare, whether s. 42 of
and six years' arrears if there be no such covenant.
4 Will. 4, c. 27, limits the remedy by action for recovery of arrears
the statute 3
of rent-charge, or interest under a mortgage, to six years.
(i)
&
{k)
{I)
46&47
54 Vict.
Vict.
u.
u. 8, a.
61,
10
b.
44.
(2).
(m) As to the nature of prescription, see ante, p. 442. It may be here added
that prescription differs from custom, in that it is a personal right claimed by
one or more individuals while custom is a local usage, 2 Bl. Comm. 263.
;
of an estate in land,
a prescription in a que estate. It is applicable only to rights appendant or appurtenant to land, and at common law it must be laid in the person
who has the fee simple, 3 Cruise, t. 31, ch. 1, ss. 8, 9. But a claim by prescription
under the Prescription Act, 2 & 3 Will. 4, o. 71, need not be made in right of the
(o)
is called
owner
of the fee,
s.
5.
Digitized
by Microsoft
memory
Eichard
I.
that
(a.d.
is,
to the
1189).(p)
453
com-
luencement of the right since that date defeats a claim byprescription, at common law; but, in the absence of such
evidence, if uninterrupted enjoyment for a period of twenty
years can be shown, such enjoyment will be presumed to
have existed from time immemorial, so as to sustain the pre{q) or it may be presumed, for that purpose, that
the right was created by an express grant, the evidence of
which has been lost.(r)
scription
The Prescription Act, 1832. This Act was passed for Its appli'^^*'shortening the time of prescription in certain cases '(s)
namely, with respect to (i.) rights of common, or other
'
'
profits or benefits
tithes, rent,
and
and
for
claim, (i!)
(i-)
As
Act
to rights of
provides,' that
.
common, &c.
where such a
,
it
(p)
Litt.
(2)
a.
W.
s.
170
Act.(a;)
V. Jolife, 2
B.
&
G. 64
see :Bryant
v.
Foote, L. K. 3 Q. B. 497, 16
B. 808.
(r)
Rep. R. P.
(s)
&3
(i)
Ss.
(tt)
51.
1, 2, 3,
Ss. 1,
Comm.
6.
Farlcer v. Ilitchell, 11 A.
& E.
788.
As by
&
Digitized
by Microsoft
Prescription by
^i"^'? orsixty
years enjoy-
ment.
454
feme
covert,
which any
pending and
be excluded in the computation
or tenant for
life
or during
But
it
Prescription
by twenty or
forty years' enjoyment.
common
except
that twenty years and forty years are the requisite periods of
and except
provided that,
3?resoriptioD
by twenty
years' enjoy-
ment.
Access of Light.
As
to the access
(as
above mentioned), the Act provides, that where the light has
been enjoyed, without interruption, for twenty years next
before the commencement of an action in which the claim
thereto is brought into question, the right to it shall be
the computation of the period thus provided for the acquisition of this right, there is no extension of time (as in the
iv) S. 7.
{z)
S. 1.
(a) S.
2..
&
(c)
S. 8.
section
33
W.
A remainderman is
dijmons
K. 875
ef.
Ss. 3, 4.
the other parts),
{d)
v.
not bound by
Digitized
it
I'errij v.
by Microsoft
Eames
Act
(as
it is
in
455
life,
The Act
interruption, unless
it
be submitted
to,
deemed an
\^^hat is
aa
interruption
year after the party interrupted had notice thereof, and of the
person making or authorizing the same.(/)
See
7.
s.
(/) As
what
v.
{g)
(Ji)
Ilayor of London
Onley
Earl De
W.
la
v. Feuoterers' Co., 2
Gardiner, 4 M.
& W.
Mood.
& Rob.
409.
v.
R. 809
55 L. T. 449.
;
Digitized
by Microsoft
CHAPTER
IX.
Present Acts,
Statutes.
in force
1890,(a)
had been passed at different times. (5) Respecting the latest of these, the Bankruptcy Act, 1869 (which
was repealed by the Bankruptcy Act, 1883, as from the
31st December 1882, except as above),(c)itmay be mentioned
to bankruptcy
that
it
by proceedings
by creditors,
by arrangement with
creditors, instituted by the debtor himself.
In either case,
however, the debtor's estate vested in a trustee, by whom it
was realized for the benefit of the creditors. (c^)
either
by proceedings
or
Keceiving
order.
in bankruptcy, instituted
for
liquidation
'
(ffl)
46
34
& 47
& 35
52
Vict.
0.
Hen.
8, c.
53
is
&
54 Vict.
c.
71.
&
5 Anne, o. 4 6 Geo. 4, o. 16 ;
7 ; 4
12
13 Vict. 0. 106 (the Bankruptcy Act, 1849) 24
25 Vict. c. 134 (the
Bankruptcy Act, 1861) ; 32
33 Vict. c. 71 (the Bankruptcy Act, 1869), &c.
(6)
13 Eliz.
c.
&
&
&
(c)
{d)
S. 169.
See 32
&
33 Viot.
c. 71, ss. 6,
125.
High Court
I.e.,
the
Digitized
by Microsoft
LAW OF BANKEUPTCY.
OPERATION OF THE
457
thereby. (^)
After the
making
is
not affected
is required by the Acts) a proposal for a composition of their claims, or a scheme of arrangement of the Scheme of
debtor's affairs, and the same is approved of by the Court, it ^^TaDgement.
may be
appointment
spection
'
by them
left
a committee
to the
'
committee of in-
who
may be
appointed by the creditors for the purpose of superintending the administration of the property by the trustee.
The property
transfer
and the
certificate of
((/)
S. 9.
As
(A)
Act
of 1883,
(j)
Act
to
of 1883,
who
s.
is
17
ss. 15,
s.
ts.
Act
18
of 1890,
Act
s. 2.
of 1890,
s. 3.
20;
20, 21, 22
Act
of 1890,
Digitized
s.
5.
by Microsoft
p.
462.
Adjudication
^ i^ankruptey.
458
may
from the
office in certain
events
be registered, enrolled,
may be removed
and a new trustee may be
or (upon their failure to do so) by
The
trustee
Property
included
Bankrupt's Estate.
in.
perty divisible
among
Under the Acts, the bankrupt's prohis creditors includes all such property
with persons dealing with him in good faith and for value,
whether with or without knowledge of the bankruptcy, in
respect of his property acquired after the bankruptcy, are
valid against the trustee in the bankruptcy, (p)
The property
Effect of
*^
to
owers^
divisible
creditors also
bankrupt
for his
own
benefit
The
title of
which
is
the
Act of 1883,
{p)
Cohen
(j)
Act of 1883,
(j-)
Be Jakeman's
v.
s.
44.
MitcheU, 25 Q. B. D. 262
s.
59 L.
J. C. L. 409,
38
W.
E. 551.
Se
Cooper, 27
44.
Trusts, 23 Ch. D. 344, 52 L. J. Ch. 363
W. K. 1015.
Digitized
by Microsoft
OPERATION OF THE
LAW
459
OF BANKRUPTCY.
Certain aliena-
Alienations
tions
f^^l^^^^^
similarly invalid,
consideration
of,
any settlement
marriage
not
nor in favour
of a purchaser or incumbrancer in
consideration
becomes bankrupt
()
Bee
a.
time of making
it,
able to
pay
all his
debts
Act of 1883, s. 43. Certain alienations &o., by the debtor are protected
As to what are acts of bankruptcy, see a. 4, and Act of 1890, s. 1.
49.
(m)
Act
of 1883,
s.
(1).
Digitized
by Microsoft
Voluntary
settlement,
460
any
contract, in considera-
>
1.
j,
on the contractor s
wife or children of money (a) or property wherein he had no
estate or interest at the date of his marriage (not being
01 marriage, tor the future settlement
''lon
money
or in right
of,
of,
bankruptcy before transfer or payment pursuant to the contract, be similarly void as against the trustee in the baniruptcy.(6)
As
to realiza-}
bankrupt's"^
estate.
bankrupt's property.
He may exercise any powers, the
capacity to exercise which is vested in the trustee.
He may
deal with any property to which the bankrupt is beneficially
entitled as tenant in
tail,
in the
same manner
as the
bankrupt
Where any
may
deal with
it
as
appoint
and
his appointee is to
as
the
be admitted
may
trustee
to, or
otherwise
{z) S. 47.
That a purchaser cannot be compelled to accept a title depending
on a settlement that may become invalid, under this enactment, in the event of
the settlor's bankraptcy see Ee Brujgs cO S;picer [1891], 2 Ch. 127.
:
This does not apply to a mere covenant for payment of money to the
trustees of a marriage settlement, Exparte Bishop, Me Tonnies, L. E,. 8 Ch.
App. 718, 21 W. R. 716, 28 L. T. 862.
(a)
T. 575
'Settle-
mem'
&
Digitized
by Microsoft
by the Act
OPERATION OF THE
may
divide
among
LAW
461
OF BANKEUPTCY.
perty-
reason of
of
its
any onerous
from
all
when
it
vested in
him
but
it
is
liabilities
of
rupt,
50
{d)
Act of 1883,
ss.
(c)
Act
of 1883,
s.
55
(1) (4),
(/)
Act
of 1883,
s.
55
(2).
(4),
57.
Act
of 1890,
s.
13.
(7t)
69 L.
J. C. L. 554,
88
W.
R. 744,
Digitized
by Microsoft
Vesting order
eia-^^a^pro.
perty.
462
to
fit
may
estates,
bankrupt, (/i;)
Rights of persons prejudiced
by disclaimer.
Any
deemed
'^
ruptcy. (/)
Trustee's
liability as
assignee of
lease.
which is not
under the foregoing power, he is
disclaimed by
the trustee
and covenants
thereof, unless
by operation of law,
and until he assign
exceptions,
prove for the whole of his claim ; or may have his security
valued, and prove for the balance
the trustee, in the last
;
case,
its
assessed
value. (2")
By order of
Court.
Discharge of Bankrupt.
(i)
(k)
As
to wbicli, see
Act
of 1883,
s.
Act
55
of 1890,
The Court
s.
13.
(l)
(6).
Act
Wilson
y.
{n)
As
(0)
Act
ip)
Act of 1883,
((/)
Act
to
of 1883,
ss. 40,
s.
42
Act
Digitized
of 1888,
v.
s.
rr. 9, 17.
by Microsoft
28.
s,
55
(7).
U. 473,
to the liability of an
Co(rper, 9 Q. B.
As
of 1890,
168.
of 1883, schedule 2,
Act
of 1883,
s.
37.
OPERATION OF THE
make an
rupt's application,
bankruptcy; or
may
grant
it
may
LAW
rupt
on,
is entitled to
him
463
OF BANKRUPTCY.
his
after
subject
to
may be annexed
The bank-
by, or devolving
any conditions
to the
order of
discharge. (s)
(r)
Act
of 1883,
s.
28
(2)
Act
of 1890,
b.
8.
Digitized
by Microsoft
Property aodischarge,
CHAPTER
X.
FOEFEITUEE.
Forfeiture
Definition.
Forfeiture
acquisition
by another,
defined.
some wrongful
Breach
of
condition-
is
tlie
forfeiture
may be
an estate in land
of
may
benefit
the
condition
is
imposed. (c)
And
forfeitures
for
that purpose, to
law, have long been obsolete ; (d) for such feudal observances,
would,
non-payment of
(a) 2 Bl.
(6)
(c)
H. L.
267.
{d) 2 Bl.
p.
Comm.
quit-rents. (c)
Comm. 152
ante, p.
46
and
see, as to
See Peacliy
t.
SomcrKet,
Digitized
1 Stra.
by Microsoft
G,
345.
(c)
iX.
4G5
FOEFEITUEE.
As has
also
pay
to
as,
(in
some
cases) to
Breaohes of
^
^opyii"^;}
tenants,
be admitted,
however, that
relief
may
payment
of fines, &c.
forfeiture
though, on
Under the
himself
is
a simoniacal transaction
next presentation
As
will hereafter
poration (which
is forfeited to
is
Alienation in
^'^ "'"''
the fee
empowered by
Former Causes of
alien, for
any
Forfeiture.
estate exceeding a
Alienation of land to an
term of twenty-one years,
granted for purposes of business or occupation, (/.;) was formerly a cause of forfeiture of the estate to the Crown.(/)
But, by the Naturalization Act, 1870, aliens were empowered
to acquire, hold, and dispose of real and personal estate of
every description, in the same manner in
all
respects
as
p. 33.
Sarday, 18 Ves. 56
Lord Hefton
(A) 31
1,
(i)
(/c)
{I)
(ra)
Beepost,
7
&
v^.
Bee,
Peachy
v.
Ltrrd Salishury, 7
Porter, 1 Ch. Ca. 95.
v.
12.
See
Fox
v.
v.
W. E.
v.
272
Co. Litt. 2
0.
b,
66,
42 b
c. 14, s.
s. 5.
;
Burton,
192.
2.
2 Q
Digitized
cf.
Cox
p. 498.
8 Vict.
33 Vict.
v.
by Microsoft
Aiienat lou to
^'j^"^-
Naturalization
^'^*' ^^''^
466
Attainder for
Alteration b
statute of
^'^'
IN
LAND.
^^^
hold tenure
Orown
;
foi'fei-
and attainder
was a cause
Orown. (m)
Crown
by a
whom
But
and escheats for
() 2 Bl.
(o)
Comm.
Cruise,
ip) 33
&
t.
10, ch. 5, o. 2.
34 Vict.
Digitized
u. 23, s. 1.
by Microsoft
Burton,
LSii.
CHAPTER XL
ESCHEAT.
Escheat
'^'^^'^ed.
estate has been held, through the death of the tenant intes-
and
tate,
by descent
or
Escheat to
'
j^J";yjjj,
Waiver,
will
is the person to
copyhold lands of the manor escheat. And on an
enfranchisement of copyholds since the passing of the Copyhold Act, 1887, the lord of the manor retains the same right
whom
of escheat as
if
For-
owner
and without
(a)
See ante,
(6) 3 Cruise
Vict.
(c)
(iZ)
(e)
c.
39
heirs
p.
t.
23
30,
'1
;
Bl.
Comm.
'-'44 et
seq
3 Cruise,
& 40
Ante,
Qeo.
:!,
p.
87
50
88
c.
Oomm. 244
&
intestate
t.
30.
45.
s.
whom
53).
2 BI.
Escheat of
<=''Pyl'lJs.
59 Geo.
see ante,
51 Vict.
o.
3, c.
94
47
&
48 Vict.
pp.H4, 418.
73,
s.
Digitized
and
see
s.
5.
by Microsoft
c.
71.
&
51
Formerly na
*
468
On
benefit.(/)
was
And,
at
common
of tenure
as rent-charges, rights of
liable to escheat
But by the
all
persons en-
titled thereto,
Alteration by
Intestates'
Estates Act,
1884.
heir,
and intestate
in respect of
Money
Money
to be
laid out in
and without
it is
tion by
who
will
fill
the character of
Trust and
estates^altera-
heirs
uncertain
lord.(7i:)
Formerly, a
legal estate in
^^'^
as sole
statutes.
on the death of the trustee or mortgagee intestate, and failure of his heirs though the lord
would take the land subject to the trust or equity of redemption. (/)
But, as has been seen, by modern statutes the
;
way
of mortgage,
is,
Eden, 176
( f) Burgess v. JVJieate, 1
[1891], 1 Ch. 258 ; Lewin, 8'J2.
Beale
(h)
3 Crnise,
(j)
47
[1-)
{I)
In re Lasltmar, Jlooch/
v.
PeiifoJd
{g)
v.
& 48
t.
30,
Viot.
Lewin, 940
s.
c.
24.
71,
s.
Wtdker
4
v.
smd
see
s.
7.
Digitized
by Microsoft
c.
41,
s.
469
ESCHEAT.
As above
common
law,
on the
Escheat for
of the y'
,
;
^^^'^'
''Oil I'
(o)
effect,
For the
(m)
rules of the
common law on
et seq.
(o)
See 54 Geo.
(p) 18
(q) 33
3, c.
145
Wms.
(r)
(s)
15 Vict.
Exors. 439
u.
see 47
&
4 Will.
4, c.
106,
s.
10.
46.
1
antf, p. 466.
Wms.
& 48
Exors. 1520
Vict.
^.
71,
Digitized
Lewin, 285.
ss. 2, 3.
by Microsoft
Comm, 252
PART
IV.
CHAPTER
I.
disabilities
or, in
other
All
persons have
respect.
this
who
full
legal
on
Aliens.
whom
Exceptions.
disabilities.
to the Naturaliza-
for, as
this disability
it
same, in
all
respects, as that of a
() See ante, p.
(I)
33 Vict.
465; Burton,
c. 14, s.
is
the
natural-bom subject.(c)
192.
ante, p. 465.
Digitized
by Microsoft
471
Roman
statutes, to
land(rf)
disabilities
and
by him during
it
his
bankruptcy has
him
in trust, remain
since,
on him during
may be
ground
its
continuance,
The bankruptcy
for his
all
commencement of
of a
office, (/i)
in land.
The
disabilities of these
10 Geo.
4, 0. 7.
(/) 11 Geo.
((/)
See ante,
2, c.
17.
p. 458.
Se Adams' Trusts,
658 Be. BarJcer's Trust, 1 Ch. D. 43
(7*) Lewin,
As to the
12 Ch. D. 634, 48 L. J. Ch. 613, 41 L. T. 667, 28 W. B. 163.
receiver
of
the
estate,
in
the
case
of
bankruptcy of an
appointment of a
240
Se
Hopldns,
Ch.
D.
Exors.
19
61.
executor, see 1 Wms.
;
;
Digitized
by Microsoft
Other cases of
'ii^ability.
CHAPTBE
II.
MARRIED WOMEN.
Division of
subject.
The
woman may be
^^^j^ reference to
separate estate
(i.)
lier
estates
and
(ii.)
modern
statutes
considered
(iii.)
her
Eeal estate
not alienable
Alienation
inter mvos, of
(i.)
^ married woman
[a)
As to these
(6)
34
(c)
estate
& 35 Hen. 8, c. 5,
& 4 "Will. 4, c. 74.
was conveyed by
(d)
45
(e)
'
Vict.
e.
