Henry Williams Challis Henry J. Hood.

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

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1882, are incapable of assignment or release. See sect. 50 of that
Act, post.



Sect. 63.

Constmction
of supple-
mental or
annexed deed.



53. — (1.) A deed expressed to be supplemental to a
previous deed, or directed to be read as an annex
thereto, shall, as far as may be, be read and have effect
as if the deed so expressea or directed were made by
way of indorsement on the previous deed, or contained
ft full recital thereof.



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CONSTBUCTION AND EFFECT OF DEEDS, ETC. 203

2.) This section applies to deeds executed either C. A. 1881,
■ore or after the commencement of this Act. ^®*' ^•



This section seems to make no change in the law. In some cases
a deed written bookwise and afterwards annexed to a previous deed
of similar shape and fashion affords a more convenient expedient
than indorsement. The section may possibly make the practice for
the future more common by causing a mistaken impression that it
has become more secure.

The section mentions only deeds. The proposed practice might
usefully be applied to partnership agreements not under seal, wmch
are not uncommon and often require modification, and are usually
so written that indorsement is impossible. It is conceived that the
practice may safely be adopted in such cases.

It may be doubted whether a recital implied in a supplemental
deed, would be implied in a third deed expressed to be supplemental
to the latter. In such cases, the third deed should be expressed to
be supplemental to both.

54. — (1.) A receipt for consideration money or Sect. 64.
secmities in the body of a deed shall be a sufficient Receipt in
discharge for the same to the person paying or deliver- oient.
ing the same, without any further receipt for the same
being indorsed on the deed.

(2.) This section applies only to deeds executed after
the commencement of this Act.

The receipt in the body of the deed at law operated as an absolute
estoppel. {Rowntree v. Jacob , 2 Taunt. 141; Baker v. Dewey ^
1 B. & C. 704.)

In equity there was no estoppel ; but the receipt was evidence of
the pajonent imtil the payment was disproved, the alleged payee
being at liberty to offer evidence in disproof. ( Wilson v. Keating^
27 Beav. 121 ; and on appeal, 4 De G. & J. 588.)

The cases before Wilson v. Keating only show, that the receipt
might be impugned for the purpose of letting in the vendor* s lien for
the unpaid purchase-money. The judgments in Wilson v. Keating
(see, in particular, Lord Romilly, M. B., 27 Beav. at p. 126), which
carried the principle a good deal further, show that this case was
decided under a misapprehension of the earlier cases. At the same
time there is little doubt that, apart from the present section, which
does not seem to interpose any obstacle, the ruling of Wilson v.
Keating would be followed.

The meaning of this section seems to be, that a receipt in the
body of the deed shall, as evidence of payment in favour of the
person alleged to have paid, have as sufficient an effect as such a
receipt, together with the usual indorsed receipt, woidd previously
have had. Since a discharge to the person paying, would equally
be a discharge to his representatives, whether in title or personal,
these also are equally within the benefit of the evidence.

56. — (1.) A receipt for consideration money or Sect. 66.
other consideration in the body of a deed or indorsed ^^^*^.
thereon shall, in favour of a subsequent purchaser, not dorsed, evi-

p2



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204 CONVEYANCING AND LAW OF PROPERTY ACT, 1881.

C. A. 1881, having notice that the money or other consideration

Sect. 55. thereby acknowledged to be received was not in fact

denoe for paid or given, wholly or in part, be sufficient evidence

^^S^r! of the payment or giving of the whole amount thereof.

(2.) This section applies only to deeds executed

after the commencement of this Act.

This always was the rule, both at law and in equity, so far as the
purchaser had no notice. The receipt in the body of the deed,
which was invariably present, operated as an absolute estoppel at
law ; and the purchaser, it' he had taken for valuable consideration
(see as to the meaning of " purchaser," sect. 2, sub-s. viii. ante)
without notice, was protected in equity. But hitherto the absence
of the usual indorsed receipt, or its presence in an unusual place,
would, under some circumstances, have given a purchaser construc-
tive notice of the nonpayment and deprived hun of his equitable
defence. This will no longer be the case. It seems that **not having
notice" means **not having actual notice," and that ** sufficient
evidence " means " conclusive evidence^"

Sect. 66. 56. — (1.) Where a solicitor produces a deed, having
^^^r^- ^ *^^ body thereof or indorsed thereon a receipt for
dor8ed,autho. Consideration money or other consideration, the deed
ment to^*^' being executed, or the indorsed receipt being signed,
soUcitor. by the person entitled to give a receipt for that con-
sideration, the deed shall be sufficient authority to the
person liable to pay or give the same for his paying or
giving the same to the solicitor, without the solicitor
producing any separate or other direction or authority
in that behalf from the person who executed or signed
the deed or receipt.

