CONVEYANCE

UNDER A POWER OF

SALE.

-of valuation of timber;

the manner of

cited.

said G. H. was the highest bidder for, and was declared the purchaser of, the hereditaments comprised in the said eighth lot, at or for the price or sum of £1,600, and immediately after the said sale the said G. H. paid the sum of £160 to or on account of the said A. B., by way of deposit, and in part payment of the said sum of £1,600: AND WHEREAS the timber on the said eighth lot was duly valued

not having the whole beneficial interest, it is usual to recite the sale is to be re- manner in which the sale was made. (See infra, Precedent XXX. note (b)). If the sale be by private contract, the recital is the same as in a sale by the beneficial owners, but if the sale be by auction, a recital is introduced to the effect of that in the text. The object is to shew that the trust or power was duly pursued, and that the sale was fairly conducted. But when the vendors' power is to sell either by auction or by private contract at their discretion, a reference to the sale by auction is not essential, and is not perhaps desirable; for a reference to a sale by auction may lead to inquiries as to the nature of the conditions of sale, and it may turn out that the conditions were improper and unauthorized by the trust. (See note on Conditions of Sale by trustees, ante, page 95).

and fixtures part of purchase-money.

Certainly, however, the practice is to refer to the sale by auction in conveyances on sales under trusts or powers; and when the purchase is made by an agent, he (being the person with whom the trustees have contracted) should join in the conveyance for the purpose of authorizing them to convey to his principal. In conveyances on sales by the beneficial owner, no reference to the manner of sale should be made, and the contract for sale should be stated in the Price of timber usual form. In that case, the price of timber or fixtures (if taken under a valuation) will be blended with the purchase-money, and treated as one entire sum. It is sometimes proposed, not to state in the deed the consideration for the timber or fixtures, and to omit all reference to them with a view to diminishing the ad valorem stamp duty. But there can be very little doubt, that so doing would subject the parties to the penalty for not stating the true consideration; although, certainly, the omission would not affect the validity of the deed. If the sale be under a trust or a power, it is still more desirable to state the price of timber and fixtures, and incorporate it with the purchase-money, in order to obtain an effectual receipt for it in the deed of conveyance.

Price of chattels should be severed.

If any part of the property sold be furniture or other chattels which pass by delivery, the price for them should always be apportioned, and there should be a recital that they have been delivered to the purchaser, in order to estop the vendor from afterwards alleging the contrary. (See ante, page 104, note (b)).

:

CONVEYANCE

UNDER A POWER OF SALE.

been made by

Consideration.

in pursuance of the said condition of sale at the sum of £200 AND WHEREAS the said purchase was made by the said G. H. as agent for the said E. F., and the said sum of £160 so paid by way of deposit as aforesaid was money of the pur belonging to the said E. F. (h): NOW THIS INDEN- chase having TURE WITNESSETH, that, for effectuating the said an agent; sale, and in consideration of the said sum of £160 paid by Witnesseth. the said G. H., for and on behalf of the said E. F., by way of deposit as hereinbefore mentioned, and also in consideration of the sums of £1,440 and £200, at or immediately before the sealing and delivery of these presents to the said A. B., paid by the said E. F., (the receipt of which said Receipt clause. sums of £160 and 1,440, making together the said purchase-money or sum of £1,600, and also of the said sum of £200, the price of the said timber; he the said A. B. doth hereby acknowledge, and of and from the same and every part thereof, doth acquit, release, and discharge the

(h) It often happens that some of the lots are not purchased at the auction, and are afterwards bought by reference to the particular of sale. (See ante, pages 37, 38). If it happens that the same person has bought part of the estate at the sale by auction, and another part afterwards by private contract, and takes a conveyance of both parts by the same deed, the following recital will be required. "And whereas the lands and hereditaments comprised in the lot of the said particular were not sold at the said auction, and the said A. B., in further pursuance of the power of sale in him reposed as hereinbefore is mentioned, and at the request and by the direction of the said C. D., (signified as aforesaid), hath contracted with the said E. F. for the absolute sale to him of the lands and hereditaments comprised in the said lot, (being the lands and hereditaments secondly hereinafter particularly mentioned, and intended to be hereby appointed), and the inheritance thereof in fee simple, in possession, free from incumbrances, at or for the price or sum of £—

In this case, the hereditaments in the eighth lot may be referred to as the hereditaments firstly hereinafter mentioned, and the necessary alterations as to timber, amount of purchase-money, &c., should be attended to.

Recital when a purchaser at

the auction afterwards buys another lot.

CONVEYANCE

UNDER A

POWER OF
SALE.

Reference to
power.

Effect of judgments against

a tenant for life, as regards the operation of a power of sale and exchange.

said E. F. and also the said G. H., their and each of their heirs, executors, administrators, and assigns for ever, by these presents), and pursuant to, and by force and virtue, and in exercise and execution of the power or authority to the said A. B. for this purpose given or limited by the said indenture of the 12th day of May, 1814, and the said indentures of lease and release by reference thereto as hereinbefore is mentioned, and of all other powers or authorities in anywise enabling him in this behalf, and at the request, and by the direction of the said C. D., (signified by this writing under his hand) (i); he, the said A. B., doth, by this

(i) By the stat. 1 & 2 Vict. c. 110, s. 113, it is enacted, that a judgment already entered up, or to be hereafter entered up against any person in any of her Majesty's superior courts of Westminster shall operate as a charge upon all lands, tenements, rectories, advowsons, tithes, rents, and hereditaments, (including lands and hereditaments of copyhold or customary tenure), of or to which such person shall, at the time of entering up such judgment, or at any time afterwards, be seised, possessed, or entitled for any estate or interest whatever, at law or in equity, whether in possession, reversion, remainder, or expectancy, or over which such person shall, at the time of entering up such judgment, or at any time afterwards, have any disposing power which he might, without the assent of any other person, exercise for his own benefit, and shall be binding as against the person against whom such judgment shall be so entered up, and against all persons claiming under him after such judgment, and shall also be binding as against the issue of his body, and all other persons whom he might, without the assent of any other person, cut off and debar from any remainder, reversion, or other interest, in or out of any of the said lands, tenements, rectories, advowsons, tithes, rents, and hereditaments, and that every judgment creditor shall have such and the same remedies in a court of equity against the hereditaments so charged by virtue of this act, or any part thereof, as he would be entitled to in case the person against whom such judgment shall have been so entered up, had power to charge the same hereditaments, and had, by writing under his hand, agreed to charge the same, with the amount of such judgment debt, and interest thereon.

