Henry Williams Challis Henry J. Hood.

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

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Id.S Making of water meadows or works of irrigation.

1 6.) Making of ^[ardens.

(7. j Making or improving of roads or bridges.

(8.) Making or improving of watercourses, ponds, wells, or reservoiis,

or of works for the application of water power or for supply of

water for agricultural or domestic purposes.

(9.\ Making of fences.

ilO.J PlantjjD^ of hops.

1 1 . j Planting of orchards or fruit bushes.

12. j Beclaimmg of waste land.

13. 1 Warping of land.

14.) Emban£nent and sluices against floods.



(15.) Drainage.

(a) This seems to mean the First Sohedale.

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.( 403 )


Of the Case of Camden v, Murray (J).
[Repfiniedy h/ permiesioriy from " The Times,*' 19th Jtdy, 1883.]

The present ease was a petition presented under the Settled
Estates Act on behalf of the present Marquess Camden, an
infant of eleyen years of age, the tenant in tail in possession of
the family estates, for the confirmation by the Court of the sale
of the Wildemesse mansion-house and land adjoining thereto to
its present lessee for a sum of 160,000/., the timber (which was
estimated to be worth 20,000/.) to be taken at a valuation. It
appeared that the Camden famUy property comprised, among
other properties, two estates in Kent, some twenty miles apart,
namely, Wildemesse estate, Sevenoaks, consisting of some 1,400
acres, producing about 1,500/. net annual income, and the
Bayham Abbey estate, Lamberhurst, consisting of a mansion-
house and some 10,000 acres, producing about 6,000/. or 7,000/.
net annual income. It was proposed to sell, with the Wilder-
nesse mansion-house, about 1,240 acres, at present producing
1,400/. net per annum. The sale was opposed by the infantas
paternal undes. Lord George Pratt and Lord Charles Pratt,
who were the tenants for iSe in remainder under the settie-
ment, and who had on preyious occasions successfully opposed
proceedings taken in Chancery, haying as their object that of the
present petition. The trustees of the settiement, which was
made by the will of the second marquess, had powers of sale
extending oyer the whole or any part of the devised estates, but
one of the two present trustees declined to exercise such power.

Mr. Justice Chitty said that when a similar application was
made to the late Vice-Chancellor Malins, the sole question
before the Court was whether the Court, supposing it had any
jurisdiction, could properly exercise such jurisdiction in control-
ling the power of sale vested in the trustees, when one of the
trustees declined to put such power in force. That learned judge
held {Camden v. Murray^ L. R. 16 Ch. D. 161, at p. 165) that
the only state of circumstances which could authorize the inter-
ference of the Court, by entertaining applications of the present
kind, was one of absolute and overwhelming necessity. He
quite agreed witii the decision of the Yice-CnanceUor, for the
Court would not compel the trustees to exercise a power which
was not compulsory upon them, and interfere with their discre-
tion in the exercise of what was a mere power and not a trust.
The decision, which might almost be treated as a matter of
course result of the case as then before the Court, in no way

(b) See p. 286, ante.

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involved the general question of the jurisdiction to sell estates
belonging to infants. The present question, in the same form
as it was put before the Vice-ChanoeUor, was afterwards put by
the present parties before Lord Justice (then Mr. Justice) Fry,
and he had no other course to take but to adopt the decision of
the Vice-Chancellor, and refuse the application. The case then
found its way to the Court of Appeal, and the decision of Lord
Justice Fry was aflSrmed, but the late Master of the Bolls, while
dismissing the appeal, suggested, without passing any judicial
opinion, that the case was put before the Court in the wrong
form, and that the better course would be to adopt the means of