(2.) This section applies only in cases where con-
sideration is to be paid or given after the commence-
ment of this Act.

'' It may, I think, be considered as established, that the posses-
sion of the executed conveyance, with the signed receipt for the
consideration money indorsed, is not in itself an authority to the
solicitor of the vendor to receive the purchase-money." {Per Lord
Chelmsford, Viney v. Chaplin^ 2 De G. & J. 468, at p. 477 ; and see
£x parte Swinbanks, 1 1 Ch. D. 525.)

This section is of great practical importance, because, on pay-
ment being made to a duly authorized agent of the vendor, the
latter's claim and lien for the purchase-money is gone. The section
validates the acts of a statutory agent of the vendor in this behalf,
subject to certain conditions, viz., —

(1.) The agent must be a solicitor. It is uncertain whether the

want of a certificate would be a disqualification. (See Sparling v.

BreretoUf L. B. 2 Eq. 64.) It is still more imcertain what would be

. the consequence, if the person making the payment had notice of

the want.

(2.) He must produce a deed containing, or having indorsed on



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C0N8TKUCT10N AND EFFECT OF DEEDS, ETC. 206

it, such receipt as in the section mentioned. The execution of the C. A. 1881,
deed, and the signature of the receipt, must of course be authentic. Sect. 56.

(3.) The section speaks only of "consideration money or other

consideration,^^ i.e, the consideration, whether money or money's
worth, is only authorized to be paid in specie. There is nothing
to authorize the statutory agent to accept payment of money by
cheque (as to the validity of which, see Jones v. Arthur, 8 Dowl. Pr.
442) ; and such payment cannot scrfely be accepted widiout express
authority from the principal. Probably, if the cheque should not
be honoured, the solicitor (statutory agent) accepting it without
express authority would become liable to the vendor. And if the
cheque should be honoured, but the proceeds not duly accounted
for, it might be contended that the purchaser, not having complied
strictly with the statutory conditions, which require payment of
"the same," i.e, the ** money," on production of the deed, would
not be discharged from the vendor's claim; since, even granting
the banker who cashes the cheque to be the agent of the purchaser
for making the payment in money, the section seems to have no ap-
plication to his acts, as he makes the payment upon the authority
of the cheque alone, without any reference to the deed. But it is
notprobable that such a contention would be supported.

This section does not enable a vendor to give any greater
authority to a solicitor to receive the purchase-money than he
might have given without it, but only enables such authority to be
implied as might have been given expressly. Since trustee vendors
could not properly authorize their solicitor to receive the purchase-
money, their solicitor cannot claim to receive it under this section.
{Bellamy and Metropolitan Board of Works, 24 Ch. D. 387, where
Cotton and Bowen, L.JJ., diss. Baggallay, L.J., in the Court of
Appeal, overruled the decision of Kay, J., in the court below.)

57. Deeds in the form of and using the expres- Sect. 67.
sions in the forms given in the Foiu'th Schedule to this Sufficiency of
Act, or in the like form or using expressions to the like F^th^
effect, shall, as regards form and expression in relation Schedule.
to the provisions of this Act, be sufficient.

This section seems to be superfluous. If the forms, interpreted
in the light of the Act, are sufficient in themselves to effect their
design, there is no obvious necessity to enact that they shall be
sufficient ; and if they are not sufficient in themselves, there seems
to be nothing in this section to give them more validity than they
would otherwise have. This may be illustrated by the note on
Form (C), sect. 27, p. 171, ante. It is possible that a solicitor
making use of the forms might be protected from liability, in case
of a disaster arising from their use.

58. — (1 .) A covenant relating to land of inheritance. Sect. 68.
or devolving on the heir as special occupant, shall he ^^f?*?*® ^
deemed to be made with the covenantee, his heirs and &^ ^^'
assigns, and shall have effect as if heirs and assigns iThiBmar-

^ J ginalnot4

were expressed. propeiiy re-

(2.) A covenant relating to land not of inheritance, uitettothe^
or not devolving on the heir as special occupant, shall ^ction.^^*"^



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206



CONVEYANCING AND LAW OF PROPERTY ACT, 1881.



