Henry Williams Challis Henry J. Hood.

The Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... online

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make the enfranchisement. On a compulsory enfranchisement the
right to the minerals remains in the lord (15 & 16 Vict. c. 51, s. 48,
and 21 & 22 Vict. c.'94, s. 14) ; and it therefore seems probable that
a vendor, selling freeholds " formerly copyhold " without specifying
in the contract the mode of enfranchisement, would not be relieved
from the necessity of making a title to the minerals.

A vendor selling freeholds which are in fact enfranchised copy-
holds, but are not in the contract stated so to be, will of course be
taken to have contracted to sell the minerals along with the surface ;
and if he fails to make a good title thereto, the purchaser may
rescind. {Upperton v. Nicholson, L. E. 6 Oh. 436.) But if a con-
tract for the sale of copyholds contains a stipulation that tiie vendor
shall procure their enfranchisement, the purchaser will be taken to
have known that on an enfranchisement the lord could reserve the
minerals, and cannot rescind upon the ground of such reservation.
{Kerr v. Pawson, 25 Beav. 394.)

(3.) A purchaser of any property shall not require
the production, or any abstract or copy, of any deed,
will, or other document, dated or made before the time
prescribed by law, or stipulated, for commencement of
the title, even though the same creates a power subse-
quently exercised by an instrument abstracted in the
abstract furnished to the purchaser; nor shall he require
any information, or make any requisition, objection, or
inquiry, with respect to any such deed, will, or docu-
ment, or the title prior to that time, notwithstanding
that any such deed, will, or other document, or that
prior title, is recited, covenanted to be produced, or
noticed; and he shall assume, imless the contrary
appears, that the recitals, contained in the abstracted
instruments, of any deed, will, or other document,
forming part of that prior title, are correct, and give
all the material contents of the deed, will, or other
document so recited, and that every document so
recited was duly executed by all necessary parties, and

{)erfected, if and as required, by fine, recovery, acknow-
edgment, inrolment, or otherwise.

The words *' And he shall assume, unless the contrary appears,"
throw the burden of proof upon the purchaser, without precluding
him from showing, either aliunde or on the face of the abstract, that
the recitals, &c., are in fact incorrect, &c. The previous words,
''Nor shall he . • . make any . . . objection," &c., since, by virtue
of 8ub-s. (11), infra, they have no greater efficacy than a similar
condition inserted in a contract before the Act, cannot be used by a
vendor to doak material defects. (Elee v. Else, L. E. 13 Eq. 196 ;
Hamett v. Baker, L. E. 20 Eq. 60 ; Broad v. Munton, 12 Oh. D.
131 ; Smith v. Robinson, 13 Ch. D. 148.) Nor will they prevent the
rectification of a mutual mistake discovered before completion.
{JonesY. Clifford, 3 Ch. D. 779.) It is, of course, possible to prevent



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112 CONVEYANCING AND LAW OF PROPEETY ACT, 1881.

(3. A. 1881, any objection being taken on the ground of a defect discovered
Sect. 3. aliunde by the insertion of a special condition, such as that in the

— case of Hume v. Bentleyy 5 De G. & Sm. 520 ; where the words

<* The lessor's title will not be shown and shall not be inquired into,"
were held to preclude objection, and specific performance was decreed.
But for such a purpose the language of the condition must be precise.
In Rosenberg v. Cooky 8 Q. B. D. 162, and Beet v. Hamand, 12 Ch.
D. 1, the purchaser failed to recover his deposit ; in the latter case
on the ground, apparently, that he had himself broken the contract
by refusing to abide by the stipulation. It is not clear in either of
those cases that, at the suit of the vendor, specific performance
would have been ordered against the purchaser.

If there is a stipulated commencement for the title, such com-
mencement must either start with a proper root of title, or else its
d^ects must be clearly shown on the face of the contract. {Re Marsh
and Earl Granville, 24 Ch. D. 11.)

(4.) Where land sold is held by lease (not including
under-lease), the purchaser shall assume, unless the
contrary appears, that the lease was duly granted;
and, on production of the receipt for the last payment
due for rent under the lease before the date of actual
completion of the purchase, he shall assume, unless the
contrary appears, that all the covenants and provisions
of the lease have been duly performed and observed up
to the date of actual completion of the purchajse.

This and the following sub-section are considered together in the
next note.