1 Vict. c. 26,
s.
s. 1.
8.
woman's
i-eal
fine.
39,
s.
Estate
charge,
charge,
land 3
ante, p.
& 46
14;
s.
'
(/) The husband's interest in his marital right, as well as the wife's estate,
passes by her conveyance with his concurrence, according to the Act unless,
at least, he has previously disposed of his interest and he may concur in the
conveyance, notwithstanding his previous bankruptcy
see Se Batclidor,
L. E. 16 Eq. 481, 485, 21 W. E. 901 ; Cooper v. Macdonald, 7 Ch. D. 288, 47
L. J. Ch. 373, 38 L. T. 191, 26 W. E. 377
Be JaJceman's Triists, 23 Ch. D.
344, 52 L. J. Ch. 363.
;
Digitized
by Microsoft
473
MAKRIED WOMEN.
money,
feme sole; provided such disposition be made by deed, in which her husband concurs,
and that the deed be acknowledged by her as her act and
deed, after she has been examined apart from her husband as
to her knowledge of its contents, and as to her assent thereto.(^)
Under the first of the above Acts, the acknowledgment was to be made before a judge of a superior court,
or of a county court, or a master in Chancery, or two commissioners and a memorandum of the acknowledgment was
to be signed on the deed, and a duly verified certificate of
the taking thereof was to be filed in the Court of Common Pleas.(A) The Conveyancing Act, 1882, however, has
rendered sufficient an acknowledgment of the deed before
one commissioner and has provided that, where a memorandum of the acknowledgment shall purport to be signed
by a person authorised to take it, the deed shall, as regards
its execution, take effect at the time of acknowledgment, and
shall conclusively be deemed to have been duly acknowledged.('i)
Except in the cases presently mentioned, any
as effectually as
if
she were
a,
of her real
any tenure.
Perpetual commissioners for taking acknowledgments of
the Act, are appointed from time to time for every
see ss. 81, 82.
The registry of certificates of such
county, riding, division, &c.
acknowledgments is now located in the Central Office of the Supreme Court of
Judicature.
(h)
Ss.
married
79-89.
women under
(i)
deed
7.
Hence, a
certificate of
acknowledgment of the
is
see Franks
(/c) Burton, 206
18 L. T. 623, 16 W. E. 1158.
;
v.
Digitized
by Microsoft
li.
J. Ch. C64,
Copyholds.
471.
as to her conseiit.(0
Her equitable
than separate
estate,
Husband's
concurrence,
mode
applicable to freeholds.(n)
by deed,
in the
By order
of the Queen's
of
Bench Division
of the
High
if
mind, or
Court,
may
be
from other
Acts under
Settled Estates
Act, 1877
A married
Act,
thereto. (r)
under Agricultural Holdings Act, 1883
By
a married
(1)
Burton,
1275.
(m) S. 90.
(n) See
s.
77.
(p)
Fowle
29 Ch. D. 996.
V. Draijcott,
Dait, V.
&
P. 10
W.
15 L. T. 383, la
1080; Castle v.
8 App. Cas. 420,
120.
&
Women's Property
584, 32
W.
Act, 1882
Eiddell
v.
E. 680.
Digitized
by Microsoft
475
MAEEIED WOMEX.
separately examined, as to her knowledge and consent, by
under Settled
^ggg to^iggo.
otherwise than for her separate use, or otherwise than for her
separate property or as a feme sole under any statute, she and
As has been
life
seen, a
separate estate
modern
statute,
woman
a married
is
enabled,
By
by deed
restrained
(.5)
46
(f)
45
ill)
& 47 Vict.
& 46 Vict. c.
i;.
61.
o.
26.
38,
s.
61.
{x) 20
&
21 Vict.
0.
57.
(y)
J.
Digitized
by Microsoft
Alienation of
''^**f^
^^
personalty,
476
Will of
iier-
sonalty with
husbanrl's
consent.
woman may,
married
husband's
with her
however,
which the
husband is entitled in his marital right; as the husband, by
such consent, waives his right and the will is effectual as
against him if, after his wife's death, he allows it to be proved.
But he may revoke his consent to it at any time before the
probate.
And it is void if he dies in her lifetime,(,?) even as
regards property which vests in her after his death though,
as regards such property, it may be made effectual by resanction,
dispose
by
will of j)ersonal
estate,
to
powers of
appointment.
The
described,
Appointment
of attorney.
effectually as
if
therefore, she
may make
and
will. (5)
Admittance to
copyholds, and
be admitted to copyhold lands, either in person or by
acts under
Copyhold Acts. attorney ; and that she may appoint an attorney for the pur-
may
pose.{d)
of a
By the Copyhold
manor
is,
woman, lady
for the
purposes of
&
W.
(h)
(c)
44
(rf)
(e)
& 45
Vict.
11 Geo. 4
50
&
&
51 Vict.
ei seq.
u.
41,
e.
Will. 4,
c.
73,
Digitized
a.
AVms. Exova.
56.
40.
c.
65.
39.
by Microsoft
:!2
L. T. 410, 23
15; Itc Sniilk,
MAREIED WOMEN.
it may be annulled by
agreed to it.(/)
husband's death,
may have
The
'i77
effect of coverture,
herself,
although he
of
I'i'"it^*i'i ^^'^
prescription.
(ii.) Equitable
Separate Estate. A married woman's
powers of alienation, whether inter vivos or by will, over her
equitable separate estate, and of binding it by her contract,
are the same in extent, and are exercisable in the same
manner, as if she were a feme sole ; (A) unless, indeed, her
equitable interest be subject to an express restraint on aliena-
Land
the Settled
\\'ho, if
woman
Under Settled
'^'
for
or would have had the powers of a tenant for life,
under the Settled Land Acts, 1882 to 1890, is entitled for her
separate use, she has, without her husband, the powers of a
tenant for life under the Acts.('i)
life,
on Anticipation.
Restraint
estate for
woman may
be
accompanied by an express prohibition of alienation or antieven though the trust, with such accompanyingrestriction, may have been created by the woman herself.
This restriction may be imposed by any words, accompanying
a declaration of separate use, from which an intention to
restrain anticipation can be clearly collected. (/b)
Like the
declaration of separate use, to which it is annexed, it is
and, therefore, is no
operative only during the coverture
impediment to alienation, while the woman is unmarried.(Z)
But during her coverture, it prevents her (except in certain
cases presently mentioned) from depriving herself, during her
cipation
(/)
B-itii
{],)
1 Dart,
V.
&
P. 32.
((/V
See ante,
&
p.
435
Lewin, 760
Dart, V.
&
P. 11, 32.
45
(Ic)
il)
46 Viot.
c.
38,
s.
Lewin, 781.
Lewin, 782
Stogdon
V.
of.
mentioned.
tion, as presently
By
Alienation
Tulhtt v.Armstronq,
1 Q. B. 661, 3i
Lee [1891],
Beav. 1 Bacjgett
R. 467
;
v.
VV.
Digitized
by Microsoft
Meux,
1 Coll.
138;
Its effect,
478
So
also,
where money
is
it
interest.(i)
on anticimoney, and
aliena^
vented by.
woman from
married
tei-est.(o)
And
Statutory pro.
visions, as to.
anticipation,
is
and where
it
on
///,
ls:
ri'
y,V
Baggett
(o)
L.
,1.
'h.
Cooper
E, 377.
Coll. 1,38
373, 38 L. T. 191, 26
T.I'.,
{p)
v. Jleu.r,
W.
High
&
v.
Jlacilonald, 7 Ch.
<
Digitized
by Microsoft
2y8, 47
Court.
(7)
1).
D. 749, 51
Earrisoii, 40
Cli.
v.
MAJ?KIED
anticipation. (7')
By
(o)
the
479
WOMEN.
Land
Settled
Act, 1882, a
(5)
Where
(.).
create a perpetuity,(r)
it
is
annexed
will
it
void as
^^"'
"gj^'t""
be
Liability of
^<^P^*^ ^^^^^
estate to
Modern
(iii.)
Wnmcvs
Preceding Mrirrier]
Statutes.
Propertii Act,
1882.The
posi- Matrimonial
vfiusss Acts.
()
S.
65 (2)
(i.)
(.s)
45
&
46 Vict.
c.
38,
s.
61
(6).
See ^os?, pp. 47!l, 482 Sant/er v. Sanger, L. B. 11 Eq. 470, 40 L. J. Ch.
372, 24 L. T. 649, 19 W. li. 792 London nnd Prorincial Bauh v. Boqle, 7 Ch. D.
773, 47 L. .1. Cb. 301, 37 L. T. 780. 26 W. R. 573 Ee Iledgely, 34 Oh. D. 379
A.rford V. Beid, 22 Q. B. D. r,4s, 5s L. .J. 0. L. 230, 60 L. t. 726, 37 W. E. 291.
(t)
((.)
51
&
52 Vict.
c.
59,
(c)
s. 6.
See ante,
p.
323.
Fry
V.
761-768. The claim of a creditor against the equitable separate estate may be
barred by lapse of time, by anjilogy to the Statutes of Limitation Be Lad;/
Hastings, Hcdlett v. Hastings, 35 Ch. D. 94.
:
Pile
K. 551
(a)
'^ee
v.
(s)
W.
'.
Lewin, 773.
Digitized
by Microsoft
562
29
480
Miirried
Women's
Property Act,
1870.
woman with
by virtue of a protection order, or in case of judicial separation, under the Divorce and Matrimonial Causes Acts, has
already been mentioned. (6)
It has also been seen that, under the Married Women's Promarried
and
estates
woman may
be entitled to certain
seems that
It
this
Act
including ante-nuptial
Property Ad, 1882. Under
Act,(/)
liable
is
for
debts, (c)
Alienation
under.
Women s
woman has
Married
a married
in property thereby
her
debts
this
made her
and may,
same manner, and to the
same extent, as if she were &feme sole.(g) But the will of a
woman, made during coverture, is not effectual, under the
Act, to dispose of property acquired by her after the termination of the coverture for the power of disposition given by
the Act applies only to property to which a woman is entitled
accordingly, dispose of
it
separate property
in the
The Act
woman
to contract, in
deemed
to
be a contract with
unless
sejDarate property,
the
resp)ect
to,
woman
and
and
shall
it
be
to bind, her
contrary be shewn
(i)
and
that her contract shall bind not only her present but also any
(l)
See ante,
(c)
33
&
p.
433.
34 Vict.
c.
93
ante, p. 434.
Johnson v. Johnson, 35 Cli. D. 345, 5C L. T. 163, 35 W. E. 3-29, commenting on In re Voss, 13 Ch. D. 504 see cmte, p. 434.
see supra, p. 479.
(f S. 12
see ante, p. 434.
{/) 45 & 46 Vict. o. 75
Hence slie may bar an estate tail, or enlarge a base fee,
1 (1).
(g) Sue
in land to which the Act applies, without acknowledgment of the deeds under
i?e Drwnmond and Davies' Contract
the enactments mentioned, ante, p. 472
[1891], 1 Oh. 624.
(h) h'f Price, Stafford v. Stafford, 28 Ch. D. 709
Me Ouno, Mansfield v.
see ante, p. 476, and cases there cited, note (a).
3fansfield, 4H Ch. D. 12
(i) As where her interest is subject to a restraint upon anticipation,
see
Harrhoii v. Harrison, 13 P. D. 180, .58 L. J. C. L, (P. D. & A.) 28, 60 L.
(d)
.s.
T. 39 36,
W.
K. 748.
Digitized
by Microsoft
481
MARRIED WOMEN.
With
has been held that a married woman cannot by her contract bind future separate property under the
Act, unless she has some separate property at the time of
contracting, (m) and may reasonably be presumed to have
contracted with reference to that property, (w)
vision, however, it
The Act
tative of a married
Liability of
un'deT^on^''*'^
death,
men-
estate for her debts, after her death, the clauses above
In the event
been
husband
is
entitled, as has
estate,
and (pro-
It
has recently been held, however, that his rights, in that event
in her personal estate, are subject to the claims of his wife's
creditors,
is,
The Act
not
also renders a
clear.
married
woman
carrying on a trade
separately from her husband subject, in respect of her separate j)roperty,(^) to the bankruptcy laws.(?i)
[1)
It also
makes
S. 1 (2-4).
{n)
Leak
v. Driffield,
Surman
(s)
See ante,
s.
24 Q. B. D.
98, 38
4.
v.
p.
Wharton
W. R.
{q)
93.
(o)
See ante,
[1891], 1 Q. B. 491, 39
W.
S. 23.
p. 435.
E. 416.
430.
(t) This does not include property over which the married woman haa~a
general power of appointment which she has not exercised {Se Armstronq,
Ex parte Gilchrist, 17 Q. B. D. 521, 34 W. E_. 709) except as regards aiiy
beneficial interest to which she may be entitled in such property independently
of the exercise of the power: Me Armstronq, Ex parte Boyd, 21 Q. B. D. 264,
67 L. J. C. L. 553, 59 L. T. 806, 36 W. E. 772.
;
(u) S. 2.
It
2h
Digitized
by Microsoft
Provisions as
^^^^^
'
"'
482
liabilities. ()
Provisions as
to settlements,
respect,
Provisions as
anricipatira'"'
inoperative,
&o.
to
any
interfere with, or
render
ment,
It provides, however,
will,
ment, or agreement for a settlement, of a woman's own property, made or entered into by herself, shall have any validity
against debts contracted by her before marriage and that no
settlement, or agreement for a settlement, shall have any
greater force or validity against creditors of such a woman
than a like settlement, &c., made or entered into by a man,
;
As
is
Women's
made
(x) Recent cases seem to have established, independently of the above enactment, that property so appointed is liable for a married woman's debts, as if it
were her separate estate see London Chartered Bank of Australia v. Lempriere,
L. K. 4 P. C. 572, 29 L. T. 186, 21 W. R. 513
and later cases cited in Lewin,
920, 921; Me De Burgh Lawsou, 41 Ch. D. 568
bnt see Re Boper, Boper v.
DoHcaster, 39 Ch. D. 483.
:
(y)
S. 13
(2)
Ante,
see
Jay
v.
435.
p.
W.
(6)
As
(c)
S. 19.
827
to the effect of
Beckett
See Bursill
v.
v.
Tasker, 19 Q. B. D.
Digitized
7.
by Microsoft
W.
R.
MARRIED "WOMEN.
Statutes of Limitation.
married woman, as
if
Time
483
will, therefore,
run against a
&e.
Laiu Prior
for though, at
woman
office
as executrix,
of executrix or adminis-
'
'
^'^'
(d) See
Weldon
v.
Need, 51 L. T. 289, 32
Lewin, 33
Wainford
L. T. 155, 23 "VV. R. 849'.
(e)
v. Heijl,
W.
R. 828.
((/)
ill)
Ibid. 54.
Digitized
by Microsoft
484
Power
to
trusfestate"
'
were a /ewie
sole ; (Jc)
but
it
con-
is
of alienation as
1874, is applicable
Women's Property
rally,
seem
the
for
provisions
of
the Married
and
interests to
which
married
Married
the protector
r
Pines and Recoveries Abolition
J
'
she
is
is
^^^
protector.
in the
And
she
same manner
&
(i)
45
{k)
S. 18.
(/)
-j^q^
46 Vict.
&4
Will. 4,
feme
,so/f.(m)
c. 75, s. 24.
{m) 3
may
as if she were
u,
(b)
Be
Digitized
45
by Microsoft
W.
E. 574.
CHAPTBE
III.
INFANTS.
Gfeneralrule.
made
since the
will.
Alienation
"'''*" ''*""*
recognises the
title of
An
age of twenty
Division of the High Court of Justice,(c) make a valid settlement, or contract for a settlement, of his or her property, or
s.
5.
(c)
An
chambers
Digitized
now
be
made
by Microsoft
to
Zoiicli v.
a judge in
Exceptions,
*'^'
J^en^f &f
486
property over
wliicli
by an infant
under age, is thereupon to become
void.(c^)
By the custom of gavelkind, moreover, an infant
owner of land subject to the custom, may alienate (but only
by feoffment) at the age of fifteen.(e)
Although an alienation by an infant, as owner, is, in general,
voidable, he may nevertheless make, by instrument inter vivoSr
a valid appointment in exercise of a power of appointment.
As regards real estate, however, he can appoint only in
exercise of a power simply collateral
that is, unaccompanied
by any interest in himself (/) but this restriction does not
extend to powers over personal estate. (^)
disentailing assurance, executed under the Act,
who afterwards
Alienation
under custom
of gavelkind.
Appointments
under powers.
dies
Purchase.
may be
The contract
Contracts.
it
transfer, of land
on his pai-t.
no action is main-
is,
(d)
18 _& 19 Vict,
43.
c.
Se
Scott, Scott v.
Sanhury
[WSl'], 1 Ch.
298.
Under this Act a settlenjent may he made after the marriage has taken place
Be Sampson and Wall, 25 Ch. D. 482, 53 L. J. Ch. 457 Buckmaster v. Buclc:
2 Bl. Coram. 84
327
(7t)
())
(k)
p.
Leigh
v.
ante, p. 25.
219.
Sug. V.
37
&
&
P. 085,
38 Vict.
c.
i-.Hll.
62.
Pollock, Contracts,
c. 2, pt.
Digitized
1.
by Microsoft
487
INFANTS.
where
-Ti-iT
1he IS
1-1
he cannot avoid
^
as
Infant's
P"^'*'"" ^^
lessee, &o.
his obliga-
Special Powers of Trustees for Infants. In limitations Under settleof land for the benefit of infants, express powers of aliena- ^"^^ ^
management,
tion,
given to trustees.
...
,^
an infant (who,
woman,
unmarried) is beneficially
entitled in possession,(?i) under an instrument coming into
if
is
is
so far as a con-
The
or, if
none are
so appointed,
then the persons who, under the settlement, are trustees with
power
trustees
land
may
empowered
to cut timber or
manage the
underwood
land,
and are
to erect, pull down, or repair buildings ; to continue the working of mines ; and to exercise other powers of management
so that they do not commit waste, where the infant is impeachable for waste, and cut timber only where he could do
if
of full age.
discretion,
(l)
& 45
(jii)
44
()s)
See
s.
