Henry Williams Challis Henry J. Hood.

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

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of sect. 35, where the tenant for life is impeachable for waste
in respect of timber.
(18.) Net purchase-moneys received on a sale, by virtue of sect. 37,

of chattels settled upon trust to devolve with land.
These last moneys have the peculiarity, that they may be invested
in the purchase of " other chattels, of the same or any other nature "
{ibid, sub-s. 2), to devolve in the same manner as the chattels sold.
But they may also be invested in any other way prescribed by the Act
for the investment of capital money.

The foregoing enumeration of the different kinds of capital money
will include any sum paid by way of deposit, upon the making of a
contract by virtue of sect. 31, when such deposit will, upon the com-
pletion of the contract, form a part of any sum entitled to be regarded
as capital.

Capital money " arising imder " the Act may be paid either to the
trustees of the settlement, or into Court, at the option of the tenant
for life (sect. 22, sub-s. 1) ; but may not be paid to fewer than two
persons as trustees, unless the settlement authorizes the receipt of
capital trust money of the settlement by one trustee. (Sect. 39,
sub-s. 1.)

The following are the modes in which net capital moneys may be
applied : —

(L) Investment in Government securities, or securities authorized
by law or by the settlement, or bonds, mortgages, deben-
tures, or debenture stock of any railway in the United
Kingdom, incorporated by special Act, and having, for ten
years preceding the investment, paid a dividend on its
ordinary stock or shares. (Sect. 21, sub-s. i.)
(2.) Discharge of incumbrances affecting the whole estate the
subject of the settlement, or of land-tax, tithe rent-charge,
or rents incident to the tenure. (/6irf., sub-s. ii.)
(3.) Pajmient for any improvement authorized by the Act. {Ibid.j
sub-s. iii.)

The list of authorized improvements is given in sect. 25.
(4.) Payment of money for equality of exchange or partition.
(Sect. 21, sub-s. iv.) For this purpose, also, money may be
raised by mortgage. (Sect. 18.)
(6.) Purchase of the Beignory of any part of the settled land, being
freehold land. (Sect. 21, sub-s. v.)



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258 SUMMARY OF THE SETTLED LAND ACT, 1882.

(6.) Puroliase of the fee simple of any part of the settled land, being
copyhold or customary land. {Ibid.) For this purpose,
also, money may be raised by mortgage. (Sect. 18.)

(7.) Purchase of the reversion in fee upon leasehold interests for
years, or life, or years determinable " on life," comprised in
the settlement. (Sect. 21, sub-s. vi.)

(8.) Purchase of land, whether freehold or copyhold, held for a fee
simple, or on lease for sixty years or more, with or without
minerals, and subject or not to exception of mines or mining
rights. {Ibid,y sub-s. vii.)

But capital money arising " from settled land in Eng-
land " may not be applied in the purchase of land out of
England, imless the settlement expressly authorizes such
purchases. (Sect. 23.)

(9.) Purchase, for a fee simple or for a term of sixty years or
more, of mines and minerals convenient to be held or worked
with the settled land, or of easements, &c., convenient for
mining or other purposes. (Sect. 21, sub-s. viii.)

(10.) Payment to any person becoming absolutely entitled, or
empowered to give an absolute discharge. {Ibid.y sub-s. ix.)

(U.) Payment of costs, charges, and expenses of, or incidental to,
the exercise of any of the powers, or the execution of any
of the provisions of the Act. {Ibid., sub-s. x.) This, of
course, does not refer only to the payment of the costs of
raising the money.

(12.) Any other mode in which money, produced by the exercise
of a power of, sale in the settlement, is applicable there-
under. {Ibid., sub-s. xi.)

(13.) Moneys arising from the sale of personal chattels which are
settled on trust to devolve with land, may either be treated
as ordinary capital money, or they may be invested in the
purchase of other chattels, of the same or any other nature,
to be settled upon the same trusts as the chattels sold.
(Sect. 37, sub-s. 2.)

Neither a sale, nor a purchase, of such chattels may be
made, without an order of the Court. {Ibid., sub-s. 3.)

(14.) Capital money arising under the Act may also be applied
in payment of any costs, charges, or expenses, which are
directed by the Court to be paid out of property subject to
the settlement.

