Henry Williams Challis Henry J. Hood.

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

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the same first and omer sons successively according to seniority in
tail with remainder] to the use of all the daughters of John M. and
Jane 8. in equal shares as tenants in common in tail with cross
remainders between them in tail with remainder to the use of John
M. in fee simple [Insert trusts of term of Jive hundred years for
raising portions ; also, if required, power to charge jointure and por-
tions on a future marriage ; also powers of sale, exchange, and parti'
tion, and other powers and provisions, if and as desired."]
In witness &c.



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( 229 )



THE CONVEYANCING ACT, 1882.



(45 & 46 Vict. c. 39.)

An Act for farther improving the Practice of Conveyancing;
and for other purposes. [10th August, 1882.]

Be it enacted by the Queen's most Excellent Majesty,
by and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the
same, as follows :

Preliminary.

1. — (1.) This Act maybe cited as the Conveyancing Sect 1.
Act, 1882 ; and the Conveyancing and Law of rroperty s^ort titiee;
Act, 1881 (in this Act referred to as the Conveyancing meSt^^^'
Act of 1881) and this Act maybe cited together as ?^t;
the Conveyancing Acts, 1881, 1882. Stionr"

The abbreviated " short title " of the Act of li
to be used outside the limits of the present Act.



The abbreviated " short title " of the Act of 1881 is not authorized o. 41.



(2.) This Act, except where it is otherwise expressed,
shall commence and take effect from and immediately
after the thirty-first day of December one thousand
eight hundred and eighty-two, which time is in this
Act referred to as the commencement of this Act.
(3.) This Act does not extend to Scotland.
(4.) In this Act and in the schedule thereto —
(i.) Property includes real and personal property,
and any debt, and any thmg in action, and
any other right or interest in the nature of
property, whether in possession or not ;

The definition of ** property " varies from that which is given in
the interpretation clause (sect. 2, sub-s. i.) of the Conv. Act, 1881,
ante. The words " and any estate or interest in any property, real or
personal," are omitted, and the words '* any other right or interest in



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230



THE CONVEYANCING ACT, 1882.



C. A. 1882, ^® nature of property whether in possession or not " axe substituted
Sect. 1. f^r the words " any other right or interest."

The word ''property" occurs only in the sub-sub-seetion next

following and in sect. 12, post,

(ii.) Purchaser includes a lessee or mortgagee, or an
intending purchaser, lessee, or mortgagee, or
other person, who, for valuable consideration,
takes or deals for property, and purchase has
a meaning corresponding with that of pur-
chaser ;

Compare the Conv. Act, 1881, sect. 2, sub-s. (viii.), ante.



3&4Wm. 4,
c. 74.



4 & 6 Will. 4,
c. 92.



(iii.) The Act of the session of the third and fourth
years of King William the Fourth (chapter
seventy-four) '^ for the abolition of Fines aqd
Recoveries, and for the substitution of more
simple modes of Assurance '' is referred to as
the Fines and Recoveries Act ; and the Act of
the session of the fourth and fifth years of
King William the Fourth (chapter ninety-two)
'^ for the abolition of Fines and Recoveries,
and for the substitution of more simple modes
of Assurance in Ireland ^^ is referred to as the
Fines and Recoveries (Ireland) Act.



. Sect 2.

OfBcial
negative and
other certifi-
cates of
searches for
judgments,
crown debts,
&c.



Searches.

2. — (1.) Where any person requires, for purposes of
this section, search to be made in the Central Office of
the Supreme Court of Judicature for entries of judg-
ments, deeds, or other matters or documents, whereof
entries are required or allowed to be made in that
office by any Act described in Part I. of the First
Schedule to the Conveyancing Act of 1881, or by any
other Act, he may deliver in the office a requisition in
that behalf, referring to this section.

The following list will show the sections of the scheduled Acts
which are principally referred to ; —

(1) 1 & 2 Vict. c. 110, ss. 11, 13, 18, 19, 22.

2&3 Vict. c. 11, ss. 4, 5, 7.

18 & 19 Vict. c. 15, ss. 4—7, 11, 12.

22 & 23 Vict. c. 35 (Lord St. Leonards' Act, 1859), s. 11 (Ee-
lease of part of land charged not to affect validity of
judgment as to remaining part), and s. 22 (Provisions as
to re-registration to apply to Crown debts).

23 & 24 Vict. c. 38 (Lord St. Leonards' Act, 1860), ss. 1—5.
23 & 24 Vict. c. 115, both sections.