Vict.
c.
Lempriire
y.
41.
2 (iii.).
Digitized
by Microsoft
land under
Conveyancing
*"*''
^^^^'
-i.8
marries, and, in the latter case, in trust for her separate use
Provisions of
the Act as to
income
of
infants' pro-
perty.
lutely, or contingently
on
his attaining
twenty-one years or
may
(subject to
(r)
pay or apply,
for or towards
is
any
bound by law
maintenance or
and that the trustees shall accumulate the
residue of the income, and hold the accumulations for the
benefit of the person who ultimately becomes entitled (s)
to the property from which the same arise subject to a
power to apply the accumulations as income.(i!) It has been
held that the income of property to which an infant is
to provide for the infant's
education, or not
(o)
As
(q)
An
t^mith,
may
executor
Henderson-Roe
v.
{p) S. 42.
he a
ti-uttee
But
(s)
this provision,
trustees in
trust
for
Digitized
by Microsoft
489
INFANTS.
liis attaining twenty-one, cannot be
applied for his maintenance under this enactment, unless,
apart from the Act, the infant, on the vesting of the pro-
entitled contingently on
perty,
would be entitled
income. (m)
Act
are,
Infants' lands
Esfates^'*'^"^
1887.
fant, the land is, for the purposes of the Act, settled land, and
the infant is to be deemed tenant for life thereof (a) Hence,
life,
imder
its
power
to
may
Acts,(c)
whether
it
32
W.
[x)
hj)
(z)
s.
49.
s.
41.
(a) S. 59.
(&)
S. 60.
(c)
See
s.
38,
and
ante, p. 84.
Digitized
by Microsoft
490
the powers given by the Acts, and give discharges for monies
Infants' land
Act and
Copyhold Acts,
titfon
owner of
or
land,
may
of such infant, in
be done by the Copyhold
act on behalf
Statute,
No
In equity, as a general
conversion
of infants' pro-
his
rule, a sale of
personal representatives
{d)
W.
(e)
35
^j^gg
He
& 40
39
Vict.
17,
u.
6.
s.
1 ^Vill. 4,
3-8.
65, as.
c.
&
{cj)
50
(/i)
Burton,
(i)
Marquis
51 Vict.
202
u.
73,
Camden
L. r. 661, 29 W. R. 190
L. T. 840, 34 W. E. 203.
(k)
In
Ch. 157
s.
39.
v.
;
Murriii/,
Conway
16
Be Hamilton,
v.
Digitized
by Microsoft
491
INFANTS.
is
made by
An infant
is
deemed, on account
fill
the
office of
Trustee or
^^="'"'^-
so entitled.
^^^""^
infant cannot
^^ bankrupt,
infancy.(7')
The
regards
effect of infancy, as
Statutes
of
Limitation
the operation
of
prescription,
the
()
(o)
13
ip)
Wms.
{q)
& 4 Will.
&
14 Vict.
0.
Arnold
v.
Dixon,
Exors. 235.
4, 0. 74, s. 33.
See ante,
p. 126.
(s)
Digitized
by Microsoft
statutes of
Jias ^).*^^^^^'^
CHAPTBE
IV.
till
shewn'^
Presumption of Sanity.
person
is
presumed to be of
and the burden of
proving bis insanity rests on any person wbo seeks to impeach, on that ground, a transaction to which he was a party.
Alienatlonsand
ToidTr^*'^^
voidable.
interval, (a)
made
in favour of a volunteer, or of a
If
it
is
The
made
will of a
in a lucid
also void, if it
seems, void
but
if
original positions, it is
be
not,
person or his representatives. (c) But it seems that a contract, whether of sale or purchase, that is wholly executory,
(a) 2 Bl.
Comm. 497
"Wms. Exors.
17, 19-21.
195, 196.
(c)
&
Motion
V.
G. 475, 488,
53 Vict.
V.
Dart, V.
&
P.
6,
Excli. 17
32.
& P. 208.
u. 5.
Digitized
by Microsoft
Elliott v. Ince, 7
De
Gr.
may
i'93
powers
to sell, or
make exchange
or partition
to
his
own
The Act
may
attorney appointed
purposes of the
authorized by order
Partition Acts,
act
in
1868 and
1876.(^")
Other statu
"''
f^X';'
purposes of the
Land
Lunacy
is
{(/)
As to the lord's
(h) S. 125.
fine on admittance, see s. 126.
(i)
(/c)
{I)
& 41 Vict. u.
& 40 Vict. c.
45 & 46 Vict. c.
40
18,
s.
39
17,
s.
6.
38,
s.
62.
power
to enter
on the land
49.
Digitized
by Microsoft
Lunatic';?
^^^^^'^^
not deemed tu
be converted.
494
if tlie
or they
lie
would
J^ii<i
.,
sale,
The Act
also provides
The committee
Bankruptcy of
lunatic.
lunatic
The
Statutes of
prescription.
of a lunatic
made
effect
Statutes
a bankrupt.(o)
of
insanity, as
of Limitation
regards
prescription, has
Lunatic
mortgage^e"^
lunacy. (2')
If a person appointed
Lunatic
administrator
er protector of
executor or administrator be or
become of unsound mind, the administration will be committed by the Court to another person. By the Fines and
Recoveries Abolition Act, where a protector of a settlement
is idiot, lunatic, or of unsound mind, the Lord Chancellor, or
other person entrusted with
the care
of
lunatics, is pro-
tector, (r)
53 Vict.
(n)
c. 5,
b.
mode
of descent to
20 Ch. D. 514.
which
it
was
123.
Ex parte
e.
342.
(r) 3
Digitized
by Microsoft
& 4 Will.
4, c. 74, s.
33.
CHAPTER
V.
FELONS.
Prior
forfeiture
to the
and escheat
prior to
for treason
Felon may
^'|*' ^^
By
trustee
_.
&
34 Vict.
(a)
33
(6)
4 Cruise,
(c)
33
{d)
See
(e)
15
&
1
&
t.
c.
23
32, oh.
84 Vict.
u.
ante, p. 446.
2, s.
40.
c.
55, s. 8
Digitized
by Microsoft
Felon trustee,
^'^e^"'.
l
protector of
settlement,
*^^
piwer""*"'
of
in
whom
vests
the
all
make
to
convict himself
when
is to
be invested as he
may
in whom
The Act
also
it is
Act
to
and
payment
of money,
may be
executed
(/)
Wms.
&
4 Will.
{g)
(7i)
(i)
(7c)
4, 0.
74
see
s.
33
ante, p. 126.
Digitized
by Microsoft
CHAPTER
VI.
CORPORATIONS.
Definitions. Corporations, or
artificial
society
number
persons created by
corporation aggregate
of individuals united together into one
'
'
corporation
aggregate,
its
succession of
who
are
trading
guilds,
universities,
deans
colleges,
and
'
them
in order to give
that of perpetuity.
sole corporation
certain
In
Corporation
^'^-
king or queen
is
corporation. (J)
by
corporation. ((^)
(a)
1 Bl.
&
Comm.
may
corporation
also exist, at
common
(6) Ibid.
469.
As
25
26 Vict.
c.
89.
Comm.
prendre out
Digitized
by Microsoft
of.
498
by implied consent
of the
Crown
How
made.
many
as
the Corporation of
others.(e)
Contracts of Corporations. By the common law, the contracts of a corporation aggregate must, in general, be made
in writing, under the common seal of the corporation(/)
except as regards matters of small imj)ortance, and the
To this rule,
ordinary contracts of trading corporations.
however, various exceptions have been made, as respects the
contracts of joint-stock companies,
by the
statutes under
mortmain
defined.
Acquisition of Land by Corporations. Mortmain. Cormay purchase lands but their capacity to hold
land is restricted by the law relating to alienations in mortmain.
Alienation in mortmain,' in the proper sense of the
term, is an alienation of lands or tenements to any corporation, whether aggregate or sole. (A)
In early times, the
holding of land by a corporation was prejudicial to the lord
of whom the land was held; since he thereby lost the
possibility of escheat and other incidents of tenure, to which
the land would have been subject in the hands of a private
person.
A statute of Edward I. and subsequent statutes (i)
(which, though aimed chiefly at ecclesiastical bodies, applied
porations
'
Early prohibitions
of.
to
corporations
alienations in mortmain.
of land to a corporation
Under these
was a cause of
(e)
Bl.
Comm, 472
see He the
329.
Company
1).
an alienation
ofFaversham, 36 Ch.
statutes,
As
to execution of a
deed
l>y
a corporation aggregate,
2 Bl.
Comm.
(<!)
7 Ed.
1, Stat.
&
31 Vict.
c.
131),
s.
As
the
37.
2, c.
13 [de relirjiods)
13 Ed.
8, c. 10.
Digitized
by Microsoft
1,
c.
32
15 Rich.
2, c.
499
CORPORATIONS.
held of a mesne lord, his licence, also, was required for the
purpose (^) though the last requirement was subsequently
force,
of the assurance,
enter upon, and hold, the land accordingly. The Act, however,
provides that
if
the land
is
may
ance
and that
if
the land
is
may
lords
mesne
expires
is
(Q 7
<m)
applicable to
The Act
all
provides,
Comm. 269-273.
Part
I.
&
(o)
17 Car.
2, c.
and subsequent
&
Anne,
c.
11 (establishing
statutes.
by Microsoft
statute.
500
if
may
it
Form
of.
to corporations,
whether
CorponUions.
to
In conveyances
word
'heirs'
'
word
Kxtent of
l-ower
by
Alienation
of.
its
lands
(s)
Corporations.
By
'
of limitation. (r)
is
for
and
and under
by way
specified conditions
of
(u)
exceptions,
By
leases thereof.
may be
()
and
Land Revenues
exchange Crown lands, except
empowered
are
to lease,
sell,
or
The above
restrictions
do
Crown. (&)
(q)
25
&
26 Vict.
c.
(r)
4 Cruise,
t.
&
As
6 Vict.
u.
(x)
See Burton,
(a)
See Burton,
(n)
10 Geo.
{h) 39
&
Comm.
318, 321
108, &c.
4, c.
40 Geo.
219.
216
50
3, c.
{y) 1
47
&
& 48
Vict.
c.
3 Will. 4, c.
71,
1.
88.
Digitized
by Microsoft
s.
6.
Anne,
c. 7.
INDEX.
ABSOLUTE ESTATE,
as opposed to conditional estate,
meaning
of,
45
(0)
(2), (s)
trust
may be
ACKNOWLEDGMENT.
(i)
Makbied Woman
See
Statutes of Limita-
tion.
tative,
of will, where no excutor appointed, 392
where vacancy in office of executor or administrator, &o., 392
in case of infancy or lunacy of executor, 491
on intestacy, who appointed, 423
powers and duties of, 423
distribution of residue by, 423
women may
may be, 495
married
felon
be,
483
ADMITTANCE
to copyholds, &c.
ADVANCEMENT.
on purchase
See
COPYHOLDS
Sec Intestacy,
in
name
CUSTOMARY FREEHOLDS.
Succession on.
ADVOWSON,
definition of, 14
appendant or in gross, 14
distinguished from next presentation,
to, 7, 14
mortgagee
period of
of,
title to,
Digitized
by Microsoft
502
INDEX.
ADYOWSONcontinup.d.
on alienations of, 337, 465
curtesy and dower of, 428, note (6), 436, note {d)
provisions of statutes of limitation as to, 450
restrictions
AGKEEMENT.
owner
of,
458
See Lease.
ALIEN,
former disability of, as to holding of land, 465, 470
forfeiture through alienation to
alteration by Naturalisation Act,
;
1870, 46s
(c)
ALIENATION,
meanings
of,
307
what included in
lease, loi
annexed
life,
54,
332
is
332
by
3,
tail,
See also
ch. 3.
See Codicil
CONVEYANCES,
Will.
pt. 3, ch. 5.
invalid,
See Banketjptcy.
ALLODIUM,
meaning
of, 21,
note
(i)
ANCIENT DEMESNE,
tenure
of,
25
APPENDANT.
See
COMMON, Rights
See
Married Woman.
op.
See
commons.
APPROVEMENT.
APPURTENANT.
See
Common, Rights
op.
See
COMMON, Rights
op.
ASSETS,
meaning
legal,
of, 26S,
note
(2)
268
Digitized
by Microsoft
503
INDEX.
ASS'ETS continued.
equitable, 264
marshalling of, what
note
(6)
ASSIGNMENT,
definition of, 100, 348
and note
100
(6),
W.
(/)
deed or writing not necessary for, at
common law
statutory altera-
tions, 348
by alienor
to himself
and another
361
of lease, liability of assignee under, for rent
and covenants,
96,
97
ASSIZE,
rent
See Rbnt-SEEVICB.
of.
ASSUEANCES,
meaning
of term, 343
ATTESTED COPIES,
meaning
of, 322,
note
(0)
and expenses
of,
322
ATTORNMENT,
meaning
of,
and
and note
(to)
ATTORNEY,
power
See
of.
Power op Attorney.
property divisible
among
in, 458,
note ()
exceptions, 186,458,471
alienations, preferences, settlements, &c., void as against creditors
in, 459,
trustee
in,
of,
458, 459,
462
by disclaimer, 462
by Court of mortgaged estates, 244
Digitized
by Microsoft
504
INDEX.
BA1HKRVTTCY continued.
married woman, where subject to law of, 481
of trustee, a ground for his removal, 47
infant not subject to law of, 491
lunatic, when subject to law of, 494
BARE TRUSTEE,
meaning of term,
at
in
release,
359
BARONIES
or manors, 26, note (6)
BASE PEE,
meanings of, and how created, 58 and note (I), 127
powers of owner of, under Settled Land Acts, 77, note
(b),
127,
note (m)
enlargement
by operation
award or order
quit-rents, certificate of
BOROUGH ENGLISH,
custom
422
of, 25,
BOTES,
meaning
of,
67
BURGAGE,
tenure
in,
24
CAPACITY,
legal, as to land, general rule as to,
Digitized
470
by Microsoft
505
INDEX.
CAPACITYcoitiiwaed
former disabilities of aliens and
Roman
Catholics
statutory altera-
disabilities
CAPITAL MONEY.
See
And
see
Equitable Estate.
meaning
of term, 170
claims
of,
may be
CESTUI QUE
of, 353,
355
of term, 42
production
of,
CHARGE,
See
equitable.
178,
264.
chasbe.
for payment of debts, what words will create, 264
equitable, distinction between, and express trust, 197
See, in Table of Contents, pt. 2, ch. 4, sect. 2
statutory.
CHARITY,
what
is,
333
trust for,
perpetuities, 327
of 1891
336. 337
CHASE,
franchise
of,
15
CHATTEL INTEREST.
CHATTELS REAL,
See
Chattels Real.
to
what
interests applicable, 10
and note
origin of, 10
testamentary alienation
CHIEF RENT.
CHILDREN,
gifts
by
of,
common
at
law, 385
See Rent-sbeviCe.
CLASS,
remainder limited
to, 134
executory interest limited
gift to,
how
by
affected
will, 405,
by
to,
150, 151
406
Digitized
by Microsoft
(2)
506
INDEX.
CODICIL,
definition of, 385
revocation or alteration of will by, 408
not revoked by destruction of will, 409
COMMITTEE
of inspection in bankruptcy, 457
of lunatic.
See
it
was, proceedings
in,
of,
and
of,
of.
Estate.
and notes.
58
59
COMMON, RIGHTS OF
definition of, 289
varieties of, 289
commonable
beasts, 290
And
see
Pee-
SCEIPTION.
appurtenant to copyholds by special custom, 291
pvT
of shack, 291
of pasture, extent
note {x)
use and enjoyment
alienation
of, 292,
of,
292
293
'
as to, 293
',
COMMON, TENANCY
COMMUNITY,
IN.
See
Tenancy
in
Common.
ownership
Digitized
by Microsoft
507
INDEX.
COMMUNITY conh'ttMccZ.
estates in, different classes of, 154
application of Settled Land Acts to, 159
liability of, for debts of co-tenants, 254, 266
CONDITION
subsequent, or of re-entry.
precedent, 132, note {d)
8ee
Condition Subsequent.
330
of,
;
See
Maebiage.
CONDITION SUBSEQUENT,
what
or condition of re-entry,
it is,
45
may
(2)
FOBFBITURB.
usual form of, 46 and note
enforcement
at
of,
see
103
(in),
common
And
law,
and statutory
alteration
by waiver
or licence
alteration
by
statute, 104
not assignable at
common law,
made
16
Maeriagb.
effect of invalidity of,
where void
330
devise subject
to,
may
(i/)
CONDITIONAL ESTATE,
as opposed to absolute estate, meaning
kinds
of,
of,
45
45
CONDITIONAL FEE,
nature
of, at
common
law, 40, 48
40
CONDITIONAL LIMITATION
at
common
Digitized
by Microsoft
{e)
508
INDEX.
CONFIRMATION,
deed
of,
what
it is,
351
CONSENT
of parties to alienation presumed, 308
absence
of,
CONSIDERATION,
meaning
valuable,
statement
note
of, 178,
(z)
in deed, 367
of,
CONSOLIDATION OF MORTGAGES.
CONSTRUCTION.
See
Cosvbtancbs
CONSTRUCTIVE TRUST.
See
Mobtgagb.
See
;
Wills.
Equitable Estate
Teust.
of,
133
CONTINGENT INTEREST,
what
it is,
as distinguished
from vested
Interest,
1 1
CONTINGENT REMAINDER,
and instances of, 131, 132
becomes vested, 132
distinguished from vested remainder,
definition
when
It
132, 133
and note
()
remainders,
statutory alterations,
and
effect of
Contingent Remainders
creation
138
of,
and note
(w)
138
where particular estate of freehold necessary for, 139 and
of,
note
(c)
restriction
alienation
of,
to,
324
owner
of,
modes
of,
See
Waste.
