Henry Williams Challis Henry J. Hood.

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

. (page 33 of 53)
Online LibraryHenry Williams Challis Henry J. HoodThe Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... → online text (page 33 of 53)
Font size
QR-code for this ebook

exist apart from any corporeal tenement to which they are appur-
tenant ; and such rights have sometimes been loosely styled ease-
ments. See, for an example, Great Western Railway v. Swindon, Sfc,
Railway, 22 Oh. D. 677, at p. 707.

(ii.) Rent includes yearly or other rent, and toll,
duty, royalty, or other reservation, by the acre, or the
ton, or otherwise ; and, in relation to rent, payment
includes delivery ; and fine includes premium or fore-
gift, and any payment, consideration, or benefit in the
nature of a fine, premium, or fore-gift :

The following kinds of rents or reservations are often found in
mining leases : —

(1.^ A fixed annual payment, being a rent commonly so called ;
(2.; A surface rent, varying with the amount of surface land

occupied for the purposes of the works ;
(3.) A footage, or acreage, rent, varying both with the lateral

extent and the thickness of the actual working ;
(4.) Royalty, or galeage rent, varying with the amoimt of the

minerals won ; and
(5.) A wayleave rent, paid for the passage of minerals over other
lands of the lessor ; which is presumed to be what is here
meant by the word " toll."

Toll is defined by Bracton (lib. ii. cap. 24) as being a

tribute or custom paid for passage. These tolls, being paid

in respect of passage over private lands, are tolls traverse.

In some mines there is also found,

(6) A spoil-bank rent, being a rent paid for land occupied by

deposits of waste or rubbish.
It is also not unconmion to provide, that royalties and other
payments in respect of certain minerals may be made in kind ; to
which practice the provision in this section, "payment includes
delivery," refers.

Several yearly rents may be reserved on one lease. {Knighfs
case, 5 Eep. 54, at p. 55.)

(iii.) Building purposes include the erecting and the
improving of, and the adding to, and the repairing of
buildings ; and a building lease is a lease for any
building purposes or purposes connected therewith :

The Settled Estates Act, 1877, s. 4, 1st sub-division, post^ distin-


Digitized by VjOOQIC

268 THE SETTLED LAllD ACT, 1882.

8. L. A. guishes between biiilding leases and repairing leases, fixing difPe*
Sect. 2. rent extreme limits for their respective terms.

(iv.) Mines and minerals mean mines and minerals
whether already opened or in work or not, and include
all minerals and substances in, on, or under the land,
obtainable by underground or by surface working;
and mining purposes include the sinking and search-
ing for, winning, working, getting, making merchant-
able, smelting or otherwise converting or working for
the purposes of any manufacture, carrying away, and
disposing of mines and minerals, in or under the
settled land, or any other land, and the erection of
buildings, and the execution of engineering and other
works, suitable for those purposes ; and a mining lease
is a lease for any mining purposes or purposes con-
nected therewith, and includes a grant or licence for
any mining purposes : .

The following substances are within the meaning of the term
"minerals": — Arsenic; china, potter's, Dorsetshire, clay; coal;
copper; coprolites; fire-day ; free-stone ; gold; gravel; iron; lead;
limestone ; marble ; silver ; salt ; slate ; stratimi of stone ; stone in
quarry; tin; umber; zinc. As to the comprehensiveness of the
term, see Hext v. Gillf L. E. 7 Ch. 699. Flints are, perhaps, no
longer minerals, when they have been turned up on amcultural
land in the ordinary course of husbandry. ( Tucker v. Ijinger, 32
W. E. 40.)

(v.) Manor includes lordship, and reputed manor or
lordship :

See note on the Oonv. Act, 1881, sect. 2, sub-s. (iv.), ante.

(vi.) Steward includes deputy steward, or other
proper officer, of a manor.

(vii.) Will includes codicil, and other testamentary
instrument, and a writing in the nature of a will :

See note on the Oonv. Act, 1881, sect. 2, sub-s. (xii.), ante.

Tviii.) Securities include stocks, funds, and shares:
(ix.) Her Majesty^s High Court of Justice is referred
to as the Court :

(x.) The Land Commissioners for England as con-
stituted by this Act are referred to as the Land Com-

See sect. 48, post.

(xi.) Person includes corporation.


