Henry Williams Challis Henry J. Hood.

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

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Sect 41. tended sects. 32 and 36 of the Act of 1856) tenants for life, or the

guardians of infant tenants for life, are empowered to grant leases ;

and though the fact of making an infant's estate a " settled estate "
does not necessarily make an infant owner in fee a " tenant for
life," it has been thought that the power given to the guardians of
infant tenants for life will be extended to the guardians of in&uit
owners in fee. This difficulty, however, is laid at rest by sects. 6,
59 and 60 of the S. L. Act, 1882, post, which give to a tenant for
life power to grant leases, and give to some person to be appointed
by the court, on the application of the guardian or next friend of an
infant owner, the powers that may be exercised by a tenant for life.

Sect. 46 of the Settled Estates Act, 1877, excepts the jjrincipal
mansion house from the power of leasing; but this restriction is
removed by sect. 6 of the 8. L. Act, 1882, post, subject to the con-
ditions imposed by sect. 15 of the same Act.

So far as regards a leasehold interest to which an infant is
entitled, the Settled Estates Act, 1877, is applicable (see sect. 2 of
that Act) ; but it is not clear that sect. 59 of the S. L. Act, 1882,
includes such interests. See note thereon, post.

The case of an infant who is entitled subject to a gift over on his
death under age is within this section. {Re lAdddl, W. N. 1882,
p. 183; 31 W. E. 238.)

Sect 42. 42. — (1.) If and as long as any person who would
Managemait but for this sGction be beneficially entitled to the

of land and - - - . .^^^ ,-.



receipt and possession of any land is an infant, and being a

application woman is also unmarried, the trustees appointed for

during this purposo bv the settlement, if any, or if there are

minority. nonQ SO appointed, then the persons, if any, who are

for the time being under the settlement trustees with

power of sale of the settled land, or of part thereof,

or with power of consent to or approval of the exercise

of such a power of sale, or if there are none, then any

persons appointed as trustees for this purpose by the

Court, on the application of a guardian or next niend

of the infant, may enter into and continue in possession

of the land; and in every such case the subsequent

provisions of this section shall apply.

This section does not apply to the case of infants who are con-
tingently entitled to possession. As to the case of female infants,
see note, infra.

If land IS given on trust for sale, with a trust of the rents and
profits until sale in favour of a specified person, such person, until
the land is sold, is *' beneficially entitled to the possession of* the
land, within the meaning of this Act. See sect. 2, sub-s. (iii.), ante.
In other cases of land given in trust for sale, sect. 43 applies, and
express powers of management ought to be inserted.

(2.) The trustees shall manage or superintend the
management of the land, with fidl power to fell timber
or cut underwood from time to time in the usual course



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INFANTS. 187

for sale, or for repairs or otherwise, and to erect, pull C. A. 1881,
dowiij rebuild, and repair houses, and other buildings p^Q^* ^'
and erections, and to continue the working of mines,
minerals, and quarries which have usually been worked,
and to drain or otherwise improve the land or any
part thereof, and to insure against loss by fire, and to
make allowances to and arrangements with tenants
and others, and to determine tenancies, and to accept
surrenders of leases and tenancies, and generally to
deal with the land in a proper and due course of
management ; but so that, where the infant is impeach-
able for waste, the trustees shall not commit waste,
and shall cut timber on the same terms only, and
subject to the same restrictions, on and subject to
which the infant could, if of full age, cut the same.

(3.) The trustees may from time to time, out of the
income of the land, including the produce of the sale
of timber and underwood, pay the expenses incurred
in the management, or in the exercise of any power
conferred by this section, or otherwise in relation to
the land, and all outgoings not payable by any tenant
or other person, and shall keep down any annual sum,
and the interest of any principal sum, charged on the
land.

This section does not authorize the trustees to expend corpus in
expenses of management. If the income should be insufficient,
recourse may be had to the court, which has jurisdiction to direct
money for repairs to be raised by mortgage or otherwise. {Re
Jackson, 21 Ch. D. 786.)

(4.) The trustees may applv at discretion any
income which, in the exercise oi such discretion, they
deem proper, according to the infant's age, for his or
her maintenance, education, or benefit, or pay thereout
any money to the infant's parent or guardSan, to be
applied for the same purposes.

