Henry Williams Challis Henry J. Hood.

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

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Online LibraryHenry Williams Challis Henry J. HoodThe Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... → online text (page 31 of 53)
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ledffments.

(i) In the title of the original Act, the word is ** acknowledgment.*'

(e) The provisions of this Act are re-enacted, with variations, in sect. 7, tmie.



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( 247 )



A SUMMARY



SETTLED LAND ACT, 1882.



The subjects to be considered in relation to the Act may be divided
into the following principal heads : —

(I.) Who may exercise the powers given by the Act?

(n.) What may be done in exercise of those powers ?

(m.) In what ways may capital money arising from the exercise of
any of those powers be employed ?

(IV.) What securities are provided against reckless dealings by
limited owners P

(I.) The Persons by whom the Powers of the Act may

be exercised.

The person upon whom the statutory powers are conferred is styled
" the tenant for life;" under which term are included the following
persons: —

(1.) Any person who is for the time being under a settlement
beneficially entitled for his life to the receipt of the income
of the settled land. See sect. 2, sub-s. (5) and sub-s. (10), (i.).
This seems to include legal and equitable tenants for life
under a settlement, as distinguished from persons merely
holding at a rent under leases for life or lives. Where the
settled land is subject to a trust for sale, the case is specially
provided for by sect. 63.

(2.) A tenant in ttul in possession, although restrained by statute
from barring the entail, and although the reversion is in
the Crown ; but not in case the land in respect whereof he
is restrained from barring the entail W6W purchased with



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1



248 SUMMARY OP THE SETTLED LAND ACT, 1882.

money provided by Parliament in consideration of public
services. See sect. 58, sub-s. (1).

By virtue of sect. 2, sub-s. (10), (i.), this provision seems
to apply to equitable as well as to legal tenants in tail.

(S.) A tenant in fee simple in possession, with an executory limi-
tation over on failure of his issue, or in any other event.
(Sect. 58, sub-s. 1.) This provision seems to apply to an
equitable tenant. .

(4.) A person entitled in possession to a base fee, although the
reversion is in the Crown. (Sect. 58, sub-s. 1.)

This provision also seems to apply to a person equitably
entitled.

(6.) A tenant in possession for years " determinable on life '' — an
extraordinary phrase, which seems to mean, determinable
upon the dropping of a life or lives — ^not holding merely
tmder a lease at a rent. {Ibid.)

This provision also seems to apply to an equitable tenant.

(6.) A tenant in possession pur autre m^ not holding merely under
a lease at rent. {Ibid,)

This provision also seems to apply to an equitable tenant.

(7.) A tenant in possession for life or pur autre vie^ or for years
" determinable on life," whose estate is liable to cease in
any event during that life, or is subject to a trust for
accumulation of income for payment of debts "or other
purpose." {Ibid.)

This provision also seems to apply to an equitable tenant.

(8.) A tenant in tail in possession after possibility of issue extinct.
{Ibid.)
This provision also seems to apply to an equitable tenant.

(9.) A tenant by the curtesy {ibid.) ; including, it is conceived, a
tenant by equitable curtesy.

(10.) A person entitled to the income of land tmder a trust for
payment thereof to him during his own or any other life,
whether subject to expenses of management or not, or
until sale, or until forfeiture on bankruptcy, " or other
event." {Ibid.)

(11.) The trustees of the settlement, if any, and otherwise such
person as the court shall appoint, in case the " tenant for
life " is an infant. (Sect. 60.) This provision also applies
to the case of an infant who is entitled in his own right to
possession of land, apparently for any estate whatsoever,
whether legal or equitable, and not being entitled under a
settlement. (Sect. 59.)



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MEANING OF TENANT FOR LIFE. 249

The Act defines the phrase, " trustees of the settlement ; " but its
language is not always uniform, and it seems sometimes to show an
intention to depart from its definition. The following propositions
may be collected from different passages : —

(i.) If under the settlement there exist any trustees " with power
of sale of settled land, or with power of consent to, or approval of,
the exercise of such a power of sale," then such trustees " are for pur-
poses of this Act trustees of the settlement." (Sect. 2, sub-s. 8.)
This seems to be the most general sense of the phrase.