In addition to the foregoing modes of expenditure, the Agricultural
Holdings (England) Act, 1883 (46 & 47 Yict. c. 61), s. 29, enacte,
that capital money arising under the Settled Land Act, 1882, may be
applied in payment of any moneys expended and costs incurred by a



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APPLICATION OF CAPITAL MOMBY. 269

landlord under the first-mentioned Act, in respect of the execution of
improvements there referred to or in discharge of any charge created
on a holding under the Act.



(lY.) Of the Protection afforded by the. Act to Bemain-

dermeiiy &c.

Omitting such obvious provisions as that sales, &c., shall be made
at the best price, &c., that can reasonably be obtained, the following
are the principal safeguards designed for the protection of remainder-
men in general : —

(D The tenant for life, when intending to make a sale, exchange,
partition, lease, mortgage, or charge, must give a month's previous
notice of such intention to each of the trustees of the settlement, and
also to " the solicitor for the trustees," if any such solicitor is known
to him. (Sect. 46, sub-s. 1.)

The enimieration in sect. 45, of powers requiring for their exercise
this preliminary notice, does not exhaust the list of powers which may
be exercised by the tenant for life. It omits (i.) the acceptance of
surrenders; (ii.) the granting of licences to copyholders to make leases;
(iii.) the appropriation and laying out of streets, &c., in connection
with a building scheme ; (iv.) it seems to omit the application to the
Court for an order to cut timber, under sect. 35 ; but the order would,
of course, not be made without a sufficient notice, probably not
shorter than the prescribed month, to the trustees ; and (v.) it omits
the making, varying, and rescinding, and accepting surrenders of
contracts, by virtue of sect. 31.

Perhaps the language of sect. 3, sub-s. (ii.), " may sell the seignory,"
&c., may be held to bring the matters there treated of (powers to
release quit rents and incidents of tenure, and to enfranchise copy-
holds) within the list of matters referred to in sect. 45.

It is provided that, " at the date of notice given," the number of
trustees shall not be less than two, unless a contrary intention is
expressed in the settlement. (Sect. 45, sub-s. 2.)

A person dealing in good faith with the tenant for life is not con-
cerned to inquire respecting the giving of any such notice. (Sect. 45,
sub-s. 3.) But it is conceived that no person having actual notice of
any default could safely deal with the tenant for life.

(2.) Section 44 provides that, if, at any time, a difierence arises
between the tenant for life and the trustees respecting the exercise of
the statutory i)owers, the Court may, on the application of either



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260 SUMMARY OF THE SETTLED LAND ACT, 1882.

give directions respecting the matter. Such applications are to
de either by petition or by summons at chambers. (Sect. 46,
3 ; and see S. L. Act Eules, 1882, r. 2, post)


Capital money must be paid either to the trustees or into
at the option of the tenant for life. (Sect. 22, sub-s. 1.)
ess the settlement authorizes the receipt of capital trust money
I trustee, such payment may not be made to fewer than two
s. (Sect. 39, sub-s. 1.) But by virtue of sect. 41 each trustee
irerable for what he actually receives only, notwithstanding his
5 any receipt for conformity ; and, so far as regards the general
e by the tenant for life of his statutory powers, sect. 42 pro-
hat the supervision of the trustees shall be purely voluntary.

Restrictions are placed upon the execution of authorized
ements out of capital money, with a view to provide that such
iiture shall be incurred only upon such as are judicious and
to be remunerative. If the money to be expended is in Court,
plication of it wiU be governed entirely by the Court's discre-
(Sect. 26, sub-s. 3.) If it is in the hands of the trustees, the
^ement must be executed according to a scheme to be approved
trustees ; and before the money is paid out of their hands, an
►f the Court must be made, or a certificate of the due execution
work must be given, either by the Land Commissioners, or by
apetent engineer or able practical surveyor " nominated by the
s and approved by the Commissioners or the Court. {Ibid.^

2.)

Land Commissioners are the aggregate of the Indosure Com-
lers, the Copyhold Commissioners, and the Tithe Commis-
; who (sect. 48) are united into a single body by the name of
nd Commissioners for England.

