Henry Williams Challis Henry J. Hood.

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

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the manor, and that he cannot by virtue of it exceed the customs of
the manor.

In manors where there eidsts a custom, that the copyholder .on
pa3rment of a fine can obtain a licence to lease as of right, such fines
seem to be casual profits and to belong to the tenant for life.

V. — Sales, Leases, and other Dispositions.
*'^^-.^*- Mansion and Park.

Hesfcriction fts

to mansion 15. Notwithstanding anything in this Act, the

house, park, ^j^jj^ipg^i mansion house on any settled land, and the
demesnes thereof, and other lands usually occupied
therewith, shall not bo sold or leased by the tenant
for life, without the consent of the trustees of the
settlement, or an order of the Court.
This restriction is not extended to exchanges.
Any apartment held under a separate tenancy, in which the
tenant resides, is, in law, a mansion house ; as, for example, a
chamber in an Inn of Court. (Kel. 27.)

The phrase ** on any settled land," seems to imply, that where
the settlement comprises more than one property, each separate

Eroperly may have a principal mansion house of its own. It could
ardly be said that a principal mansion house in Devonshire is '' on
any settled land '' in Durhemi.

A reasonable interpretation must be given to this section. It is
not every settled estate comprising a dwelling-house which can be
supposed to have a ** principal mansion house, * especially when the
tendency of sect. 63, post^ to bring trifling settlements within the
scope of the Act is considered. It is clear that old historical man-
sions are within this section ; it is equally dear that a suburban
villa is not. {Re Spurway^s Settled Estates, 10 Ch. D. 230, at p. 233.)
But questions of serious difficulty are likely to arise with respect
to some properties lying between these extremes*

As this section has evidently been enacted in the interest of the
remainderman, it seems reasonable to conclude that in cases where a
sale or leasing of the principal mansion house, &c., can reasonably
be regarded by the remainderman as a serious grievance, the court
will hesitate to consent thereto. Such grievance might reasonably
be only founded upon sentiment, provided the sentiment be such as
commonly has practical weight in the affairs of life. In many
cases the grievance would rest upon a more substantial ground)

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Buch as the loss of caste and position likely to foUow upon the g. L. A.
alienation of an old family mansion. For some remarks upon the gect. 16.

principles by which the court will probably be guided, see Camden v.

Murray, "The Times," 19th July, 1883(a).

As to the consent of the trustees to such sale or leasing, it must
be borne in mind that, though by virtue of sect. 42, post, the trustees
incur no liability for giving consents, &c., yet they do not cease to be
trustees for all parties interested under the settlement merely because
the tenant for life is placed in a similar position by sect. 53, post.
It is, however, conceived that the court will not, except in extreme
cases, interfere with the trustees as to giving their consent, which
is in the nature of the exercise of a discretion. But it is possible
that if the tenant for life, having power to appoint new trustees,
should appoint manifestly unfit persons, such appointment would
afPord a sufficient ground for the court to review any consent given
by them.

The intention of the section must be to enable the tenant for life
to appeal to the court from a refusal by the trustees. The power
to apply to the court cannot have been intended to be given only
when there are no trustees, because in such a case trustees must be
appointed for the purpose of receiving notice, under sect. 45, post,
(Wheelwright v. Walker, 23 Ch. D. 752.) But the tenant for life
does not seem to be bound to apply to the trustees before applying
to the court.

As to the service of notices in applications under this section, see
the S. L. Act Eules, 1882, r. 4, post. See, also, for provisions as to
the form of the lease, ibid,, r. 9.

For forms of summons applicable to this s ection , see Appendix to
the 8. L. Act Eules, 1882, Forms IV, V, VI, VII, post.

Streets and Open Spaces,

16. On or in connexion with a sale or grant for Sect. 16.
building purposes, or a building lease, the tenant for Dedication for
life, 'for the general benefit of the residents on the gpacee,' ^
settled land, or on any part thereof, —

(i.) May cause or require any parts of the settled
land to be appropriated and laid out for
streets, roads, paths, squares, gardens, or
other open spaces, for the use, gratuitously or
on payment, of the public or of individuals,
with sewers, drains, watercourses, fencing,
paving, or other works necessary or proper in
connexion therewith ; and
(ii.) May provide that the parts so appropriated
shall be conveyed to or vested in the trustees

(a) ** The Times' " report of the judgment in this case is printed
in the Appendix, post. A previous attempt had unsuccessfully been
made to obtain an order lor sale in an administration action. See
S. a, 16 Ch. D. 161.