(ii.) If imder the settlement there are no such trustees as aforesaid,
any persons may be by the settlement " declared to be trustees thereof
for purposes of this Act." (Ibid,)

(iii.) If at any time there are no trustees within the foregoing
definition, or when in any other case it is expedient that new trustees
should be appointed, the Court may, on the application of any person
having imder the settlement any interest in the settled land, or, in
the case of an infant, on the application of his guardian or next
friend, appoiut " fit persons to be trustees under the settlement for
purposes of this Act." (Sect. 38.)

(iv.) It seems that where an infant would, if of full age, have the
powers of a tenant for life, and there are no " trustees of the settle-
ment," the Court may, without appointing trustees, appoint a " per-
son " to exercise the powers conferred by the Act, either generally or
in sudi manner as the Court in the particular instance orders.
(Sect. 60.)

(12.) A married woman and her husband together, in any case

where the married woman, if not married, would have been

'* tenant for life," and is not entitled either for her separate

use, or under any statute for her separate property or as a

feme sole, (Sect. 61.) If entitled to her separate use, or

under any statute as aforesaid, the married woman has

power to act without her husband ; and notwithstanding

that she is restrained from anticipation. {Ibid. 8ub-s. 6.)

(13.) The committee of a lunatic tenant for life, so found by

inquisition, acting under an order of the Lord Chancellor or

other person intrusted with the care, &c., of lunatics.

(Sect. 62.)

Several persons entitled as tenants in common, or as joint tenants,

or for other concurrent estates or interests, constitute together only

one " tenant for life." (Sect. 2, sub-s. 6.)

A person who is tenant for life within the meaning of sect. 2,

feub-sects. (5) and (6), is " deemed to be such notwithstanding that,

under the settlement or otherwise, the settled land, or his estate or

interest therein, is incumbered or charged in any manner or to any

c. s



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250 SUMMARY OF THE SETTLED LAND ACT, 1882.

extent." (Sect. 2, sub-s. 7.) This provision applies also to the other
persons above enumerated, who have the powers of a tenant for life.
But the rights of an assignee for value of the interest of the tenant
for life cannot be affected without his consent, except that, unless the
assignee is actually in possession, leases may be made without his
consent. (See sect. 60.)

(n.) What Powers may be exercised under the Act

(1) Sale.

The tenant for life (including any of the persons in that behalf
previously enimierated) may sell the settled land, or any part thereof,
or any easement, right, or privilege of any kind, over or in relation
to the same. (Sect. 3, sub-s. i.)

But the principal mansion house, and the demesnes thereof, and
other lands usually occupied therewith, cannot be sold (or leased)
without the consent of the trustees of the settlement, or an order of
the Court. (Sect. 15.)

(2) Rekaae of Tenure^ and Enfranchisement.

Where the settlement comprises a manor, the tenant for life may
sell the seignory of zsij freehold land within the manor, or the freehold
and inheritance of any copi/hold or customary land, parcel of the
manor, with or without the minerals and mining rights, so as, in
every such case, to effect an enfranchisement. (Sect. 3, sub-s. ii.)

An enfranchisement may be made with or without a re-grant of
any right of common or other right, easement or privilege theretofore
held or enjoyed with the land enfranchised. (Sect. 4, sub-s. 7.)
The object of this enactment will sufficiently appear from the
following passage: — "The right of common in the wastes of the
lord of the manor is extinguished by enfranchisement, unless speci-
ally preserved to the copyholder imder terms equivalent to a re-grant
of common; and it has been held that the grant of all appurtenances
to the copyhold tenement will not prevent the destruction of the
common ; it is therefore usual to insert a re-grant of the commonable
rights in the deed of enfranchisement." (Scriv. Cop. 4th ed. 666.)

But an enfranchisement effected imder the 4 & 6 Vict. c. 36 (see
sect. 81) will not deprive the tenant of any commonable right to
which he may be entitled.

(3) Exchange.
The tenant for life may make an exchange of the settled land, or
any part thereof, for other land, including an exchange in considera-
tion of money paid for equality of exchange. (Sect. 3, sub-s. iii.)



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POWEKS CONFERRBD BY THE ACT. 251

Settled land in England cannot be given in exchange for land out
of England. (Sect. 4, sub-s. 8.) If the settlement should contain a
power to effect such exchanges, they might, of course, be effected
under the power, though not imder the Act.

It is to be remarked, that the restriction imposed on the powers of
sale and leasing with regard to the principal mansion house, &c., is
not imposed upon the power of exchange.

(4) Partition.