(4)



(6)
(6)



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SEARCHES. 231

(7) 27 & 28 Vict. c. 112, ss. 3, 4. C. A. 1882,

(8) 28 & 29 Yict. c. 104, ss. 48, 49. Sect. 2.

(9) 31 & 32 Vict. c. 54, ss. 1—3.

The charges with which these enactments deal, comprise jud^ents

(including orders of courts), crown debts, lis pendens, rent charges

(under the Improvement of Land Act, 1864), annuities, and writs

of execution and extent.

The law as to judgments, &c., is conveniently summarized in

Prideaux, Conv. Prec. 12th ed. pp. 137 ei sea. See also Dart, V. &

P. Ch. XI.

By the Eules of the Supreme Court, 1883, Order LXI., r. 23

(No. 916), re-enacting the former Rules of the Supreme Court,

Order LXa. r. 8a, it is provided as follows : —

" The Clerk of Enrolments, and each of the following Registrars,
" namely— (a) The Registrar of Bills of Sale ; {h) The Re-
" gistrar of Certificates of Acknowledgment of Deeds by
" Married Women ; (c) The Registrar of Judgments ; shall,
" on a request in writing giving sufficient particulars, and on
" payment of the prescribed fee, cause a search to be made
" in the registers or indexes under his custody, and issue
** a certificate of the result of the search."
This section does not apply to searches in the registries of re-

jgister counties, or to searches for judgments of the Court of Common .

Reas of the Coimiy of Lancaster. As to inrolments, see sub-s. (11),

infra.

(2.) Thereupon the proper oflGicer shall diligently
make the search required, and shall make and file in
the office a certificate setting forth the result thereof ;
and office copies of that certificate shall be issued on
requisition, and an office copy shall be evidence of the
certificate.

(3.) In favour of a purchaser, as against persons
interested imder or in respect of judgments, deeds,
or other matters or documents, whereof entries are
required or allowed as aforesaid, the certificate, accord-
ing to the tenour thereof, shall be conclusive, affir-
matively or negatively, as the case may be.

See the definition of *' purchaser," sect. 1, sub-s. (4), (ii.), ante,

(A.) Every requisition imder this section shall be in
writing, signed by the person making the same,
specifying the name against which he desires search
to be made, or in relation to which he requires an
office copy certificate of result of search, and other
sufficient particulars ; and the person making any such
requisition shall not be entitled to a search, or an office
copy certificate, until he has satisfied the proper officer



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232 THE CONVEYANCING ACT, 1882.

C. A. 1882, that the same is required for the purposes of this
^^^' ^' section.

It is difficult to say what is meant by the odd plirase '' for the
purposes of this section." No "purposes " are explicitly specified ;
and those matters which might be conjectured to be " purposes,"
such as, for example, the substitution of a vicarious for a personal
search, or the making official certificates to be conclusive evidence,
do not give any sense to the passage in which the phrase occurs.
The form of application officially prescribed (see p. 366, post) seems
to assume that the purposes of this section are sales, mortgages,
leases, and the like.

(5.) General Rules shall be made for purposes of
this section, prescribing forms and contents of requisi-
tions and certificates, and regulating the practice of
the office, and prescribing, with the concurrence of
the Commissioners of Her Majesty's Treasury, the
fees to be taken therein ; which Rules shall be deemed
39 & 40 Vict Rules of Court within section seventeen of the Appel-
^' ^^' late Jurisdiction Act, 1876, as altered by section nine-

44 & 46 Vict, teen of the Supreme Court of Judicature Act, 1881,
and may be made, at any time after the passing of
this Act, to take effect on or after the commencement
of this Act.

For rules and forms issued under this section, see p. 364, post.

(6.) If any officer, clerk, or person employed in the
office commits, or is party or privy to, any act of fraud
or collusion, or is wilfully negligent, in the making of
or otherwise in relation to any certificate or office copy
under this section, he shall be guilty of a misde-
meanour.

(7.) Nothing in this section or in any Rule made
thereunder shall take away, abridge, or prejudicially
affect any right which any person may have indepen-
dently oi this section to make any search in the office;
and every such search may be made as if this section
or any such Rule had not been enacted or made.

(8.) Where a solicitor obtains an office copy certifi-
cate of result of search imder this section, he shall not
be answerable in respect of any loss that may arise
from error in the certificate.

As to the liability of a solicitor who neglects to make proper
searches, see Dart, V. & P. Oh. XI. sect. 2.