Jrocedure provided by the Settled Estates Act, 1877. He (Mr.
ustice Chitty) therefore had to decide the case according to the
provisions of that Act. The position of the parties was as
follows : — The infant was tenant in tail in possession, and the
respondents, the paternal uncles of the infant, were tenants for
life in remainder, whose sons, if they had any — and, as a matter
of fact, at the present time they had no children now living —
would take in succession in the ordinary way as tenants in tail.
While the paternal uncles opposed the petition, it was supported
by Lord Roden, who had been appointed guardian of the infant
for the purposes of the Act, and also by the guardians of the
person of tne infant — namely, his mother. Lady Camden, Cap-
tain GFreen, and the late Duke of Marlborough. The evidence
of the last-mentioned nobleman, whose opinion on such a matter
was of weight, as based on knowledge and experience, dearly
pointed to the advisability of adopting the proposed sale. He
stated in his affidavit that, having regard to the acute depression of
agricultural property and the doubt whether landed estate would
ever again acquire its former fancy value, the realization of so
large a sum as 160,000/., exclusive of timber, would, in his judg-
ment, be of great advantage to the plaintiff and all other persons
interested in the estate, and he was of opinion that it was for the
benefit of all such persons, and, as one of the guardians of the
infant, he was desirous that the conditional contract should be
confirmed and carried into effect Mr. P. B. Beresford-Hope,
who had been appointed a trustee of the settlement, stated his
opinion in the same way, and also supported the sale. The re-
maindermen had filed affidavits in opposition, pointing to the
inadequacy of the price and the undesirability of selling a place
to which the family was attached. The evidence on both ades
had to be considered, and also the value of the estates subject to
the settlement. The whole of the estates in settlement, less
deductions and charges, appeared to produce at present some
9,000/. per annum. Of this income about 1,400/. was produced
by the Wildemesse estate and about 6,400/. by the Bayham
Abbey estate. With reference to the question of family affec-
tion, it was certainly more likely that such affection should attach
to the Wildemesse, for it was the older residence of the family.
But when this point was advanced by the remaindermen, there
was to be considered the circumstance that both of them, together
with the third marquees, the father of the infant, were parties to

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a private Act of 1869, whereby the sum of 50,000/, was raised
out of the estates for the pui^ose of buUding at Bayham Abbey
a house " suitable for the residence of the Marquess Camden for
the time being," and under which the heirlooms were removed
from the Wildemesse to Bayham Abbey. The language of the
Act, although in one sense that of the Legislature, was in another
that of the persons who promoted the Act, and therefore the
preamble of the Act which recited its desirability must be held,
to some extent, to express the opinion of the present respondents.
Moreover, the Wildemesse estate had been let to its present
tenant for some seventeen years, commencing during the lifetime
of the second marquess and covering the whole marquessate of the
third marquess. It therefore appeared to his lordship that the
Wildemesse had been abandoned as the residence of the family,
and that Bayham Abbey must be considered to be the family
residence. The proposed sale, if carried out, would materially
increase the income of the family settlement. Eoughly speak-
ing, the sum of 180,000/. would, if invested in Consols, produce
5,400/. Such a sum, if accmnulated during the minority of the
present marquess, would, when he became of age, be represented
by a sum of* some 230,000/. This calculation was based on the
supposition that the income of the proceeds of sale would follow
the trusts of the settlement, and its accumulation form part of
the corpus of the trust estate. It was, however, said that the
accumulations would never amoimt to the sum estimated, for if
this sale was efEected applications for increased maintenance
would forthwith be made by the guardians of the infant. Such
a consideration, however, could not, in determining the desira-
bility of the sale, be regarded by the Court, for each and every
application which might tend to diminish the fund would have
to be made to the Court, and be considered on its own merits.
The increase to the estate as approximately arrived at must be
considered, and also the fact that, were the exceptionally favour-
able oflfer by the present lessee of the Wildemesse declined, the
house and lands held therewith might be unoccupied for a time,
and prove the cause of positive loss to the estate, the present lessee
being a tenant from year to year only, and having expressed his
intention of securing a permanent residence elsewhere if his offer
fell through. It was true that evidence had been advanced by
the remaindermen, showing that the estate might be laid out as
a building estate, and as such had a rising value, but the mate-
rial advantage arising of treating the estiate in that way, and
its preference over the sale now proposed, was not pointed out
in the affidavits of the surveyors, whose opinion had been given,
and the sum of 180,000/. down for the whole estate might
dearly be said to more than counterbalance the uncertain and
speculative sale of the estate in portions of building lots for
comparatively small sums payable from time to time. It was,
in his lordship's opinion, an advantage to all parties to sanction
the proposed sale. The Court, however, would be very reluctant
to put in force its jurisdiction, derived from the Settled Estates
Act, to sell an old family estate. Here, however, there was more