Where the settlement comprises an undivided share in land, or,
under the settlement, the settled land has come to be held in undivided
shares, the tenant for life may concur in making partition of the
entirety, including a partition in consideration of money paid for
equality of partition. (Sect. 3, sub-s. iv.)

Money required for enfranchisement, or for equality of exchange
or partition, may be raised by mortgage. (Sect. 18.) These are the
only purposes for which mortgages to be made by the tenant for life,
as such, are authorized by the Act. Sect. 47 provides that costs
directed by the Court to be paid out of property subject to a settle-
ment, may be raised and paid by means of a mortgage of the settled
land, or any part thereof, to be made by such person as the Court
directs.

(5) Shifting of Incumbrances,

By sect. 5 the tenant for life is empowered, with the consent of the
incumbrancer, to charge an incumbrance affecting land sold, or given
in exchange or on partition, on any other part of the settled land,
whether already charged therewith or not, in exoneration of the part
sold, or so given ; and, ** by conveyance of the fee simple, or other
estate or interest the subject of the settlement, or by creation of a
term of years in the settled land, or otherwise," to make provision ac-
eordingly.

Land purchased with capital money ** arising imder " the Act may
be made a substituted security for any charge in respect of money
actually raised, and remaining unpaid, from which the settled land,
or any part thereof, or any tmdivided share therein, has been released
in order to the completion of a sale, exchange, or partition. (Sect. 24,
Bub-s. 4.)

(6) LeaMH.
The tenant for life may lease the settled land, or any part thereof
(but not the principal mansion house and demesnes, &c., except with
consent of the trustees or an order of the Court, see sect. 15), or any
easement, right, or privilege of any kind, over or in relation to the
same, for any purpose whatever, whether involving waste or not, on

8 2



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252 SUMMARY OF THE SETTLED LAND ACT, 1882.

building lease for any term not exceeding ninety-nine years ; on
mining lease, for any term not exceeding sixty years ; and on any
other kind of lease, for any term not exceeding twenty-one years.
(Sect. 6.)

And with permission of the Court, to be given tmder special cir-
^ cumstances, a building or mining lease may be made for any term, or
may be granted in perpetuity. (Sect. 10.)

The enlarged powers given by such an order may, subject to any
direction to the contrary contained in it, be exercised by each of the
successors in title, having the powers of tenant for life, of the person
in whose favour it was originally made. {Ibid, sub-s. 2.)

Various provisions are made (sect. 7) to secure the proper exercise
of the powers of leasing : —

(a) Every lease must be by deed, to take effect in possession not

more than twelve months from the date ;

(b) And must be at the best rent, regard being had to any fine

taken and other circumstances ;

(c) The lessee must covenant to pay the rent, with a condition of

re-entry upon default for a time not exceeding thirty days ;

(d) A ooimterpart must be " executed by the lessee and delivered

to the tenant for life ; " of which execution and delivery the
execution of the lease by the tenant for life shall be suffi-
cient evidence. (Sect. 7, sub-s. 4.)

(7) Confirmation of Contracts.
By sect. 12 the tenant for life is empowered to make leases — (i.) to
give effect to a contract for a lease entered into by any of his prede-
cessors in title, where such lease, if made by the predecessor, would
have bound the successors in title ; (ii.) to give effect to a covenant
for renewal, performance whereof could be enforced against the
owner for the time being of the settled land ; and (iii.) to confirm,
" aa f ar as may be, a previous lease, being void or voidable ; but so
that every lease, as and when confirmed, shall be such a lease as
might at the date of the original lease have been lawfully granted
under this Act or otherwise, as the case may require." (Sub-s. 3.)

(8) Surrenders of Leases.
By sect. 13 the tenant for life is empowered to accept, with or with-
out consideration, a surrender of any lease, whether made under the
Act or not ; and such surrender may relate to the whole, or any part,
of the land comprised in the lease. On a partial surrender, the rent
may be apportioned ; and on the grant of a new lease, the value of the
lessee's interest imder the surrendered lease may be taken into account
in fixing the rent.



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POWERS CONFERRED BY THE ACT, 253

(9) Licences to Lease CopyhoMs,

By sect. 14, the tenant for life of a manor comprised in the settle-
ment, is empowered to license the copyholders to make any such leases
of their copyhold lands "as the tenant for life is by this Act
empowered to make of freehold land."

As regard manors which are not comprised in the settlement, the
Act seems to avoid encroaching on the rights of the lord, so far as the
settlement may comprise copyholds of such manors. The leasing
powers of the tenant for life extend to copyholds only so far as they
accord with the custom of the manor.