Digitized by VjOOQ

salb; bkfranchisement ; exchange; partition. 269

III.— Sale ; Enfranchisement ; Exchange ; Partition. UJ: f'
General Powers and Regulations.
3. A tenant for life — Powers to

tenant for life
As to the duties and liabilities of a tenant for life, in exercising to sell, &o.

these and the other powers conferred by the Act (a list of which is

given at p. 250, ante), see sect. 53, post, and note thereon.
As to what costs will, under the Solicitors Remuneration Act,

1881, Gten. Ord. r. 4, be allowed to the solicitor conducting the sale,

see Re Beck, 24 Ch. D. 608.

(i.) 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 ; and

A sale by the remainderman of his interest, made before the
passing of Ihis Act, will not hinder the tenant for life from exercis-
mg this power of sale. ( Wheelwright v. Walker, 23 Ch. D. 752.)

As to cases in which an order for sale has been already made
under the Settled Estates Act, 1877, see note on sect. 56, post.

Speculative expectations of a future increase in value of the
estate, afford no ground for restraining a sale on the application of
the remainderman. (See Thomas v. Williams, 24 Ch. D. 558.)

As to estates, interests, and charges to which the powers conferred
by the Act are subject, see sect. 20, sub-s. (2), post.

As to the method by which easements may be created, see note on
the Conv. Act, 1881, sect. 62, ante.

As to the principal mansion house, &c., see sect. 15, post. As to
a separate sale of the surface minerals, see sect. 1 7, post,

A tenant for life may, under a power of sale in the settlement,
sell to a trustee for himself. {Sevan v. Habgood, 1 Y. & H. 222.)

Before the Act, when the trustees had a power of sale, the sale
was in practice usually made by the tenant for life ; and the con-
tract was often executed by him alone, before any communication
was made to the trustees. (See the remarks of Jessel, M. B., in
Forster v. Abraham, L. E. 17 Eq. 351, at p. 355.)

Although this sub-section authorizes the grant of an easement to
be enjoyed over, or in respect to, the settled land as a servient
tenement, it does not appear to authorize the extinction of an easement
which the settled land enjoys as a dominant tenement over, or in
respect to, other land. Such a transaction is not within the natural
meaning of its language. It has been suggested by high authority
(Wolstenholme & Turner, Settled Land Act, 1882, p. 15), that sucn
extinction is rendered possible by the fact that, by virtue of 13 &
14 Vict. c. 21, s. 4, the word **land" includes "hereditament."
Though the latter word does not there seem to include incorporeal
hereditaments (see Dart, V. & P. 5th ed. p 206, note (z) ), yet by sect.
2, sub-s. (10), (i.), ante, of the present Act, "land includes incor-
poreal hereditaments." But this fact only ^ves to the language of
the present sub-section the meaning, "may sdl the settled incorporeal
hereditaments, or any part thereof ;" and easements are not here-
ditaments, but are appurtenant to hereditaments. This language,
therefore, does not seem to authorize the extinction of an easement
appurtenant to the settled land, since the easement cannot be sold
apart from the tenement to which it is appurtenant.

Digitized by VjOOQIC


S. E. A. (ii.) Where the settlement comprises a manor, — may
Sect. 8. sell the seignory of any freehold land withm

the manor, or the freehold and inheritance of
any copyhold or customary land, parcel of
the manor, with or without any exception or
reservation of all or any mines or minerals,
or of any rights or powers relative to mining
purposes, so as in every such case to effect an
enfranchisement; and

The seignory of freehold land is not an estate, but an heredita-
ment in 'which estates may subsist. It is not necessarily held
for a fee simple ; for, though the king could not infeoff for a fee
tail before the statute De Bonis (13 Edw. 1), and the statute of Quia
Emptores (18 Edw. 1) shortly afterwards prevented all subinfeuda-
tion, yet manors having ancient freehold tenancies might, and often
did, pass to the Crown by escheat or forfeiture, and might be, and
often were, granted out for a fee tail, the reversion in fee simple
remaining in the Crown. Some manors are so held at the present
day, though lapse of time may have rendered the title obscure ; and
of them the seignory is held for a fee tail.

On a sale of the seignory of freeholds to the tenant, the seig-
nory is extinguished. The object of extinguishing the seignory is
the consequent destruction of the services, including chief rents, in-
cident to the tenure.

As to the enfranchisement of copyholds by limited owners of manors
independently of this Act, see (1) for voluntary enfranchisements,
4 & 5 Vict. c. 35 ; amended by 6 & 7 Vict. c. 23, and 7 & 8 Vict,
c. 155 ; (2)for compulsory enfranchisement, 15 & 16 Vict. c. 51, and
21 & 22 Vict. c. 94. (3) As to the application of compensation
money in either case, see 4 & 5 Vict. c. 35, ss. 73 — 76.

