The deed jointure, and portions. under the original settlement, or such of them as it is intended to preserve, and that the uses, &c., contained in the resettlement shall be overreached by any exercise of such powers, and that all lands to be purchased with moneys arising under the original settlement shall be settled to the uses subsisting by virtue of the original settlement and the resettlement (2 K. & E. 655). If it be intended to destroy the express powers annexed to the father's life estate in the original settlement, he should expressly release them; and the life estate given to him by the resettlement will not be expressed to be in restoration of his life estate under the original settlement. By the third deed the son exercises the powers, given to providing him by the resettlement, of charging a jointure and portions, pin-money, and limits a term to secure the portions (2 K. & E. 671). It will be observed that no provision is made in the resettlement for the pin-money of the intended wife. This is effected by the son's assigning his annuity during his father's lifetime to trustees, for the purpose of securing the payment of the pin-money, and by his limiting a rentcharge to her by way of pin-money after the death of the father during the joint lives of the son and the intended wife. Demise of son's life estate bargain and sale. It was the practice in deeds before 1883 for the son to demise his life estate to the trustees for the purpose of effected by securing the pin-money; but this is now unnecessary, by reason of the provisons of the M. W. P. A. 1882, and the C. A. 1881 (ante, pp. 370, 373). It will be observed that, if the son had effected the demise to the trustees by means of a demise operating at Common Law, they would only have taken an interesse termini (ante, p. 250). To prevent this, the son for a nominal pecuniary consideration bargained and sold his life estate to the trustees for a term determinable on his death: thus raising a use in their favour, which, as the interest intended to be passed to them was not a freehold, took effect without the deed being inrolled. RESETTLEMENTS. Analysis of operative clauses in resettlement: 511 Analysis of resettle 1. Appointment by the father and son of [parcels]. ment. [If the resettlement is not made on the son's marriage, to such uses. as they shall jointly appoint; and in default of appointment-] 2. To the use that the son shall receive, during the joint lives of himself and his father, a rentcharge; 3. To the use of the father for life. If the powers in the original settlement are to be kept alive, say, in restoration of his life estate under the original settlement; 4. If so arranged, limitation of additional jointure to the father's wife; 5. To the use of the son for life; 6. To the use of his sons successively in tail; 7. To the use of the father's second son for life; 8. To the use of the second son's sons successively in tail; 9. Similar provisions for the other sons and their issue; 10. Ultimate remainder in fee. 11. Power to son to jointure any wife, and to give her the usual powers of distress and entry, and to limit, or to authorise her to limit, a term to secure the jointure. 12. Power for subsequent tenants for life to jointure (as in last clause). 13. Proviso that no jointure charge made by a subsequent tenant for life shall take effect unless the person charging or his issue come into possession. 14. Estates not to be liable at one time for more than a certain sum for jointures. 15. Power for son to charge portions and to limit a term for securing them. 16. Power for subsequent tenants for life to charge portions and to limit a term for securing them. Analysis of deed as to pinmoney, jointure, and portions. 17. Proviso that no portions charge made by a subsequent tenant for life shall take effect unless the person charging or his issue come into possession. 18. Estates not to be chargeable with more than a certain sum for portions. 19. Power to trustees of terms to accept other security. 20. For other provisions, see analysis of settlement, p. 366. 21. Declaration that express powers of the original settlement shall overreach the uses of the resettlement. Or, Release of the express powers of the original settlement. 22. Appointment of trustees of compound settlement (see 2 K. & E. 649, 43 Sol. J. 653, 669, ante, p. 415). Analysis of deed providing pin-money and jointure for the wife and portions for the younger children : Parties: --- A. B. intended husband (1); C. D. intended wife (2); Recitals: 1. The intended marriage. 2. The resettlement, showing that A. B. takes an annuity (rentcharge) during the joint lives of himself and his father, that he is tenant for life in remainder, and that powers of jointuring and charging portions are vested in him. 3. The agreement to secure the pin-money, and to charge a jointure and portions. Operative clauses: 1. Assignment by A. B. "as settlor" of the annuity rentcharge to P. T. and Q. T. 2. Declaration that the trustees shall hold the annuity upon trusts to raise pin-money for C. D. 3. Limitation of rentcharge by A. B. "as settlor" after the death of the father to C. D. during the joint lives of C. D. and A. B. by way of pin money. RESETTLEMENTS. 4. Charge of jointure by A. B. "as settlor;" if the powers of distress and entry. 5. Charge of portions by A. B. "as settlor" with 6. Limitation of term by A. B. "as settlor" to com- In In this scheme of resettlement, no provision is made for the son's children till after the death of both the son and his father, so that, if the son dies in his father's lifetime leaving a young family they may be unprovided for. most cases the risk may be run, for probably their mother will support them out of her jointure; and, if she dies, they will have the benefit of any personal property settled on her marriage. If, however, there is no such property, they will be dependent on the bounty of their relations. If it be thought necessary, a power may be inserted in the resettlement, enabling the son to create a charge on the estate, to take effect after the deaths of himself and his wife during his father's lifetime, with sums for the maintenance of the children, a power which he will exercise by the third deed. Sometimes, if the resettlement is made on the son's marriage, his annuity is expressed to continue during his father's life, or so long during the father's life as any of the son's issue shall be alive; so that the son can provide for his children after his own death by means of the annuity. E.I.C. 33 513 Presumption as to ownership of land. Reasons for investigating title. Proof of title. CHAPTER XIV. REGISTRATION OF TITLE UNDER THE LAND TRANSFER ACTS, 1875 AND 1897. APART from the Land Transfer Acts, 1875 and 1897 (38 & 39 Vict. c. 87; 60 & 61 Vict. c. 65), a person in possession of land is presumed by law to have a right to the possession as owner in fee simple (aa). If a person out of possession claims to be entitled to the possession of the land, either as owner or otherwise, he must prove his case; or, as it is sometimes stated, the plaintiff in an action to recover the possession of land must recover by the strength of his own, not by the weakness of the defendant's title (a). But in the case of land which is registered under the L. T. Acts the registered proprietor has, except as against certain persons, an estate in fee simple in possession; and the result is that, if he is out of possession and brings his action to recover possession, the presumption of ownership is reversed, and that the person in possession will have to prove his title. The presumption that, in the case of unregistered land, the person in possession is the beneficial owner in fee simple with a right to possession may be rebutted by proof that he is only tenant for life, or in tail, or for years, or a trustee, or that the land is subject to incumbrances or leases, or that he is a mere trespasser. It follows that a purchaser cannot safely assume that the person in possession can convey the land for an estate in fee simple in possession; he must ascertain the extent and nature of his vendor's interest in the land: and this process is called the investi(aa) See Lightwood on Posses- (a) M. L. R. P. 8. sion, 106. |