(10) Appropriation of Streets^ 8fc.

Sect. 16 empowers the tenant for life, in connection with a sale or
grant or lease for building purposes, to cause or require to be appro-
priated and laid out, for the general benefit of the residents on the
settled land, any parts thereof for streets, gardens, &c., with drains,
fencing, paving, or other works necessary or proper in connection
therewith ; and also empowers him to make arrangements for their
continued repair and maintenance.

Deeds executed for giving efPect to this section may be inrolled in
Central Office of the Supreme Court.

(11) Timber.
A tenant for life, impeachable for waste in respect of timber, may,
on obtaining the consent of the trustees of the settlement, or an order
of the Court, cut and sell "timber ripe and fit for cutting." (Sect. 35.)

(12) Contracts,
Sect. 31 empowers the tenant for life to make, vary, or rescind, with
or without consideration, and accept surrenders of, contracts for carry-
ing into effect any of the purposes of the Act.

(13) Sale of Quasi-heirlooms,
The tenant for life of land, with which personal chattels devolve
under a trust, may, on obtaining an order of the Court, sell such
chattels. (Sect. 37.)

A tenant for life whose interest relates to an amdivided share of
land may concur with any person having power to dispose of any
other undivided share, " in any manner and to any extent necessary
or proper for any purpose of this Act." (Sect. 9.) This provision
is applicable, whether the amdivided share was originally comprised
in the settlement, or, under the settlement, the settled land has come
to be held in imdivided shares.



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254 SUMMARY OF THE SETTLED LAND ACT, 1882.

Sect. 45, 8ub-s. (1), provides that'a tenant for life, when intending
to " make a sole, exchange, partition, lease, mortgage, or charge,"
shall give a month's notice of his intention to each of the trustees of
the settlement severally, and also to the solicitor to the trtMteeSy if any
such solicitor is known to him.

Persons dealing in good faith with the tenant for life are not oon-
cemed to inquire respecting the giving of any such notice.

The Act provides (sect. 50) that the statutory powers shall not be
capable of assignment (including assignment by operation of law) or
release ; and that they shall remain exerciseable by the tenant for
life after and notwithstanding any assignment, by operation of law
or otherwise, of his estate or interest under the settlement. And any
contract by the tenant for life not to exercise any of the powers is void.
{Ibid, sub-s. 2.) If the tenant for life has assigned his interest for
value, he cannot exercise the powers to the prejudice of the assignee
{Ibid, sub-s. 3) ; but, unless the assignee is in possession, his consent
is not necessary to the making of leases, provided they be made at
the best rent reasonably obtainable and without fine, and are in other
respects in conformity with the Act. Sects. 51 and 52 make void
any provision contained in a settlement, by which any attempt is
made either to restrain the tenant for life from exercising the powers,
or to punish him for their exercise by forfeiture. But in exercising
the powers the tenant for life is, as regards the other parties entitled
imder the settlement, generally subject to the duties and liabilities of
a trustee. (Sect. 53.)



(m.) Of Capital Money, and the Modes in which it may

be applied

The Act contains (sect. 2, sub-s. 9) the following definition: —

** Capital money arising under this Act, and receivable for the trusts and pur-
poses of the settlement, is in this Act referred to as capital money arising imder
this Act."

In the following special cases it is declared that certain moneys are
to come within the definition of capital money : —
Money raised by mortgage by virtue of sect. 18, to provide for

enfranchisement or equality of exchange or partition, " shall be

capital money arising tmder this Act."
When capital money has been invested in authorized securities, the

latter " may be converted into money, which shall be capital

money arising tmder this Act." (Sect. 22, sub-s. 7.)



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MEANING OF CAPITAL MONET. 265