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SEARCHES. 233

(9.) Where the solicitor is acting for trustees, execu- C. A. 1882,
tors, agents, or other persons in a fiduciary position, Sect. 2.
those persons also shall not be so answerable. '

(10.) Where such persons obtain such an office copy-
without a solicitor, they shall also be protected in like
manner.

ril.) Nothing in this section applies to deeds in-
rolled under the Fines and Recoveries Act, or under 3 & 4 wm. 4,
any other Act, or under any statutory rule. ®* '^*'

This exception will also extend to deeds inroUed under tlie S. L.
Act, 1882, sect. 16, post; and under the Acts relating to charities,
9 Geo. 2, c. 36, 24 & 25 Vict. c. 9, and 35 & 36 Vict. c. 24 ; and to
awards under the Inclosure Acts. Probably also to bargains and
sales inroUed under the 27 Hen. 8, c. 16 ; though these are not
properly deeds, but only sealed and indented memoranda,

(12.) This section does not extend to Ireland.



Notice.

3. — (1.) A purchaser shall not be prejudicially^ af- Sects,
fected by notice of any instrument, fact, or thing, Restriction on

unless — ^tiS"°*^^^

(i) It is within his own knowledge, or would have
come to his knowledge if such inquiries and
inspections had been made as ought reasonably
to have been made by him ; or

"Purchaser" includes a mortgagee and a lessee. (See sect. 1,
sub-8. 4, ii. ante.)

It is conceived that the effect of this section will be rather to
define than greatly to alter the existing law.

In Ware v. Lord Egmont, 4 De Q. M. & G. 460, at p. 473, Lord
Cran worth says: "The question, when it is sought to affect a
purchaser with constructive notice, is not whether he had the means
of obtaining, and might by prudent caution have obtained, the
knowledge in question, but whether the not obtaining it was an act
of gross or culpable negligence."

Constructive notice has been defined as knowledge which the
court imputes to a person upon a presumption so strong that it
cannot be allowed to be rebutted, that the knowledge must have
been conmiunicated. {Hewitts. Loosemore, 9 Ha. 449, at p. 455.)
See further, as to constructive notice, Dart, V. & P. Ch. XV.
sect. 5; Coote on Mortgages, 4th ed. pp. 776 et sea. See also,
Kettlewell v. Watson, 21 Ch. D. 685, and cases there cited.

A purduuser who does not investigate a title is affected with notice
of what he would have learned by investigation, as such neglect
tends to promote fraud ( Worthington v. Morgan, 16 Sim. 547) ; and
in cases of fraud, wilful neglect will render a purchaser liable to
the consequences of presumption of notice, even though there be
direct evidence to the contrary.

C. K



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234 THE CONVEYANCING ACT, 1882.

C. A. 1882 ^^^ * purcliaeer for value without notice is not hindered from
Sect. 3. * availing himself of the legal estate to protect himself, by the fact

'- — '- — that a fraud of which he was ignorant appears upon the title, if his

ignorance of the title was not due to his own laches. Under such
circumstances there seems to be no constructive notice of things
appearing upon the title. {Pitcher v. Rawlins ^ L. R. 7 Ch. 259.)

A puisne mcumbrancer cannot, after receiving notice of a prior
puisne incxmibrance, obtain priority by getting in the legal estate
from a bare trustee. {Harpham v. Shacklock, 19 Ch. D. 207.)

The section will not discharge a purchaser from the effect of such
notice as is implied by possession or tenancy of land, or possession
of title deeds.

(ii.) In the same transaction with respect to which
a question of notice to the purchaser arises, it
has come to the knowledge of his counsel, as
such, or of his solicitor, or other agent, as such,
or would have come to the knowledge of his
solicitor, or other agent, as such, if such in-
quiries and inspections had been made as ought
reasonably to have been made by the solicitor
or other agent.

The words, "in the same transaction," which are founded upon
the doctrine expoimded by Lord Hardwicke in Worsley v. Earl of
Scarborough^ 3 Atk. 392, are emphatic.

In general, notice to a solicitor is notice to his client only when
the notice was given after and during the retainer. But if the same
solicitor is acting both for a vendor and a purchaser, or a mortgagor
and a mortgagee, things coming to his knowledge after and during
his retainer by either party, though prior to Ms retainer by the
other, were formerly held to be notice to both parties. {Fuller v.
Bennett, 2 Ha. 394.) The present section perhaps modifies the law
in this respect.

Notice to the solicitor is ordinarily notice to the client, although
the information is not in fact communicated to the latter ; but this
rule does not extend to matters as to which there is an antecedent
presumption that they, would not be communicated by the solicitor,
as for example, the solicitor's own fraud. (See Ex parte Oriental
Commercial Bank, L. R. 5 Ch. 358 ; Waldy v. GraVy L. R. 20 Eq.
238.) And of course, no notice will be presumed wnen the circum-
stances are not such as to impose on the solicitor any duty to make
the communication. {Kettlewell v. Watson, 21 Ch. D. 685.)

