Henry Williams Challis Henry J. Hood.

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

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have the powers of a tenant for life under this Act.

(3.) Where she is entitled otherwise than as afore-
said, then she and her husband together shall have the
powers of a tenant for life under this Act.

(4.) The provisions of this Act referring to a tenant



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344 THE SETTLED LAND ACT, 1882.

S. I. A. for life and a settlement and settled land shall extend

Sect. 61. to the married woman without her husband, or to her

and her husband together, as the case may require,

and to the instrument imder which her estate or

interest arises, and to the land therein comprised.

(5.) The married woman may execute, make, and do
all deeds, instnunents, and things necessary or proper
for giving effect to the provisions of this section,

(6.) A restraint on anticipation in the settlement
shall not prevent the exercise by her of any power
under this Act.

This section seems by madyertenoe to have omitted to indnde in
the Act the case of an infant married woman. Sect. 60, ante, is
undoubtedly among the ** foregoing provisions," which by virtue
of sub-s. (1) of the present section ** do not apply" to her. These
foregoing provisions are brought back, by sub-8ect8.(2) and (3) of the
present section, so far as they confer powers upon a tenant for life ;
but sect. 60 cannot be brought imder this description. It will be
necessary to hold that sect. 60 is incorporated by sub-s. (4) of the
present section, as bein^ a ^' provision .... referring to a
tenant for life," though that construction presents considerable
difficulty. In cases where the powers are exerciseable by the wife
and husband together, the difficulty may perhaps prove to be
insuperable. Sect. 60 applies only where the "person having the
powers of a tenant for life is an infant ; " and in this case such
person is constituted by, or composed of, the wife and husband
jointiy, who do not together constitute or compose " an infant."

Sect. 62. 62. Where a tenant for life, or a person having the
Ten^t powers of a tenant for life under this Act, is a lunatic,

i^tio! so found by inquisition, the committee of his estate

may, in his name and on his behalf, under an order of
the Lord Chancellor, or other person intrusted by
virtue of the Queen's Sign Manual with the care and
commitment of the custody of the persons and estates
of lunatics, exercise the powers of a tenant for life
imder this Act ; and the order may be made on the
petition of any person interested in the settled land,
or of the committee of the estate.

This section does not provide for the case of a lunatic married
woman, who is not entitled either to her separate use by contract, or
as a feme sole by virtue of the Married Women's Property Act,
1882 ; or for the case of such a married woman having a lunatic
husband. It will probably be held that in either case the com-
mittee may act on behalf of the lunatic, as in this section pre-
scribed.

If the lunatic has not been so found by inquisition, the powers
conferred by the Act cannot be exercised ; unless he is an in&mt,
in which case it is conceived that sect. 60, ante, will apply.



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SETTLEMENT BY WAY OF TRUSTS FOR SALE. 345

S. L. A.
Sect. 63.

XV- — Settlement by way of Teusts for Sale.

63. — (1.) Any land, or any estate or interest in Provisioii
land, which under or by virtue of any deed, will, or J^^^^u
agreement, covenant to surrender, copy of court roll, and re-invest
Act of Parliament, or other instrument, of any number T^g^^^^
of instruments, whether made or passed Defore or eontaiM *^
after, or partly before and partly after, the commence- Zmu^to'^f
ment of this Act, is subject to a trust or direction for invest in
sale of that land, estate, or interest, and for the appli- ^^'^
cation or disposal of the money to arise from the sale,
or the income of that money, or the income of the
land until sale, or any part oi that money or income,
for the benefit of any person for his life, or any other
limited period, or for the benefit of two or more per-
sons concurrently for any limited period, and whether
absolutely, or subject to a trust lor accumulation of
income for payment of debts or other purpose, or to
any other restriction, shall be deemed to be settled
land, and the instrument or instruments under which
the trust arises shall be deemed to be a settlement;
and the person for the time being beneficially entitled
to the income of the land, estate, or interest aforesaid
until sale, whether absolutely or subject as aforesaid,
shall be deemed to be tenant for life thereof ; or if two
or more persons are so entitled concurrently, then
those persons shall be deemed to constitute together
the tenant for life thereof; and the persons, if any,
who are for the time being under the settlement
trustees for sale of the settled land, or having power
of consent to, or approval of, or control over the sale,
or if under the 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.