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g. I. A. of the settlement, or other trustees, or any

Sect. 16. company or public body, on trusts or subject

to provisions for securing the continued
appropriation thereof to the purposes afore-
said, and the continued repair or maintenance
of streets and other places and works afore-
said, with or without provision for appoint-
ment of new trustees when required ; and
(iii.) May execute any general or other deed neces-
sary or proper for giving effect to the pro-
visions of this section (which deed may be
inroUed in the Central Oflfice of the Supreme
Court of Judicature), and thereby declare the
mode, terms, and conditions of the appropria-
tion, and the manner in which and the persons
by whom the benefit thereof is to be enjoyed,
and the nature and extent of the privileges
and conveniences granted.

Compare the Settled Estates Act, 1877, s. 20, post.

Tlie plirase "open spaces" seems here to include certain "en-
dosed spaces," such as gardens, of which the use is confined to the
neighbouring residents.

It is clear that the " general benefit " of the residents is the
only, or at least the principal, object to be kept in view; and it is
conceived that such benefit must be such as to bring in a sufficient
pecuniary compensation to recoup to the settlement the loss of the
land so dedicated; also, that any proposed scheme must be such
as is usual with regard to similar imdertakings. There is nothing
to authorize a scheme designed for the benefit of the public gene-
rally ; though there is no reason why the public should not inci-
dentally obtain a benefit, provided that it be not such as to dete-
riorate the estate.

The costs of carrying out any improvement under this section
may be paid for out of capital moneys under the Act. See sect. 25,
sub-s. (xvii.), post. If no such money is available, the tenant for
life may raise such moneys for the purpose by a sale of some other
part of the settled land. If an application is made under the
Settled Estates Act, 1877, s. 21, to have the money raised by mort-

fage, the scheme must also be sanctioned by the court under that
ot. The present Act contains no power to raise money by mort-
gage for the purpose.

Li urban disl^cts it is usually advantageous to the estate to
extend the use of necessary roads to the public, because such roads
are usually adopted and maintained by the local authority.

By the 36 & 37 Vict. c. 50, a tenant for life, with the concurrence
of the person next entitled for a beneficial interest in remainder in
fee simple or fee tail, or his guardian, if an infant, may grant a site
not exceeding one acre for the erection of a place of pubho worship;
and may convey such site, whether he has the legal estate or not
A father who is tenant for life may concur as guardian on behalf of
his infant son. {Be Marquis of Salisbury , 2 C3i. D. 29.)

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fi T A

Surface and Minerals apart ^^ yj

17. — (1.) A sale, exchange, partition, or mining Separate
lease, may be made either of land, with or without an eiSSd"
exception or reservation of all or any of the mines and ™p«»ifl»
minerals therein, or of any mines and minerals, and in without way-
any such case with or without a grant or reservation ^®*^~' *°-
of powers of working, wayleaves or rights of way,
rights of water and drainage, and other powers, ease-
ments, rights, and privileges for or incident to or
connected with mining purposes, in relation to the
settled land, or any part tnereof, or any other land.

(2.) An exchange or partition may be made subject
to and in consideration of the reservation of an un-
divided share in mines or minerals.

Under an ordinary power of sale and exchange, trustees cannot
sell or exchange the simace apart from the minerals. {Buckley y.
Howell, 29 Beav. 546.)

See, further, as to " reservations " upon an exchange, sect. 4,
sub-s. (6), ante.

The power to grant easements, &c., over the settled land given
by this section is exerdseable as incidental to a scheme of the kind
contemplated by this section with respect to mines, while the power
given by sect. 3, sub-s. (1), and sect. 61, antCy seems to be only
exerdseable by way of sale and lease respectively, at the best price
or rent, &c., and subject to the provisions respecting sales and


18. Where money is required for enfranchisement, Sect 18.
or for equality of exchange or partition, the tenant Mortgragefor
for life may raise the same on mortgage of the settled money, &o.
land, or oi any part thereof, 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, and the money raised
shall be capital money arising under this Act.