The responsibility of maintaining improvements executed
the Act is thrown upon the tenant for life and " each of his
)r8 in title having, under the settlement, a limited estate or
t only in the settled land " during such time as the Land Com-
lers shall prescribe. (Sect. 28, sub-s. 1.) The tenant for life,
ich of his successors, being limited owners, must also keep
I against damage by fire, in any amount prescribed by the
issioners, any buildings of an insurable nature comprised in
ch improvement. {Ibid.) Trees planted as an improvement
ot be cut down, except in proper thinning. (Sect. 28, sub-s. 2.)
uired by the Commissioners, either upon their own motion



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PROTECTION OF REMAINDERMEN. 261

or Upon the suggestion of any person having any interest in the
settled land, the limited owner for the time being in possession
must " report to the Commissioners the state of every improvement
executed imder this Act, and the fact and particulars of fire insurance,
if any.'' {Ibid,, sub-s. 3.)

(6.) The tenant for life, in exercising any power under the Act, is
to have regard to the interests of all parties entitled under the settle-
ment, and, in relation to the exercise thereof by him, is to be deemed
to be in the position, and to have the duties and liabilities, of a trustee
for those parties. (Sect. 53.)



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( 262 )



THE SETTLED LAND ACT, 1882.



Sect. 1.

Short title;
commence-
ment;
extent.



(45 & 46 Vict. c. 38.)

An Act for facilitating Sales ^ Leases^ and other dispositions
of Settled Land^ and for promoting the execution of
Improvements thereon. [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 :

I. — Preliminary.

1. — (1.) This Act may be cited as the Settled Land
Act, 1882.

(2.) This Act, except where it is otherwise ex-
pressed, 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.

There occurs no passage in the Act where "it is otherwise ex-
pressed," unless sect. 46, sub-s. (9), and sect. 65, sub-s. (8), posty be
considered such. The Act affects settlements in existence at the
time of its commencement, but has not otherwise any retrospectiTe
operation. The coming into operation of tho Act did not, it is con-
ceived, validate anything done before its commencement, which,
although it would have been valid if done afterwards, was not valid
at the time at which it was done.

(3.) This Act does not extend to Scotland.



II. — Definitions.

S«ct. 2. 2. — (1.) Any deed, will, agreement for a settle-
Definition of ment, or other agreement, covenant to surrender, copy
tenaS^for' of court roll, Act of Parliament, or other instrument,
life, &c. or any number of instruments, whether made or passed



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DEFINITIONS. 263

before or after, or partly before and partly after, the S: E. A.
commencement of this Act, under or by virtue of ^^•^'
which instrument or instruments any land, or any
estate or interest in land, stands for the time being
limited to or in trust for any persons by way of suc-
cession, creates or is for purposes of this Act a settle-
ment, and is in this Act referred to a« a settlement, or
as the settlement, as the case requires.

Since different lands may by the same instrument be limited in
different lines of succession, it seems that several settlements may
be created by the same instrument. See note on sect. 5, post.

It is conceived that this sub-section will be construed to include
settlements made by feoffment, though its language is not well
adapted to the purpose. By the 8 & 9 Vict. c. 106, s. 3, a feoff-
ment, other than a feoffment made under a custom by an infant,
is void unless evidenced by deed ; and by the Statute of Frauds
(29 Car. 2, c. 3) s. 1, no feoffment can convey any greater estate
than a tenancy at will, unless it is ** put in writing," signed by
the feoffor or his agent thereunto lawfully authorized in writing.
The deed by which the feoffment is evidenced, or in the case of
a feoffment made under a custom by an infant, the writing into
which the feoffment is " put," will probably be held to be ** instru-
ments" within this sub-section, although they only remove a statu-
toiy impediment to the operation of the f eoftnent.

On feoffments made by infants of lands subject to the custom of
gavelkind, see Bobinson on Gavelkind, Bk. ii., ch. 3 (also p. 96,
anie). Uses may be declared upon the seisin transferred by such a
feoffment, and therefore a settlement might be effected thereby.

The language of this sub-section, taken in connection with that of
sub-s. (3) in/ra, would naturally suggest, that a settlement is so only
in relation to the land settled by it, and not in relation to other pro-
perty which happens to be comprised in the same document. See,
however, sect. 33, post,

(2.) An estate or interest in remainder or reversion
not disposed of by a settlement, and reverting to the
settlor or descending to the testator's heir, is for pur-
poses of this Act an estate or interest coming to the
settlor or heir imder or by virtue of the settlement,
and comprised in the subject of the settlement.

For some remarks upon the distinctions between remainders and
reversions, vide suprUy p. 36. This sub-section does not appear to
refer to remainders or reversions existing previously to and inde-
pendently of the settlement, but only to remainders and reversions
separated off from the particular estate or estates by the settlement
itself. In practice the sub-section will refer only to reversions, which
are often confused with remainders.