142
30
CONTRACT
for sale, &c., of land, trust arising from, 198, 199
provisions of Statute of Frauds as to, 374
where enforceable, though by parol merely, 374
Digitized
by Microsoft
509
INDEX.
CONVERSION
money
of land into
cases in which
or
money
and
its effect,
174
it
(i)
money
subject
to,
no escheat
of,
and note
(c)
468
CONVEYANCES,
under Settled Land Acts, 82
definition
of,
343
at
common
under
law, 344-352
of Uses,
Statute
and
StaUses.
modern statutory, 360 aad
note (a), 361
352, 356
see
tute OF Uses
by deed generally.
See
Deed.
construction
of,
and
interests.
general rules as
See
Copyhold.
to, 375,
376
ACT,
1881.
Statutes, 45
See, in
&
Table
46 Vict.,
39-
COPARCENARY,
tenancy
in,
how
it arises,
and enjoyment
as to alienation, 164
determination or dissolution of tenancy in,
of,
164
modes
of,
Partition.
COPYHOLD,
origin and nature of tenure of, 28, 29
grants of wastes of manor as, restriction on, by Copyhold Act,
1887, &c., 29, 52
rights of lord in land, 30, 53.
MiNBEALS
re-grant or
Timber.
alienation by
And
see
Escheat
Forpeiturb
lord, of
Digitized
by Microsoft
31, 51
510
INDEX.
COPYHOLDcottfmiiecZ.
nature of tenant's interest, 31
estates
in, 32
incidents of tenure
of,
33
liability of
36
in,
233
mortgages
transfer
usual forms
of,
and discharge
of,
231
exceptions, 369,
370
surrenderee's rights, before admittance, 371
conveyances of estates in expectancy, and joint estates
by surrender to use of wife, 372
of,
in,
^71
covenants for
grants
trusts
of,
of,
by
title to
lord,
how
created, 172
equitable interests,
words
how made,
how conveyed,
374, 375
forfeiture of.
escheat
of.
See 1'oefbitueb.
See
Escheat.
Digitized
by Microsoft
511
INDEX.
CORPOKATION,
aggregate, definition and instances
of,
497
CORPOREAL HEREDITAMENTS.
COUNTERPART.
See
Hereditaments.
See
Deed.
are, 31
right of tenant to inspect, &o., 32
of,
372
COURT,
baron, 24, 27
leet,
27
customary, 31
of record, superior
and
inferior,
Covenants,
COVENANT TO STAND
SEISED,
COVENANTS,
where binding in equity, 52 and note (7i), 118
distinguished from easements, 298
not within rule against perpetuities, 324, note {y)
in leases, usual, 95 and notes
liability of lessee under, 96
restrictive,
representatives against,
96
indemnity against, on assignment of lease, 96
what run with land, 96, 97
liability of assignee under
pass with reversion statutory provisions as to, 118
;
by
title,
Digitized
by Microsoft
512
INDEX.
COVENANTScojifa'imerf.
for quiet enjoyment, in lease
place
of, in
and
note (Z)
implied under Conv. Act 1881, 318, 319
bind heirs of deceased contractor, under Conv. Act, 1881 264
for production, Sec, of title-deeds, and statutory acknowledgment,
:
till
estate
life,
becomes subject
332
to,
332
but owner cannot himself so limit, 332
fee simple cannot be so limited, 332
under bankruptcy. See Banketjptcy.
alienations in fraud of, under statute 13 Eliz. 0. 5 338
void as against, under bankruptcy law, 459
where debts secured, against estate of deceased debtor, 267
;
CEOSS-EEMAINDERS,
what
are,
and limitations
of
65
CROWN,
is
bar
of,
by statutes of
and
special provision
as to, 449
forfeitures to, 465
escheat to inquisition on, 467
waiver of rights of, 467
;
enforceable
Succession Duty,
See
Husband.
CUSTOM,
right of common cannot be claimed by, 291
distinguished from prescription, 452, note (m)
See Tail, Estatb.
to entail, 32, 41.
CUSTOMARY COURT.
See Court.
Digitized
by Microsoft
613
INDEX.
CUSTOMARY FREEHOLD,
nature of tenure
of,
38
right to minerals
conveyance
of,
CUSTOMS OF MANORS,
origin
and nature
of, 29,
32
CY
PRilS
doctrine applicable to contingent remainders, 141
appointments, 216
DEAD RENT.
DEBTS
Sm, Rent-seevicb.
266
common
law, 264,
264
by
equitable assets,
and
see 178
statute, 265
what
vie,
266, 267
liable,
;
267
statutory altera-
267
and note
(u)
what
are,
DECLARATION,
See Trust.
of trust.
of use.
/See
Uses.
of, 40
not applicable to copyholds, 40
strict entails under, 55, 56 and note
(t/)
tail, 129,
and note
(6)
130
2
Digitized
by Microsoft
of,
514
INDEX.
DEED,
definition of, 362
execution of signing, sealing, and delivery, 362, 369
takes effect from time of delivery, 362 and note (m)
;
reading
of,
363
Power
oi?
Attohnky.
when presumed
stamps on.
registration,
Stamp.
fj'ee
of,
&c.,
365
and note
{d)
and
see
Eneolmbkt
Kegistration.
when
indenture,
tion, 365
original
poU, what
note
effect by,
366 and
(0)
what
1881
364
DEED OP ARBANGEMENT,
registration of, 365
under Land Searches, &c.. Act, 312
DEEDS, TITLE.
See
Muniments of
Title,
DEFEASANCE,
deed
what
of,
DELIVERY.
>See
is,
352
Deed.
DEMESNE,
land of lord of manor, 26
effect of alienation of, 27, 28
copyhold land
is,
29,
30
seisin in, 44
DEMISE,
covenant implied by use of the word, 317
DESCENT.
DEVISE.
See Intestacy,
Succession ox.
See AVill.
DISABILITY.
See
Capacity.
Digitized
by Microsoft
515
INDEX.
DISCLAIMEK,
of estate or interest,
effect of,
309
of trust, 187
of power, Conv. Act, 1882, as to, 211, 220
DISENTAILING DEED,
meaning
of,
execution
59
by married woman,
of,
DISTRESS,
remedy
extensions
of, to
DOWER DOWER
DURESS,
may
ACT.
See
452
Maekied Woman.
EASEMENTS,
definition of, 297
distinguished from rights of
common, 297
are limited in number, 297, 298
distinguished from easements in gross or rights under licences, 298
instances of
to sub-
non-apparent, 300
of, by express grant or reservation, 300 and note (s)
by limitation of use under Conv. Act, 188 1 356
creation
303
ELECTION.
ELEGIT
see
statutory
See Conveesion.
Judgment Debt
Writ,
Digitized
by Microsoft
254
516
INDEX.
EMBLEMENTS,
meaning of the term, 8 and note (Q, 71, note (t)
some cases do not pass with laud, 8
right to, on intestacy of owner of inheritance, 8
in
life, 7
for years, 93
at will, 109
no
to,
ENCROACHMENT,
on wastes of manor, 295
ENFRANCHISEMENT,
what it is, 35
modes of, 35
under Copyhold Acts, extension of
of copyholds,
at
common
law,
compensation for, 36
charges for, 287
notice of right of, 37
general, 37
common
loss of rights of
by, 294
on intestacy, 422
right to curtesy, 429
freebench, 441
ENLARGEMENT,
of long
108, 361
ENROLMENT,
of deed barring entail, 59, 127
of consent by protector to barring of entail, 127
Statute
where
of, its
provisions
357, 358
ENTIRETIES,
TENANCY
definition,
BY,
and
ENTRY,
necessity for, in creation of estate for years, 89, 346
except where estate created by way of use, 89, 353
for breach of condition, law as to, 45, 46, 104; and see Condition
Subsequent
right
of,
Foefeitueb.
Digitized
by Microsoft
517
INDEX.
LXEl!iS continued.
how
charge or lien;
enforced, 250
instances of
charges, 250
and
Crown Debts
see
Judgment
Debt.
examples of liens, 251
vendor's lien for unpaid purchase-money, rules as
to,
251
EQUITABLE ESTATE,
definition
of,
170
origin of
effect of Statute of
and
law, 173
in general analogous to legal estate
See
words
exceptions, 173
and note
(s)
Conveesion.
and see Trust.
177
;
Land
Acts, 77 note
(6),
182, 183
conveyances of
declaration of trust
to,
forms
in
cases of
Statute of Frauds as
373
of, 181, 373, 374,
equitable estates
474
previously
created
instances
how
EQUITABLE EXECUTION.
See
Judgment Debt.
EQUITABLE JURISDICTION,
courts having, 176
EQUITABLE MORTGAGE.
EQUITABLE OWNERSHIP.
See
Digitized
Mortgage.
See
of, 196,
instances
Ownership.
by Microsoft
197
201
518
INDEX.
EQUITABLE WASTE.
Waste.
See
See
Married Woman.
ESCHEAT,
definition of, 467
and see 23
to Crown inquisition waiver, 467
;
mesne
to
lord, 467
alterations
money
&c
467, 468
of trust
ESCROW.
and mortgage
See
by
statute,
469
estates formerly
Deed.
ESCUA6E,
meaning
of, 20,
21
quantity
of, 39
quality of, 39, note {d)
ESTATE CLAUSE,
in deeds,
and statutory
ESTATES,
of
whom
held, 21, 23
classifications of, 39
ESTOPPEL.
See
modes
of holding 49
Deed.
ESTOVEKS,
meaning
of,
67
common
of,
289
EXCEPTION,
in deed, place of, 367
EXCHANGE
under Settled Land Acts, 81
conveyance by, at common law, 35
under luclosure Acts, 412
1884: 411
Digitized
by Microsoft
519
INDEX,
EXECUTOR
see also
under
and
see
Powers.
de son
tort,
meaning
co-executors
may
tion of office
power
of, 391
act jointly or severally
of,
391, 392
given to, jointly ; statutory provision as to, 211
powers
assent
of,
to legacies, 394
former rights of, to undisposed-of residue of personalty,
of,
and statutory
alteration, 395
(It)
EXECUTORY DEVISE.
Executory Interests.
See
EXECUTORY INTERESTS,
conditional limitations having effect as, 49
definition of, 143
distinguished from remainders, 143
origin of, 144. See aUo USBS,
eitect of Statute of
of, 146,
353
alteration
how
of, 152,
387
See
to,
153
Expectancy.
Creditors, Rights op
Marriage.
Trust,
how
far,
382
EXPECTANCY,
ownership
in,
nature
of,
Digitized
by Microsoft
;.
o20
INDEX.
^XFECTANCY continued.
estate In, definition of, 112
classification of estates in, 112
effect of sale, &o.,
in,
FAIR.
See
in,
113
Alienation and,
See
ch. 5
3,
Maeket.
FALDAGE,
common
FARM,
as
of,
289
word of description
in conveyance, 383
FEALTY,
meaning
of,
23,
33
FEE,
meanings
of,
{!)
conditional, 40.
See
Conditional Fee.
where subject to
liability for
waste, 53 an
note (m)
as to alienation, 54
conditions, &c., in restraint of,
how
far
vaUd, 54
under Settled Land Acts, where executory limitation over, 54, 77, note (6)
FELONsee also
forfeiture
1870
Escheat,
and escheat of property
466, 469
disability of, prior to
Act of
may
495
of,
formerly
alteration
by Act
alienate
by
will,
1870,
Digitized
by Microsoft
of
521
INDEX.
FEOFFMENT,
definition of, 344
may
for,
at
common law
of,
345
FERRY,
franchise
of, 15
FEUD,
meaning
note
of, 21,
(i)
FEUDAL,
system, fundamental rules
19, 20
of,
19
terms,
FIEF,
meaning
of, 21,
note
(i)
FINE,
estate tail barred by, 57
proceedings in, and parties to, 57 and notes
base fee created by, 58
deed to lead or declare uses of, 58
abolition
of, 59
married woman's land formerly conveyed by, 472, note
(c)
PINES,
on transfer of copyholds, fixed or arbitrary,
FIXTURES,
meaning
common law
FORECLOSURE OF MORTGAGES.
See
71,
72
Mortgage.
FOREST,
franchise
of,
15
FORFEITURE,
definition of, 464
for breach of condition of re-entry, 464
and
see
Condition Sub-
sequent.
waiver of; express, implied; statutory restriction on effect of 104
relief against, in case of lease, prior to, and under, Conv. Act,
,
1881
105, 106
Digitized
by Microsoft
522
INDEX.
TRANCHISES,
meaning, and instances of, 15
law of land applies to, 7
FnANKALMOIGN,
tenure
how
26
of,
by statute Quia
affected
FRANKMARRIAGE,
estate in, 41, note (m)
FRAUD,
may
on
on
on
on
power.
FRAUDS, STATUTE
OF
FREEBENCH.
See
2, c. 3
Maeeied Woman.
FREE COPYHOLD,
customary freehold also
See
called, 38.
Customary Freehold.
FREE FISHERY,
franchise
of, 15
FREEHOLD,
; and
meaning
tenure, 20, 21
see
Tenure.
estates of,
of,
44
FREE SOCAGE.
FREE TENURE.
FREE WARREN,
franchise
See
Tenure.
See
TENURE.
of, 15
GAME,
right of taking, as a right of
common, 289
and note
as a franchise, 15
{(/)
GAVELKIND,
nature and incidents of custom of, 25
interests of husband and wife under custom
coparcenary by custom of, 164
GENERAL OCCUPANCY.
GENERAL WORDS,
in conveyances,
what
See
are,
Pur autre
and use
vie.
of, 293,
GRAND SERGEANTY,
tenure
of,
24
Digitized
by Microsoft
486
Estate.
303
437
523
INDEX.
GRANT,
at
common
when
statutory,
applicable
what
it is,
for,
345
Copyhold.
conveyances Con v.
of copyholds.
use of word,
GROUND-RENT.
360
to,
See
in
See Rbnt-seevicb.
HABENDUM,
meaning, form, and place of, 368
appointment of use does not contain, 368, note
in deed,
HALF-BLOOD.
HEIR-AT-LAW.
(/)
Succession on.
HEIRLOOMS,
meaning of the term, 13
meaning of, in modern law, 14
original
general rules as
to, 6, 14
81,
85
HEREDITAMENTS,
meaning of the word, 16
corporal and incorporeal, how usually distinguished, and true
dis-
tinction, 16, 17
HERIOT,
what
may
HIGHWAY,
soil of,
presumption as to ownership
of,
(c)
HOMAGE,
the, in copyholds, 29, 31
HONOUR,
or seignory over several manors, 26, note
(6)
HOTCHPOT,
bringing into, on intestacy, 425, note
{Ic)
HOUSE,
what passes by the term
HUSBAND
in a conveyance, 383
Maheied Womax,
modern restrictions on common law
rights
arid see
of,
at
common
law,
rights
of,
and
see
64
curtesy, estate
notes
by the
what
is,
and
(6), (e)
Digitized
by Microsoft
and
524
INDEX.
nVSBA'NT) continued.
rights of, at
alienation
1877,
than chattels
real,
430
of,
of,
341
431
Woman.
exclusion of rights of, by Married Women's Property
Act, 1882 43S
whether common law rights of, excluded by, on death of wife intes:
tate, 435,
436
of, in wife's conveyance, where necessary, and effect
of, 472, note
(/), 473
where dispensed with, 474
in exercise of powers under Agricultural Holdings Act and Settled
concurrence
Land
Acts, 474,475
former
tion
trust, &c.,
and
altera-
483
wife, 484
1864, &c., 70
and notes
70
(0)
413
redemption
86,
note
of,
(0)
1887
92
JNCLOSURE.
See
(e)
Common, Rights
INCORPOREAL HEREDITAMENTS.
escheat
of.
See
of.
See
Heebditaments.
Escheat.
Digitized
by Microsoft
525
INDEX.
INCUMBRANCES,
discharge
of,
243 note
by
order,
313,411
(?),
INDENTURE.
8ee
Land
Acts, 82
Deed.
INFANT,
former law as to will of personalty, 485 and note (a)
of, 485
exception by statute, in case of marriage settlement with sanction
management,
maintenance, &c.,
Conv. Act, 1881
guardian may act
of,
:
487
(}) (s)
done, 490
of, not alienable by trustee or guardian except
land
rity,
by express autho-
490
INHERITANCE.
See
Estates
INSURANCE,
statutory right of mortgagee as to, 236
INTERESSE TERMINI,
what
assignment
of,
348
5,
415
widow
or
416
417
definition of heir-at-law, 417
title of heir does not arise till intestate's death
presumptive; posthumous
Digitized
heir, 417,
418
by Microsoft
heir apparent
heir
526
INDEX
ONconJmued.
INTESTACY, SUCCESSION
(s)
purchaser, meaning of
354
breaking the descent, meaning
of,
419 note,
and
see.
am!
see
(6)
163
paternal ancestors,
and
and note
(g)
and note
copyholds, descent of
exclusion
of,
(l)
title
of, 422
gavelkind and borough English inheritances, descent
to personal estate
and
see
of,
422
Administbatoe,
424.
42s
rights of children or remoter issue, 424
advancement to child to be brought into hotchpot, 425
rights of father, 425
mother
rights of
or sister, 425
next of kin degrees of kindred, 425
no preference of males, elders, or whole blood, 426
;
Jieres,
469
INVESTMENTS,
of capital-money under Settled Land Acts, 85
powers of trustee as to, 192
and note
what
is,
{t)
of,
49
7,
note
(y)
JOINT TENANCY,
definition of, 154
characteristics oE
unity of interest,
title,
creation
of,
156
words of limitation
of, 156,
Digitized
3S1
by Microsoft
527
INDEX.
determination or dissolution
TION.
and
see
Pakti-
by
of trust estate
of mortgage estate
how far
by co-mortgagees,
233, 234
disclaimer
of,
by one tenant,
created by
no curtesy or dower
of, 428,
to, 405,
406
436
JOINTURE,
what
it
is,
and kinds
of,
{I)
and
see
Makried
Woman,
rent-charge, 438
(e)
255
statutory protection of purchasers and mortgagees against,
255. 256, 257, 258
in case of estate for years, also
258
by order
Judgments Act,
1864, 259
KNIGHT-SERVICE.