(5.) Where land sold is held by under-lease, the pur-
chaser shall assume, unless the contrary appears, that
the under-lease and every superior lease were duly
granted ; and, on production of the receipt for the last

Sayment due for rent under the under-lease before the
ate of actual completion of the purchase, he shall
assume, unless the contrary appears, that all the cove-
nants and provisions of the under-lease have been duly
performed and observed up to the date of actual com-
pletion of the purchase, and further that all rent due
under every superior lease, and all the covenants and

S revisions of every superior lease, have been paid and
uly performed and observed up to that date.

The purchaser seems, by virtue of the words ''unless the con-
trary appears," not to be debarred from showing that the lease, or
any superior lease, was in fact not duly granted, .or from showing
that tiie covenants and provisions contained in the lease, or in any
superior lease, have in fact not been duly performed. Sub-s. (11),
infra, seems to provide that this shall be a good defence to an action
for specific performance.

A vendor, who commits a breach of covenant after the execution
of the contract, cannot avail himself of the provisions of sub-s. (4).
{Howell V. Kightley, 21 Beav. 331.) Continuing breadies would,



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SALES AND OTHER TRANSAGTIOKS. 113

however, seem to be within the sub-section. (See Bully. Hutchens, C. A. 1881,
32 Beav. 615. See also Lawrie v. Lees, 7 App. Cas. 19.) B6Ct. 3,

On any sale under a power contained (or implied by virtue of

sect. 7, post) in a mortgage by demise of leaseholds, the vendor
must in the contract or conditions of sale expressly provide for
the admission by the purchaser that ** all rent due under every
superior lease, and all the covenants, &c., of every superior
lease, have been paid and duly performed, &c., up to that date."
Since no rent is reserved on the under-lease by which he holds,
he cannot produce any receipt for it, and therefore his case is
not within sub-s. (5). And even if he can produce the last receipt
for rent due under every superior lease, his case is not within
sub-a. (4), from which sales of land held by under-lease are ex-
daded. It seems to make no difference in this respect if the mort«
gage contains a trust of the last days of the supeiior term in favour
of the purchaser.

(6.) On a sale of any property, the expenses of the
production and inspection of all Acts of Parliament,
anclosure awards, records, proceedings of courts, court
rolls, deeds, wills, probates, letters of administration,
and other documents, not in the vendor's possession,
and the expenses of all journeys incidental to such
production or inspection, and the expenses of searching
for, procuring, making, verifying, and producing all
certificates, declarations, evidences, and information
not in the vendor's possession, and all attested, stamped,
oflBce, or other copies or abstracts of, or extracts from,
any Acts of Parliament or other documents aforesaid,
not in the vendor's possession, if any such production,
inspection, journey, search, procuring, making, or
verifying is required by a purchaser, either for verifi-
cation of the abstract, or for any other purpose, shall
be borne by the purchaser who requires the same;
and where the vendor retains possession of any docu-
ment, the expenses of making any copy thereof,
attested or unattested, which a purchaser requires to
be delivered to him, shall be borne by that purchaser.

(7,) On a sale of any property in lots, a purchaser
of two or more lots, held wholly or partly under the
same title, shall not have a right to more than one
abstract of the common title, except at his own expense.

(8.) This section applies only to titles and purchasers
on sales properly so called, notwithstanding any inter-
pretation in this Act.

This sub-section excludes leases and mortgages from the operation
of the section. See sect. 2, sub-s. (viii.), ante.

(9.) This section applies only if and as far as a con-
trary intention is not expressed in the contract of sale,



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114 CONVETANCING AND LAW OF PROPERTY ACT, 1881.

C. A. 1881, and shall have effect subject to the terms of the con-
Sect. 3. tract and to the provisions therein contained.

(10-) This section applies only to sales made after
the commencement of this Act.

(11.) Nothing in this section shall be construed as
binding a purchaser to complete his purchase in any
case where, on a contract made independently of this
section, and containing stipulations smiilar to the pro-
visions of this section, or any of them, specific per-
formance of the contract would not be enforced agamst
him by the Court,

TMs sub-section reserves to a purchaser under the foregoing
implied conditions, the common equitable defences. See note on
sub-s. (3), supra.