(5.) The trustees shall lay out the residue^ of the
income of the land in investment on securities on
which they are by the settlement, if any, or by law,
authorized to invest trust money, with power to vary
investments ; and shall accumulate the income of the
investments so made in the way of compoimd interest,
by from time to time similarly investing such income
and the resulting income of investments; and shall
stand possessed of the accumulated fund arising from

o2



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188 CONVEYANCING AND LAW OF PROPEETY ACT, 1881.

C. A. 1881, income of the land and from investments of income
^^^' ^' on the trusts following (namely) :

(i.) If the infant attains the age of twenty-one
years, then in trust for the infant ;

This applies even if the infant has only a life interest. But see
remarks on the corresponding provision in sect. 43, note on sub-
s. (2) thereof, post,

(ii.) If the infant is a woman and marries while an
infant, then in trust for her separate use, inde-
pendently of her husband, and so that her
receipt after she marries, and though still an
infant, shall be a good discharge ; but
(iii.) If the infant dies while an infant, and being a
woman wdthout having been married, then,
where the infant was, under a settlement,
tenant for life, or by purchase tenant in tail or
tail male or tail female, on the trusts, if any,
declared of the accumulated fund by that set-
tlement ; but where no such trusts are declared,
or the infant has taken the land from which the
accumulated fund is derived by descent, and
not by purchase, or the infant is tenant for an
estate in fee simple, absolute or determinable,
then in trust for the infant's personal repre-
sentatives, as part of the infant's personal
estate ;
but the accumulations, or any part thereof, may at any
time be applied as if the same were income arising in
the then current year.

(6.) Where the infant's estate or interest is in an
undivided share of land, the powers of this section
relative to the land may be exercised jointly with
persons entitled to possession of, or having power to
act in relation to, the other undivided share or shares.
(7.) This section applies only if and as far as a con-
trary intention is not expressed in the instrument
under which the interest of the infant arises, and shall
have e£Pect subject to the terms of that instrument and
to the provisions therein contained.

(8.) This section applies only where that instru-
ment comes into operation after the commencement of
this Act.

The case of a married woman, being an infant, is not within this
section. Sub-s. 5, (ii.), supra, deals only with the application of
past accumulations at the time of the female infanrs marriage,



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INFANTS. 189

upon which event they become payable, and the powers of the C. A. 1881,
trustees cease. After marriage, the case is provided for by the Sect. 42.
S. L. Act, 1882 ; see sect. 61 of Ihat Act, and note thereon, post, '• — *—

It is presumed that the provisions relating to the accumulations
of a female infant's income, contained in sub-s. 5, (ii.), will not
interfere with the operation of ttie Infants' Settlements Act (18 & 19
Yict. c. 43), under which the trustees would take the accumulated
fund. In such a case it might be prudent for persons paying the
accumulations to take a receipt bom from the married mfant and
from the trustees of her settlement.

Though sub-sects. (7) and (8) seem to contemplate only cases in
which the interest of the infant arises under an instrimient, the
section will probably be held to apply to cases where he takes by
descent.

43. — (1.) Where any property is held by trustees Sect 48.
in trust for an infant, either for life, or for any AppUcation
greater interest, and whether absolutely, or con- ^^J^f^*^*
tingently on his attaining the age of twenty-one years, property of
or on the occurrence of any event before his attaining ^aiS^iMuioe,
that age, the trustees may, at their sole discretion, pay *<'•
to the infant's parent or guardian, if any, or other-
wise apply for or towards the infant's maintenance,
education, or benefit, the income of that property, or
any part thereof, whether there is any other fund
applicable to the same purpose, or any person bound
by law to provide for the infant's maintenance or
education, or not.

This section replaces sect. 26 of Lord Cranworth's Act. It em-
bodies a change suggested by the principle laid down in Re George,
6 Ch. D. 837, where it was decided that, though maintenance might
be giyen out of the income of a fund to which an infant was con-
tingently entitled (see Be Cotton, 1 Ch. D. 232), it could not be
so giyen if the infant, on attaining the age of vesting, would not
be entitled to the intermediate income.