In Saffron Walden Second Benefit Building Society v. RayncTj
14 Ch. D. 406, the Court of Appeal strongly discountenanced the
view, that there is such a thing as a permanent office of solicitor,
or that a solicitor, who happens to be in the habit of acting for a
person, is his agent so as to bind him by receiving notices or infor-
mation. No doubt a solicitor can be actually invested with such
authority ; but this must be expressly done. Therefore notice of a
puisne incumbrance to a solicitor who usually acts for a first mort-
gagee, will not of itself prevent such first mortgagee from tacking
subsequent advances.

By the S. L. Act, 1882, sect. 45, post, it is provided, that a tenant
for life exercising the statutory powers shall give notice to the



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NoncB. 236

trofltees, and also to "the solicitor to the trustees," if any such C. A. 1882
solicitor is known to him ; but this seems to he only a measure of Sect. 3.

general precaution, and not to constitute such a solicitor the true-

tees' agent for the purpose of receiving notice.

See, further, as to notice to solicitors, &c., Agra Bank v. Barry ^
L. E. 7 H. L. 135 ; Rolland v. Hart, L. E. 6 Ch. 678 ; Banco de
Lima V. Anglo-Peruvian Bank, 8 Ch. D. 160 ; Cave v. Cave, 15 Ch.
D. 639 ; Coote on Mortgages, 4th ed. p. 783 ; Fisher on Mortgages,
par. 910 e^ seq,

(2.) This section shall not exempt a purchaser from
any fiability under, or any obligation to perform or
observe, any covenant, condition, provision, or restric-
tion contained in any instrument under which his
title is derived, mediately or immediately ; and such
liability or obligation may be enforced in the same
manner and to the same extent as if this section had
not been enacted.

This sub-section appears to contemplate the cases represented by
Tulk V. Moxhag, 2 th. 774 ; including restrictive covenants in
superior leases. Only negative covenants are within the principle
of that case. {Haywood v. Brunswick Permanent Benefit Building
Society, 8 Q. B. D. 403 ; London and South Western Railway Co, v.
Gomm, 20 Ch. D. 562, see p. 583.) But in Andrew v. Aitken,
22 Ch. D. 218, Fry, J., seems to have thought that, though the
assignee of the lands could not be compelled to perform an affirma-
tive covenant, he might be obliged to permit it to be performed by
the persons liable to perform it. This, however, seems to be an
absolutely novel suggestion. It is difficult to imagine in what terms
the original covenantor could formulate such a claim ; and there
seems, at all events, to be no equity to prevent the owner of the
land, supposing the covenant (in this case, to build a house) to have
been performed, from proceeding forthwith to imdo what had been
done.

Bestrictive covenants cease to be enforceable, when they cease to
be appropriate to the circumstances ; as for example, by a change
in the character of a building estate. (See Sayers v. Collyer, 24
Ch. D. 180.)

Notice of a restrictive covenant may be constructive notice. ( Wilson
V. Hart, L. E. 1 Ch. 463.)

Though ** purchaser" includes an "intending purchaser," the
sub-section will not of course affect the ordinary right to determine
a contract which does not disclose unusual restrictions in the title.

(3.) A purchaser shall not by reason of anything in
this section be affected by notice in any case where he
would not have been so affected if this section had not
been enacted.

Begistration is not constructive notice to a purchaser who has
omitted to search a registry ; and, in the absence of express notice,
it gives no priority over a subsequent registered deed which conveys
the legal estate ; nor, in sttch absence, does it prevent a prior mort-

r2



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236 THE CONVEYANCING ACT, 1882.

C A 1882 g^g®® ^^ tacking a subsequent charge which has been duly regis-
Sect. 3. ' *®red. {Bedfordy, Backhouse, 2 Eq. Ca. Ab. 615.) But, coupled with

*■ — *- — notice, it prevents the tacking of a prior further charge which has

not been registered. {Credland v. Potter, L. R. 10 Ch. 8.)

A mortgagee or purchaser need not search ; but, if he searches,
notice will be presumed {Procter v. Cooper, 2 Drew. 1 ) ; but only
from the date at which his search commenced. {Hodgson v. Dean,
2 Sim. & St. 221.)

(4.) This section applies to purchases made either
beiore or after the commencement of this Act; save
that, where an action is pending at the commence-
ment of this Act, the rights of the parties shall not be
affected by this section.

Leases.