C. A. 1881,

Sect. 58.



Sect. 59.

Coyenants to
extend to
heirs, &o,
IThis mar'
ffinal note
properly r*-
latei to the last
preeedm



eeetion.







be deemed to be made with the covenantee, his
executors, administrators, and assigns, and shall have
effect as if executors, administrators, and assigns were
expressed.

(3.) This section applies only to covenants made
after the commencement of this Act.

This section seems to be founded upon some misapprehension.

It is probable, and seems to have been taken for granted by high
authority (Wolstenholme & Turner, Conv. Acts, 3rd ed. p. 106),
that the only covenants referred to, are those which "run with the
land." But the naming of the heir, as covenantee, never had any
effect upon his right to the benefit of such covenants {Lougher v.
Williams, 2 Lev. 92) ; unless as evidence that the covenant was
intended to endure beyond the life of the particular person nsimed
as covenantee ; which might be shown equally well by naming the
executor ; in which case Uie heir, not the executor, would take the
benefit of the covenant. (Ibid.) It might be contended that such
a covenant cannot now, even by the clearest manifestation of inten-
tion, be confined to the lives of the parties. But such a condusion
would be so absurd, that ** deemed" will probably be taken to mean
" in the absence of any declaration to the contrary." The assigns
likewise could sue upon such covenants, even at common law,
although not named (Co. litt. 385 a) ; at all events, in such cases
as The Prior* s Case, (cited in Spencer* s Case, 5 Rep. 16 a, at p. 18 a),
where the benefit of the covenant runs with the land and the cove-
nantor is a stranger. And though it is doubtful whether at common
law the benefit of a covenant by a lessee would pass to an assign of
the reversion, there is no reason to suppose that the naming of the
assign of the reversion in the covenant had any effect upon his
right to sue.

What is the effect of the present enactment is not clear. " The
result seems to be that it will be prudent that all covenants relating
to land where the burden is intended to run with the land should be
made by the covenantor for himseU and his assigns." (Wolsten-
holme & Turner, ubi supra,) But the section refers only to the
covenantee, and seems, therefore, to have no bearing upon covenants
made "/or his assigns** by a covenantor, (See the second resolution
in Spencer* s Case, supra,)

The naming of the assigns of the covenantee is often confused
with the naming of the assigns of the covenantor ; and the way in
which the latter ought to be named is often misunderstood.

The same rules are applicable to the executors, administrators
and assigns of the covenantee, in the case of a covenant made for
the benefit of a leasehold reversion, as are applicable to the heirs
and assigns of the covenantee, in the case of a covenant made for
the benefit of a reversion of inheritance.

59. — (1.) A covenant, and a contract imder seal,
and a bond or obligation under seal, though not ex-
pressed to bind the heirs, shall operate in law to bind
the heirs and real estate, as well as the executors and
administrators and personal estate, of the person
making the same, as if heirs were expressed.



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CONSTRUCTION AND EFFECT OF DEEDS, ETC. 207

(2.) This section extends to a covenant implied by C. A. 1881,
virtue of this Act. S^^^- g^-

(3.) This section applies only if and as far as a
contrary intention is not expressed in the covenant,
contract, bond, or obligation, and shall have effect
subject to the terms of the covenant, contract, bond,
or obligation, and to the provisions therein contained.

(4.) This section appKes only to a covenant, con-
tract, bond, or obligation made or implied after the
commencement of this Act.

This section only facilitates the remedy, without enlarging the
riff his, of the specialty creditor by bond or covenant.

By the common law, real estate descending to the heir by in-
heritance was not liable for simple contract debts of the ancestor ;
nor was it liable even for specialty debts, unless in the deed creating
the specialty the heirs were expressed to be bound. (Shep. T. 369.)
If the heir was so expressed to be bound, he was bound in respect
of all lands descending to him from the ancestor in fee simple ; but
not, after the statute De Bonis, in respect of lands descending in
fee tail, because, though these latter descended by inheritance, the
power of the owner, post prolem suscitatam, to charge lands held for
a conditional fee, was taken away by the statute. Estates pur
autre vie do not descend to the heir by inheritance, but only go to
him (when he is properly named in the grant) as special occupant ;
and they were not, until after the Statute of Frauds, liable even
for specialty debts, by which the heir y^sB bound in respect of lands
descending to him in fee simple. {Doe v. Lux ton, 6 T. E. 289, at
p. 291 .) Copyholds were similarly not liable, until the 3 & 4 WilL 4,
c. 104. (1 Scriv. Cop. 4th ed. p. 48.)