(iii.) May make an exchange of the settled land, or
any part thereof, for other land, including an
exchange in consideration of money paid for
equality of exchange ; and

As to exchanges of settled land in England, see sect. 4, sub-s. (8),

This does not authorize an exchange of one easement for another,
f. e., the extinction of an easement enjoyed by the settled land, in
consideration of the grant of a new easement by a neighbouring
owner. See note on sub-s. (i.), supra.

It may be doubted whether this sub-section authorizes an ex-
change of freeholds for leaseholds. No provision seems to have been
made in such a case by the Act for apportionment of the rents of lease-
holds acquired by exchange ; and it is presumed that at all events the
court would not permit any exchange to be made of freeholds for
leaseholds having a shorter term to run than that mentioned in
sect. 21, sub-s. (vii.), post; t. «., sixty years at least. But though,
by virtue of sect. 2, sub-s. (3), ante^ the phrase "settled land" doubt-
less includes settled leaseholds, it does not follow that unsettled
land includes xmsettled (or not yet settled) leaseholds. The mean-
ing of "land," as applied to unsettled land, seems to depend upon
the definition given in Lord Brougham's Act (13 & 14 Vict. c. 21),
8. 4, which does not include leaseholds.

It is therefore conceived that, though leaseholds may be ex-

Digitized by VjOOQIC

sale; enfranchisement; exchange; partition. 271

changed for freeholds, yet freeholds cannot properly be exchanged g. I,. A.
for leaseholds. Nor can settled land be exchanged for easements Sect. 8.

over other land, these not being hereditaments. See sect. 2, '- — '- —

Bub-s. (10), (i.), ante, and note thereon. By 12 & 13 Vict. c. 83,
8. 7, it is specially provided that, in exchanges made under that
Act, easements may be exchanged for land.

In common law exchanges, the estates which both parties have in
the lands exchanged must be equal (Litt. sects. 64, 65), subject to
certain exceptions, or apparent exceptions, not requiring particular
mention^ Common law exchanges should be avoided in practice,
by reason of the mutual warranty and right of re-entry implied
therein. (Shep. T. 290.) It is somewhat doubtful whether an ex-
press stipulation negativing these rights would be valid. Exchanges
should, therefore, be effected by means of mutual conveyances.

(iv.) Where the settlement comprises an imdivided
share in land, or, imder the settlement, the
settled land has come to be held in imdivided
shares, — ^may concur in making partition of
the entirety, including a partition in considera-
tion of money paid for equality of partition.

See note to sect. 2, sub-s. (6), ante, which provision refers both
to joint tenants and tenants in common. The present sub-section
refers only to the latter. There seems here to be nothing incon-
sistent with that enactment, because in making partition all the
tenants in common for life must apparently concur.

Sect. 19, post, seems to refer only to the exercise of the other
powers conferred by the Act.

4. — (1-) Every sale shall be made at the best price Sect. 4.
that can reasonaoly be obtained. Eeguiations

•^ , respectmg

In Wheelwright Y, Walker (^o. 2), "W.N. 1883, p. 154, an injunction sale, enfran-
was obtained by a purchaser from a remainderman, who had sold his chisement,
interest before the commencement of the Act, to restrain the tenant for ®^?*^^®5-
life from subsequently selling at a less value than the purchaser was "* P ^ '^^
himself willing to give. It is conceived that every sale must be for a
lump sum, and might not be, either wholly or partly, in considera-
tion of a rent-charge ; to which the regulations respecting capital
moneys (sect. 22, post) would not be applicable.

(2.) Every exchange and every partition shall be
made for the best consideration in land or in land and
money that can reasonably be obtained.

(3.) A sale may be made in one lot or in several
lots, and either by auction or by private contract.
4.) On a sale the tenant for life may fix reserve
dings and buy in at an auction.

(5.) A sale, exchange, or partition may be made

subject to any stipulations respecting title, or evidence

of title, or other things.

Ab to persons in a fiduciary position selling under needlessly depre-
datoiy conditions, see note to the Oonv. Act, 1881, sect. 3, sub-s. (11),


Digitized by VjOOQIC


S. L. A. ante. As to tlie fiduciary position of the tenant for life, see sect. 53,
Sect. 4. post.

(6.) On a sale, exchange, or partition, any restric-
tion or reservation with respect to building on or other
user of land, or with respect to mines and minerals, or
with respect to or for the purpose of the more bene-
ficial working thereof, or with respect to any other
thing, may be imposed or reserved and made binding,
as far as the law permits, by covenant, condition, or
otherwise, on the tenant for uf e and the settled land,
or any part thereof, or on the other party and any
land sold or given in exchange or on partition to him.