See
Tbnueb.
LAND,
subjects of law of property in, 6
meaning and extent of the term, and exceptions, 7, 9
tilings detached from, or excepted from conveyance of, 10
in general, realty where personalty, 10, 11
;
what
is
LAND CHARGES.
See
Puechasbe
Digitized
See
;
Charity.
Registration.
by Microsoft
of,
384
528
INDEX,
of,
LAND TEANSFER
ACT, 1875,
registration of titles under, 315
land registered under, not within
note
registration of charges,
LAPSE.
319,
(a)
and
See Will.
LAW,
of property, meanings of the term,
public
LAY IMPROPRIATOR.
i,
note
(a)
See Tithes.
fok,
how made,
for
life, 63,
346
note (x)
for, at
common law
.statutory altera-
tions, 346
by
{z)
estoppel, 366
of copyholds,
and licence
for,
369
by mortgagee, 235
what, not within the Middlesex Registry Act, 320
mortgagee may not renew, for his own benefit, 235
proof of
title
on sale
of,
to, 309,
note
313.314,31s
covenants in. See Covenants.
common
law, 349
its
advantages
of,
359
fob.
LEGACY DUTY,
what
is,
rates
of,
(7i),
LEGAL ESTATE,
meaning of, as opposed to equitable estate, 1 70
merger of equitable estate in, 184
conveyance of, by direction of cestui que trust, 181
by cestui que trv^t under Settled Land Acts, 182
by trustee to purchaser without notice, 184
right to tack depends on, 237
Digitized
by Microsoft
(t),
529
INDEX.
also
Administeator
Executor,
meaning of the term, 5, 391
on rent and covenants
liability of,
in lease,
96
of,
statutory power
of,
of,
279
LESSEE,
meaning
for
life,
of,
43
42
LESSOR,
meaning
of,
43
LETTERS OF ADMINISTRATION,
grant
of,
what
it is,
423
LICENCE
or easement in gross distinguished
Settled
LIEN.
LIFE,
jSee
498, 499
ESTATE FOR.
Pub Autre
See also
Vie, Estate.
creation
of,
by act of party, 63
by operation of law, 64
words of limitation
of,
380
and enjoyment, 65
note
through
on,
See
(d).
liability for
waste, 65
and
Waste.
66
may be
timber
as to improvements
70
as to emblements, 71
to, 69,
as to fixtures, 71
as to alienation, 72
common
law, 72
usually given by settlements, 75
various statutory powers of, 73, 74
under Settled Estates Act, 1877 76
at
powers
of,
of,
modes
of,
77
88
See
Statutes op Limitation.
2 L
Digitized
by Microsoft
of,
530
INDEX.
WORDS
LIMITATION,
See Shelley's
OF.
Case
Will
Woeds of
Limitation.
LIMITED OWNEESHIP.
LIS PENDENS,
and
registration of,
Owneeship.
See
order
as,
LIVERY
of seisin) 344
See
Moet-
GAGB.
LORD,
meaning of, in feudal system, 19
paramount mesne, 20
of manor, 26
;
LORDSHIP,
or seignory, 26 and note
LUNATIC.
See
(5)
MAINTENANCE.
of.
See Infant.
and notes
MARKET,
franchise
of, 15
MARKETABLE
meaning
TITLE,
of,
310
MARRIAGE,
conditions in restraint
of,
how
MARRIED WOMAN,
dower of, right
to,
See
is valid,
Husband
prior to
Dower
331
Maeeied Woman.
and
see
alterations
of,
64
or
438
(s)
by custom
of gavelkind, 437
jointure in bar
of,
what
is
Digitized
and note
by Microsoft
(Q, '438
531
INDEX.
MARRIED WO'M.A'Neontimied,
dower of continued.
remedies for recovery of, 440
legacy in lieu of, 440 and note (?/)
leases by tenant in, 440
freebenoh of, in copyholds, nature of, 440
extinguished by enfranchisement, 35, 441
interest of, in husband's personalty on his intestacy, 424, 436
in husband's estate, under Intestates' Estates Act, 1S90: 416,
424
in personalty,
by
survivorship, 430
cannot
release
of,
431
how
created, 432
powers of alienation
of,
477
Land Acts
Settled
as to, 477
restraint on anticipation of, how created, eilect of, 477, 478
removal of, &c., under Conv. Act, 1881 : 478
liability of separate
statutory provisions
hereon, 479
amount
to be settled, 433
waiver or loss of, 432
Digitized
by Microsoft
INDEX.
J'^^i
MARRIED
WOMAi^continved.
(i)
powers
over,
of,
property of,
general capacity as
provisions
of,
as to settlements,
and
effect of,
482
See
and
Statutes op Limitation
MARSHALLING OF ASSETS.
Pebsceiption.
ACT,
1882.
& 46
Vict.
See Assets
See
c.
Maebied Womau
75
Will.
MAXIMS,
dlienum non hedas, 2
quidquid plantatur solo, solo cedit, 7
ciijiis est solum, ejus est usque ad ccelum et ad inferos, 7
jus accrescendi inter mercatores locum non halet, 157
jus accrescendi ultimm voluntati prcefertur, 159, note (c)
sic utere tno ut
nemo
417
regi,
Digitized
(s)
449
by Microsoft
533
INDEX.
MERGER,
definition
and operation
129
of,
estate tail
interesse
sjubjeot
130
to,
ation, 130
where estates in
rules as to,
different rights
statutory alteration,
130, 131
by unity of ownership
with regard
135
wheremerged by deed,
2S4, 286
right of
not a
to,
common, 294
easement, 304
of transfer of rights, 306 and note (6)
mode
MESNE
meaning
lord,
20
of,
MESSUAGE,
meaning
of,
383
MIDDLESEX REGISTRY.
See
MILITARY TENURE.
MINERALS,
Tenure.
See
Registration.
8,
30
from
surface,
MINES
and
note, 53
by trustees, 194
under Settled Land Acts, 82
common, 289
Mixbeals,
Royal, what are, and rights of Crown in, 7
what comprised in exception of, 9, note (s)
see
MISTAKE
may invalidate alienation,
MODUS. See Tithes.
MONEY.
308
See CoNVEKSlON.
of,
at
and
Mortgagor,
and note
81,
82
(6)
common
and
Digitized
by Microsoft
534
INDEX.
MORTGAGEcontinued.
equity of redemption
tion,
priority
and tacking of
note
and note
right
appointment of receiver
sale of
of,
239
profits,
note
238
(/c),
of right of,
and
(i)
{y)
statutory provisions as
to, 240,
241,
(c)
in,
note (i)
by sub-mortgage form and
determination of; by redemption, 247
;
amount
secured, 247
efi'ect of,
247
and
none
Digitized
by Microsoft
mortgage by
535
INDEX,
MORTGAGE coHimaerf.
determination of continued.
reconveyance on, by memorandum
of satisfaction in case of
copyholds, 249
by statutory reconveyance, 249
by vesting order, 411
transfer of mortgage in lieu of
to,
by husband and
statutory provisions as
249
429
of term, 221
of leaseholds
to
23s
to insure buildings, statutory provisions as
236
note (y)
protection of, against judgments, &c., 255, 256, 257, 258, 260
against charge for succession duty, 263
bar of rights of, under statutes of limitation, 445, 447, note (c)
liability of estate of, for
judgment debts,
to,
equity, 227
actions by, under Judicature Act, 1873 227
leases by, former law ; Tenants' Compensation Act,
;
leasing
power
of,
bar of rights
of,
224, 449
228
former law,
MORTMAIN,
alienation
in,
meaning
of,
498
statutes restraining,
and relaxations
of.
See
TIONS.
forfeiture for, 465
dispositions, 333
MORTUUM VADIUM,
meaning
of,
MUNIMENTS OF
meaning
of,
((/)
TITLE,
12
6,
Digitized
12, 13
and notes
by Microsoft
Coepoea-
536
INDEX.
&c.,
and statutory
234
exception, 321
mortgage by deposit
of,
322
NECESSITY,
easement
of,
302
NEXT PBESENTATION,
what
it is,
15
forfeiture of, to
NOTICE and
see
Puechaseb,
as to enfranchisement under
277
is
how
to,
what
is
constructive, 200
200
OFFICES,
meaning
of, 7,
note
{y)
OPERATIVE PART
in deed, clauses contained in, 367
OPERATIVE WORDS
in conveyances, 383
and note
(u)
in wills, 398
OWNERSHIP,
nature of, in general, i
distinguished as absolute or limited, in possession or in expectancy,
in severalty or in
PARCELS
meaning and place of, 367
meanings of various terms in, 383
in deeds,
Digitized
by Microsoft
2,
INDEX.
537
PARK,
franchise
of,
15
PARTICULAR ESTATE,
meaning
120
of, 114,
PARTITION,
definition of, 160
(a),
351
voluntary, 161
by action, 161
by award or order of Board of Agriculture, 161, 162
under Settled Land Acts, 81, 82
sale in lieu of, under Partition Acts, 162 and note (6)
PARTNERS,
land held by, where personalty,
deemed tenants in common, 157
PASTURE,
common
of,
11,
174
289
PEPPERCORN RENT.
Ste,
PERMISSIVE WASTE.
PERPETUITIES,
See
Rbnt-seevice.
Waste.
fixed
PERSONAL, THINGS.
Sec Thikgs.
PERSONAL REPRESENTATIVE.
Sea
TIVE.
PETIT SERJEANTY,
tenure
of,
(fi).
24
PISCARY,
common
of, 289
distinguished from free fishery and several fishery, 289, note
PLEDGE
distinguished from mortgage, 221, note
Digitized
(&)
by Microsoft
(c)
5^8
INDEX.
rOSSESSION,
ownership
nature
in,
and
seisin,
mortgagor
mortgagee
of,
of,
51
what
in,
position of.
in,
rights
transmutation
and
See
liabilities of.
(i)
Moetgagee.
of,
(i)
POSSIBILITY OF REVEETER,
meaning
of,
POSTHUMOUS CHILD,
and
note'(), 418
POWER OF ATTORNEY,
nature
of,
363
to execute deed,
363- 364
POWERS,
or powers of alienation, defined, 202
and
see 151
common law,
at
by executors, 203
executors
may
sale,
204
statutory, instances
205
of, 204,
by executors, 205
relating to executory interests, nature and
under law
examples
creation
of,
of, 206,
207
by declaration
by
will,
of use, 206
206
equitable, nature
of,
208
are,
268
so called
terms ap-
creation
transfer
joint,
by
and devolution
whom
of,
exercisable
211
;
trustees, 211
Digitized
by Microsoft
539
INDEX.
FOWEnSconthmed.
of appointment continued.
execution
of,
distinction in case of
trust,
defective,
where aided in
statutory provisions as
partial,
equity, 213
214
to, 213,
214
reservation of
appointment under,
power
of revocation, 214
and
218
collateral, or in gross,
what
are
and distinction as
to,
219 and
note {p)
release or disclaimer
of,
general,
is liable
338> 482
general, appointment under, to volunteer^
is
c.4: 340
by will to child or issue, as to lapse in case of, 406
application of rule against perpetuities to, 324, note
And
see
Pbepetuitibs.
PKECATOEY TRUST,
meaning
of,
178
PRE-EMPTION,
right of,
PRESCRIPTION,
distinguished from transfer under statutes of limitation, 442
and from custom, 442, note (m)
to
what
at
common
in
r/we estate,
meaning
of, 452,
note
(0)
Digitized
by Microsoft
640
INDEX.
PRETENDED
sale of,
TITLE,
where void, 338
mode
of alienation, 410
PRIVATE LAW,
meaning
of, i,
note
(a)
PROBATE
See Will.
of will.
duty,
6,
{d),
PROFIT A PRENDRE,
meaning
And
of, 289.
see
Common, Rights
op.
PROFITS
of, may include the land, 383
who entitled to, until contingent interest
of land, grant
birth of
posthumous
vests, 138
child, 135,
note
(re),
418
PROPERTY anf?
see LAVS';
Rights,
PROPERTY TAX
payable by landlord, 95 and note
PROTECTION ORDER.
See
(1^)
Mahbied Woman.
PROTECTOR OF SETTLEMENT,
office of,
consent
base fee
may
See
Base Feb.
of
felon, 495,
496
PROVISO
in deed, place of, 368
for cesser of term, a
form of conditional
See
limitation, 107
Mobtgage.
PUBLIC
law,
meaning
of,
i,
rights distinguished
note
(a)
PURCHASE,
acquisition by, technical
in
name
meaning
of,
(e)
PURCHASER,
whether joint tenant or tenant in common with co-purchaser, 157
without notice, rights of, 184. See Notice.
with notice, liability of, 200. See Notice.
of equitable interest takes subject to prior equities, 201
purchase-money or deposit.
Liens.
and
Digitized
See
by Microsoft
Equitable Charges
INDEX.
541
PURCHASERcojrfmMerf.
protection
of,
{g),
258, 260
protection
(/;),
(m)
of,
of,
Land Charges,
Act, 1881
c.
340
alteration as to,
PUR AUTRE
by Conv.
to,
448
VIE, ESTATE,
definition of, 42
limitation
less
to special occupants, 42
as quasi-entail, 42
of,
life,
43
note
none
see
306
(c)
See
Common, Rights
of.
QUASI-ENTAIL,
meaning
of,
42
and operation
271
QUIT-RENT,
meaning of, 23, 271
may be payable by copyhold tenant, 33
relief against forfeiture for non-payment
of,
464
QUOUSQUE
seizure of copyhold land, 33
and
see 444,
RACK-RENT,
meaning
of,
94
Digitized
by Microsoft
note
(k)
of,
no
542
INDEX.
KEAL,
things, 4.
See Chattels Real
action, and abolition of, 442, 443
Things.
EECEIPTS,
statutory powers to trustees to give, 193 and note {e)
or indorsed on, deeds, and provisions of Conv. Act, 1881, as to,
in,
EECEIVEE,
appointment
RECEIVING ORDER,
in bankruptcy, 456
RECITALS
in deeds, use
of, 367
control operative part, 367, note {t)
where evidence of facts recited, 310, 311
may
RECONVEYANCE OP MORTGAGE.
Mobtgaoe.
See
REDEMPTION
of mortgages.
of rents
See
Mortgage.
275, 281
of charge under
86,
note
(0)
See
Condition Subsequest.
REGISTRATION
judgment debts and writs
of
note
Crown
of
and
(6)
debts, 260
of rent-charges, 277
of land charges,
28S
313, 319,
notes
RELEASE
at
common
law, definition
of,
&o.
348, 349
by
statutory, 360
of powers, 220
of rents, 275,.^28o
of rights of
common, 294
Digitized
by Microsoft
59,
349
413
320 and
04d
INDEX.
RELIEF,
meaning
of,
23,
33
EEMAINDER
vested or contingent, 119
and creation of, 119, 120
must be created by same instrument as preceding estate, 120
as to tenure of, 120
is
definition
limitations
by way
of,
rules as to,
20
estate, 122
may
Vested Ebmaindee.
8ee Contingent Remainder.
See
vested.
contingent.
See
cross.
Cross Remainders.
See Expectancy.
REMOTENESS.
See Perpetuities.
RENT,
definition of, general, 270
452, note
(i)
RENT-CHARGE,
definition of, 276
interests in, 276
creation
and
see 271,
note
ih)
276
provision of Statute of Uses applicable to, 356
express power of distress necessary at common law
of,
statutory
when construed
as,
277
of,
how
of, 277
usually secured ; provisions of Conv. Act,
1881,
land, 279
of, 279
determination of, 279, 280, 281
release of part of land from statutory alteration as
reservation of, on sale under Settled Land Acts, 82
liability of, to execution under judgment, 255
for debts on decease, 263, note (r)
;
EENT-SECK.
See
Rent.
Digitized
by Microsoft
to,
280
544
INDEX.
RENT-SERVICE,
definition of, 270
varieties of
ground-rent, rack-rent, 94
dead
rent, 95
271
of,
272,
273
demand
of,
104
recovery of
by statute
statutory alterations,
274
of limitations
but arrears
RESERVATION,
or
of,
368
creation
tenure
of,
of,
rights of
114
114
owner
of,
as to use
in case
of
See
Waste.
as to alienation, 115.
efEect of
/See
Attornmext.
See
EXPECTANCY.
REVERSIONER,
meaning
of,
14
REVOCATION, POWER
under 27
Bliz. c.
by
whom
Powers,
RIGHTS
of property,
meaning and
of ownership,
classes of,
and note
(6)
inferior to ownership,
what comprised
Digitized
by Microsoft
and note
(I)
5 15
INDEX.
EIGHTS OF COMMON.
See
Common, Rights op
RIVER,
bed
of,
presumption as to ownership
of,
384
ROMAN CATHOLICS,
former
disabilities of,
and statutory
alterations, 471
ROYALTY,
meaning
of,
95
SALE OF LAND
under Settled Land Acts,
contract
80, 81
under, 198
to
convey under, by
199
SANS NOMBEE,
common, 292
SATISFIED TERM.
See
Tbkm.
SCINTILLA JURIS.
See
Executory Interests.
SEALING
what
of deed,
is,
362
SEARCHES,
what, to be
made on
SECRET TRUST.
SEIGNOEY,
what
investigation of
statutory provision as
official,
it is,
title,
to, 311,
note
311, 312
(s)
See Trust.
27
in gross, 28
SEISIN,
meaning
of,
22
of customary freeholds, 38
of estates of freehold, 44
note
per my
(i)
et
per
tout,
meaning
of,
155
and sales, 76
are exercisable in various oases, 429, 440,
SERVITUDE,
meaning
of,
297
1882 to 1890.