As regards trustees, by sect. 66, post, they may sell under the fore-
going conditions without incurring liability. But to sell under need-
lessly depreciatory conditions is ordinarily a breach of trust ; and in
Dance y, Goldtngham, L. B. 8 Ch. 902, an injunction was granted,
at the suit of a cestui que trusty against the purchasers as well as
the trustees, to restrain the completion of a sale on the ground that
the conditions of sale were needlessly depreciatory. Before the
Act, the objection that the conditions were needlessly depreciatory,
would have been a good defence for a purchaser, as against trustees,
to a suit for specific performance ; and it may be doubted whether,
in cases where the conditions impHed by this section might be need-
lessly depreciatory, trustees, though incurring no liability, would
obtain specific performance against the purchaser. But it would
probably be held, that a cestui ^ue trust who could not charge his
trustee with a breach of trust is not competent to re-open the sale
as against the purchaser.

Sect. 4. 4. — (1.) Where at the death of any person there is
Completion of subsisting a contract enforceable against his heir or
orateact after ^^yjg^^^ f^j. ^ho salo of the fee simple or other freehold
interest, descendible to his heirs general, in any land,
his personal representatives shall, by virtue of this Act,
have power to convey the land for all the estate and
interest vested in him at his death, in any manner
proper for giving effect to the contract.

(2.) A conveyance made under this section shall
not affect the beneficial rights of any person claiming
under any testamentary disjposition or as heir or next
of kin of a testator or intestate.

(3.) This section apphes only in cases of death after
the commencement of this Act.

Equitable estates seem not to be within this section. Nor if they
were within it, would it give any greater safety in dispensing with
the heir's concurrence in the conveyance of an equitable fee, than
could be obtained without it. See sub-s. (2). His ooncurrence



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SALES AND OTHER TRANSACTIONS. 115

might always have been dispensed with by a purchaser who could C. A. 1881,
get in the legal estate, when it was certain that the heir's equity had Sect. 4.

been effectually barred by the contract. But the purchaser is en-

titled to the heii*'s concurrence, to prevent questions as to the validity
of the contract from arising. [SeeJRoberis v. Marchant, 1 Ha. 547.)
In Duly V. Nalder, 35 L. J. Ch. 52, it was held that the heir-at-
law of the vendor of an equity of redemption, who had died before
completion, was a necessary party to the conveyance. See also
Hoddel V. PwyA, 33 Beav. 489.

The freehold interests other than a fee simple which come within
the operation of this section, seem to be base fees and determinable
fees.

Estates vur autre vie limited to the heir as special occupant are
not properly said to be " descendible " to him. {Per Lord Kenyon,
Doe V. Luxton, 6 T. E. 289, at p. 291. And see p. 81, ante,) It
would be more prudent not to rely upon their coming within the
operation of this section.

The operation of this section will probably be confined in practice
to those cases in which a vendor, having contracted to sell the fee
simple, dies before completion, either intestate with an infant heir-at-
law, or having devised the legal estate to an infant or in settlement.
Before the Trustee Act, 1850, (ss. 7, 30,) the purchase-money must
have been paid into court in an action for specific performance, and
retained there until the infant attained the age of twenty-one.
{Bullock T. Bullock, 1 Jac. & W. 603.) In such cases, the purchaser,
if satisfied (see sub-s. 2, supra) as to the validity of his contract,
may now take a conveyance of the legal estate from the personal
representatives of the vendor, without being obliged to bring an
action.

It is conceived that, on the death of a vendor who has contracted to
seU for a fee simple, the fee is not " vested on any trust .... in "
the vendor ** solely," within the meaning of sect. 30, post^ which
seems to contemplate only express trusts.

The present section seems (unlike sect. 30, post) to be permissive
only, enabling the personal representatives to convey the estate
without disabung the heir or devisee.



Discharge of Incumbrances on Sale.

6. — (1.) Where land subject to any incumbrance, Sect. 6.
whether immediately payable or not, is sold by the Provioioiiby
Ciourt, or out of Court, the Court may, if it thinks S^ri^^,'
fit, on the application of any party to the sale, direct ?J^^J® ^^^
or allow payment into Court, in case of an annual sum ^ "^
charged on the land, or of a capital sum charged on a
determinable interest in the land, of such amount as,
when invested in Government securities, the Court
considers will be suflScient, by means of the dividends
thereof, to keep down or otherwise provide for that
charge, and in any other case of capital money charged
on the land, of the amount sufficient to meet the
incumbrance and any interest due thereon; but in



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116 CONVEYANCIKG AND LAW OF PROPBRTT ACT, 1881.