It was probably necessary to extend the provisions of the Act so
as to include land given upon trust for sale ; because the Act might
otherwise have had no effect beyond altering the common form of
settlements. But some of the consequences of this section are
likely to be highly inconvenient in practice; and the inevitable in-
convenience is increased by its faiuty construction. The general
result i^ to extend the provisions of the Act to an immense number
of wills and other settlements, comprising trifling properties in land,
which would otherwise have been outside its scope.

c. A A



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346 THE SETTLED LAND ACT, 1882.

8. L. A. ^ order that land imder this sectioii may be settled land, the
Sect. 63. f oUowing conditioiis must concxir. There must be —

'. 1- (1) -^ tr'^* ^^ directioii for sale;

(2; And for the application of the sale money,

or, of the income of such money,
or, of the income of the land till aole,
or, of any part thereof respectively;
(3) for the benefit of some person or persons for life, or for
any other limited period.
In order to make sense of the subsequent provisions it is necessary,
after the words '* shall be deemed to be a settlement," to insert the
words, ** so far as it relates to the whole or any such part of the in-
come, &c., as aforesaid; " because by the literal construction of the
section, the tenant for life of a tenth share of the income seems to
be tenant for life of the whole of the ** land, estate, or interest afore-
said;" imless the alternative should be preferred of supposing the
words ** beneficially entitled to the income," to mean the whole in-
come ; upon which last hypothesis there would be no tenant for hfe
at all, so long as the persons for the time being entitled to the income
are not entitled to the whole.

The tenant for life for the time being must be ascertained only
from the provisions of the instrument imder which the trust arises;
and if under its provisions there is no jjerson for the time bein^
beneficially entitled to the income, there is no tenant for life; and
the trustees can execute a trust for sale vested in them, without
obtaining any consent thereto. {Re Earle Sf Webster's Contract, 24
Ch. D. 144.^

It is probable that in many cases this section will make sal^
much more difficult than they would otherwise have been; because
it seems to enable the tenant for life of every fraction to put a veto
upon a sale. In such cases there would be no jurisdiction to order
a partition among the claimants of different fractions, there being
an existing trust for sale. {Biggs v. Peacock^ 22 Ch. D. 284.)

And it would seem as if the consent of persons entitled for life
to fractions of the income is necessary, sdthough the consent of
persons absolutely entitled to fractions of the corpus is not.

The question also arises whether the word " part" means only an
aliquot fractional part, or whether it includes a fixed nominal
amoimt payable by way of annuity.

It would also seem that, during such time as a trust for accumu-
lation extends to the whole income, there is no tenant for life under
the present section, there being no person who is ^^for the time being
beneficially entitled" to anything.

A purchaser from trustees, who is aware of the existence of a
trust, is now bound so far to investigate the trusts of the purchase-
money as may be necessary to enable him to ascertain whetner there
exists any tenant for life under this section, whose consent to a sale
is necessary.

An attempt might perhaps be made to avoid ^hia inconvenience,
by omitting all mention of uie existence of trusts from conveyances
to trustees. "Whenever a purchaser has reason to suspect that this
has been done, he should inquire whether there exists any declara-
tion of trust affecting the property. But whether a purchaser, not
having notice aliunde of a trust, could compel an answer to such
inquiry, is doubtful. The mere fact that vendors are joint tenants
wiU not of itself, in the absence of other circumstances, sufice to



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SETTLEMENT BY WAY OP TRUSTS FOR SALE. 347

affect a purchaser with constructive notice of a trust. (See Harman g, j,. A.
to Uxhridge^ Sfc, Railway^ 24 Ch. D. 720.) But their refusal to enter g^t. 68.
into covenants for title, would probably be held to amount to such %

notice. (See Boursot v. Savage^ L. E. 2 Eq. 134.)

If it should be held that a purchaser is not entitled to make the
aboye-mentioned inquiry, a method will exist whereby trustees may
be enabled, though there exists a tenant for life, to exercise, without
his consent, a power of sale similar to that conferred by the Act.
But in order to do so, they must be wOling to enter into covenants
for title.