See also Table of Statutes,
cutting and sale of timber under, 66
settlement under, meaning of, 77, 182
tenant for life and persons having powers of, under, 77 and note
78
Digitized
by Microsoft
(6),
546
INDEX.
leases authorized
and
&c., 78
note (/)
building and mining leases, So
other leasing powers, and variations by leave of Court, 80
requisites of leases generally
ancillary powers, 82
who
trustees of settlement,
are,
84
devolution
of,
87
improvements under, 86
settlement of land purchased under, 87
powers under, cannot be assigned or restricted, 87, 88
effect of, on settlement powers, 88
estates in expectancy,
application of,
how
affected
by
sale, &c.,
under, 113
115, 125
of,
copyholds, conveyance
of,
of,
429,
475
lunatic, exercise of
SETTLEMENT,
strict,
meaning
in Settled
a, 74,
75
Land
Acts, 77
long terms of years created by, 99
of,
contingent remainders
restrictions
and
in,
power of
TAET.
of infant
SEVERAL FISHERY,
meaning
of, 289,
note
(c)
SEVERALTY,
ownership
in,
nature
of, 3,
Digitized
154
by Microsoft
VOLUN-
INDEX.
SHACK.
Common, Rights
See
547
op.
SHARES
in certain
7,
note
iij)
IN,
of,
to equitable estates
SIMONY.
and
distinction
equitable, 382
Foefbiture.
See
SPECIAL OCCUPANT,
meaning
of,
be,
42
effect of
Want
of, 364,
See Uses.
365
on copies of court
roll,
372
STATUTES
merchant, and staple, and recognizances in nature
of, 253,
note [d)
STATUTES OF LIMITATION,
operation
of,
early
and modern,
what
interests in land,
(i)
479, note
(2/)
provision as to claims
by mortgagee application
;
of,
to foreclosure,
445
provisions as to estates tail
when
and base
fees, 445,
446
(c),
449
Digitized
by Microsoft
548
INDEX.
by mortgage, charge,
lien,
or
judgment, 450
as to recovery of rents, &o.,
STEICT ENTAIL
under statute de
donis, 56
STRICT SETTLEMENT.
See
Settlement.
SUBINFEUDATION,
meaning and abolition
22
of,
rates
it is,
successions,
how
it arises,
and position
liability of tenant,
not alienable, in
determination of,
of tenant,
10
no
in
SUIT OF COURT,
meaning
of,
SUPPLEMENTAL DEED.
See
24, 31, 33
Deed.
SURRENDER,
and operation
definition
of,
350
for, at
common law
statutory altera
350
SURVIVORSHIP.
See Joint
TACKING OF MORTGAGES.
Tenancy.
See
Mortgage
Notice.
TAIL, ESTATE,
origin
of,
40
definition of, 41
;
male or female, 41
after possibility of issue extinct, 62, 64
general or special
ex provisione
viri, 62,
note
(p)
words
entail, 41
of,
55
of limitation of, inter vivos; alteration
377, 378
by
Digitized
will,
404
by Microsoft
by Conv.
Act, iSSi
INDEX.
549
TAIL, 'ESTAT'Econtinued.
rights of tenant, as to use
and enjoyment, 55
alienation
effect
of
Si
common
recoveries
and
58
entails, 58, 59
virhere estate is equitable, 181,
375
where estate
is
in expectancy, 125
Settlement.
no bar by will or contract, 60
effect of conveyance not enrolled, 60
right of alienation a necessary incident of
the estate ; exceptions, 61, 62 and note (p)
invalidity of condition against alienation of,
61
note
(6)
225
powers
over, of trustee in
determination
of,
63
not liable to merger, 129
TALTARUM'S CASE.
TENANCY
See
Db Donis Conditionalibds.
COMMON,
IN
creation
of,
modes
of,
166
And
determination 'or dissolution of, modes of, 167
TION.
created by will, how affected by rule as to lapse, 405
;
TENANT,
meaning and application of term,
in cajpite,
19,
43
20
paravail, or terre-, 20
by copy of court
roll, 29, 3
in fee simple, 40
in
tail,
for
41
42
life,
Digitized
by Microsoft
see
Pakti-
550
INDEX.
TENANT coni!i?!f
jjuir
autre
vie,
(7.
42
at will, 44
TENEMENT,
meanings of the word, 16
TENUEE,
origin of,
and meaning
early division
of,
of the word, 19
into free
and
base, 20
and abolition
of, 20,
its
nature,
21
;
now
perfect
and imperfect, 23
modern freehold, 23
incidents of
varieties of freehold, 24
frankalmoign, 26
copyhold, &c.
See
Copyhold
Customaby Freehold.
TERM,
meaning
of,
43
restrictions
what
satisfied,
is a,
102
107
THELLUSSON
ACT.
See
ACCUMULATION or Income.
THINGS,
as subjects of law of property, divisions of, 4
real and personal, 4, 5
TIMBER,
what
is,
67
rights
and
liabilities of
tenant for
life
8,
30
as to.
See Life,
Estate
FOE.
statutory right of mortgagee to out, 235
TITHE RENT-CHARGE.
See Tithes.
lay interest
in,
Digitized
by Microsoft
{q)
551
INDEX.
of,
284
of,
284, 285
of,
note
428, note
(r)
436, note
(i),
(</)
TITHES,
what they consisted
modus in lieu of, 282
of
praedial,
commutation
period of
See
of.
title to,
'
Tithe Rent-ohabgb.
314
TITLE
meaning
of alienor,
of,
(/i)
proof of
and cote
(j),
310
of,
statutory
311
statutory alterations
as to, 313.314
to enfranchised copyholds, statutory alteration as to, 314
commencement
where
Land Transfer
it
may be
note ()
covenants
TITLE-DEEDS.
See
for.
See
of,
statutory alteration
Act, 1875
315
concealment of defects
in,
Covenants.
Muniments of
Title.
TITLES
of honour as subjects of law of property,
7,
note
(y)
TRANSFER
of right of property, meaning of, 306 and notes
by act of party or by operation of law, 307
of,
TREASON.
See
356. 357
Foefeitueb.
Digitized
by Microsoft
(i), (c)
(e)
315 and
552
INDEX.
Equitable Estate,
meaning of the term, 170 and note (5)
created by declaration of trust, 177
declaration of trust, how made,
of,
196
of surplus after fulfilment of trust, 199
for sale of land, provisions of Settled Land Acts applicable
to,
182
by operation of law
resulting, definition
and instances
197
constructive, definition
and instances
of, 198,
200, 201
necessary
where writing
for,
375
arising from equitable
250
far apphcable
and
charges
liens,
statutes of limitation,
for conversion.
how
to,
448
See CONVERSION,
See
Mareied Woman.
TKUSTEE,
and see Bare Trustee.
under Settled Land Acts, 83, 84
devolution
186, 191,
of,
on death
416
disclaimer or acceptance
of,
187
and note
(u)
retirement or removal from, causes of, 187 and note {z), 471
survivorship and devolution of, 191 and note (a;)
is joint
power of appointing new, and statutory provisions as to, 187, 189
;
and statutory
pro-
as to investments, 192
statutory, as to sales, 193
190
194
Digitized
by Microsoft
INDEX.
553
l-RVSTSlS-contimted.
powers of, statutory, under Copyhold Acts, 194
provisions of Settled Land Acts as to, 88
rights of, to indemnity and reimbursement,
194 and note (m)
to protection or advice of Court,
195
to settlement of accounts, 195
in bankruptcy.
See Bankruptcy.
to preserve contingent remainders.
married woman.
See
infant.
See Infant.
unsound mind. See Unsound Mind, Pbeson op.
felons.
See Felon.
of
TURBARY,
common
of,
289
UNDERLEASE,
what
it is, 100
distinguished from assignment, 100 and notes
no liability under, to original lessor, 100
investigation of title to, 313, 314
UNDUE INFLUENCE
may
OF,
presumption of sanity, 493
will of, void, unless
made
co
Lunacy Act,
mm ittee may
492, 493
USES,
origin of, 144
distinctions between,
149.
And
see
(/'
Executory Interests;
Powers.
future,
declared by
interests, 148
390
Digitized
(g),
by Microsoft
361
554
USES
INDEX.
continued.
declaration
of,
place
form and
to bar dower,
of, 145
as to jointures, 437
352
what
upon conveyances,
352, 353
and another
jointly,
354
and note
(s)
'
provision
as to rent-charges, 356
forms of conveyances under by, or without, transmutation of posof,
application
of,
VENDOR'S LIEN.
See
(s)
VESTED INTEREST,
what
it is,
12
VESTED REMAINDER,
definition of, 123
how
created, 123
rights of owner of, as to use and enjoyment, 123
in case of waste by particular tenant.
alienation
of,
See
Waste.
in general, 125
Settlement.
determination of, modes of,
See
12S
VESTING ORDER,
under Trustee Acts, 1850 and 1852
1S9
and note
495
in bankruptcy, of disclaimed property, 461, 462
VILLEINAGE,
tenure
in, 20,
29 and note
{I).
And
see
Tenuee.
VIVUM VADIUM,
meaning
of,
222
Digitized
by Microsoft
(k),
INDEX.
'oba
VOLUNTARY
See Trust.
trust.
alienations,
And
see Cbjsdi-
iSee
340, 341.
And
see
PUECHASKB.
WASTE.
VOLUNTEER
takes subject to prior equities, 201
WAIVER.
FoEFBITUEE.
See
WARRANTIES
for
title,
(c)
WASTE,
definition of, 65
voluntary or permissive, 66
liability of tenant for life for voluntary, 65
tenant for life not liable for permissive, semUe, 66
in timber and other trees, what is, 67, 68
in buildings, what is, 68
accidental destruction is not, 68
in mines, what is, 68
by changing course of husbandry, what is, 68
equitable, what, 69
provision of Judicature Act, 1873, as to, 69
tenant in fee simple where liable for, 53
tenant in tail after possibility of issue extinct liable
liability of copyholder for, 53, 65
tenant for years for, 90
tenant at will not liable for permissive, 109, note (r)
remedy
remainderman
of reversioner or
for, 115,
123
by one
joint tenant,
remedy
mortgagee in possession
WASTES OF MANOR,
what are, 27
grants of, by lord, and Copyhold Act, 1887, as to, 29, 52
lord may deal with, subject to commoners' rights, 292
encroachments on, acquisition by, 295
approvement of, 295
WATER,
meaning of term
in conveyances, 383
WELSH MORTGAGE,
meaning
of,
Digitized
by Microsoft
for,
65
556
INDEX.
WILD'S CASE,
rule in, 404
WILL,
definition of, 385
codicil to, 385
it takes effect as to property, under former and present law, 386, 407
formalities necessary for, before, and under Wills Act, 387, 388
(r)
signature
of,
operation of
sufficiency
note
probate,
by admit-
390,
[I)
392
how
on death without
issue, before
400, 401
words of description
in
effect of general gift, 401, 402
general devise of land,' before and since Wills Act, 402
;
'
'
words of limitation
in
403
technical terms not necessary
Digitized
by Microsoft
557
INDEX.
WILL continued.
words of limitation
in
404
vesting of gifts by, general rules as to, 405
lapse of gift by, general rule as to, 405
whether
it
exception
to,
ademption of
what
gift by,
efEect of acquisition
revocation
of,
different
&c.
407
no
of,
common law,
common law, 227
WITNESSES.
See
176
Deed Will.
;
of,
Case,
Rule
in,
376
And
see
elegit,
Will.
Judgment Debt
(i)
YEARLY TENANCY,
nature
of,
43
words of limitation
YEARS, ESTATE
of,
in
(/)
38 1
Yeaely Tenancy,
definition of, 43
less
than
life estate,
determinable on
77, note (6)
creation
words
of, 89.
life,
43
and
see 42,
note
powers of owner
of,
(0)
INTEEBSSE Tbemini
Digitized
by Microsoft
Lease.
558
INDEX.
will,
and
1883, hereon,
92
as to emblements, and local customs respecting, 93, 94
as to use
lease, 94.
alienation of,
purposes, 98, 99
general right of, and restrictions on, 100, loi
by assignment or by underlease,
Undbelease.
under Settled Land
100.
See
Assignment
Acts, loi
Enlargement
limitation
of,
Fobpeitueb
Pkoviso
Teem.
how
YORKSHIRE REGISTRY.
>See
Rbgisteation.
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ADMIRALTY LAW
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Smith
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Hazlitt
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^
15,
29
39
47
Smith
Watts
COMPENSATION
Browne
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13
CONSTABLES
29
28
29
39
40
17
.?
19
POLICE GUIDE.
HISTORY
I^orsyth
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14
21
Thomas
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CONSULAR JURISDICTION
Tarring
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Hudson
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CAPITAL PUNISHMENT
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CARRIERS
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.Jefi
CREW OF A SHIP
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Baldwin
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24
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II
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COMMERCIAL AGENCY
Campbell
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Harris
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Hall
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45
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LAW
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30
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Thomas
21
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38
DISCOVERY Peile
DIVORCE Harrison
DOMESTIC RELATIONS
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g
38
9
23
Smith
EDUCATION ACTS
See MAGISTERIAL LAW.
ELECTION LAW and PETITIONS
33
33
47
...
EQUITY
Blyth
22
....
35
32
...
Snell
22
Story
Williams
43
7
EVIDENCE
Phipson
20
EXAMINATION OF STUDENTS
Bar Examination Journal
Indermaur
...
39
24 and 25
LL.B
21
Intermediate
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Copinger
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INFANTS
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Pemberton
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38
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INDEX TO PRECEDENTS
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Hardcastle
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Eversley
ECCLESIASTICAL
HINDU LAW
EXECUTORS
9
43
Simpson
INJUNCTIONS
Joyce
Brown's
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Dictionary
INSURANCE
Porter
INTERNATIONAL
...
Clarke
45
Clarke
Cobbett
Foote
45
43
36
37
Law Magazine
INTERROGATORIES
Peile
INTOXICATING LIQUORS
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JOINT STOCK COMPANIES
See COMPANIES.
18
JUDICATURE ACTS
.
Indermaur
Kelke
25
6
JURISPRUDENCE
Forsyth
26
6
LAW
EXTRADITION-
-.44
LAW
INSTITUTE OF THE
14
13
Salmond
JUSTINIAN'S
INSTITUTES
,.
Campbell
Law
33
32
Foa
Argles
Dutch
.38
Foote
35
Pavitt
32
FORESHORE
Moore
May
........
See
Emden
28
LAW MAGAZINE
Brown
26
and
REVIEW.
37
...
...
25
28
25
2S
LEADING CASES
Common Law
Eversley
13
by
LATIN MAXIMS
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ir
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30
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Thomas
28
LEASES
Emden
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'
Hanson
10
'
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TIONAL LAW.
LICENSESfe MAGISTERIAL LAW.
L'IFE ASSURANCE
Buckley
.
17
Reilly
29
LIMITATION OF ACTIONS
42
LUNACY
7
LAW
....
Mai-tirt
and
LEGITIMACY
Foote
36
Brown's Edition of
40
Frost
.'
42
12
PAWNBROKERS
See MAGISTERIAL LAW.
PETITIONS IN CHANCERY AND
LUNACY
PILOTS
17
POLICE GUIDE
.
MAGISTERIAL LAW.
SHIPMASTERS & SEAMEN.
MERCANTILE LAW ..... 32
See
Campbell .
Duncan
9
33
11
Slater
See SHIPMASTERS.
STOPPAGE IN TRANSITU.
MERCHANDISE MARKS
Daniel
42
MINES
46
POLLUTION OF RIVERS
Higgins
30
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Bankruptcy
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19
45
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31
Law
Election Petitions
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7,
Injunctions
Magisterial
Pleading, Precedents of
9
33
22 and 32
44
46
Railways
Railway Commission
Rating
Supreme Court of Judicature
.
14
.
19
19
25
AND RULES
Emden
.11
PRECEDENTS OF PLEADING
.
Plarris
See
Daniel
Griffith
17
kay
PATENTS
Kay
Williams
43
PASSENGERS
See MAGISTERIAL LAW.
RAILWAY LAW.
PASSENGERS AT SEA
Williams
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47
MAGISTERIAL LAW.
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NATIONALITY 5cc PRIVATE
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9
13
21
Thomas
28
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...
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.
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Deane (Conveyancing)
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Houston (Mercantile)
Indermaur (Common Law)
Snell (Equity)
Taswell-Langmead
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...
....
23
27
32
24
44
15
22
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J.)
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STATUTE OF LIMITATIONS
.
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Aldred
Bar Examination Journal
Indermaur
Craies
39
25
22
Waite
19
47
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STOPPAGE IN TRANSITU
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Elliott
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See
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"
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"form it constitutes a complete, and so far as our examination has gone, an accurate treatise on the branch
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"
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We
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enlarged."
The Field.
" With the revisions and additions, Mr. Emden's treatise claims in a higher degree to be considered the
most comprehensive text-book of the law relating to building that has been published in a single volume."
" This work, vie\Ved as a whole, is in all ways a standard authority on all the subjects treated, and it is
a small Law Library on building subjects, ingeniously and most lucidly compressed in' a single
The Building World.
*'
No more useful book for architect, contractor, or building owner has been published than Emden's
Law of Building, Building Leases, an,d Building Contracts,' and its re-issue as a revised and extended
work will be generally appreciated." The Architect.
" A second edition of Mr. Alfred Emden's useful work on The La-w relating to Building Zeases, atid
Buildin Contracts:^ has just been issued by Messrs. Stevens & Haynes, Bell Yard, Temple Bar. The
first edition soon became exhausted, and the learned author has entirely rewritten, remodelled, and
considerably enlarged the previous edition. There is a good collection of precedents with respect to
matters connected with building, together with the Statute Law relating to building, with notes, and the
A new and comprehensive index has been compiled, and last, -but
latest cases under the various sections.
not least, is an excellent glossary of architectural and building terms used in the Building Act, building
Laiu Time's.
leases and contracts, &c."
" We have been asked from time to time which is the text-book of the Law relating to Buildi7ig,
Building Leases, a7id Building Contracts, and we have had to reply that, so far as we know, the comprehensive work published by Messrs. Stevens & Haynes, of Bell Yard, Temple Bar, by Mr. Alfred
Emden, is the best and most generally useful we know. We mention this fact because asecondedition
has just been published, rewritten, remodelled, and enlarged,' on the law relating to buildings, with new
chapters on damage to property or person caused by building, gas and water, support, party walls, aijd
Voluminous precedents are also given, with a comprehensive view of the Statute Law, which
light.
has materially changed since the first edition was published in 1882. It is well that those engaged in the
building trade should bear this in mind, as much litigation would therefore be avoided, with its consequent
expense and annoyance. The book is rendered more valuable from its glossary and well-arranged index."