The tenant for life can raise money by mortgage for no purpose
other than those mentioned in this section. He cannot give a dis-
charge for money so raised, which, being capital money, must be
paid into court, or to the trustees. (See sect. 22, post.) Notice of
his intention to exercise the power must be given as directed in
sect. 45, post. It is conceivea that money can be so raised, only
when a definite contract for enfranchisement, &c., has been con-
cluded, under which the money will be required.

Since the amoimt required is always capable of exact computa,tion,
there will, under ordinary circumstances, be no excuse for raising
money in excess of what is wanted; though, perhaps, a moderate

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S, Ii. A. marffin may be allowed, when raising the precise sum necessary
Ctoct. 18. would be disadvantageous or inconvenient.

, Although the mortgagee, on obtaining the receipt of the trustees,

or paying the money into court (see sect. 22, post), will not be
bound to see to the application of the money (sect. 40, post), he cannot
safely lend a larger sum than is necessary. Mortgagees advancing
money under this section may prudently obtain from the trustees
some assurance that they raise no objection against the mortgage.
It is quite possible that the trustees might be obliged to receive me
money, if tendered to them, even though, in their opinion, it had
been improperly raised.

By sect. 46, sub-s. (6), and sect. 47, post, the court has power to
direct money to be raised by mortgage for the payment of costs,
charges, and expenses. (See note on sect. 46, sub-s. 6, post,)

The decision of the Court of Appeal in Mostyn v. JLancaster, 23
Ch, D. 583, may raise some doubt whether a tenant for life may not
make a lease by way of mortgage, taking a fine.

In cases where it is desired S) raise money by the creation of a
rent charge for eflFecting improvements, recourse must be had to the
Improvement of Land Act, 1864 (27 & 28 Vict. c. 114). By sect. 30,
pasty the improvements authorized by the present Act are incorpo-
rated into the Act of 1864. Money may also be so raised for
drainage under the Public Money Drainage Acts, 9 & 10 Yict.
c. 101 ; 10 & 11 Vict. c. 11 ; J3 & 14 Vict. c. 31 ; and 19 & 20 Vict,
c. 9. As to water supply, see the Limited Owners' Reservoirs and
Water Supply Further FaciUties Act, 1877 (40 & 41 Vict. c. 31).
And under the Settled Estates Act, 1877, ss. 20, 21, money may be
raised by mortgage or charge, for constructing streets, gardens,
sewers, water-courses, &c.

If money is required to be raised for any purpose upon which
capital money might be expended under sect. 21, sub-s. (x.), post,
it is possible that the court may assume jurisdiction to permit the
money to be raised by mortgage under sect. 46, sub-s. (6), and sect. 47,
post, though it appears more probable that the "costs, charges, and
expenses" there mentioned, include only those which are incidentto
some application or proceeding in court ; and the rules (see S. L.
Act Eules, 1882, r. 3, post) do not seem to provide for any others;
nor is any express authority given to the tenant for life to make an
application for the mere purpose of getting recouped his expenses
incurred in exercising his powers. If money is required to be raised
for such purposes, it would be the safer course to apply under the
Settled Estates Act, 1877, if the proposed scheme comes within its

Sect 19.

in exercise of
powers as to

Undivided Share.

19. Where the settled land 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 of an undivided share may join or
concur, in any manner and to any extent necessary
or proper for any purpose of this Act, with any
person entitled to or having power or right of dis-
position of or over another undivided share.

As a general rule, persons possessed of undivided shares, though

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placed in a fiduciary position, may concur with the owners of other g; I,, j^^
undivided shares in exercising powers. In such cases the presump- gg^t. 19.

tion is, that greater advantages will be obtained by concurrence. — '■

{Cooper to Harlech, 4 Ch. D. 802, at p. 817.)

Since, by sect. 2, sub-s. (10), (i.), ante, *' land includes , . .
an undivided share in land," this section does not seem to increase
the powers which the tenant for life would have had without it.