It is conceived that solicitors ought now to place such declara-
tions of trust upon the Abstract of Title. If it should be held that
purchasers can compel an answer to the above-mentioned inquiry,
this will become a plain duty.

It may be a question whether, since the Act contains nothing to
protect a purchaser who unwittingly buys from trustees without the
consent of the tenant for life, he will be protected by absence of notice
of the trust. The rule in favour of purchasers for value without
notice, was only available against mere equitable claims; not
against legal daims founded on express enactment.

(2.) In every such ceise the provisions of this Act
referring to a tenant for life, and to a settlement, and
to settled land, shall extend to the person or persons
aforesaid, and to the instrument or mstruments under
which his or their estate or interest arises, and to the
land therein comprised, subject and except as in this
section provided (that is to say) :

(i.) Any reference in this Act to the predecessors or
successors in title of the tenant for life, or to
the remaindermen, or reversioners or other
persons interested in the settled land, shall
be deemed to refer to the persons interested
in succession or otherwise in the money to
arise from sale of the land, or the income of
that money, or the income of the land, until
sale (as the case may require),
(ii,) Capital money arising under tins Act from the
settled land shall not be applied in the
purchase of land unless such application is
authorized by the settlement in the case of
capital money arising thereunder from sales
or other dispositions of the settled land, but
may, in adoition to any other mode of appli-
cation authorized by this Act, be applied in
any mode in which capital money arising
under the settlement from any such sale or
other disposition is applicable thereimder,
subject to any consent required or direction
A a2



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348 THE SETTLED LAND ACT, 1882.

S. L. A. given by the settlement with respect to the

Sect. 63. application of trust money of the settle-

ment.

(iii.) Capital money arising under this Act from the
settled land and the securities in which
the same is invested, shall not for any pur-
pose of disposition, transmission, or devolution,
be considered as land unless the same would,
if arising under the settlement from a sale or
disposition of the settled land, have been so
. considered, and the same shall be held in
trust for and shall go to the same persons
successively in the same manner, and for and
on the same estates, interests, and trusts as
the same would have gone and been held if
arising under the settlement from a sale or
disposition of the settled land, and the in-
come of such capital money and securities
shall be paid or applied accordingly.

(iv.) Land of whatever tenure acquired under this
Act by purchase, or in exchange, or on par-
tition, shall be conveyed to and vested in the
trustees of the settlement, on the trusts, and
subject to the powers and provisions which,
under the settlement or by reason of the exer-
cise of any power of appointment or charg-
ing therem contained, are subsisting witii
respect to the settled land, or would be so
subsisting if the same had not been sold, or
as near thereto as circumstances permit, but
so as not to increase or multiply charges or
powers of charging.



XVI. — Repeals.

Sect. 64. 64. — (1.) The enactments described in the schedule

Kepeai of to this Act are hereby repealed.

^flSSte. (2.) The repeal by this Act of any enactment shall
not affect any right accrued or obligation incurred
thereunder before the commencement of this Act ; nor
shall the same affect the validity or invalidity, or any
operation, effect, or consequence, of any instrument
executed or made, or of anything done or suffered, or
of any order made, before the commencement, of this



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KEPEALS. 349

Act ; nor shall the same affect any action, proceeding, S.L. A.
or thing then pending or uncompleted; and every _Secte4^
such action, proceeding, and thing may be carried on
and completed as if there had been no such repeal in
this Act.

This section repeals such part of Lord Cranworth's Act as was
not repealed by the Conv. Act, 1881 ; facilitates the exercise of the
powers given by the Improvement of Land Act, 1864, for the pur-
pose of borrowing money for improvements ; tmd repeals the Settled
restates Act, 1877, sect. 17, which is superseded by sect. 36, ante.



XVII. — IrkTiAnd.

66. — (1.) In the application of this Act to Ireland Sect. 65.
the foregoing provisions shall be modified as in this Modifications
section provided. S3^?^

(2.) The Court shall be Her Majesty's High Court
of Justice in Ireland.

(3.) All matters within the jurisdiction of that Com't
shall, subject to the Acts regulating that Court, be
assigned to the Chancery Division of that Court ; but
General Rules under this Act for Ireland may direct
that those matters or any of them be assigned to the
Land Judges of that Division.