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than one family estate, and the principal family estate appeared
to be, not the estate proposed to be sold, but Bayham Abbey,
and he was also satisfied uiat the income of the settled propertr,
if not increased by some such measure as that now proposed, would
be insufficient to keep up a second mansion-house. For these
considerations, while not losing sight of the family affection
entertained for the Wildemesse by the remaindermen, he felt
that it was truly advantageous to the property and parties in-
terested to sanction the sale. By the 16th section of the Settled
Estates Act it was provided that it should be lawful for the
Court, if it should deem it proper and consistent with a due
regard for the interests of all parties entitled, cmd subject to the
restrictions in the Act contained, from time to time to authorize
a sale of the whole or any parts of any settled estates, or of any
timber (not being ornamental timber) growing on any settled
estates, &c. It was, therefore, clear that the G)urt, while exer-
cising its power imder the Act, must have regard to the interests
of the tenant in tail, but also would fail in its duty if it regarded
those interests solely to the exclusion of other parties interested.
There was, moreover, another and an important provision in the
Act, which was an entirely new introduction, and was carefully
considered by those who framed the Act, This was the pro-
vision of the 2dth section, to the effect that where an infant
was tenant in tail under the settlement it should be lawful for
the Court, if it should think fit, to dispense with the concurrenoe
or consent of the person, if only one, or all or any of the persons,
if more than one, entitled, whether beneficially or otherwise, to
any estate or interest subsequent to the estate tail of such infant.
After having fairly considered the case in all its details, he was
satisfied that the sale was to the interest of all parties, and the
case was one in which, under the jurisdiction conferred by the
25th section, the concurrence of the remaindermen might be
properly dispensed with. He should, therefore, make an order
confirming tne sale, but as the opposition was not of an improper
kind, he should direct the costs of all parties to come out of the
sale moneys.

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title prior to root, not to be inyestigated, 111.
what should be the stipulated commencem^t of, 112.
on purchase of several lots, with common title, 113.
yenlication of, purchaser to bear expense of, 113.


discharge for money advanced on, 209.


of income of infant's land, 187, 188.
of income of infant's property, 190.
results of, applicable for maintenance, &o., 188, 190.

ACKNOWLEDGMENT. And see Safe Custody.
of right to production of documents, 131, 132.
who bound by, 132.
who may take advantage of, 132.
obligations imposed b^r, 132.
costs and expenses incidental to, 133.

confers no right to damages for destruction of documents, 133.
order for specific performance of, 133.
satisfies lisibility to give covenant for production and delivery of

copies and extracto, 133.
effect of, coupled with undertaking, 135, 136.
stamp required for, 136.


of consent to order made under C. A. 1881, s. 39 . . 184.

on release of power, 202.

under Fines and Becoveries Act, how to be taken, 239, 240.

index to certificates of, 240, 241.

certificates of, unnecessary after December 31, 1882 . . 239, 240.


to enforce forfeiture, relief in, 142. ^

executors or trustees may compromise, 181, 182.

for protection of settled land, 316.

respectinfi" mortgage, order for sale in, 166 — 168.

mavbe made before trial, 168.

right of equitable mortgagee in, 168.

conduct of sale in, 168.


statutory powers of executor not conferred on, 182.


of new trustees to copyholds, still necessary, 178.


of C. A. 1881, by solicitors or trustees, 217, 218.


capital money under S« L. A., may be applied to purposes of, 297,

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408 INDEX.


every conyeyanoe effectoal to pass, 211.

ANNEX. See Supplemental Deed.


charged on land, modes of recovery of, 191 — 193.
power to demise land, when in arrear, 192, 193.
redemption of, 194, 195.

ANNUITY. See Inoumbeanoe.


under the C. A. 1881 . . 219, 220.
under the S. L. A. 325, 351.

APPOINTMENT OF TRUSTEES. See New Teustees; Sepaeatk
Tbustees; Trustees foe Management of Infant's Land;
Trustees for Purposes of S. L. A.

under C. A. 1881, a. 31 . . 173—175.

for purposes of S. L. A., 317—319.

APPORTIONMENT. A nd see Lease.

of moneys paid for lease or reversion, 312 — 314.


executors or trustees, empowered to refer to, 181.
administrators not so empowered, 182.

remarks upon, 85—91.

fines and recoveries, 91 — 94.

feoffment, 94—98.

release, 99, 100.

grant under 8 & 9 Vict. c. 106 . . 100.

assurances without transmutation of possession, 102 — 104.

ATTORNEY. See Power of Attorney.