C. A. 1881, either case there shall also be paid into Court such
Sect. 6. additional amount as the Court considers will be suffi-
cient to meet the contingency of further costs, expenses,
and interest, and any other contingency, except de-
preciation of investments, not exceeding one-tenth part
of the original amount to be paid in, unless the Court
for special reason thinks fit to require a larger addi-
tional amount.

This section applies to ordinary sales inter partes, as well as to
sales by the court. Lands may be sold under it free from inciim-
brances — (1) upon the application of the purchaser in all cases, and
(2) on the application of the vendor when the purchaser consents,
and is willing to pay into court a sufficient part of the purchase-
money to meet the requirements of the section. But if the purchaser
should not consent, it is conceived that the sale could not be made
free from incumbrances unless it is either made by the court, or the
vendor is able to provide the required sum of money without the
purchaser's assistance ; for in the case of an ordinary sale out of
court there seems to be no jiirisdiction to order the purchaser to
pay any part of the purchase-money into court before the execution
of the conveyance, and no conveyance can be made free from
incumbrances until after payment into court of the required sum.
This section cannot have been intended indirectly to confer jurisdic-
tion to make orders for specific performance in chambers ; which
would practically be the result of ordering the purchaser to pay part
of the purchase-money into court against his will. The word
''direct" seems to apply to sales by the court, and the word
** allow " to sales out of court.

It may sometimes be convenient for the vendor to stipulate in the
contract that, on accepting the title, the purchaser shall pay the
required sum into court out of the purchase-money.

(2.) Thereupon, the Court may, if it thinks fit, and
either after or without any notice to the incumbrancer,
as the Court thinks fit, declare the land to be freed
from the incumbrance, and make any order for convey-
ance, or vesting order, proper for giving effect to tne
sale, and give directions for the retention and invest-
ment of the money in Court.

On the meaning of ** incumbrance," see sect. 2, sub-s. (vii.), ante;
it might include rent-charges, but not quit rents or chief rents, as
to wMch. see sect. 45, post.

Applications under this section must be made by summons at
chambers. See sect. 69, sub-s. (3), post ; Patching ▼. Bull, 30 W. R.
244; affinned on appeal, W. N. 1882, p. 113. On the meaning of
"the Court," see, as to lands in England, sect. 2, sub-s. (xviii.),.
and sect. 69, sub-s. {\),post: as to lands in the County Palatine of
Lancaster, sect. 69, sub-s. (9), post; and as to land in Ireland,
sect. 72, sub-sects. (2) and (3), post. As to the giving of notice, see
sect. 69, sub-sects. (4), (5) and (6), post ; as to costs, sect. 69,
sub-s. (7), post.

Before the Act, land subject to any incumbrance could not be
sold, even by the court, free therefrom without the consent of the



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SALES AND OTHER TRANSACTIONS. 117

incumbrancer. {Lang ton v. Langton, 1 Jur. N. S. 1078 ; Wickm- C. A. 1881,
den V. Rat/ son, 6 De G. M. & G. 210.) Sect 6.

It is generally understood that the discretion given by this sec-

tion to ** redeem a mortgagee behind his back," will not be exercised,
unless it is proved to be impossible to communicate with the mort-
gagee. Redemption without notice seems to involve the confiscation
of any rights of consolidation to which the mortgagee may be entitled.

When the order is made in an action to which the incumbrancer
is not a party, it should follow the words of the Act ; and after
directing payment into court of the purchase-money, and the setting
aside of an amount sufficient to meet the incumbrance, proceed to
declare that thereupon any party shall be at liberty to apply in
chambers for a declaration that the land is freed from the incum-
brance. {Dickin V. Dickin, W. N. 1882, p. 113 ; 30 W. R. 887.)

The word " land," by virtue of sect. 2, sub-s. (ii.) ante, indudes
every estate equal in quantum to a freehold, whether legal or equit-
able, in land, except equitable estates for life and pur autre vie.
But since to restrict the word to this meaning would prevent the
special provision respecting dividends mentioned in the section from
being extended to a mortgage of a " determinable interest '* created
by a settlement of renew6S)le leaseholds or to an annual sum
charged upon equitable life estates or on leaseholds, (a supposition
which seems foreign to its general purpose,) it is probable that the
word "land" is loosely used in the present section to include every
estate or interest whatsoever in land.