(4.^ Any deed inrolled under this Act shall be in-
rollea in the Record and Writ Office of that Division.

(5.) General Rules for purposes of this Act for
Ireland shall be deemed Rules of Court within the
Supreme Court of Judicature Act (Ireland), 1877, and 40&4i Viot.
may be made accordingly, at any time after the ®* ^^*
passing of this Act, to take effect on or after the com-
mencement of this Act.

(6.) The several Civil Bill Courts in Ireland shall,
in addition to the jurisdiction possessed by them in-
dependently of this Act, have and exercise the power
and authority exerciseable by the Court under this
Act, in all proceedings where the property, the subject
of the proceedings, does not exceed in capital value
five hundred pounds, or in annual value thirty pounds, .

(7.) The provisions of Part II. of the County 4o & 4i Vict
Officers and Courts (Ireland) Act, 1877, relative to ^- ^^•



the equitable jurisdiction oi the Civil Bill Courts,
shall apply to the ju ' '
Courts under this Act.



— J J — - _ _ ^

shall apply to the jurisdiction exerciseable by those
^ unde



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350 THE SETTLED LAND ACT, 1882.

S. L. A. (8.) Rules and Orders for purposes of this Act, as
^^' Cfi' far as it relates to the Civil Bill Courts, may be made
at any time after the passing of this Act, to take effect
on or after the commencement of this Act, in manner
prescribed by section seventy-nine of the County
Officers and Courts (Ireland) Act, 1877.

(9.) The Commissioners of Public Works in Ireland
shall be substituted for the Land Commissioners,

riO.) The term for which a lease other than a
building or mining lease may be granted shall be
not exceeding thirty-five years.



the sohedule.

Eepeals.

Section 64. 23 & 24 Vict. . .An Act to give to trustees,
c. 145. mortgagees, tmd others, cer-



►in part ; namely,—



in part. tain powers now commonly
inserted in settlements, mort-
gages, and wills ^

Parts I. and IV.

(being so much of the Act as is not repealed by the

Conveyancing and Law of Property Act, 1881),

27 & 28 Vict. . .The Improvement of Land ) . . i

C.114. Act, 1864 jinpart; namely,-

in part. Sections seventeen and eighteen :

Section twenty-one, from " either by a party "

to " benefice) or " (inclusive) ; and from "or

if the land owner" to *' minor or minors"

(inclusive) ; and '* or circumstance " (twice) :

Except as regards Scotltmd.

40&41 Vict. ..The Settled Estates Act,). . i

c. 18. 1877 ; J in part; namely,—

in part. Section seventeen.



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THE SETTLED LANB ACT RULES, 1882.



1. The expression " the Act " used in these rules means the Settled
Land Act, 1882.

Words defined by the Act when used in these rules have the same
meanings as in the Act.

The expression " the tenant for life *' includes the tenant for life
as defined by the Act, and any person haying the powers of a tenant
for life under the Act.

2. All applications to the court under the Act may be made by
summons in chambers; and if in any case a petition shaU be
presented without the direction of the judge, no further costs shall be
allowed than would be allowed upon a summons.

3. The forms in the Appendix to these rules are to be followed as
far as possible, with such modification as the circumstances require.
All summonses, petitions, affidavits, and other proceedings under the
Act are to be entitled according to Form I. in the Appendix.

4. The persons to be served with notice of applications to the court
shall, in the first instance, be as follows : —

In the case of applications by the tenant for life under sects. 15 and

34, the trustees.
In the case of applications under sect. 38, the trustees (if any), and

the tenant for life if not the applicant.
In the case of applications under sect. 44, the tenant for Ufe, or the

trustees, as the case may be.
No other person shall in the first instance be served. Except as
hereinbefore provided where an application under the Act is made by
any person other than the tenant for life, the tenant for life alone
shall be served in the first instance.

5. Except in the cases mentioned in the last rule, applications by a
tenant for life shall not in the first instance be served on any person.

