Henry Williams Challis Henry J. Hood.

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

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Diadaiinerof 6.— (1.) A person to whom anj power, whether

power by couplod with an interest or not, is given, may, hy

*'^^**^* deed, disclaim the power; and, after disclaimer, shall

not be capable of exercising or joining in the exercise

of the power.

(2.) On such disclaimer, the power may be exercised
by the other or others, or the survivors or survivor of
the others, of the persons to whom the power is given,
unless the contrary is expressed in the instrument
creating the power.

(3*) This section applies to powers created by in-
struments coming into operation either before or after
the commencement of this Act.

The introduction into the marginal note of the words "by
trustees," which nowhere appear in the body of the section, sug-
gests a suspicion that the section was only designed to supply a
defect in the Conv. Act, 1881, sect. 38 (see note thereon, ante), which
provides for the survivorship of a joint power in executors or trustees
on a death, but does not provide for the continuance of the power
on a disclaimer, although sect. 52 of that Act seems to have made
such a disclaimer possible.

The provisions respecting powers, contained in this and the fore-
going Acf , are summarized in the note on sect. 46 of the CJonv. Act,
1881, ante.

The term "disclaimer" is more usual than "release," in relation
to powers which are not given to a person to be used at his own will
and pleasure. It has substantially the same effect, and this section
will not enable a tenant for life to disclaim his statutory powers under
the S. L. Act, 1882. See sect. 50, subs. (1), of that Act, post.

If all the .trustees should disclaim their powers, these would, of
course, be exerciseable by any subsequently appointed trustees.

The object of this section seems to be to enable that to be done
by a part of the trustees, which previously could have been done
only by the whole body. In cases where, by reason of the reposal
of a personal discretion in the whole body, a disclaimer by any one
or more would practically amount to a release and extinction, it is
submitted that this section does not apply, even though the instru-
ment containing the power should not contain any express declara-
tion to that effect effect. See Re Eyre, W. N. 1883, p. 153 ; 49 L. T.
259 ; and see the Conv. Act, 1881, sect. 52, note, ante. It does not
seem to be the intention of the present section, to enable a personal
discretion to be exercised except by the whole body of the donees.

Where the power is coupled with an interest, the deed of dis-
claimer should not purport to convey the interest, but only to disclaim
the power. See Urch v. Walker, 3 My. & Or. 702 ; Crewe v. Bicken,
4 Yes. 97 ; Nicloson v. Wordsworth, 2 Swanst. 365 ; which cases are
somewhat at variance. It seems clear that the power cannot be
disclaimed without also disclaiming any legal estate to which the
power, if accepted, would be annexed.

There seems to be no reason why a married woman should not,
under this section, disclaim a power not coupled with any interest



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POWERS. 239

without the concurrence of her husband. If the power is coupled c. A. 1882.
with an interest, then — (1) If she is a trustee, it seems to be the Sect. 6.

better opinion that her husband's concurrence is still necessary, ex '- —

cept in cases coming within the V. & P. Act, 1874, s. 6, and cases
relating to such personal property as is specified in the Married
Women's Property Act, 1882, s. 18, post; (2) if her power is not
purely ministerial or official, the husband's concurrence will be neces-
sary, unless the woman was married, or the interest was created,
subsequently to the commencement of the last-mentioned Act.

There existed at one time some difference in opinion as to the autho-
rity of marginal notes in an Act of Parliament. In VenourY,Sellon^
2 Ch. D. 522, Jessel, M. B., said that marginal notes form part of the
Act. This doctrine was subsequently disapproved by the Court of
Appeal in Att.-Gen, v. Great Eastern Railway y 11 Ch. D. 449, see
pp. 461, 465; and in Claydon v. Greeriy L. E. 3 C. P. 511, the
Court of Common Pleas sitting in banc had previously expressed the
opinion that marginal notes form no part of the statute, and are not
binding as an explanation.

In Sutton V. Sutton, 22 Ch. D. 511, at p. 513, Jessel, M. R, with-
drew his dictum in Venour v. Sellon^ and it may probably now be
considered settled, that the marginal notes have no authority. This
accords with the opinion of the Statute Law Committee. In the
Hevised Edition of the Statutes, the marginal notes have been freely
revised throughout by the Editors.