The Act does not authorize the tenant for life to concur with the
owners of adjacent properties in exercising powers. As regards
selling, such concurrence is at the risk of the fiduciary owner, upon
whom the onus lies of showing that a better price has been obtained
by such concurrence. {Cooper to Harlechy uhi supra^ at p. 816.)
As regards leasing, such concurrence is improper. {Tolson v.
Sheard, 5 Ch. D. 19 ; and see note on the Conv. Act, 1881, sect. 35,

But sect. 27, post, empowers the tenant for lift to concur with
adjacent owners, or other persons, in executing authorized improve-


20. — (1.) On a sale, exchange, partition, lease. Sect. 20.
mortgage, or charge, the tenant for life may, as Completion of
regards land sold, given in exchange or on partition, ^f b^^i,
leased, mortgaged, or charged, or intended so to be, veyance.
including copyhold or customary or leasehold land
vested in trustees, or as regards easements or other
rights or privileges sold or leased, or intended so to be,
convey or create the same by deed, for the estate or
interest the subject of the settlement, or for any less
estate or interest, to the uses and in the manner
requisite for giving effect to the sale, exchange, par-
tition, lease, mortgage, or charge.

As to whether, and how far, the tenant for life can exercise the
owers conferred by the Act, when he has absolutely assigned his
ife interest, see note on sect. 50, sub-s. (1), post.


(2.) Such a deed, to the extent and in the manner
to and in which it is expressed or intended to operate
and can operate under tnis Act, is effectual to pass the
land conveyed, or the easements, rights, or privileges
created, discharged from all the limitations, powers,
and provisions of the settlement, and from all estates,
interests, and charges subsisting or to arise thereunder,
but subject to and with the exception of —

The words ** under this Act" must refer to the words " expressed or
intended to operate," because so far as the purport of the deed
exceeds the capacity or power of the tenant for life by the common
law, it could not operate at all, except ** under this Act." There-
fore the deed must oe either expressed or intended to operate under

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S. L. A. fli® ^^ ; fi^<l 1* IS conceived that the intention, if not expressed,
Sect. 20. niust be collected from the contents of the deed itself, ana not by

• reference to extraneous matter. Any other doctrine would open a

door to fraud, especially in the case of mining leases, where part of
the rent is to be set aside as capital.

Though it is conceived that the mere fact that the purport of
a deed, which makes no mention of this Act, is in excess of the
capacity at common law of the tenant for life, but is within his
statutory powers under the Act, will probably suffice to make the
deed an exercise of the statutory powers, yet it will be better to make
express reference to the Act.

(i.) All estates, interests, and charges having priority

to the settlement ; and

These expressions will probably be held to include, and to pro-
tect, the rights of the lord of the manor with regard to copyholds
comprised in a settlement ; though such rights are more properly
said to be " paramount to " the settlement than to ** have priority
to " it. This point is of importance chiefly in reference to the
powers of leasing given by the Act.

(ii.) All such other, if any, estates, interests, and
charges as have been conveyed or created for
securing money actually raised at the date of
the deed ; and

This seems to refer to and include —

(1) Mortgages made by virtue of sect. 18 or sect. 47 of the pre-

sent Act ;

(2) Mortgages made by trustees, or others, under any power to

mortgage contained in the settlement.

Such powers, if designed to raise money for any pur-
pose other than those specified in sect. 18 and sect. 47 of
the present Act, would not be powers ** exerciseable for
any purpose provided for in this Act," and therefore the
consent of the tenant for life is not necessary to their
exercise by virtue of sect. 56, sub-s. (2), post. See note

(3) Charges made by virtue of any of the Acts specified in the

note on sect. 18, ante ;

(4) Simis of money actually raised by way of portions under any

power in Uiat behalf contained in the settlement, and
charges for securing the same.

Portions directed to be raised, but not actually raised at the date
of the deed, and also rights of jointure, are defeated by the convey-
ance of the tenant for life. The claims so defeated will still
remain valid as against all capital moneys arising by the exercise
of the powers.

A complete title, free from incumbrances, can of course be made
with the concurrence of all persons entitled to any such charge as
above mentioned. In such a case, when the incumbrancer has the
legal estate and concurs in the conveyance, he will be the proper
person to convey, discharged from his incumbrance ; and the tenant
for life wiU confirm.