6. The judge may require notice of any application under the Act
to be served upon such persons as he thinks fit, and may give all
necessary directions as to the persons (if any) to be served, and such
directions may be added to or varied from time to time as the case
may require. Where a petition is presented, the petitioner may,
after the petition has been filed, apply by summons in chambers
(Appendix, Form XXTII.) for directions with regard to the persons



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352 THE SETTLED LAND ACT RULES, 1882.

on whom the petition ought to be served. If any person not already
served is directed to be served with notice of an application, the
application shall stand over generally, or until such time as the judge
directs. The judge may in any particular case, upon such terms (if
any) as he thinks fit, dispense with service upon any person upon
whom, under these rules, or under any direction of the judge, any
application is to be served,

7. It shall be sufficient upon any application under the Act to
verify by affidavit the title of the tenant for life and trustees or other
persons interested in the application imless the judge in any particular
case requires further evidence. Such affidavit may be in the form or
to the effect of Form No. VIII. in the Appendix.

8. Any sale authorized or directed by the court under the Act,
shall be carried into effect out of court, imless the judge shall
otherwise order, and generally in such manner as the judge may
direct.

9. Where the court authorizes generally the tenant for life to make
from time to time leases or grants for building or mining purposes
under sect. 10 of the Act, the order shall not direct any partioalar
lease or grant to be settled or approved by the judge unless the judge
shall consider that there is some special reason why such lease or
grant should be settled or approved by him. Where the court
authorizes any such lease or grant in any particular case, or where
the court authorizes a lease under sect. 15 of the Act, the order may
either approve a lease or grant already prepared or may direct that
the lease or grant shall contain conditions specified in the order or
such conditions as may be approved by the judge at chambers
without directing the lease or grant to be settled by the judge.

10. Any person directed by the tenant for life to pay into court
any capital money arising under the Act may apply by summons at
chambers for leave to pay the money into court. (Appendix, Forms
IX., X., XI.)

11. The summons shall be supported by an affidavit setting
forth—

1. The name and address of the person desiring to make the

payment.

2. The place where he is to be served with notice of any proceeding

relating to the money.

3. The amount of money to be paid into court and the account to

the credit of which it is to be placed.

4. The name and address of the tenant for life under the settle-

ment by whose direction the money is to be paid into court.

5. The short particulars of the transaction in respect of which the

money is payable.



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THB SBTTLED LAND ACT RULB8, 1882. 363

12. The order made upon the summons for payment into court,
may contain directions for investment of the money on any securities
authorized by sect. 21, sub-sect. 1 of the Act, and for payment of the
dividends to the tenant for life, either forthwith or upon production
of the consent in writing of the applicant; the signature to such
consent, to be verified by the affidavit of a solicitor. But if the
transaction in respect of which the money arises, is not completed at
the date of payment into court, the money shall not, without the
consent of the applicant, be ordered to be invested in any securities
other than those upon which cash under the control of the court may
be invested.

13. Money paid into court under the Act shall be paid to an
account, to be entitled in the matter of the settlement, with a short
description of the mode in which the money arises if it is necessary
or desirable to identify it, and in the matter of the Act. (Appendix,
Forms IX., X., and XI.)

14. Any person paying into court any capital money arising under
the Act shall be entitled first to deduct the costs of paying the money
into court.

15. In all cases not provided for by the Act or these rules, the
existing practice of the court as to costs and otherwise, so far as the
same may be applicable, shall apply to proceedings under the Act.

16. The fees and allowances to solicitors of the court in respect to
proceedings under the Act shall be those provided by the Rules of
the Supreme Court as to costs for the time being in force, so far as
they are applicable to such proceedings.

17. The fees to be taken by the officers of the court in respect to
proceedings under the Act shall be those provided by the Eules of
the Supreme Court as to court fees for the time being in force, so far
as they are applicable to such proceedings.

18. These rules shall come into operation from and after the 31st
December, 1882.

19. These rules may be cited as the Settled Land Act Rules,
1882.



[Appendix.

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( 854 )



APPENDIX

TO THE SETTLED LAND ACT EULES, 1882.



FobmL

Title of Proceedings.

In the High Court of Justice,
Ohanceiy Division.

Yice-Ghanoellor Bacon,



Online LibraryHenry Williams Challis Henry J. HoodThe Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... → online text (page 42 of 53)