The claim of the specialty creditor was liable to be defeated by
a devise of the realty. The Statute of Fraudulent Devises (3 & 4
Will. & M. c. 14) gave bond creditors an action of debt against
the devisee, not being a devisee for the payment of debts. This
Act, having been made perpetual by 6 & 7 Will. 3, c. 14, was re-
pealed, but substantially re-enacted and extended to covenants, by
11 Geo. 4& 1 Will. 4, c. 47.

The Statute of Frauds (29 Car. 2, c. 3) s. 12, amended by the
14 Oeo. 2, c. 20, made estates pur autre vie deviseable ; and enacted
that, if not devised, they should be chargeable in the hands of the
heir as assets by descent, as in case of lands in fee simple ; and in
default of a special occupant, should go to the personal representa-
tives and be assets in their hands. These enactments were repealed
by the Wills Act (7 Will. 4 & 1 Vict. o. 26) s. 2, but substantially
re-enacted by ss. 3 and 6.

The distinction between specialty and simple contract debts was
abolished in respect of debts contracted by any person being at the
time of his death a trader, by 47 Geo. 3, c. 74 ; the provisions of
which Act were repealed, but re-enacted and amendea, by the Act
11 Geo. 4 & 1 Will. 4, c. 47, above referred to. These provisions
having been superseded by those of 32 & 33 Vict. c. 46, hereinafter
mentioned, are now repealed.

The 3 & 4 Will. 4, c. 104, made all freehold, customaryhold, and
copyhold estates, assets to be administered in courts of equil^ for
the payment of simple contract as well as of specialty debts ; but



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208 CONVEYANCING AND LAW OF PROPERTY ACT, 1881.

C. A. 1881, with priority in favour of specialty creditors. This prioriiy was
Sect. 59. abolished by 32 & 33 Vict. c. 46, s. 1 ; which enacted that, in the

administration of the estate of every person dying after the Ist

January, 1870, no debt of such person shall be entitled to priority
by reason that it is a specialty debt, but that all the creditors, as
well specialty as simple contract, shall be treated as standing in
equal degree, and be paid accordingly out of the assets, whether
such assets are legal or equitable. But the creditor by simple
contract, and the creditor by any specialty in which the heirs were
not named, had no right of action directly against the heir or
devisee, and could enforce their claim only by means of an ad-
ministration suit in equity; or, after the coming into operation of
the Judicature Acts, an administration action. Tfibe latter will now,
in the absence of special provision to the contrary in the deed
under which they claim, be able to sue directly. Creditors by simple
contract must stHl take proceedings for administration ; as to which,
see Eules Sup. C. 1883, Ord. LV.

It is possible that the phrase ** contract imder seal," which
seems in this section to be somehow distinguished from " covenant,"
was meant to include stipidations in deeds which do not actually
use the word " covenant," such as provisoes for redemption, agree-
ments, declarations, and the like. This intention seems to have
more point in sect. 60, posty where the phrase also occurs, than in
the present section. But it is conceived that the "contracts" in
question are in fact covenants. The old phrase, " Provided always,
and it is hereby agreed and declared," probably was derived from
a confusion between the ancient mortgages upon condition, and
the more modern mortgages subject to a contract for re-conveyance
upon redemption. Since the coming into operation of the present
Act, a practice has sprung up in some quarters of cutting the phrase
short at "Provided always;" — ».e., shortening it by omitting its
most essential feature, the words which directly import a contract.
But the words, " provided always," though they are not properly so
used, may by themselves imply a covenant. (Prest. Shop. T. 122, 123.)

Sect. 60. 60. — (1.) A covenant, and a contract under seal,
EflFect of and a bond or obligation under seal, made with two or

covenant with • • -. ^ ^ ,

two or more moro jointly, to pay money or to make a conveyance,
jointly. Qj. ^Q ^Q any other act, to them or for their benefit,

shall be deemed to include, and shall, by virtue of this
Act, imply, an obligation to do the act to, or for the
benefit of, the survivor or survivors of them, and to, or
for the benefit of, any other person to whom the right
to sue on the covenant, contract, bond, or obligation
devolves.

(2.) This section extends to a covenant implied by
virtue of this Act.