Now, it is settled, that an interest created out of a life estate cannot be defeated by the execution of a power of sale and exchange, where it is to be exercised by the tenant for life, or with his consent, for he cannot derogate from his own grant; (1 Sugd. Pow. c. 11, s. 3. c. 116); and, therefore, it has been suggested, that if judgments be entered up against a tenant for life, they cannot now be defeated by

present deed, or instrument in writing, by him the said A. B., sealed and delivered in the presence of, and attested by the two credible persons whose names are intended to

the exercise of a power of sale exerciseable by him, or with his consent. The argument is, that the judgment being by the statute made a charge on the land, and binding on the person against whom it is entered up, is such a charge on the life estate as to come within the general rule aboye mentioned, and thus indirectly to preclude the tenant for life from availing himself of the power in order to defeat the judgment. But, it is submitted, that this view is erroneous; for the judgment is a charge only by virtue of the statute, and the statute enacts, that it shall be a charge upon hereditaments over which the person against whom it is entered up shall have “ any disposing power which he might, without the assent of any other person, exercise for his own benefit;" the common power of sale and exchange cannot, however, be exercised by the tenant for life without the assent of the trustees, and therefore, is not such a power as is intended by the act; and to hold that the subsequent declaration of the statute, that the judgment shall be binding against the person against whom it is entered up, can affect the right of a tenant for life to consent to the exercise of a power, is to give an indirect operation to the act, which the expressions contained in it relating to powers do not warrant; in the ordinary meaning of words, the act renders subject to judgments the lands of such persons only as have powers equivalent to the absolute ownership of the estate or interest subjected to the powers. The charge created by the act being an equitable charge, will, perhaps, be considered not to affect the legal exercise or operation of the power, and as only binding the life estate in equity.

The late insolvent act 7 Geo. 4, c. 57, s. 22, empowered assignees to execute all powers vested in the insolvent, or created for his use or benefit, which such insolvent might execute for his own benefit. And in a recent case, where lands were settled to such uses as W. D. and F. his wife should appoint, and in default of appointment to the use of W. D. for life, with remainders over, with the ultimate remainder to W. D. in fee; and in 1824, W. D. took the benefit of the act, and conveyed all his interest to the assignees; and in 1828, he and his wife, by virtue of their power, appointed the estate to trustees; it was held, that the power was not revoked by the conveyance to the assignees, and that the appointment operated on the whole estate except the life estate, and reversion in fee previously conveyed by the insolvent. (Jones v. Winwood, 3 Mee. & Wels, 653. See, too, the cases under the Bankrupt Act, 1 Sugd. Pow. 79, 20; Hole v. Escott, 2 Keen, 444, reversed by the Lord Chancellor, November 24, 1838).

CONVEYANCE

UNDER A POWER OF SALE.

Revocation of uses of settle

ment.

CONVEYANCE

UNDER A POWER OF

SALE.

Witnesseth secondly.

Reference to power.

Manner of ex

ercising a power of sale in a set

tlement.

be hereupon indorsed, as witnesses attesting the sealing and delivery of these presents, by him the said A. B., revoke, determine, and make void (j), all and every of the uses, estates, trusts, powers, provisoes, and limitations, in and by the said indenture of the 12th day of May, 1814, and the said indenture of release, by reference thereto, expressed, limited, declared, and contained of and concerning the manor, lands, and other hereditaments hereinafter particularly mentioned, and intended to be hereby appointed: AND THIS INDENTURE ALSO WITNESSETH, that, for further effectuating the said sale, and for the considerations aforesaid, and pursuant to and by force and virtue, and in exercise and execution of the power or authority to the said A. B., for this purpose given or limited by the said indenture of the 12th day of May, 1814; and the said indentures of lease and release, by reference thereto, as hereinbefore is mentioned, and of all other powers or authorities in anywise enabling him in

(j) The terms and operative words of the power should be rigidly adhered to, and all consents and requests which are necessary should be expressed. If the power were, "to make sale and dispose of," the witnessing part should be, that the trustees do "make sale and dispose of;" if the power were, that the trustees should bargain and sell," these words should be employed in the witnessing part, and so, in all cases, the words used in the power should be employed in its execution.

"A power to appoint, includes in itself a power to revoke, and a power to do an act which can only be effected by an appointment, authorizes an appointment, and, therefore, a revocation. Whatever, for example, be the form in which a power of sale is given, it will operate as a power of revocation and new appointment, and may be executed accordingly." (1 Sugd. Pow. 250; Bishop of Oxford v. Leighton, 2 Vern. 367). It is usual in practice, to exercise a power of sale, by revoking the old, and appointing to the new uses; but it is not essential to do so, unless the power expressly be to revoke the old uses, and then to appoint new uses, as the purchaser directs. And it is by no means needful to have distinct witnessing parts for the revocation and appointment, unless the powers for the two operations are given in different terms.

The power to appoint is sometimes excepted from the revocation; but this is superfluous, for the exception is necessarily implied, by the nature of the power and of the instrument.