Building Times.
"The present treatise of Mr. Emden deals with the subject in an exhaustive manner, which leaves
The book contains a number of forms and precedents for building leases and
nothing to be desired.
agreements which are not to be found in the ordinary collection of precedents." The Times.
" Mr. Emden has obviously given time and labour to his task, and therefore will save time and laboiar
La%v Journal.
to those who happen to be occupied in the same field of enquiry."
"It may safely be recommended as a practical text-book and guide to all people whose fortune or
misfortune it is to be interested in the construction of buildings and other works." Saturday Review.
"To supply this want is the writer's object in publishing this work, and we have no hesitation in
expressing our opinion that it will be found valuable by several distinct classes of persons .... it seems
The Builder,
to us a good and useful book, and we recommend the purchase of it without hesitation."
" From the point of view of practical utility the work cannot fail to be of the greatest use to all who
require all ttle law in the course of their building operations. They will find both a sound arrangement
and a clear sensible style, and by peiusing it with ordinary attention many matters of which they were
in reality
volume."
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By WILLIAM FINDER EVERSLEY, B.C.L., M.A.,
:
We
essentially readable and interesting, and ought to take a high place among text-books. . . .
say, without hesitation, that this is a learned book, written in a peculiarly fascinating style, having regard
to the nature of the subject. ... It can only be said, therefore, that the book is deserving of success upon
the merits ; and that the attempt to combine the treatment of three branches of the law which have hitherto
been unnaturally divided shows, in itself, a comprehensive grasp of principle." Laiv -Ti7nes.
"The author may be congratulated upon having produced an excellent treatise- on this branch of the
law, well arranged, clearly written, and complete.
word of praise, too, must be accorded to the
laborious care with' which he has accumulated references to the various Reports, and constructed his very
full index,"
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is
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"
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voltlme an intelligent perusal of which would educate a student better than the reading of
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on
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far as
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opportunity of reconsidering and carefully revising his statements in detail, we think it will take its place
as a very good treatise on the modem law of landlord and tenant." Solicitors' Journal,
" Mr. Foa is a bold man to undertake the exposition of a branch of law so full of difficulties and encumbered by so many decisions as the Law of Landlord and Tenant. But his boldness is justified by the
excellent arrangement and by the lucid statements which characterise his book." Law Quarterly Review.
*'
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creation (distress) and determination of the relationship {3) modes and incidents of determination. We
commend it to the attention of the Proression, and predict for Foa on Landlord and Tenant a very useful
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and Tenant." Law Notes.
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favourable one." Law Students' yournal.
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striking instance of accuracy and lucidity of statement. The volume should be found useful not only by
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From
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Cross-references.
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companies;" "the law relating to building, BUILDING LEASES, AND CONTRACTS;
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" A very full index completes the book. Mr. ;Hudson has struck out^a ne^v line for himself, and produced a work of considerable merit, and one which will probably be found indispensable by practitioners,
iriasmuch as it contains a great deal that is not to be found elsewhgre. The Table of Cases refers to all
the reports." Law ypurnal.
" Mr. Hudson, having abandoned his profession of an architect to become a barrister, hit upon the idea
of writing this work, and he has done it with a thoroughness which every houseowner would like to see
bestowed upon modern houses
The Index and Table of Cases reveal a vast amount of industry
expended upon detail, and we shall be much surprised if Mr. Hudson does not reap the reward of his
labours by obtaining a large and appreciative public." Law Times.
*'
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practical and exhaustive manner with the Law of Building and Engineering Contracts.
Aji Index of
Precedents and a good General Index will be found at the end, of the yfOvW^^Solzcitors* yournal.
"... has enabled him to produce a work which, regarded both from the lawyer's and from the ai-chitect's
and builder's point of view, must be pronounced excellent. It is good from the lawyer's standpoint as
being logical m arrangement, clear in statement, and generally accurate in the law laid down. The architect or engineer will also give it praise for answering the questions precisely which arise in his dealings
.
^^
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In 8vo, price
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It is clear, concise, well and intelligently written and one rises from its perusal with feelings of
pleasure. .
After perusing the entire work, we can conscientiously recommend it to students."
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METROPOLITAN
ACTS,
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AND
ACT,
1873,
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study of the subject, with clear enunciations of the principles he finds governing the various decisions. In
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treatment of a subject in which each branch of it in reality overlaps another.
good index and
clear type increase the value of a book which will without doubt receive the hearty commendation of the
profession as a successful completion of the author's ambitious task."
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'
'
... A
Law
'*
The reader who takes these as samples of the work, will find how careful and exhaustive Mr. Beven has
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Law
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fair trial at
Quarterly Review.
" This is the most elaborate work on the Law of Negligence which has yet appeared in England.^
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His treatment is original, and has evidently not been adopted without great research, care, and revision."
.
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S^
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compendium which has entered a second edition is Mr. Edwards' 'Compendium of
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Mr.
Edwards has manifestly bestowed the utmost care in putting into the most modern dress a treatise which
we think will continue to grow in the estimation of the profession." Lww Times.
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Land. The style is good, the conclusions of law are accurate, and the authorities are well selected. . The amount of detail is much greater than in Williams
As a companion volume to it, we can with
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the modern law.
Altogether it is a work for which we are indebted to the author, and is worthy of the
improved notions of law which the study of jurisprudence is bringing to the ironX."Solicitors' yourneU.
" This book shows signs of thorough work throughout
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"Another
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JOINT
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SEWARD
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THIRD EDITION.
REVISED THROUGHOUT AND ENLARGED, AND CONTAINING THE
UNITED STATES AND COLONIAL DECISIONS.
EEVIEWB.
On
literature of
Law
It is the
of Corporations that Mr. Brice treats of (and treats of more fully, and at the Game
time more scientifically, than any work with which we are acquainted), not the law of principal and
'
agent
'
On
his
the
it
Common Law
Zaw youmal.
East Anglian Railway Co v
so vague a title."
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in
Eastern Counties Railway Co., Bkice on Ultra Vibes may be read with advantage." y-udgment of
Lord Justice Bramwell, in the Case o/Evers/ted v. L. &" N. W. Ry. Co. (L. R., 3 Q. B. Div 141
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ON'
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It has a quality
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The
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leading case. As a matter of course, many incidental points of interest arose during the progress
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OF.
ARCHIBALD BROWN,
ROMAN LAW.
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the_
|
,;
in
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OF
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GAIUS
AND JUSTINIAN.
SEYMOUR
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WORCESTER COLLEGE, OXFORD, AND THE INNER TEMPLE, BARRISTER-AT-LAW
AUTHOR OF " UNIVERSITIES AND LEGAL EDUCATION."
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a7td laborious condensation," "LiAV^ Journal.
" This book contains a summary in English of the elements of Roman Law as contained
in the works of Gaius and Justinian, and is so arranged that the reader can at once see
what are the opinions of either of these two writers on each point. From the very exact
and accurate references to titles and sections given he can at once refer to the original
writers.
The concise manner in which Mr. Harris has arranged his digest will render
it most usefiil, not only to the sttidentsfor whom it was originally Written,
but also to those
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of Paste,
Sanders, Ortolan, and others, yet desire to obtain some knowledge of Roman Law."
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i\
:in
TIME.
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p..
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'
By
C.
'
,,
"Mr. Carmichael has performed his allotted task with credit to himself, and the high standard of
excellence attained by Tas well- Lang mead's treatise is worthily maintained. This, the third edition, will
be found as useful as its predecessors to the large class of readers and students who seek in its pages
accurate knowledge of the history of the constitution." Laiv Thnes.
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for the raciness and vigour of its style. The editorial contributions of Mr. Carmichael are judicious, and
add much to the value of the work." Scottish Law Review.
Contemporary Review.
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'*
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law
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JouT-nai.
" The work before us it would be hardly possible to praise too highly. In style, arrangement, clearness,
and size, it would be difficult to find anything better on the real history of England, the history of its
-
Law
constitutional
"As
it
growth
now
its rivals."
We
__.__..
Acadeiny.
Second Edition,
<,
LL.B.
OF LONDON UNIVERSITY";
AND
(PASS
HONOURS),
iNCLtJDiNG
By
LL.B. (Lond.).
a B.A.,
,.
4i.
CONTRACT LAW.
Examiner
" This appears to us a very ^JmiraUe selection of. questionSj^mparing faypurably with the average
run of these set in examinatioris.U/gllSZiff OrJaJ^ jfUflfiCOSOM progress. 'Lam Journal.
WORKS FOR
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ARCHIBALD BROWN, M.A. Edin. & Oxon., &
Oxon.,
B.C.L.
REVIEWS.
" Mr. Brown's long experience (he has edited seven
" This is the Ninth Edition of certainly one of the best, and probably the most widely read, text-books,
which deals with any part of the English law." Oxford Magazi?ie.
" It is ample proof of the popularity of Snell's Principles of Equity that it has now reached its Ninth
Edition in the hands of Mr. Archibald Brown." Law Times.
" This is now unquestionably the standard book on Equity for st\xAQnis."Saiitrday Review.
" On the whole, we are convinced that the Sixth Edition of Snell's Equity is destined to be as highly
thought of as its predecessors, as it is, in our opinion, out and out the best work on the subject with which
'
'
it
deals."
"
Gibson's
Law
We know
Notes.
of no
of Equity.^*
E. E.
Blyth, LL.D.,
Notes thereon.
Solicitor.
Law
" Mr. Blyth's book will undoubtedly be very useful to readers of Snell."
Tifnes.
"This is an admirable analysis of a good treatise ; read with Snell, this little book will be
profitable to the student,"
Journal.
found
verj'
Law
In 8vo, price
2j.j
sewed,
QUESTIONS ON EQUITY.
FOR STUDENTS PREPARING FOR EXAMINATION.
FOUNDED ON THE NINTH EDITION OF
Digitiz e d
by Microsoft
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LAW
WORKS FOR
Second Edition,
in
STUDENTS.
PRINCIPLES OF
23
i8j., cloth,
CONVEYANCING.
OF STUDENTS.
is taught.''''
Canada
We
"
like the work, it is well written and is an
excellent student's book, and being only just published, it has the great advantage of having in it all
the recent important enactments relating to conveyancing.
It possesses also an excellent index."
L.a'w Students' your^ial,
** Will
be found of great use to students entering
upon the difficulties of Real Property Law. It has
Law
fifty
Times.
Fourth Edition,
in all
Law
Schools
'*
In the parts which have been rewritten, Mr.
Deape has preserved the same pleasant style marked
by simplicity and lucidity which distinguished his
edition.
there
'
is
A SUMMARY OF THE
LAW &
PRACTICE IN ADMIRALTY.
FOR THE USE OF STUDENTS.
By
EUSTACE SMITH,
"The book is well arranged, and forms a good introduction to the subject." Solicitors' younial.
" It is, however, in our opinion, a well and carefully written little work, and should be in the'_^hands of
every student who is taking up Admiralty Law at the Final." Law Students' yoztrjial.
" Mr. Smith has a happy knack of compressing a large amount of useful matter in a small compass. The
present work will doubtless be received with satisfaction equal to that with which his previous Summary'
has been met." Oxford and Cambridge Undergraduates' yourfial.
'
A SUMMARY OF THE
IN
EUSTACE SMITH,
"
" His object has been, as he tells us in his preface, togiye the student and general reader a fair outline
of the scope and extent of ecclesiastical law, of the principles on which it is founded of the Courts by
think the book well
it is enforced, and the procedure by which these Courts are regulated.
Its value is much enhanced by a profuse citation of authorities for the propositions
fulfils its object.
We
which
contained in
it."
Bar Examination
Journal.
The work
students."
-
is
Law
we
Digitized by Microsoft
.,,
fi^th-. Edition)
I-n
price 20j.
clo.th,
r,
r/;
sixth edition.
By JOHN^INDERMAUR,
Solicitor,
" The
ciples of
'
'
The
student will find in Mr. Indermaur's book- a safe and clear guide to the Prin.
Common Law."
Law you>-}tal,
,1892.
present edition of this elementary treatise has been in general edited with praise-
worthy care. The provisions of the statutes affecting the subjects discussed, which have
been p'asse'd since the .publica,tion of the last edition, are clearly-summarised, and, the effect
of the le'aditig cases is generally very well given.
In the difficult task of selecting and
distinguishing principle from detail, Mr. Indermaur has been very successful ; the leading
principles are clearly brought out, and very judiciously illustrated." Solicitors' yournal.
useful elementary
works
" The praise which we were enabled to bestow upon Mr. Indermaur's very
on its first appearance has been justified by a demand for a second
pilation
com-
useful
edition."-
Law Magazine,
"
We
were able, four years ago, to praise the first edition of Mr. Indermaur's book as
be of use to students in acquiring the elements of the law of torts and contracts.
The second edition maintains the character of the book." Law Journal.
likely to
light reading.
He
works are
all
'
Principles of the
Common Law
'
And
while his
especially displays
That
those features.
the
work on
its first
'
'
evinces that every care has been taken to insure thorough accuracy, while including all
the modifications in the law that have taken place since the original publication ; and that
the references to the Irish decisions which have been now introduced are calculated to
render the work of greater utiUty to practitioners and students, both EngUsh and Irish."
Irish Law Times.
" This work, the author tells us in his Preface, is written mainly with a view to (he
examinations of the Hrtcorporated Law Sotiety ; but We think it is likely to attain a wider
usefulness.
It seems, sofar aswe can. judge frQm thefaiis we have excunined, to be a
careful and clear outline of the principles of the common law.
It is very readable ; and
not only students, int -many p^-actitioners arid tJie public, miglit benefit by a perusal of its
pages."
Solicitors' Journal.
Digitized
by Microsoft
"
25
14J., cloth,,
MMUAL
'
'
*'
'
it contains a consideralDle
It is written so as to include the new Rules,
Riile XI. by the Judges in January last. The
quite due to the present issue." Laiu Journal^ February^ 1894.
praise
'
6j.,
cloth,
it
AN EPITOME OF LEADING
6j.,
Law
Journal,
cloth,
Solicitor,
"An
Author of
Common Law
Epitome of Leading
Cases.
" We have received the second edition of Mr. Indermaur's very useful Epitome of Leading ConveyThe work is very well done." Laiv Times.
,"The Epitome well deserves the continued patronage of the class Students for whom it is especially
intended. Mr. Indermaur will soon be known as the Students' Friend.' " Caitada. Law Joui^tal,
-
'
6j.
cloth,
Containing a Complete Course of Study, with Books to Read, List of Statutes, Cases,
Test Questions, &c., and intended for the use of those Articled Clerks who read
By John Indermaur,
by themselves.
"In
Solicitor.
edition
this
Now
vTHE ARTICLED CLERK'S GUIDE TO AND SELFPREPARATION FOR THE INTERMEDIATE EXAMINATION,
As
it
now
" Stephen " now examined on, embracing a period of fourteen and a half years
(58 Examinations), inclusive of the Examination in April, 1894, &c. &c. and
intended for the use of all Articled Clerks who have not yet passed the Intermediate Examination. By John Indermaur, Author of " Principles of Common Law," and other Avorks.
,
THE
6^.,
cloth,
of
Law
Students.'
"
"
26
Fifth Edition, in
6d., cloth,
\2,s.
Fifth
I. to the End of 55 & 56 Victoria.
By George Nichols Marcy, of Lincoln's Inn,
Edw.
13
Second Edition,
In 8vo, price
2(>s,
cloth,
SECOND EDITION,
and
considerably enlarged.
ARCHIBALD BROWN,
By
.
AND STATUTES.
revised throughout,
M.A. EDIN.
AND
OXON.,
AND
B.C.L.
OXON., OF
So far as
ive
mw
"Mr. Brown
has revised his Dictionary, and adapted it to the changes effected by the
fudicature Acts, and it now constitutes a very useful work to put into the hands of any
student or articled clerk, and a work which 'the practitioner willfind of value for reference.
Solicitors' Journal.
"It will prove a
Law Times.guide
reliable
to
law
students,
and a handy
practitioners.
5^.,
cloth,
ANALYTICAL TABLES
OF
C.
chiefly
J.
from
CONTENTS,
Table
,,
,,
I.
II.
III.
IV.
Tenut-es.
Estates, according
Table
quantity
of
Tenants' Interest.
Estates, according to the time at
which the Interest is to be enjoyed.
Estates, according to the number and
connection of the Tenants.
to
V.
Uses.
,,
VI.
,,
VII.
Incorporeal Hereditaments.
,,
VIII.
Incorporeal Hereditaments.
Digitized
by Microsoft
-^
27
SEYMOUR
AUTHOR OF
''a
F.
HARRIS,
B.C.L.,
M.A. (Oxon.),
SIXTH EDITION.
By
C. L.
ATTENBOROUGH,
REVIEWS.
"The
characteristic of the present Edition is the restoration to the book of the character of * a concise
exiJOsition proclaimed by the title-page.
Mr. Attenborough has carefully pruned away the excrescences
which had arisen in successive editions, and has improved the work both as regards terseness and clearness
of exposition. In both respects it is now an excellent student's book. The text is very well broken up
into headings and paragraphs, with short marginal notes the importance of which, for the convenience
of the student, is too often overlooked." Solicitors' yozirnal.
'
"
We
think the book always a favourite with students has got a new lease of life, and will now prove
the only text-book which most men will care to study until they get beyond the examination stage of their
existence. . . . On the whole our verdict is that the new Edition is distinctly a success, and we have no
hesitation in commending it to the student as the best text-book that exists for his purposes." Z.<2;7y
Students' Journal.
*' The
favourable opinion we. expressed of the first edition of this work appears to have
been justified by the reception it has met with.
Looking through this new Edition^ we see
no reason to modify the praise we bestowed on the former Edition.
The recent cases have
been added and the provisions of the Summary Jttrisdiction Act are noticed in the chapter
relating to Summary Convictions.