It will probably be beld that this sub-section was intended to
enable the tenant for life to impose upon any part of the settled
land remaining subject to the settlement, restrictions which will be
binding upon remaindermen and reversioners to the same extent as
if they had been imposed by an absolute owner, subject to the
rights of incumbrancers, if any ; as to which, see sect. 20, sub-s. (2),

As to restrictive covenants, see noto on the Conv. Act, 1882, sect. 3,
sub-s. (2), ante.

(7.) An enfranchisement may be made with or with-
out a re-grant of any right of common or other right,
easement, or privilege theretofore appendant or appur-
tenant to or held or enjoyed with the land enfranchised,
or reputed so to be.

Enfranchisement extinguishes at law all rights of common in
wastes, &c., of the manor, which before the enfranchisement were
appurtenant to copjnolds, because they appertain to the customary
estate; and at law such extinguishment ensues, even though theen-
franchisement purport to be made to the tenant '* with all commons.**
{Larson v. Hunter , Noy, 136; Fort v. Ward^ Serj. Moore's Eep.

But there is no extinguishment in equity. {Styant v. Staker, 2 Vem.
250.) It has long been the usual practice in volimtary enfranchise-
ments to insert a re-grant of such commons, and the practice will
probably be retained, though the Judicature Acts seem to have made
it less necessary than it previously was. By 1 5 & 1 6 Vict. c. 5 1, s. 45,
such commons are preserved after enfranchisement under the Copy-
hold Acts. Enfranchisement does not affect easements. (Scriv. Cop.
ch. xiv.) Nor does it affect common of pastures in wastes which,
though belonging to the lord, are out of the manor ; because such
common belongs to the land, and not to the estate. ( Crotoder v.
Old/etldy 1 Salk. 170 ; and see S. C. at p. 366 ; 2 Ld. Eaym. 1225.)

(8.) Settled land in England shall not be given in
exchange for land out of England.

20 G«o. 2, By 20 Geo. 2, c. 42, s. 3, it is enacted, ** that in all cases where

0. 42, s. 3. the kingdom of England, or that part of Great Britain c^ed

England, hath been or shall be mentioned in any Act of Parliament,


Digitized by VjOOQ


the same has been and shall from henceforth be deemed and taken s. L. A.
to comprehend and include the dominion of Wales, and the town of Sect 4.
Berwick-upon-Tweed." (2 Stat. Eev. p. 513.)

Special Powers.

5. Where on a sale, exchange, or partition there is Sect. 6.
an incumbrance affecting land sold or given in ex- Transfer
change or on partition, the tenant for l&e, with the of inot^^^"'
consent of the incumbrancer, may charge that incum- ^^<^ on
brance 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, make provision accord-

See sect. 24, sub-sects. (4), (5), posi,

** Incumbrance " of course here includes only incumbrances which
are not defeasible by the exercise of the powers ; as to which, see
sect. 20, sub-s. (2), (ii), and sect. 50, sub-s. (3), post. It would seem
that such incumbrancers might, on a sale, be discharged by the
method provided in sect. 5 of the Conv. Act, 1881, ante, li re-
spect to incumbrances created by a tenant for life over his own life
estate, or an annuity chtirged upon the life estate by the settlor,
there would be no practical advantage in resorting to that method ;
because it would be necessary to pay into court a sum sufficient by
means of its dividends to keep down the charge. The purchase-
money, being capital money arising under the Act, seems not to be
available for the purpose ; and at aH events, the extra ten per cent,
mentioned in the Conv. Act, 1881, sect. 5, and the incumbrancer's
costs and expenses, ' could not be defrayed out of the purchase-

Since the tenant for life in exercising his powers is a trustee
for all parties (sect. 53, post), and a trustee cannot in exercising
powers give an advantage to one beneficiary at the expense of
another, it seems clear that the tenant for life could not shift an
incumbrance from one part of the settled land to another part goinc^
in remainder to a diflPerent person, so as to prejudice the latter. It
seems to be the true meaning of sect. 2, sub-s. (1), ante, that several
parcels of land, in which there is. a single life estate but several
remainders to divers persons, constitute so many separate settled
estates, although they are all settled by one instrument. If this
interpretation should be supported, it will follow that incumbrances
can be shifted from one part, only to another part going to the same
person in remainder. Aiid even supposing that the inheritance of
one remainderman may be saddled with a burden shifted from that
of another, it seems clear that the former would be entitled to be
indemnified out of the consideration money, if any, or, in the case
of an exchange or partition, by a lien on the land acquired or

There seems to be no reason why the tenant for life should not,
under this section, shift an incumbrance from leaseholds to freeholds
included in the same settlement.