If the gift is contingent, the intermediate income does not belong
to the legatee, but it may, under this sub-section, be applied for his
maintenance during infancy. If the gift is absolute, but is liable
to be defeated, the intermediate income cannot, under this sub-
section, be applied in maintenance, because it gives maintenance
only in cases where, imder the next following sub-section, the
residue of the income is to be accumidated ** for the benefit of
the person who ultimately becomes entitled to the property" from
which it arises; but in the case supposed the infant, though entitled
only defeasibly to the corpus, is indefeasibly entitled to the income ;
so that, under the present sub-section, the income cannot be applied
in maintenance, because otherwise, under the next sub-section, the
infant's estate would be deprived of the accumulations to which he
is indefeasibly entitled. (See Re Buckley's Trusts, 22 Ch. D. 583.)
Wills and settlements contcdning gifts in this form should therefore
contain also an express power of maintenance.

In Re Breeds' Will, 1 Ch. D. 226, an imsuccessful attempt was
made to apply the provisions of Lord Oranworth's Act in respect of



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190 CONVEYANCING AND LAW OP PROPEETY ACT, 1881.

C. A. 1881, maintenance after an infant had attained majority, the fund not
Sect. 43. being payable until the attainment of the age of twenty-five.

In Re Cotton^ 1 Ch. D. 232, Jessel, M. E., expressed an opinion

that the word "guardian" in Lord Cranworth's Act included the
father, as guardian by nature.

When the case of Re George came before the court on a previous
occasion (W. N. 1876, p. 298 ; 25 W. E. 182) it was held that the
rule, that income of a fund g^ven by a parent or a person in loco
parentis payable at a future time is applicable for maintenance, does
not apply to cases in which the donor has otherwise provided for
maintenance.

(2.) The trustees shall accumulate all the residue
of that income in the way of compound interest, by-
investing the same and the resulting income thereof
from time to time on securities on which they are by
the settlement, if any, or by law, authorized to invest
trust money, and shall hold those accumulations for
the benefit of the person who ultimately becomes
entitled to the property from which the same arise ;
but so that the teustees may at any time, if they think
fit, apply those accumulations, or any part thereof, as
if the same were income arising in the then current
year.

In Re Buckley^ s Trusts^ 22 Ch. D. 583, which was decided under the
corresponding section of Lord Cranworth's Act, it was held that the
direction to accumulate the residue of the income for the benefit of
the person who ultimately becomes entitled to the property, does not
apply to accumulations of income arising under an absolute gift
liable to be defeated by death under twenty-one years.

The words in sub-s. (1), "either for life, or for any greater
interest," are newly added in this Act. A corresponding addition
was required in the present sub-section, which has not been made ;
with the result that, when this section is relied upon in the case of
an infant tenant for life, the accumulations will go, not to the
infant himself, but to the ''person who ultimately becomes entitled to
the property " from which they arise. If such person cannot be
ascertained until the death of the tenant for life, the accumulation
must apparently be continued during the whole of the life estate.
Wills and settlements creating such lue interests should, as formerly,
contain a proper direction as to the destination of the accumula-
tions.

It appears that the accumtdations are not to be added to the
corpus, so that no person will be entitled to the income of them,
after the attainment of majority by the infant, until some person
has " ultimately become entitled to the propeirty." This seems to
suggest a means of evading the provisions of Thellusson's Act ;
unless it should be held that the intermediate income is undis-
posed of.

The corresponding provisions of sect. 42, ante^ are more reason-
able. See note on sub-s. (5), (i), thereof.

(3.) This section appKes only if and as far as a con-
trary intention is not expressed in the instrument



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INFANTS. 191

under which the interest of the infant arises, and shall C. A. 1881,
have effect subject to the terms of that instrument and ^^^' ^'
to the provisions therein contained.

(4.) This section applies whether that instrument
comes into operation before or after the commence-
ment of this Act.



X. — ^Rentcharges and other Annual Sums.

44.— (1.) Where a person is entitled to receive out Beet 44.
of any land, or out of the income of any land, any Remedieefor
annual sum, payable half-yearlj or otherwise, whether J^^,^
charged on the land or on the mcome of the land, and ci^arged on
whether by way of rentcharge or otherwise, not being
rent incident to a reversion, then, subject and without
prejudice to all estates, interests, and rights having
priority to the annual simi, the person entitled to
receive the same shall have such remedies for re-
covering and compelling payment of the same as are
described in this section, as far as those remedies
might have been conferred by the instrument imder .
which the annual sum arises, but not further.