The book is one of the best manuals of Criminal Law
for the student,^'' Solicitors' Journal.
" There
no lack of PTorks on Criminal Law, but there was room for such a useful
handbook of Principles as Mr. Sey??iour Harris has supplied. Accustomed^ by his p?-evious
labours, to the task of ajtalysing the law, Mr. Hai'7'is has brought to bear upon his pi-esent
work qualifications well adapted to secure the successful accomplishment of the object which
That object is not an ambitious one, for it does not pi'etend to soar
he had set before hUn,
is
Law
28*
Second
LAW
FOR
H^O/^irS
STUDENTS.
cloth,
5:^' 6rf.,
'
'
'
"
Solij;itor,j Autlip;: of
Principles- of
Common
In l2mo, price
cloth,
Sj. 6a'.,
'
Of
By John INDEEMAUR,
Solicitor.
l^a.w yourtial.
Second Edition,
A COLLECTION
OF
LITERALLY TRANSLATED.
INTENDED FOR THE USE OF STUDENTS FOR ALL LEGAL EXAMINATIONS.
Second Edition, by
in
J.
N.
CQTTERELL,
Solicitor.
for s.tudents
who come
9^., cloth,
By ERNEST
BACON SCHOLAR OF THE HON; SOCIETY OF* GRAY's INN, LATE SCHOLAR OF TRIl^ITY COLLEGE, OXFORD J
AUTHOR OF " LEADING CASES IN COl^STlTUTIONAL LAW BRIEFLY STATED."
'
Second Edition,
LEADING CASES
IN
CONSTITUTIONAL LAW
,,
By
ERNEST
THOMAS,
C.
BACON SCHOLAR OF THE HON. SOCIETY OF GRAV's INN, LATE SCHOLAR OF TRINITY COLLEGE, OXFORD.
" Mr. E. C. Thomas has put together in a slim'octavo a digest of the principal cases illustrating ConLaw, that is to say, all questions as to the rights or authority of the Crown or persons under it,
as regards not merely the constitution and structure given to the governing body, but also the mode ip,
which the sovereign power is to be exercised. In an introductory essay Mr. Thomas gives a verycle^r and
intelligent surveyor the general functions of the Executive, and the principles by which they are regulated";
and then follows a summary of leading cases." Sdiitrday Review.
**
Mr, Thomas gives a sensible introduction and a brief epitome of the familiar leading cases."
stitutional
Law
"
'
Tivies.
In Svo, price
Sj".,
cloth,
Witb
-'
"
Digitized tyy^Microsoft
-^
'
STEVENS
&=,
Second Edition,
in
THE BANKRUPTCY
'
ACT, 1883,
29
1886
The Debtors
Act, 1869, so
By WILLIAM' HAZLITT,
and RICHARD-
Esq.,
Second Edition, by R.
RINGWOOD,
RINGWOOD,
ESQ.,
M.A.,
BARRISTER-AT-LAW.
M.A., Barrister-at-Law.
.....
is
Part
LORD
I.,
WESTBURY'S
DECISIONS
EUROPEAN ARBITRATION.
THE
IN
Reported by Francis
S.
Reilly,
I., II.,
and
sewed,
IN
Reported by Feancis
S.
THE ALBERT
Reilly,
of
Lincoln's Inn,
Barrister-at-Law.
Second Edition,
A TREATISE ON
and the
LAW OF VOLUNTARY
DISPOSITIONS OF PROPERTY.
By the late H. W. MAY, B.A. (Ch. Ch. Oxford).
Second Edition, thoroughly revised and enlarged, by S. Worthington Worthington,
Editor of the "Married Women's
of the Inner Temple, Barrister-at-La\v
Property Acts," 5th edition, by the late J. R. Griffith.
;
*'
In conclusion, we can heartily recommend this
to our readers, not only to those who are in
large practice, and who merely want a classified
both the desire
list of cases, but to those who have
and the leisure to enter upon a systematic study of
Qur\3.-^:*Soliciiors' JournaL
"As Mr. Worthington points out, smce Mr. May
wrote, the 'Bills of Sale Acts' of 1878 and 1882
book
sions
conscientious
Solicitors'
yournal,
" The subject and the work are both very good,
The former is well chosen, new, and interesting
the latter has the quality which always distinguishes original research from borrowed labours."
American Law Review.
"We
We
'
STEVENS
30
&'
In one volume,
medium
or in half-roxburgh, 42^.,
IN
THE SEA-SHORE.
STUART
By
A.
MOORE,
F.S.A.,
I2j., cloth,
WATER COURSES
By
CLEMENT HIGGINS,
M.A., F.C.S.,
when brought."
Irish
Law
Times.
"We
^^^fJj(^]ff2^H^Hf^
Law
and Revzewt
"The volume is
zine
very carefully arranged throughout, and will prove of great utility both to miners
and to owners of land on the banks of rivers."
Mngineer.
STEVENS
6-
In 8vo,
Fifth Edition,
31
MAYNE'S TREATISE
ON
JOHN
MAYNE,
D.
AND
Honor Judge
His
LUMLEY SMITH,
O.C.
" Mayne on Damages has now become almost a classic, and it is one of the books which
we cannot afford to hare up to date. We are therefore pleased to have a new Edition, and
one so well written as that before us. With the authors we regret the increasing size of the
'
'
volume, but bulk in such a case is better than incompleteness. Every lawyer in practice
should have this book, full as it is of practical learning on all branches of the Common Law,
The work is unique, and this Edition, like its predecessors, is indispensable." Law Journal
April, 1894.
**
Few books have been better kept up to the current law than this treatise. The earlier part
of the book was remodelled in the last edition, and in the present edition the chapter on
Penalties and Liquidated Damages has been rewritten, no doubt in consequence Of, or with
regard to, the elaborate and exhaustive judgment of the late Master of the Rolls in WalUs v.
Smith (3 1 W. R. 214 L. R. 21 Ch. D. 243). The treatment of the subject by the authors is
Upon the point involved in Wallis v. SmWi they say : ' The
admirably clear and concise.
result is that an agreement with various covenants of different importance is not to be governed
by any inflexible rule peculiar to itself, but is to be dealt with as coming under the general rule,
that the intention -of the parties themselves is to be considered. If they have said that in the
case of any breach.a fixed sum is to be paid, then they will be kept to their- agreement, -unless
it would lead to such an absurdity or injustice that it must be assumed that they did not mean
what they said.' This is a very fair summary of the judgments in Wallis v. Smith, especially
of that of Lord Justice Cotton and it supplies the nearest approach which can be given at
can heartily commend this as a carefully edited
present to a rule for practical guidance.
edition of a thoroughly good book." Solicitors Jourfial.
;'^
We
*'
During the twcfity-two years which have elapsed since the publicatiofi of this well-known
work, its reputation has been steadily growing.^ and it has long since become the recognised
authoHty on the important subject of which it treats,''^ Law Magazine and Review.
Lumley
to property, however,
vindictive
or
'exemplary' damages cannot, except in very rare
cases, be awarded, but must be. limited, as in con-
The
result
is
most
satisfactory.
Mr.
Smith's edition was ably and conscientiously prepared, and we are glad to find that the reader still
enjoys the benefit of his accuracy and learning.
At the same time the book has doubtless been
improved by the reappearance of its author as coeditor.
The earlier part, indeed^ has been to a
considerable extent entirely rewritten. _
"Mr. Mayne's remarks on damages in actions of
agree with him that in such
tort are brief.
actions the courts are governed by far looser principles than in contracts ; indeed, sometimes it is
impossible to say they are governed by any prinIn actions for injuries to the person or
oiples at all.
reputation, for example, a judge cannot do more
than give a general direction to the jury to give
We
injuries
harm
'
sustained.
We
Solicitors'
youmal.
*'
This, text-book is so well known, not only as the highest autho?'ity on the subject treated
would be idle for vs to speak of it
of but as one of the best text-books ever written, that it
in the words of commendation that it deserves. It is a work thai no practising lawyer can
do without." Ca:^ ADA j.pBigHm&(Lby Microsoft
STEVENS
32
A'.
ffAYNES, BELL
Incrpwn
Y4JiD,
TEMPLE BAR.
Containing Instructions on
ABSTRACT DRAWING.
By
.-
C. E. ScOTT,
-
.^
.,
...
intended for the assistance of those who 'fi^ve the framing of abstracts of. title
entrusted, fo their care. ,It contains a number of usefulrules, and an" illustrativ.* appendix/' X/i'zw Times.
" A handy book for all articled clerks." La^ Students' Jo%fnial.
" Solicitors who have articled clerks would savfe tHemselves miich trouble if they furnished their clerks
with a copy of this little book before putting them on to draft an abstract of a heap of title deeds." Lam
Notes.
" The book ought to be perused by all law students and articled clerks." Red Tape.
"This
.-'
little
book
is
.-'..
'
cloth,
LAW RELATING TO
THE
By the late
JOHN WERTHEIMER,
Second Edition, by
A.'
CHASTER,
W.'
CLUBS.
This
is
In 8vo, price
TABLE
"js.,
2J-.,
sewed,
of the
and
libre
Translated by
CODES
By Charles
in
Professeur a
Napoleon Argles,
Solicitor, Paris.
In 8vo, price
l^.,
sewed,
as
1889,
ON NATION-
By A.
Solicitor, Paris.
In one volume,
demy
and
DELIVERY.
By John Houston,
Barrister-at-Law.
In 8vo, price
los., cloth,
Q.C., M.P.
In 8vo, price loj.
(>d.,
cloth,
THE QUEEN
v.
In the Court of Queen's Bench before the Lord Chief Justice CoCKBURN.
With Introduction, containing History of the Case, and Examination of the Cases at Law
and Equity applicable to it. By W. F. FrNLASON, Barrister-at-Law.
Bills.
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&=
33
By JAMES
A..
DUNCAN,
Coll.,
Camb.,
"
series
which
book
"
and
*^* The
Annual
to'
legal profession."
with
Saturday. Repie^v.
of
the
Liverpool MerciiTy.
A work of such
handy
6^.3 cloth,
Vols.
We
guide.
can thoroughly recommend Mr.
Hardcastle's book as a concise manual on the law
Tivies.
and practice of election petitions."
Law
4/. 17^.
FOR
JUDGES
By
PETITIONS
**
Vol.
V.
In 8vo, price
12s., cloth,
LANDLORD. AND
AND
IN ALL
TENANT,
FOURTH EDinON.
By ARCHIBALD BROWN, M.A.
A new
to the
tions.
Law of Ecclesiastical
The book
DigiL^-ii
Law
Titnet.
"The treatise is commendable as well for origiyoumat.
nality as for laboriousness,"
achieved.
^y Microsoft
Law
STEVENS
34
&=
tst
%t))vmXe at
Vm
ffiarls
^prter.
SIR
CASES.
4/. 4^.,
FOURTH
EDITION.
in Parliament.
Law
Reports.'"
BELLEWE'S CASES,
In 8vo, 1869, price
T.
RICHARD
bound
3/. 3^.,
II.
in calf antique,
ensembr hors
les
Per
abridgments de; fitatham, Fitzherbert et Brooke.
Reprinted from the Original
Lincolns Inne.
1585.
Richard Bellewe, de
Edition.
"No public library in the "world, where English,
law finds a place, should be without a copy of this
editiop of Bellewe."
We
"
have here a./ac-si7nile edition of Bellewe,
it is really the most beautiful and admirable
reprint that has appeared at any time. It is a
perfect gem of antique printing, and forms a most
interesting monument of our early legal history.
It belongs to the same class of works as the Year
Book of Edward I. and other similar works which
have been printed in our own time under the
auspices of the Master of the Rolls ; but is far
superior to any of them, and is in this respect
and
Law
CUNNINGHAM'S
REPORTS.
'
Digitiz e d
f)eace
'
Laiv Journal.
by Microsoft
STEVENS
6-
CHOYCE CASES
In 8vo, 1870, price
IN
35
CHANCERY.
antique,
is
of
All
SIR
IN
G.
COOKE'S
3/. 3j.,
calf antique,
I.
and
II.
The Third
BROOKE'S
NEW
edition
peculiarly
desirable,
Messrs.
KELYNGE'S
jfournal.
(W.)
REPORTS.
4/. 4^.,
calf antique^
Kelyno's
(Sir J.)
Barrister-at-Law.
look upon this volume as one of the most
important and valuable of the unique reprints of
Messrs. Stevens and Haynes. Little do we know
**
We
Crown
Law
MlCrOSOft
STjEVENS
86
'
.&'
Second Edition,
TREATISE ON
A CONCISE
OF Lincoln's inn, baerister-at-law ; chancellor's legal medallist and senior whewell scholar
OF international law, CAMBRIDGE UNIVERSITY, 1873 SENIOR STUDENT IN JURISPRUDENCE
AND ROMAN LAW, INNS OF COURT EXAMINATION, HILARY TERM, 1874.
;
''
This work seems to us Ukely,to prove of considerable, use to all English lawyers who have to deal with
questions of private international law. Since the publication of Mr. Westlake's valuable treatise/ twenty
years ago", the judicial decisions of English courts bearing upon different parts of this subject have greatly
increased in number, and it is full time that these decisions should be examined, and that the conclusions
to
this well."
Solicitors'
set forth in
treatise.
yournaL
" Mr. Foote has done his work very well, and the book will be useful to all who have;to deal with.the
which English law alone is not sufficient to settle the question." Saturday Review,
March' 8, 1879.
" The author's object has been to reduce into order the mass of materials already accumulated in the
class of cases in
shape of explanation and actual decision on the interesting matter of which he treats ; and to construct a
framework of private international law,- not from the dicta of jurists so much as from judicial decisions in
English Courts which have superseded them. And it is here, in compilihg and arranging in a concise
form this valuable material, that Mr. Foote's wide range of knowledge and legal acumen bear such good
fruit.
As a guide and assistant to the student of international law, the whole treatise will be invaluable :
while a table of cases and a general index will enable him to find what he wants without trouble."
Standard,
,
The recent decisions on points of international law (and there have been a large number since Westlake's
publication) have been well stated. So far as we have observed, no case of any importance has been
omitted, and the leading cases have been fully analysed. The author does not hesitate to criticise the
grounds of a decision when these appear to him to conflict with the proper rule of law. Most of his
criticisms seem to us very just.
On the whole, we can recommend Mr. Foote's treatise as a useful
addition to our text-books, and we expect it will rapidly find its way into the hands of practising lawyers."
Tke Journal of Jurisprudence and Scottish Lanv Magazine.
"Mr. Foote has evidently borne closely in mind the needs' of Students of Jurisprudence as well as those
of the Practitioners. For both, the fact that his work is almost entirely one of CaSe-law will commend
it as one useful alike in Chambers and in Court."
Law Magazine and Review.
" Mr. Foote's book will be useful to the student
One of the best points of Mr. Foote's book
'
the * Continuous Summary,' which occupies about thirty pages, and is divided into four parts Persons,
Property, Acts, and Procedure. Mr. Foote remarks that these summaries are not in anyway intended as
an attempt at codification. However that may be, they are a digest which reflects high credit on the
;
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"Mr. Joyce, whose learned and exhaustive work on 'The Law and Practice of Injunctions' has
gained such a deservedly high reputation in the Profession, now brings out a valuable companion volume
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language of the Courts has been adhered to. Written as it is by so acknowledged a master of his subject,
and with the conscientious carefulness that might be expected from him, this. work cannot fail to prdve of
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Practice of Injunctions." Law Journal.
law.
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is
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the general
'
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will
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'
STEVENS
a'
INDEX
To the Names of Authors and^ Editors of Works enutnerated in this Catalogue.
'
Aldr^D
(P. )?.),
Argles
(N.), 32.
Higgins (C),
page 21.
27.
Jones
BEAL(E.),'32.
Bellewe,(R.),i34.
Seven
Blyth
(E.
E-.),
Brooke (Sir
Brooks (W.
Brown
9, 16.
J.), 1326-,
33, 40.
19.
35.
March (John),
Marcy (G. N.),
47.
Campbell (Robert), 9, 40.
Carmichael (C. H. E.), 21.
(J. J.
38.
(Pitt), 43.
COGHLAN (W. M.), 28.
CooKE (Sir G.), 35-
Gopinger (W.
id.
Pemberton
Phipson
(J. B.), 6.
Reilly (F. S.), 29.
RINGWOOD (R.), 13, 15, 29.
Salkowski (C), 14.
(T.), 34,
Salmond
De Wal(J.),
Duncan (J. A.),
P.), 38.
GiBBS
38.
33.
(A.), 8, 11.
10.
W.),
(F.
godefroi
Waite (W.
10.
Walker
C),
23.
Hazlitt
r^.
...
T.), 22.
(W. G. ),
Williams
Harwood
39.-
6, 18, 43.
(H.), 9, 33.
(Seymour F.), 20, 27.
(W. A.), 47.
(J.
30.
IIardcastle
Harris
Harris
Harrison
20.
Taswell-LaN'Gmead, 21.
Thomas (Ernest C), 28.
Tyssen (A.-D.), 39.
Van der Keesel (D. G.), 38.
Van Zyl,
Van Leeuwen,-38.
Hall(R. G.),
Hanson (A.),
13.
Story, 43.
Tar;ring (C>
10.,
(h.), 47.
Greenwood
W.),
Slater (J.), 7.
Smith (Eustace), 23,
Smith (F. J.), 6.
Smith (Lumley), 31.
Snell (E. H. T.), 22.
II.
36.
(J.
Simpson
F.), 32.
Porter
DiBDiN,
38.
Deane
46.
(W.), 38.
(S.A.), 30.
O'Malley (E. L.), 33.
DeBruyn(D.
Cunningham
Cunningham
Cunningham
17.
Menzies
Corner
Craies
35.
35.
26.
CoBBETT
Cooke (Hugh),
H. Balfour),
(J.
(W.), 44.
22.
R.), 35.
BiioWNE
25, 28,
Joyce
(E.), 47.
(T.), 14.
Brice (Seward),
30.
&
(S. E.), 7.
(S. W.), 20.
-WORTHTNGTON
DigitiTBcihy
Mien
CO. LD.,
_^
38.
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