(3.) Land, and any estate or interest therein, which
is the subject of a settlement, is for purposes of this



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264 THE SETTLED LAND ACT, 1882.

8. E. A. Act settled land, and is, in relation to the settlement,
^^^^ ^* referred to in this Act as the settled land.

On the meaning of " land," see sub-s. (10), (i), infra. The present
sub-section only deals with land actually comprised in the settle*
ment.

The powers conferred by the Act, so far as regards their exer-
cise by a person who is in fact a tenant for life imder a settle-
ment, bind only such estate or interest as is comprised in the settle-
ment. For example, the tenant for life of a term of years cannot
grant a lease for a longer term than the residue of the settled term.
But it must be remembered that in some cases the word ** settle-
ment " bears in this Act an artificial meaning. The undisposed-of
reversion on a tenancy for life created by a will, is deemed to be
included in the will so far as it is regarded as a settlement, see
sub-s. (2), supra; and such reyersion would be bound by any
exercise of the powers by the tenant for life. A similar remark
applies to most of the limited owners who, by sect. 58, post, have
the powers of a tenant for life. Nevertheless, the proposition is
generally true, that no estate or interest will be boimd, which could
not have been bound by the settlor. This language does not, how-
ever, adequately apply to the c«we of a tenant by the curtesy ; see
sect. 58, sub-s. (1), (viii), post^ and note thereon.

On settlements of terms of years, see note to sect. 65, sub-s. (2),
of the Conv. Act, 1881, ante. As to the exercise of powers by the
tenant for life of a settled term created by a lease containing a cove-
nant not to assign or sublet without licence, see note to sect. 6, post,

(4.) The determination of the question whether land
is settled land, for purposes of this Act, or not, is go-
verned by the state of facts, and the limitations of the
settlement, at the time of the settlement taking effect.

This provision was originally enacted by 27 & 28 Vict. c. 45, s. 3,
in consequence of the decisions in Re Goodwin^ s Settled Estates^
3 Giff. 620, and Re BirteVs Settled Estates, 11 W. E. 739. But it
seems to have no particular function in the present Act, because the
question which it determines could be of importance only with
reference to lands which under a settlement have come to be held in
undivided shares, which case is specifically provided for by sect.
19, post,

(5.) The person who is for the time being, imder a
settlement, beneficially entitled to possession of settled
land, for his life, is for purposes of this Act the tenant
for life of that land, and the tenant for life imder that
settlement.

This includes both a legal and an equitable tenant for life in
possession; see sub-s. (10), (i), infra. As to the other persons
upon whom are conferred the powers of a tenant for life under the
Act, see sects. 58, 60, 61, 62^ post; also p. 247, ante, where a list of
thetai is g^ven.

Upon the exercise of his statutory powers by a tenant for life
who has incumbered his estate or interest under the settlement, see
sub-s. (7), infrttf and sect. 50, post.



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DEFINITIONS. 265

No power " exerciseable for any purpose provided for in this 8. L, A.
Act" can now be conferred by a settlement upon trustees, so as to be Sect. 2.

exercised by them without the consent of the tenant for life. See

sect. 56, sub-s. (2), post. If the tenant for life is an infant, it seems
that such consent is to be given in his behalf by the trustees for
purposes of the Act, who may be, but are not necessarily, the same as
the trustees to exercise the power. (Re Duke of Newcastle's Estates f
24 Ch. D. 129.)

The same principle seems applicable to the giving of consents on
behalf of limatics.

There can never be more than a single tenant for life, within the
meaniag of the Act, at the same time ; though such a tenant for
life may consist of several individual persons acting jointly. See
sub-s. (6), post.

If a person entitled to a rent charge, or other incumbrance, prior
to the settlement, should take possession of the land, this seems to
be no interference witii the powers of the tenant for life, because
the phrase *' settled land" includes only what is included in the
settlement, and this is subject to and apart from the prior incum-
brance. But of course the powers could be exercised only upon or
over the '* settled land," i, e., the land subject to the prior incum-
brance ; and see sect. 20, sub-s. 2, (i.), post,

(6.) If in any case, there are two or more persons
so entitled as tenants in common, or as joint tenants,
or for other concurrent estates or interests, they to-
gether constitute the tenant for life for purposes of
this Act.