Digitized by VjOOQIC



S. L. A.
Sect. 6.

Power for
tenant for life
to lease for
ordinary or
buildings or

IV. — ^Leases.
General Powers and Regulations.
6. A tenant for life may lease the settled land, or
any part thereof, 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, for
any term not exceeding —

(i.^ In case of a building lease, ninety-nine years:
(ii.) In case of a mining lease, sixty years:
(lii.) In case of any other lease, twenty-one years.

Leases to be derived out of leaseholds comprised in the settiement,
will be bounded by the term out of which they are derived ; and
leases of copyholds must conform to the custom of the manor.

A tenant for life cannot, it is conceived, properly comprise in a
single lease properties having the same Hfe estate but different
remainders. Such properties seem to be different settled estates,
though they may be comprised in the same instrument. See notes on
sect. 2, sub-s. ( 1 ), and sect. 5, ante. Compare Tolson v. Sheard, 5 Ch. D.
19. At any rate the rents, covenants, &c., ought to be apportioned.

A tenant for life may, under a power in the settlement, lease to
a trustee for himself. {Bevan v. Habgoody 1 J. & H. 222.)

A mining lease includes a grant or licence for mining purposes.
See sect. 2, sub-s. (10), (iv), ante.

Payments made under a parol licence are in the nature of rent.
{Ex parte Hankey\ Mont. & Mac. 247.)

As to leases with option of purchase, see note, p. 309, post.

The statutory power of the tenant for life does not destroy, or
make incapable of exercise, similar powers given to trustees {Re
Duke of Newcastle^ s Estates^ 24 Ch. D. 129) ; but such powers cannot be
exercised without the consent of the tenant for Hfe. See sect. 56, post.

Leases granted imder this section are subject to the rights of
incumbrancers paramount to the settlement. It seems practically to
follow, that the tenant for life of a settled equity of redemption in a
fee simple can grant leases only with the concurrence of such incum-
brancers. He seems, however, to be able, while in possession, to
grant leases, ** according to his estate, interest, or right," under
sect. 18 of the Conv. Act, 1881, ante; because to that extent he
comes within the definition of ** mortgagor" in the Conv. Act, 1881,
sect. 2, sub-s. (vi), as being a perSon entitled to redeem. See RileyY,
Croydon^ 2 Dr. & Sm. 293. But such leases seem to be determinable
with the determination of his own life; see the Conv. Act, 1881,
sect. 18, sub-s. (15), ante. The fact that (see sect. 21, post) he may
direct capital money arising imder the Act to be applied in discharge
of incumbrances affecting the inheritance of the setied land, does not
make him a person entitled to redeem, because such capital money
does not belong to him.

The tenant for Hfe cannot, without obtaining the prescribed licence,
grant vaHd leases of land comprised in the settlement only for a lease-
hold interest which is Hable to forfeiture upon assignment or sub-
letting without Hcence. See the Conv. Act, 1881, sect. 14, sub-s. (6),
(i), ante.

The court would probably interfere, upon the appHcation of the
trustees or any person interested, to restrain any contemplated abuse
of the dangerous power to grant leases " involving wairte."

As to leases of the mansion house, &c., see sect. 15, post.

Digitized by



7. — (1.) Every lease shall be by deed, and be S. I. A.
made to take effect in possession not later than twelve ^^^t. 7.
months after its date. Regulations

(2.) Every lease shall reserve the best rent that can JJ^**^^
reasonably be obtained, regard being had to any fine generaUy.
taken, and to any money laid out or to be laid out for
the benefit of the settled land, and generaUy to the
circumstances of the case.

As to best rent, see the Conv. Act, 1881, sect. 18, sub-s. (6), note,

In the case of building (or mining) leases, " best rent " may be
calculated with regard to sums laid out by the tenant in improve-
ments. See Shannon v. Bradstreet^ 1 Scho. & Lef. 52, at p. 73 ; Doe
V. BettUon, 12 East, 305, at p. 308.

If the tenant for life has incumbered his life estate, he cannot
take a fine on granting a lease, without the consent of the incum-
brancer. See sect. 50, sub-s. (3), post.

It wiU be somewhat strange if the power of taking fines on
granting leases has been conferred on tenants for life generally,
and without any restriction, merely by implication; and it may
perhaps be doubted whether the words "regard being had to any

Online LibraryHenry Williams Challis Henry J. HoodThe Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... → online text (page 33 of 53)