Married Women.
7. — (1.) In section seventy-nine of the Fines and Sect. 7.
Recoveries Act, and section seventy of the Fines and ^^^^T^SfS'
Recoveries (Ireland) Act, there shall, by virtue of this i^^Lmied
Act, be substituted for the words ^^two of the per- women,
petual commissioners, or two special commissioners,"
the words ''one of the perpetual commissioners, or
one special commissioner ; " and in section eighty-
three of the Fines and Recoveries Act, and section
seventy-four of the Fines and Recoveries (Ireland)
Act, there shall, by virtue of this Act, be substituted
for the word '' persons " the word " person," and for
the word ''commissioners" the words "a commis-
sioner ; " and all other provisions of those Acts, and
all other enactments having reference in any manner
to the sections aforesaid, shall be read and have effect
accordingly.

(2.) Where the memorandum of acknowledgment
by a married woman of a deed purports to be signed
by a person authorized to take the acknowledgment,
the deed shall, as regards the execution thereof by the
married woman, take effect at the time of acknowledg-
ment, and shall be conclusively taken to have been
duly acknowledged.

As to deeds executed after 31st December^ 1882, no certificate of



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240 THE CONVEYANCING ACT, 1882.

C. A. 1882, acinowledgment will be required to be made or filed ; see sdiednle.
Sect. 7. * po^^: and the deed will take effect immediately on acknowledgment.

(3.) A deed acknowledged before or after the com-
mencement of this Act by a married woman, before a
judge of the High Court of Justice in England or Ire-
land, or before a judge of a county court in England,
or before a chairman in Ireland, or before a perpetual
commissioner or a special commissioner, shall not be
impeached or impeachable by reason only that such
judge, chairman, or commissioner was interested or
concerned either as a party, or as solicitor, or clerk to
the solicitor for one of the parties, or otherwise, in the
transaction giving occasion for the acknowledgment ;
and General Rules shall be made for prerenting any
person interested or concerned as aforesaid from taking
an acknowledgment; but no such Rule shall make
invalid any acknowledgment ; and those Rules shall,
as regards England, be deemed Rules of Court within
^^**^Vict. section seventeen of the Appellate Jurisdiction Act,
44&'46Viot. 1876, as altered by section nineteen of the Supreme
40&'4ivict ^^^^ ^^ Judicature Act, 1881, and shall, as regards
c. 57. * Ireland, be deemed Rules of Com-t within the Supreme
Court of Judicature Act (Ireland), 1877, and may be
made accordingly, for England and Ireland respec-
tively, at any time after the passing of this Act, to
take effect on or after the commencement of this Act.

This, so far as it relates to England, is a re-enactment, with such
formal alterations in tlie list of specified officials, and otherwise, as
later legislation has made appropriate, of 17 & 18 Vict. c. 75,
sects. 1 and 8, which are now repealed ; see schedule, p. 246, pott,

(4.) The enactments described in the Schedule to
this Act are hereby repealed.

(5.) The foregoing provisions of this section, in-
cluding the repeal therein, apply only to the execution
of deeds by married women after the commencement
of this Act.

(e.') Notwithstanding the repeal or any other thing
in this section, the certificate, if not lodged before the
commencement of this Act, of the taking of an ac-
knowledgment by a married woman of a deed executed
before the commencement of this Act, with any affi-
davit relating thereto, shall be lodged, examined, and
filed in the like manner and with the like effects and
consequences as if this section had not been enacted.

(7.) There shall continue to be kept in the proper



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MABRIED WOMEN. 241

office of the Supreme Court of Judicature an index to C. A. 1882,

all certificates of acknowledgments of deeds by married Sect 7.

women lodged therein, before or after the commence-

ment of this Act, containing the names of the married

women and their husbands, alphabetically arranged,

and the dates of the certificates and of the deeds to

which they respectively relate, and other particulars

found convenient ; and every such certificate lodged

after the commencement of this Act shall be entered

in the index as soon as may be after the certificate is

filed.

(8.) An office copy of any such certificate filed before
or after the commencement of this Act shall be de-
livered to any person applying for the same; and
every such office copy shall be received as evidence of
the acknowledgment of the deed to which the certifi-
cate refers.

By the Married Women's Property Act, 1882, the marital right
and its incidents inter vivos are, with regard to women married alter
its commencement, practically abolished, and, in the case of women
already married, are abolished in respect to property taken by a
subsequently accruing title ; so that property to which the marital
right of husbands is applicable will tend continually to decrease,
and aU property belonging or coming to a married woman wiU after
a time necessaiily be held or taken by her for her separate use.
Since a married woman can dispose of her separate estate, so far as
the separate use extends, by deed without acknowledgment (Pride
v. Bubby L. R 7 Ch. 64), it seems to foUow that the practice of
acknowledging deeds will tend to become obsolete ; except, perhaps,
80 far as relates to property not coming within s. 18 of the Married
Women's Property Act, 1882, which is held by her as a trustee, or
en autre droit.