Contract for 4. — (1.) Where a lease is made under a power con-
lease not part taincd in a settlement, will, Act of Parliament, or
J4^f®*^ other instrument, any preliminary contract for or re-
lating to the lease shall not, for the purpose of the
deduction of title to an intended assign, form part of
the title, or evidence of the title, to the lease.

(2.) This section applies to leases made either before
or after the commencement of this Act.

It will be observed that the section refers only to a lease made
under a power, while the marginal note uses simply the word lease.
The explanatory notice prefixed to the Bill stated that ** the object
of clause 5 is to relieve the title to leasehold land, especially on a
building lease, from the preliminary contract to a lease." Clause
5 of the Bill is represented by sect. 4 of the Act. The latter intro-
duces the words ** for the purpose of the deduction of title to an
intended assign," the former refers generally to the title *' of any
person."

If a lease, whether made imder a power or not, is made in viola-
tion of a contract, whether by a fraud or by a mutual mistake, the
parties have the same rights, as regards rectification and specific
performance, as they would have in the c€ise of any other violated
contract. But these rights would not afPect an assign of the lease
taking without notice of the violation. It is not the general prac-
tice to treat contracts for leases as part of the title, nor is an
intended assign under any obligation to inquire into the existence
of any preliminary contract. But if left at liberty to require the

S reduction of any such contract, the purchaser might thereby in-
irectly obtain notice of defects in the vendor's or ms lessor's title,
upon which he might be entitled to insist, although precluded by
law from making any direct investigation into that title.

It is possible that the present seSction may take effect to prevent
the purchaser, on the sale of a lease which has been granted by a
tenant for life under the powers conferred by the S. L. Act, 1882,
from being entitled to call for the preliminary contract for the
lease, in order to satisfy himself that tlte power was rightly exer-



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LEASES. 237

cised, and in particular, whether the notices directed by sect. 45 C. A. 1882,
of that Act were duly given. But this explanation has never yet Beet. 4.

been suggested, and it does not seem to have been foreseen when

the present section was enacted. See the 8. L. Act, 1882, sect. 31,
subs. (4), and note thereon, post.



Separate Trustees.

6. — (1.) On an appointment of new trustees, a se- Sect. 6.
parate set of trustees may be appointed for any part Appointment
of the trust property held on trusts distinct from those ^^TST**^
relating to any other part or parts of the trust pro- trustees.
perty ; or, if only one trustee was originally appointed,
then one separate trustee may be so appointed for
the first-mentioned part.

('2.) This section applies to trusts created either
beiore or after the commencement of this Act.

This section confers a power, which has been frequently exercised
by the Court, to appoint separate trustees of separate shares of
trust property. See Re CotterilVs Trusts, W. N. 1869, p. 183 ; Re
Grange, W. N. 1881, p. 50 ; Re Dennis' Trusts, 12 W. E. 575 ; Re
Cunard's Trusts, 27 W. E. 52.

The language, " held on trusts distinct," &c., suggests that it will
be sufficient if, at the time of the appointment, the trusts are dis-
tinct, although that part of the property may originally nave been
held upon trusts partly identical with those on which some other
part is or was held.

It would appear from the words, ** on an appointment of new
trustees," that an appointment of separate trustees of a separate
part cannot be made for the mere purpose of abstracting that part
from the custody of existing trustees who are allowed to remain
in custody of the residue. Whether after a total extinction of
trustees, new trustees could be appointed of a part without also
appointing new trustees of the residue, seems to be doubtful. Nor
is it clear that, if a new appointment should be made when there are
continuing trustees, the latter could retire from, or be deprived of,
their trust as to a part of the property. If such a course might be
pursued, the result would foUow, that whenever a settlement con-
tained distinct sets of trusts, the continuing trustees might be removed
upon pretence of appointing separate sets of trustees, although such
continuing trustees might not otherwise be legally removeable with-
out their own consent.

GThe jmrsons to exercise the power given by this section seem to be
the persons nominated by sect. 31 of the Conv. Act, 1881, ante.

The section does not expressly provide for vacancies occurring in
a separate body of new trustees so appointed, or for cases where
different sets of trustees have been appointed by the instrument
creating the trust. In both cases it is conceived that the ordinary
rule of appointment by the survivor, &c., will apply; but this may be
open to doubt (see Lewin on Trustees, chap. 24, pt. 1, sect. 3),
especiidly in the form^er case, and the section might with advantage
have been made more explicit.



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238 THE CONVEYANCING ACT, 1882.



Online LibraryHenry Williams Challis Henry J. HoodThe Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... → online text (page 29 of 53)