Trustees of the settlement for purposes of the Act need not be
made parties, unless to any assurance where their consent is neoes-

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saiy, by virtue of sect. 15, ante. In cases where the purchase- g; i, ^

money is not intended to be paid into court, it will be desirable to Sect. 20.

make them parties in order to obtain their receipt. '■ — 1—

(iii.) All leases and grants at fee-farm rents or other-
wise, and all grants of easements, rights of
common, or other rights or privileges granted
or made for value in money or money's
worth, or agreed so to be, before the date of
the deed, by the tenant for life, or by any of.
his predecessors in title, or by any trustees for
him or them, under the settlement, or under
any statutory power, or being otherwise bind-
ing on the successors in title of the tenant for
(3.) In case of a deed relating to copyhold or
customary land, it is sufficient that the deed be
entered on the court rolls of the manor, and the
steward is hereby required on production to him of
the deed to make the proper entry ; and on that pro-
duction, and on payment of customary fines, fees, and
other dues or payments, any person whose title under
the deed requires to be perfected by admittance shall
be admitted accordingly; but if the steward so
requires, there shall also oe produced to him so much
of the settlement as may be necessary to show the
title of the person executing the deed ; and the same
may, if the steward thinks fit, be also entered on the
court rolls.

This section seems to contemplate the production of a portion
only of the settlement. In cases where the settlement consists of
a conveyance to trustees on trust to sell, with a separate declaration
of the trusts of the purchase-money, it would not suffice to produce
the conveyance alone, because, by virtue of sect. 63, post, it will be
necessary to inspect the trusts in order to see who is the tenant for
life of the purchase-money.

No maclunery is provided whereby the tenant for life can enforce
production of the " settlement," in cases where he neither has nor is
entitled to the custody of it.

VI. — ^Investment or other Application of Capital
Trust Money.

21. Capital money arising under this Act, subject Sect. 21.
to payment of claims properly payable thereout, and Capital
to application thereof for any special authorized object Aor^i^^
for which the same was raised, shall, when received, ment, &o. by
be invested or otherwise applied wholly in one, or ^^ ^

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S. I. A. partly in one and partly in another or others, of the
Sect 21. following modes (namely) :

The sources from which capital money may arise are enumerated
at pp. 255 et seq., ante.

The phrase, ** capital money arising under this Act," has been
liberally interpreted by Chitty, J., to include money directed by a
will to be laid out in the purchase of land to be settled in strict
settlement, apart from the question, whether the investment of the
money as capital money arising under the Act, would be authorized
by sect. 33, post {Mackenzie's Trusts, 23 Ch. D. 750.) The ground
of the decision seems to have been, that it would be idle to prevent
the tenant for life from doing directly what he could do drcuitously.
But it is by no means certain that a tenant for life who had bought
land with a view to an immediate re-sale, would not be restrained
from so abusing his powers. See sect. 53, post.

The words, ** subject ... to application thereof for any special
authorized object for which the same was raised," seem to referto sect.
18, ante (where see note), and to imply that money raised under
that section cannot be invested under this ; unless, perhaps, in the
case of some unavoidable surplus.

When renewable leaseholds are comprised in the settlement, the
Act has omitted to state how, in the absence of directions contained
in the settlement, fines paid for renewal are to be apportioned.
Therefore the old rule seems to be preserved ; as to which see
Bradford v. Brownjohn, L. E. 3 Ch. 711; Isaac y. Wall, 6 Gh.D.
706 ; and the cases there cited. Whether the lease is renewable
under a covenant, or only by custom, makes, for this purpose, no
difference. According to this rule, the tenant for life and remainder-
man contribute in proportion to their actual enjoyment of the
renewed term, so that their respective contributions cannot be
finally ascertained until the death of the tenant for life ; and it
therefore seems that capital money arising under the Act cannot be
applied to this purpose, unless such application be authorized by
the settlement. Settlements may, in future, usefully contain such
authority; but this should be expressed to be without prejudice
to the rule of apportionment above referred to.

The Act does not enable the amount of the fine to be raised by

Online LibraryHenry Williams Challis Henry J. HoodThe Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... → online text (page 35 of 53)