ATTORNMENT. See Mortgage.

list of, under S. L. A., 301—303.

expenses of, how raised, 288.

approval of scheme for, 303—305.

mode of payment for, by trustees, 303, 304.

certificate of Land Commissioners respecting, 304, 305, 307.

duty of tenant for life to maintain, &c., 305, 306.

protection of tenant for life as regards waste, 307.

concurrence of joint owners in, ^5.
imder Limited Owners* Residences Acts, 296.
under Improvement of Land Act, 1864 . . 308.


meaning of, in C. A. 1881 . . 109.

of lessee, forfeiture of lease on, 144.

tenant for life may exercise statutory powers, notwithstanding, 330.

when a trustee may be removed for, 319.

of donor of power of attorney, effect of, 197.


remarks upon, as an assurance, 102—104.

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INDBX. 409


on nature and quantum of, 70 — 74.

person entitled to, has statutory powers under S. L. A., 339.


meaning of, 151.

how calculated in building leases, 275.


real estate liable in respect of, 206, 207.
effect of, with two or more jointly, 208, 209.

remarks on, 8, 9.


BUILDING LEASE.. And see Streets ; Open Spaces.
meaning of, in 0. A. 1881 . . 108.

in S. L. A., 267.
distinguished from repairing lease, in Sett. Est. Act, 1877 . . 267, 268.
regulations respecting, under S. L. A., 276, 277.

how may be varied, 278, 279.
by mortgagee, or mortgagor, in possession, 150 — 152.

BUILDING PUEPOSES. And see Streets ; Open Spaces.
meaning of, in 0. A. 1881 . . 108.
in S. L. A., 267.

remarks on, 6.
still exists as a tenure, 9.

definition of, 266.
what is, general list of, 254 — 257.
investment and application of, 257 — 259, 291 — 297.
to whom should be paid, 298.
till investment, devolves as land, 298.
money to be laid out in land, may be treated as, 312.
arising from sale of lease or reversion, how applied, 312 — 314.
not generally payable to fewer than two trustees, 319, 320.


filing powers of attorney at, 198.

searches in, 230—233.

inrolment at, of deeds under S. L. A., s. 16 . . 286.


matters arising under C. A. 1881, assigned to, 219.
S. L. A., assigned to, 325.

CHAEGES. Bee Judgments.

CHATTELS. See Quasi-Heiblooms.

CHIEF EENT. See AimirAL Sum.



conveyed to self jointlv with others, 199.

by husband to wiie, %b.

by wife to husband, %b»
vesting of, in new trustees, 177.

C. E E

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410 INDEX.


of tenant for life with other owners of undiyided shares, 271, 288.
with adjacent owners, 289, 305.


several persons entitled for, constitute only one tenant for life under
S. L.A., 265.


on the nature and quantum of, 54 — 57.


meaning of the term in S. L. A. s. 58, sub-s. (1), (vi.), 340.


now seyerable, on severance of reversion, 136 — 139, 140.


statutory under C. A. 1881 . . 109—114, 140.

of lease with leasehold reversion, 109, 110, 112, and see 140.

of enfranchised copyholds, 110.

of lease, 112.

of Underlease, 112.

of property generally, 111, 113.

of property m lots, 113.

on sale by trustees, 114.


of tenant for life to exercise of powers by trustees, 265, 335.
how given on behalf of infant, 265.
lunatic, t&.
of trustees, to sale or lease of mansion-house, 284, 285.
appeal from refusal of, 285.
to cutting of timber by tenant for life, 314, 315.

CONSIDERATION. And see Receipt.

when may be paid to solicitor producing receipt, 204, 205.

restriction on, 147.
distinguished from tacking, 147.
different kinds of, 147—149.
liability of solicitor not excluding the new restriction upon, 176.


on purchase under statutory conditions, 110.
restrictions on, 233—236.
registration is not, 235.


distinguished from executory limitations, 35.
different kinds of, 40, 41.
destruction of, at common law, 40.

statutory enactments respecting, 41.

CONTRACT. -4w(i flee Conditions OF Sale; Death.

for lease, power of tenant for life to give effect to, 281.

tenant for life may make and vary, 309 — 311.

under S. L. A., by and against wnom are enforceable, 310.

for lease, not part of the title, 236, 311.

not to exercise power, 201.

statutory powers, under S. L. A., void, 330.


consiructive, of capital money under S. L. A., 298, 299.