By 18 & 19 Vict. c. 15, s. 12, all life annuities or rentcharges
granted otherwise than by marriage settlement (or by will, see s. 14),
are void as against purchasers, &c. unless registered.

The words of the present sub-section, " or out of the income of any
land," seem to include the case of an annuity secured upon a rent
incident to a reversion; for such annuiiy is not incident to a reversion.

Bent is divided by Littleton (sect. 213) into rent service, rent
charge, and rent seek.

Bent service includes rent incident to tenure, commonly called
chief rent or quit rent, and rent incident to a reversion ; and it may
be distrained for by the common law. Kent granted in considera-
tion of the enfranchisement of copyholds, by virtue of 6 & 7 Vict,
c. 23, s. 2, is thereby expressly declared to be rent service, and to
be parcel of and appendant and appurtenant to the manor of which
the enfranchised copyholds were parcel. Rentcharge is a rent
issuing out of land, but not incident to the tenure or to the rever-
sion upon any estate of the person liable to pay it, but which is
made distrainable by eicpress contract (**by force of the writing
only, and not of common right." litt. sect. 217). Kent seek was
a rent similar to the latter, but not distrainable (ibid.) ; and might
arise (1) by the grant of a rentcharge unaccompanied by a power
of distress ; (2) by the severance of a rent service from ihe tenure,
or the reversion, to which it was incident ; or (3) by the release of
a power of distress which once existed (Shep. T. 253).

A rent granted for equality of partition among coparceners is
distrainable at common law without any express power of distress.
(Finch, Law, p. 156.)

Bents seek were made distrainable by 4 Geo. 2, c. 28, s. 5, which
is still in force.



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192 CONVEYANCING AND LAW OF PEOPEETY ACT, 1881.

C. A. 1881, The effect of the last-mentioned Act, and of- the present section.
Sect. 44. i8» that rents are now most obviously, in reference to the essential

distinctions between them, divisible into — (1) chief rents ; (2)

rentcharges, and (3) rents incidents to a reversion ; which accords
with the division proposed elsewhere. (SuprOy p. 2.)

A rent charge may be granted out of a term of years. (Co.
Litt. 147 b.)

Only the king has had power, since Quia Emptor es (18 Edw. 1),
to reserve a rent incident to tenure ; t.^., to tenure, as distinguished
from and unaccompanied by any reversion, which is tenure in fee
simple. (Fitzh. N. B. 210 0.) But the reservation of a rent upon
a conveyance in fee will be construed as creating a rent, i.e., a
rentcharge or rent seek. {Per curiam^ Newcomh v. Harvey, Carth.
161, at p. 162.) As to the reservation of chief rents before the
statute, see Litt. sect. 216.

(2.) If at any time the annual sum or any part
thereof is unpaid for twenty-one days next after the
time appointed for any payment in respect thereof,
the person entitled to receive the annual sum may
enter into and distrain on the land charged or any

Sart thereof, and dispose according to law of any
istress found, to the intent that thereby or otherwise
the annual sum and all arrears thereof, and all costs
and expenses occasioned by non-payment thereof, may
be fully paid.

(3.) Ii at any time the annual sum or any part
thereof is unpaid for forty days next after the time
appointed for any payment in respect thereof, then,
although no legal demand has been made for payment
thereof, the person entitled to receive the annual sum
may enter into possession of and hold the land charged
or any part thereof, and take the income thereof,
until thereby or otherwise the annual sum and all
arrears thereof due at the time of his entry, or after-
wards becoming due during his continuance in posses-
sion, and all costs and expenses occasioned by non-
payment of the annual sum, are fully paid ; and such
possession when taken shall be without impeachment
of waste.

The owner of a rentcharge granted by a tenant in fee simple, free
from incxmibrances, has power imder this sub-section to expel from
actual possession a tenant for years holding under a demise subse-
quent to the rentcharge. This power is a remedy which ** might
have been conferred by the instrument under whicn the annual sum
arises;" see sub-s. (i.), supra; and the fact that, by sect. 2,
sub-s. (iii.), ante, " possession includes receipt of income," does not
prevent it from also including possession.