Consideratioii moneys reoeired for the variation or rescission of
contracts, by virtue of sect. 31, "shall be capital money arising
under this Act." (Sub-s. ii.)
Money paid into Court under any statute, and liable to be laid out
in the purchase of land to be made subject to a settlement, "may
be invested or applied as capital money arising under this Act."
(Sect. 32.)
Money under a settlement in the hands of trustees and liable to be
laid out as last aforesaid, may, at the option of the tenant for
life, be invested or applied as capital moneys arising amder this
Act. (Sect. 33.)
The Act by its language seems also to assume that purchase-money
paid in respect of a lease or any interest less than a fee simple,
or of a reversion, is " capital money arising imder this Act."
(See sect. 34.) But in making this assumption, it provides that
capital money so arising may be invested in a pecidiar manner
not applicable to capital money in general. The trustees or the
Court may require it to be so " laid out, invested, accumulated,
and paid," as to give the parties interested the like benefit as
they might lawfully have had from the lease or reversion, or as
near thereto as possible.
Moneys arising by the sale of chattels settled upon trust to devolve
with land, " shall be capital money arising under this Act."
(Sect. 37.) Such moneys may be invested in the purchase of
other chattels to be held on the same trusts.
In two particular cases the Act distinguishes between capital and
income for the purpose of apportioning a fund — ^namely, as to
rents arising under mining leases, and as to the net proceeds of
the sale of timber. As to mining rents, if the tenant for life is
impeachable for waste in respect of minerals, three-fourths, and
otherwise one-fourth, must, unless a contrary intention is ex-
pressed in the settlement, be set aside as capital. (Sect. 11.)
As to the net proceeds of the sale of timber, if the tenant for
life is impeachable for waste in respect of timber, three-fourth
parts must be set aside as capital. (Sect. 35, sub-s. 2.)
The following is a list of the different means by which it seems
probable that capital moneys may " arise under the Act," arranged
in the order in which they occur in the Act ; including both those
which are specially provided for, and those which seem to depend upon
the general principles regulating the administration of settlements : —
(1.) Net purchaae-moneys received on a sale, whether of the whole
or any part of the settled land, or of an easement, &c., "over
or in relation to " the settled land, by virtue of sect. 3,
sub-s. (i.)



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256 SUMMARY OF THB SETTLED LAND ACT, 1882.

This will include purchase-moneys of the principal man-
sion house and demesnes, whenever (see sect, 15) they are
sold with the consent of the trustees, or by an order of the
Court.

(2.) Consideration moneys received for the enfranchisement of
copyholds, and the release of the tenure (with its incidents)
of freeholds, by virtue of sect. 3, sub-s. (ii.)

(3.) Moneys received for equality of exchange (sect. 3, sub-s. iii.) ;

(4.) Or received for equality of partition. (Sect. 3, sub-s. iv.)

(5.) Fines or premiums taken on the grant of leases, by virtue of
sects. 6—13 ; including fines and premiums taken upon the
completion of a contract, or the confirmation of a voidable
lease, by virtue of sect. 12.

(6.) Three-fourths of the net moneys arising omder mining leases,
if the tenant for life is impeachable for waste in respect of
minerals (sect. 11); unless a " contrary intention " is ex-
pressed in the settlement.

(7.) One-fourth of the net moneys arising imder mining leases, if
the tenant for life is not impeachable for waste in respect
of minerals {ibid.) ; unless a contrary intention is expressed
in the settlement.

(8.) Consideration moneys received for accepting surrenders of
leases, by virtue of sect. 13.

(9.) Consideration moneys (if any) received for granting to copy-
holders, by virtue of sect. 14, licences to demise their copy-
holds.

(10.) Consideration moneys (if any) received upon the laying out
and appropriation of streets, &c., in connection with a sale
or grant for building purposes, by virtue of sect. 16.

(11.) Moneys raised by mortgage omder sect. 18 ; but only for the
special purposes therein mentioned.

(12.) Moneys arising from the sale of securities, in which capital
moneys have been invested. (Sect. 22, sub-s. vii.)

(13.) Consideration money paid for variation or rescission of con-
tracts, by virtue of sect. 31, sub-s. (ii.)

(14.) Money paid into Court under any statute, and liable to be
invested in land as above mentioned. (Sect. 32.) This
may also be dealt with in any other mode authorized by the
statute imder which the money is in Court. (Ibid.)

(15.) Money under a settlement in the hands of trustees, and liable
to be invested in land aa above mentioned. (Sect. 33.) . It
is at the option of the tenant for life whether this shall be
treated as capital money arising under the Act, or dealt with
according to the provisions of tihe settlement. (Ibid.)



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APPLICATION OF CAPITAL MONET. 257

(16.) Consideration money received for the sole of interests less
than a fee simple by virtue of sect. 34. This, as above
mentioned, is liable to be dealt with in a special manner not
applicable to capital money in general.
(17.) Three-fourths of the net proceeds of sale of timber, by virtue



Online LibraryHenry Williams Challis Henry J. HoodThe Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... → online text (page 31 of 53)