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INDEX. 411


meaning of, in 0. A. 1881, generally, 107.

in 0. A. 1881, s. 7 . . 122, 125, 130.
by husband to wife, 199, 200.

wife to husband, ib,

a person to himself and another, ib.

personal representatives of decwised vendor, 114, 115.
execution of, bj vendor, 131.
by tenant for life, under S. L. A., 289—291.

to what estates and charges is subject, 290.

of copyholds, formalities attending, 291.


short title, commencement, and extent of Act, 105.

interpretation of terms, 105 — 109.

statutory conditions of sale, 109 — 114.

completion of contract after death of vendor, 114, 115.

sale freed from incrunbrances, 115 — 118.

^neral words in conveyances, 118—121.

implied covenants for title, 121—131.

rights of purchaser as to execution of conveyance, 131.

acknowledgment of right to production, and undertaking for safe
custody of document, 131 — 136.

rent and benefit of lessee's covenants and conditions to run with
reversion notwithstanding severance, 136 — 139.

obligation of lessor's covenants to run with reversion, notwithstand-
ing severance, 139, 140.

apportionment of conditions, on severance, 138, 140.

on sub-sub-demise, title to leasehold reversion not to be required,
140, 141.

restrictions on and relief against forfeiture of leases, 141 — 145.

mortgagee to transfer instead of reconveying, 145, 146.

morf^^or may inspect title deeds, 146, 147.

restriction on consolidation of mortgages, 147 — 149.

leases by mortgagor or mortgagee in possession, 149 — 155.

powers of mortgagee, 155 — 157.

regulation of exercise of power of sale, 157, 158.

conveyance, receipt, &c. on sale, 158 — 161.

mort^gee's receipts, 161, 162.

amount and apphcation of insurance money, 162 — 164.

powers and duties of receiver, 164 — 166.

sale in action for foreclosure, &c., 166 — 168.

statutory mortgages, 169 — 171.

devolution of tnwt and mortgage estates on death of sole trustee,

appointment of new trustees, 173 — 175.

retirement of trustee, 175, 176.

powers of new trustcfe appointed by court, 177.

vesting of trust property in new or continuing trustees, 177 — 179.

power for trustees for sale to sell, 179, 180.

trustees' receipts, 180, 181.

power for executors and trustees to compound, &o., 181, 182.

powers to two or more executors or trustees, 182, 183.

power for court to bind interest of married woman, 183, 184.

power of attorney of married woman, 185.

sales and leases on behalf of infant owner, 185, 186.

management of land and application of income during minority,

application of income of infant for maintenance, &c., 189 — 191.

recovery of annual sums charged on land, 191 — 194.

redemption of quitrents, &c., 194, 195.

mode of execution under power of attorney, 195 — 197.

nayment to attorney without notice of death, &c., 197, 198.

nliug of original powers of attorney, 198.


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413 INDEX.

CONVEYANCING, &c. ACT, ISSl - continued,

viBQ of word ** grant " unnecessary to convey hereditaments, 199.

conveyance by a person to himself and others, &c., 199, 200.

words of limitation in fee or in tail, 200, 201.

release of collateral powers, 201, 202.

construction of supplemental or annexed deed, 202, 203.

receipt in body of deed, 203.

receipt in deed or indorsed, as evidence for subsequent purchaaer,

203, 204.
payment to solicitor producing deed containing receipt, 204, 205.
sufficiency of forms m fourth schedule, 205.
covenants deemed to be made with heirs, &c., 205, 206.
heir, though not named, bound by specialty, 206 — 208.
covenant with two or more jointly, 208, 209.
advance on joint account, 209, 210.
easements, &c. granted by way of \ise, 210, 211.
** aU the estate ^ clause, 211, 212.
construction of implied covenants, 212.
enlargement of long term into fee simple, 212 — 217.
protection of solicitors and trustees adopting Act, 217, 218.
notices, 218, 219.

short title of 5 & 6 WiU. 4, c. 62 . . 219.
procedure, 219, 220.

orders of court, when conclusive, 220, 221.
repeals, &c., 221, 222.
modifications respecting Ireland, 222.
repeal of enactments respecting bare trustee, 222.
schedules, 223—228.


short title, commencement, and interpretations, 229, 230.

certificate of official search for judgments, &c., 230 — 233.

restrictions on constructive notice, 233 — 236.

contract for lease not part of title to lease, 236, 237.

appointment of separate sets of trustees, 237.

Online LibraryHenry Williams Challis Henry J. HoodThe Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... → online text (page 48 of 53)