(3.) This section applies only if and as far as a
contrary intention is not expressed in the covenant,
contract, bond, or obligation, and shall have effect
subject to the covenant, contract, bond, or obligation,
and to the provisions therein contained.



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CONSTRUCTION AND EFFECT OF DEEDS, ETC. 209

(4.) This section applies only to a covenant, con- C. A. 1881,
tract, bond, or obligation made or implied after the Sect 60.
commencement of this Act.

This section does not extend to all covenants made with cove-
nantees jointly, but only to cases in which the covenantees, besides
being the persons entitied to sue upon the covenant, are also the
persons to or for whose benefit the act is to be done. It seems to
render unnecessary the insertion of, " the survivors or survivor of
them, their or his assigns, or the heirs, executors, or administrators
of such survivor," and similar expressions, to denote the persons
other than those originally specified, who may require a stipulation
to be performed, when such persons are also the persons who may
sue the person liable to perform it, if he should make default.

61. — (1.) Where in a mortgage, or an obligation for Sect. 61.
payment oi money, or a transfer of a mortgage or of Effect of
such an obligation, the sum, or any part of the sum, joiL^^-^^
advanced or owing is expressed to be advanced by or c<>^*» *<^-
owing to more persons than one out of money, or as
money, belonging to them on a joint account, or a
mortgage, or such an obligation, or such a transfer is
made to more persons than one, jointly, and not in
shares, the mortgage money, or other money, or
money's worth for the time being due to those persons
on the mortgage or obligation, shall be deemed to be
and remain money or money's worth belonging to
those persons on a joint account, as between them and
the mortgagor or obligor ; and the receipt in writing
of the survivors or last survivor of them, or of the per-
sonal representatives of the last smrvivor, shall be a
complete discharge for all money or money's worth
for the time being due, notwithstanding any notice to
the payer of a severance of the joint account.

(2.) This section applies only if and as far as a con-
trary intention is not expressed in the mortgage, or
obligation, or transfer, and shall have effect subject to
the terms of the mortgage, or obligation, or transfer,
and to the provisions therein contained.

(3.) This section applies only to a mortgage, or
obligation, or transfer made after the commencement
of this Act.

Though at law a joint debt belonged to the survivors or survivor
of several mortgagees, the presumption in equity was that money
advanced by several persons was owned by them for several inte-
rests, and, in the absence of a declaration to the contrary, the
survivors alone could not give a receipt. (See Fisher on Mortgages,
par. 1286 ; Coote on Mortgagee, 4th ed. pp. 302, 1038.)

This section reverses the presumption. Before its enactment, it



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210 CONVEYANCING AND LAW OF PROPERTY ACT, 1881.

C. A. 1881, was necessary in mortgages to state on the face of the deed that the
Sect. 61. advance was made out of money belonging to the lenders on a joint

account "in equity as well as at law." The words **in equity as

weU as at law " may now be omitted ; but the advance may still
appropriately be expressed to be made out of, or as, money belong-
ing to the lenders on a joint account.

The provision at the end of sub-s, (1) allows a mortgagor, or
obligor, to disregard notice of a severance of the joint account. There
is no reason why he should be hampered by notices, the effect of
which would be to involve him in responsibihties not contemplated
in the original bargain.

Sect. 62. 62. — (1.) A conveyance of freehold land to the use
Ghrants <rf that any person may have, for an estate or interest not
^^ way exceeding in diu^ation the estate conveyed in the land,
of use. any easement, right, liberty, or privilege in, or over,

or with respect to that land, or any part thereof, shall
operate to vest in possession in that person that ease-
ment, right, liberty, or privilege, for the estate or
interest expressed to be limited to him ; and he, and
the persons deriving title under him, shall have, use,
and enjoy the same accordingly.

(2.) This section applies only to conveyances made
after the commencement of this Act.

Easements might always be created de novo by express grant, and
the whole doctrine (see note on sect. 6, ante) of imphed grant by the
use of general words rests upon this fact. Even a covenant would
operate as a grant in favour of the covenantee. {Holmes v. Seller,
3 Lev. 305 ; Shove v. Ptncke, 5 T. E. 124, at p. 129.)

It is the most essential characteristic of an easement, that it is
enjoyed in respect of the ownership of a dominant tenement over
or in respect of a servient tenement. Easements are not incor-
poreal hereditaments, but appurtenant rights. A right which would



Online LibraryHenry Williams Challis Henry J. HoodThe Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... → online text (page 26 of 53)