Three cases are contemplated, of which two are specially provided
for : —

(1.) An annual sum, charged upon any estate or interest whatso-
ever, including a term of years ;

(2.) A capital sum, if charged upon a determinable interest;
in either of which cases the capital sum paid into court (indepen-
dently of the additional margin of not exceeding ten per cent.) must
suffice by its dividends to keep down, or otherwise provide for, the
charge.

The phrase "determinable interest in the land" suggests that
the passage in which it occurs refers only to sales of estates com-
prised in settlements, and that determinable interest here means a
partial interest (including a term of years created by a settlement),
carved out of some other estate where the whole estate is sold
together. This supposition explains why it is required that in these
cases the dividends shall suffice to keep down the charge ; because
in such casSs there may easily be one or more claims upon the
purchase-money in respect of income and one or more distinct
claims in respect of capital. For example, in the case of a sale by
tenant for life and remainderman, where there is a mortgas^ of
the life estate, the dividends will represent the income, to which the
incumbrancer of the tenant for life is entitled during the latter's
life ; and the investments will represent what the remainderman is
entitled to after the determination of the life estate.

The remaining case is where-^

(3.) A capital sum is charged upon any estate or interest otheir
than a determinable interest of the above specified kind ;
including a term of years subsisting as a separate estate
by itself, not as one out of several successive estates oi*
interests created by a settlement and sold all together.

The language of the first sub-section is extremely confused
and obscure; and it is impossible, in the absence of judicial



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118 CONVBYANCING AND LAW OF PROPERTY ACT, 1881.

C. A. 1881, decisions, to feel assured confidence as to its meaning. The abore-
Sect. 6. stated hypothesis is offered as an attempt to explain its perplexities.

For a form of order made in a case where land was subject to an

annuity, see Patching v. Bull, 30 W. E. 244.

(3.) After notice served on the persons interested in
or entitled to the money or fund in Court, the Court
may direct payment or transfer thereof to the persons
entitled to receive or give a discharge for the same,
and generally may give directions respecting the
application or distribution of the capital or income
thereof.

It is conceived that tmder the vague generality of this sub-section,
the court will assume jurisdiction to deal with the fund in any way
which it thinks proper ; among other things, to award to the mort-
gagee six months' interest in lieu of notice to redeem, or compensa-
tion for anticipating the payment of a loan arranged for a time
certain, or for any loss which may accrue by the transmutation of
his security; and perhaps to indemnify him for the loss (if such
should occur) of any right of consolidation to which he may be
entitled. The notice appears to be notice given by direction of the
court, and would not include notice given before commencement of
the proceedings. Such notices are excepted from the operation of
sect. 67, post.

(4.) This section applies to sales not completed at
the commencement of this Act, and to sales thereafter
made.

General Words.

Sect 6. Q^ — ^1.) A conveyance of land shall be deemed to

kT^iStl^.'''^ include and shall by virtue of this Act operate t6

ances of land, convcy, with the land, all buildings, erections, fixtures^

^'t^ifi"^"' ^ commons, hedges, ditches, fences, ways, waters, water-

courses, liberties, privileges, easements, rights, and

advantages whatsoever, appertaining or reputed to

appertain to the land, or any part thereof, or at the

time of conveyance demised, occupied, or enjoyed

with, or reputed or known as part or parcel of or

appurtenant to the land or any part thereof.

[2.) A conveyance of land, having houses or other
buildings thereon, shall be deemed to include and shall
by virtue of this Act operate to convey, with the land,
houses, or other buildings, all outhouses, erections,
fixtures, cellars, areas, courts, courtyards, cisterns,
sewers, gutters, drains, ways, passages, lights, water-
courses, liberties, privileges, easements, rights, and
advantages whatsoever, appertaining or reputed to



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SALES AND OTHER TRANSACTIONS. 119

appertain to the land, houses, or other buildings con- C. A. 1881,
veyed, or any of them, or any part thereof, or at the S^^* ^'
time of conveyance demised, occupied, or enjoyed
with, or reputed or known as part or parcel of or
appurtenant to, the land, houses, or other buildings
conveyed, or any of them, or any part thereof.

(3.) A conveyance of a manor shall be deemed to
include and shall by virtue of this Act operate to con-
vey, vnth the manor, all pastures, feeding, wastes,
warrens, commons, mines, minerals, quarries, furzes,



Online LibraryHenry Williams Challis Henry J. HoodThe Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... → online text (page 15 of 53)