Powers of Attorney/.

8. — (1.) If a power of attorney, given for valuable Sect. 8.
consideration, is in the instrument creating the power EflPect of
expressed to be irrevocable, then, in favour of a pur- ^^ey, for

chaser, value, made

(i.) The power shall not be revoked at any time, ^^^^^^
either by anything done by the donor of the power
without the concurrence of the donee of the power, or
by the death, marriage, lunacy, unsoundness of mind,
or bankruptcy of the donor of the power ; and

(ii.) Any act done at any time by the donee of the
power, in pursuance of the power, shall be as valid as
if anything done by the donor of the power without
the concurrence of the donee of the power, or thel
death, marriage, lunacy, unsoundness of mind, or



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242



THE CONVBYANCING ACT, 1882.



C. A. 1882,
Sect 8.



Sect 9.

EfPectof
power of
attorney, for
valae or not,
madeirre-
Yooable for
fixed time.



bankruptcy of the donor of the power, had not been
done or happened ; and

(iii.) Neither the donee of the power nor the pur-
chaser shall at any time be prejudicially affected by
notice of anything done by the donor of the power,
without the concurrence of the donee of the power, or
of the death, marriage, lunacy, unsoundness of mind,
or bankruptcy of the donor of the power.

(2.) This section applies only to powers of attorney
created by instruments executed after the commence-
ment of this Act.

See note on the next section.

9. — (1.) If a power of attorney, whether given for
valuable consideration or not, is in the instrument
creating the power expressed to be irrevocable for a
fixed time therein specified, not exceeding one year
from the date of the instrument, then, in favour of a
purchaser, —

(i.) The power shall not be revoked, for and dining
that fixed time, either by anything done by the donor
of the power without the concurrence of the donee of
the power, or by the death, marriage, lunacy, unsoimd-
ness of mind, or bankruptcy of the donor of the
power; and

(ii.) Any act done within that fixed time, by the
donee of the power, in pursuance of the power, shall
be as valid as if anything done bv the donor of the
power without the concurrence of the donee of the
power, or the death, marriage, lunacy, unsoundness of
mind, or bankruptcy of the donor of the power, had
not been done or happened ; and

(iii.) Neither the donee of the power, nor the pur-
chaser, shall at any time be prejudicially affected by
notice either during or after that fixed time of any-
thing done by the donor of the power during that
fixed time, without the concurrence of the donee of
the power, or of the death, marriage, lunacy, unsound-
ness of mind, or bankruptcy of the donor of the
power within that fixed time.

(2.) This section applies only to powws of attorney
created by instruments executed after the commence-
ment of this Act.

This and the preceding section must be read in connection with
sects. 46 and 47 of the Oony. Act, 1881, ante. See notes thereon.



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POWBRS OF ATTORNBY. 243

These sections will facilitate dealings -with persons acting under C. A. 1882,
powers of attorney executed after December 31st, 1882, and which Sect. 9.

are expressed to be irrevocable either for an indefinite period, if the

power be given for value, or for a period not exceeding a year in
other eases. The old forms used by conveyancers often purported
to make irrevocable appointments, but such appointments were
nevertheless revocable at will, and were ipso facto revoked by death.
But the CJonrts of Equity were accustomed to " give effect to all
bond fide dealings with the attorney which took place after the
death of the principal and before the death became known to the
attorney ; especially where valuable consideration passed." (1 Dav.
Prec. 4th ed. 475.)

Cases might arise in which the operation of these sections may be
doubtful or anomalous; for example, if a tenant in tail, having

fiven an irrevocable power of attorney to execute a disentailing
eed, should die before the execution ; or if a settlor, having given
an irrevocable power of attorney to execute a settlement, or to
execute a deed revoking the uses of an existing settlement and
limiting new uses, should in like manner die. If the donor of an
irrevocable power to sell lands, should afterwards sell the lands to
a purchaser for value without notice of the power of attorney, and
the attorney should afterwards sell the lands to a purchaser for
value without notice of the previous sale, a difficult conflict of
rights and equities would arise. In some cases, as on the sale of
an undivided share, the non-delivery of the title deeds by the
vendor would be naturally accounted for, and would raise no pre-
sumption of fraud. In such cases a purchaser from an attorney
under an irrevocable power should, notwithstanding the provisions
of sects. 8 & 9 o{ the present Act, take steps to assure himself that
there have been no intermediate dealings with the property by the
donor of the power.