The Act contains nothing to enable a majority, either of number
or in value, of such joint tenants or tenants in common, to bind a
dissentient minority.

Although several tenants in common for life constitute, by virtue
of this sub-section, only one tenant for life, yet it seems that, by
virtue of sect. 19, post, they may act separately, so far as regards
concurring with owners of other undivided shares not comprised in
the settlement, or concurring with some only of the other tenants
in common. See also sect. 3, sub-s. (iv), post.

A settlor might make the exercise of the statutory powers diffi-
cult, by making the tenant for life to consist of a considerable
number of joint tenants, all but one taking very small interests
under the settlement. It is conceived that this could not be
treated as an evasion of the Act ; for such an arrangement would
in nowise deprive the complex tenant for life of the statutory
powers, and the construction of such complex tenants for life is
expressly sanctioned by the Act.

Such joint tenants could not obtain a partition of anything except
their joint life estate. But application might be made to the court
to exercise the powers given by the Settled Estates Act, 1877.
Sect. 28 of that Act enables the court to dispense vrith consents.

(7.) A person being tenant for life within the fore-
going de&iitions shall be deemed to be such notwith-
standing that, imder the settlement or otherwise, the

c. T



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266 THE SETTLBD LAND ACT, 1882.

8. E. A. settled land, or his estate or interest therein, is incum-
Sect.2. bered or charged in any manner or to any extent.
See sect. 50, post

(8.) The persons, if any, who are for the time
being, under a settlement, 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, or
if under a settlement there are no such trustees, then
the persons, if any, for the time being, who are by the
settlement declared to be trustees thereof for purposes
of this Act, are for purposes of this Act trustees of the
settlement.

As to the necessity, when no trustees for the purposes of the Act
exist, for procuring the appointment of such trustees, see note on
sect. 45, post. As to the appointment of trustees, see sect. 38, and,
when the tenant for life is an infant, sect. 60, post.

There seems to he no reason why trustees for the purposes of the
Act might not have been nominated by a settlement executed be-
tween the passing and the commencement of the Act.

A trustee having a power of sale to arise in futuro, is not a
trustee for purposes of the Act. ( Wheelwright v. Walker ^ 23 Ch.
D. 752.)

It is conceived that trustees having an immediate power of sale
exerciseable only with the consent of the tenant for life, would be
trustees for purposes of the Act.

It seems clear that trustees having a power of sale will be trustees
for purposes of the Act only in relation to the settled land to
which their power of sale relates, and not in relation to any other
land which may also be settled by the same instrument.

Trustees for purposes of the Act, when distinct from the trustees
of the settlement, will be an anomalous body constituted by and
deriving their powers from the Act alone ; and it is conceived that
they are not within the meaning of the Conv. Act, 1881, sect. 31,
ante. See sect. 38, pqstf and note thereon.

(9.) Capital money arising imder this Act, and
receivable for the trusts and purposes of the settle-
ment, is in this Act referred to as capital money-
arising under this Act.

The phrase which this sub-section affects to define would have been
equally intelligible without it.

In some cases, methods by which capital money may arise are
specifically mentioned, see sect. 11 ; sect. 18; sect. 22, sub-s. ClVj
sect. 31, sub-s. (ii.) ; sect. 32 ; sect. 33 ; sect. 34 ; sect. 35, sub-s. (2) ;
and sect. 37, post.

For a list of the methods by which capital money may arise, see
pp. 255 et seq,f ante,

(10.) In this Act—

(i.) Land includes incorporeal hereditaments, also



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DEFINITIONS. 267

an undivided share in land ; income includes rents S. L. A.
and profits ; and possession includes receipt of income : ^^^^* ^'

The phrase "settled land," which in this Act, by virtue of
8ub-8. (3), supra, includes any estate or interest in land, of course
includes a term of years. It seems not to be material for the pur-
poses of this Act to enquire whether "land" by itself would include
a term of years. See the Conv. Act, 1881, sect. 2, sub-s. (ii), ante,
and note thereon.

Easements are not incorporeal hereditaments, but rights appur-
tenant to corporeal tenements and hereditaments. Eights created
by statute and in their nature (that is, so far as regards the privi-
leges which they confer) resembling easements, may sometimes



Online LibraryHenry Williams Challis Henry J. HoodThe Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... → online text (page 32 of 53)