(4.) In the like case the person entitled to the annual
charge, whether taking possession or not, may also by



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BENTCHAROES AND OTHER ANKUAL SUlfS. 193

deed demise the land charged, or any part thereof, to C. A. 1881,
a trustee for a term of years, with or without impeach- ^^^' ^'
ment of waste, on trust, by mortgage, or sale, or
demise, for all or any part of the term, of the land
charged, or of any part thereof, or by receipt of the
income thereof, or by all or any of those means, or by
any other reasonable means, to raise and pay the
annual sum and all arrears thereof due or to become
due, and all costs and expenses occasioned by non-
payment of the annual sum, or incurred in compelling
or obtaining payment thereof, or otherwise relating
thereto, including the costs of the preparation and
execution of the deed of demise, and the costs of the
execution of the trusts of that deed ; and the surplus,
if any, of the money raised, or of the income received,
under the trusts of that deed shall be paid to the
person for the time being entitled to the land therein
comprised in reversion immediately expectant on the
term thereby created.

The x)ower to demise conferred by this sub-section is not in accord-
ance witb the usual practice, and seems to be dangerous. There is
nothing to show that a term might not be created by virtue of it,
capable of being enlarged into a fee simple by virtue of sect. 65,
post. Thus the owner of the rentcharge might practically dispose
of the fee simple, merely by reason that the rent, though not de-
manded, had become in arrear for forty days. This indirectly gives
to the owner of a rentcharge in fee an everlasting power of sale,
which is very much more stringent, as regards the conditions under
which it is to arise, than the power of sale given to mortgagees by
sect. 19, ante. The power will probably be excluded, by virtue of
sub-s. (5), tnfraj upon future creations of rentcharges.

The question may also arise, whether, since the terms to be
created under this section are interests in the nature of uses to
arise upon a contingency, which contingency is not such as must
necessarily happen withm the time limited by the rule against
perpetuities, the power is not simply void ; or at least, whether it
could be exercised after the expiration of the time limited by the
rule. By virtue of sub-s. (1), supra^ the power will not have any
greater validity than it would have had if it had been conferred by
the instrument creating the rentcharge.

(5.) This section applies only if and as far as a
contrary intention is not expressed in the instrument
imder which the annual sum arises, and shall have
effect subject to the terms of that instrument and to
the provisions therein contained.

(6.) This section applies only where that instrument
comes into operation after the commencement of this
Act.

It must be remembered that rentcharges created by appointment



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194



OONVKYANCINQ AND LAW OP PROPERTY ACT, 1881.



C. A. 1881, uaiglit be held to date from the creation of the power, not from its
Sect. 44. exercise. The Act cannot safely be relied upon, where the inBtm-

ment creating the power was executed before the commencement

of the Act.



Sect. 45.

Bedemption
of quitrents
and other
perpetual
charges.



45. — (1.) Where there is a quitrent, chief -rent,
rentcharge, or other annual sum issuing out of land (in
this section referred to as the rent), the Copyhold Com-
missioners shall at any time, on the requisition of the
owner of the land, or of any person interested therein,
certify the amount of money in consideration whereof
the rent may be redeemed.

For the division of rents, see note on sect. 44, sub-s. (1), ante.
The Copyhold Commissioners are now merged in the Land Com-
missioners for England, created by the S. L. Act, 1882. (See sect. 48
of that Act, post.)

(2.) Where the person entitled to the rent is abso-
lutely entitled thereto in fee simple in possession, or is
empowered to dispose thereof absolutely, or to give an
absolute discharge for the capital value thereof, the
owner of the land, or any person interested therein,
may, after serving one month's Jiotice on the person
entitled to the rent, pay or tender to that person the
amount certified by the Commissioners.

This section seems not to apply where the person entitled is under
any disability. Coverture is not for this purpose a disability, in
the case of women married after the 31st December, 1882, or, so far
as regards ** rents" held by a subsequently accruing title, in the
case of women married before that date. (See the Married
Women's Property Act, 1882, ss. 2, 6, post.)

If a rent in fee simple should be included in a settlement, the
question may arise whether the tenant for life is a person " em-
powered to dispose thereof absolutely " within the meaning of this
sub-section. Though he has power to sell the rentcharge, he is not
the person to whom a payment or tender of the purchase-money
shomd be made. See the S. L. Act, 1882, sect. 22, post.



Online LibraryHenry Williams Challis Henry J. HoodThe Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... → online text (page 24 of 53)