The dangerous influence which these irrevocable powers may
exercise upon titles suggests the conclusion, that the public regis-
tration of such powers ought to be made compulsory by legislation.
It will be observed that, under the present section, the year during
which the power of attorney may be made irrevocable is computed
from the date of the instrument. The language of this enactment is
closely parallel to that of the Statute of Inrolments (27 Hen. 8, c. 16) —
"within six months next after the date of the same writings in-
dented ;" where, according to Preston, the word "date" means the
day of the date of the deed, not of the delivery. (1 Prest. Abst. 288.)
But according to an obiter dictum of Lord Eldon, in Underhill v.
Jlorwood, 10 Ves. 209, at p. 228, the day of the date is the day of
the execution.

Executory Limitations.

10. — (1.) Where there is a person entitled to land Sect. 10.
for an estate in fee, or for a term of Years absolute ^^^toty
or determinable on life, or for term of life, with an limitations,
executory limitation over on default or failure of all or
any of nis issue, whether within or at any specified
period or time or not, that executory limitation shall
be or become void and incapable of taking effect, if
and as soon as there is living any issue who has



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244 THB CONVEYANaNG ACT, 1882.

C. A. 1882, attained the age of twenty-one years, of the class on
Sect. 10. default or failure whereof the limitation over was to
take effect.

(2.) This section applies only where the executory-
limitation is contained in an instnmient coming into
operation after the commencement of this Act.

It is not clear that this section applies to an executory limitatioa
in defeasance of an equitable fee simple, or, in general, to executory
limitations of trusts as distinguished from uses. The definition of
"land" in the Conv. Act, 1881, sect. 2, sub-s. (ii.), ante, would in-
clude equitable fees simple ; but that definition is not incorporated
into the present Act; and the phraseology of the present section
suggests, that it was composed without any reference to, or thought
of, that definition.

A tenant in fee simple, subject to an executory limitation, could
not defeat that limitation by a common recoveiy (Pells v. Broicn, Cro.
Jac. 590) ; though a tenant in tail could thereby defeat an executory
limitation upon his estate tail.

Such a limitation might have been barred by non-claim on a fine
levied with proclamations ; but the period of non-claim began to
nm, not from the levying of the fine, but from the vesting of the
executory interest. The same rule applies both to executory devises
and to springing and shifting uses. ** It is frequently said, that an
executory devise cannot be barred by a common recovery. The
truth is, that a tenant in fee, subject to an executory devise, cannot
by recovery, or by any other means, except by a fine or [read, and]
non-claim on a fine, defeat an executory devise to which the estate
is subject." (3 Prest. Abstr. 139.) ** A springing or shifting use
cannot be barred by a fine, levied of the estate out of which such
springing or shifting use is to arise, unless there be a non-claim of
five years after it arises." (Cruise, 1 Fines & Eec. 3rd ed. p. 313.)
The practical effect of the fine was only to shorten the i)eriod of
limitation to five years.

The present section destroys the executory limitation at the time
when the son, or other issue of the person entitled, if he had been
tenant in tail, might, with the consent of the person entitled, if the
latter had been tenant for life preceding the estate tail, have
acquired a fee simple in remainder ; whereas, previously, the execu-
tory limitation could not have been defeated at any time during the
life of the person entitled subject thereto.

The section does not deal with executory limitations in defeasance
of estates tail ; probably because they are defeated by the barring
of the entail.

Executory limitations of terms of years are only possible by way
of devise (see note on the Conv. Act, 1881, sect. 65, sub-s. 2, ante\
and they do not often occur in practice. It is improbable that
executory limitations in defeasance of an estate " for term of life,"
in the sense of an estate for the life of the tenant, are ever found ;
but an estate pur autre vie, already in esse, as a leasehold estate for
lives, is sometimes devised subject to an executory limitation io
take effect on default of issue. (See Re Barber's Settled Estates,
18 Ch. D. 624.)

An executory limitation, to take effect upon a failure of issue
generally, which seems to be indicated by the language, " whether
within or at any specified period of time or not,^^ would, indepen-



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EXECUTORY LIMITATIONS. 245

dently of this section, bo absolutely void, by reason of tbe rule (j. A. 1882,
against perpetuities. The words above cited seem to be merely ge^t. 10. '

superfluous.

A tenant in fee simple, with an executory limitation, gift, or dis-
position over, on failure of his issue, or in any other event, has the
powers of a tenant for life under the S. L. Act, 1882. (See sect. 58,
Bub-8. ii. of that Act, post,)

Long Terms.

11. Section sixty-five of the Conveyancing Act of Sect. 11.
1881 shall apply to and include, and snail be deemed Amendment
to have always applied to and included, every such ^^^J^^*
term as in that section mentioned, whether having as long terms,
the immediate reversion thereon the freehold or not ;

but not —

(i.) Any term liable to be determined by re-entry

for condition broken ; or
(ii.) Any term created by sub-demise out of a superior
term, itself incapable of being enlarged into a
fee simple.

See the notes on the Conv. Act, 1881, sect. 65, ante.

Mortgages.

12. The right of the mortgagor, under section Sect. 12.
fifteen of the Conveyancinff Act of 1881, to require a Beoonyeyance

_, • J. J i! • J. • ii on mortgage.

mortgagee, mstead oi re-conveymg, to assign the
mortgage debt and convey the mortgaged property to
a third person, shall belong to and be capable of being
enforced by each incumbrancer, or by the mortgagor,
notwithstanding any intermediate incumbrance ; but a
requisition of an incumbrancer shall prevail over a
requisition of the mortgagor, and, as between incum-
brancers, a requisition of a prior incumbrancer shall
prevail over a requisition of a subsequent incimi-
brancer.

Since, in the Conv. Act, 1881, the word " mortgagor'* is made to
include any person entitled to redeem, it clearly includes a puisne
incumbrancer, and this view was taken in Teevan v. Smith, 20
Ch. D. 724. Hence, there might be an unlimited number of persons,
all of whom would equally be entitled to exercise the right conferred
by sect. 15 of that Act. The object of the latter part of the present
section is to remove all doubt as to whether the existence of mesne
incumbrancers disables a puisne mortgagee from requiring a transfer
of a prior mortgage, and also to prevent a prior incimibrancer from
being ousted of his right by the fact of a demand for transfer having
been first made by a subsequent incumbrancer. The section makes
no provision as to the i)oint of time at which interference by the



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246



THE CONVBYANCING ACT, 1882.



C. A. 1882, prior incumbrancer will come too late, and, as expense might be
Sect 12. fruitlessly incurred, it will be desirable, when a puisne incumbrancer

E reposes to exercise the right, for him to give notice to all incum-
rancers intervening between himself and the person on whom he
proposes to make the demand.



Sect. 13.

ReBtriction
on repeals in
this.



Savinff.

13. The repeal by this Act of any enactment shall
not affect any right accrued or obligation incurred
thereunder before the commencement of this Act ; nor
shall the same affect the validity or invalidity, or any
operation, effect, or consequence, of any instrument
executed or made, or of anything done or suffered,
before the commencement of this Act; nor shall the
same affect any action, proceeding, or thing then
pending or uncompleted ; and every such action, pro-
ceeding, and thing may be carried on and completed
as if there had been no such repeal in this Act.

See note on the Conv. Act, 1881, sect. 71, ante.



Schedule.

Section 7 (4).



SCHEDULE.



3&4 Will. 4, c. 74.
in part.



Eepeals.
.The Fines and Recoye- '



ines and Recoye- ) . ^^ . . ««^^u^
riesAct jmpart; namely,-

Section eighty-four, from and including
the words **and the same judge," to
the end of that section (a).
Sections eighty-five to eighty-eight in-
clusiye (a).
4 & 5 Will. 4, c. 92. .The Fines and Eecove- ) • . i

in part. ries (Ireland) Act . . j '^ P^^ ' uamely,-

Section seventy-five, from and including
the words ** and the same judge," to
the end of that section.
Sections seventy-six to seventy-nine, in-
clusive.
17 & 18 Vict. c. 75. .An Act to remove doubts concerning the due
acknowledgments (i) of deeds by married
women in certain cases (c).
41 & 42 Vict. c. 23.. The Acknowledgment of Deeds by Married
Women (Ireland) Act, 1878.



(a) These sections relate to the making and filing of certificates of acknow-



Online LibraryHenry Williams Challis Henry J. HoodThe Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... → online text (page 30 of 53)