conditional surrender of the day of BUT SUBJECT TRANSFER OF COPYHOLDS TANCE. but subject to for redemption. a new condition nevertheless to a proviso for making void the said sur- AFTER ADMITrender hereby covenanted to be made if the said C. D., his heirs, executors, administrators, or assigns, shall pay or cause to be paid to the said E. F., his executors, administrators, or assigns, the sums of £1,000 and £1,000, making together the sum of £2,000, and the sum of £100 as and for one year's interest for the same at the rate of £5 per cent. per annum, making &c., see supra, p. 567; [Covenants by C. D. with E. F., his executors and ad- Covenants and ministrators, for payment of mortgage-money and interest, provisoes. supra, p. 469;-by A. B. with E. F., his heirs, executors, administrators, and assigns, against incumbrances, supra, p. 654;-by C. D. with E. F., his heirs and assigns, for seisin by C. D. of such of the hereditaments as were not comprised in the mortgage to A. B.-that A. B. and C. D. respectively have right to surrender-for quiet enjoyment-free from incumbrances-and for further assurance-Proviso for quiet enjoyment until default, supra, p. 567-Power of Sale, supra, p. 474]. IN WITNESS &c. (a). (a) If it be considered desirable that the mortgage should be transferred subject to the subsisting equity of redemption, (see supra, p. 644, n.), the object will be accomplished by making the mortgagee alone covenant for the surrender to the transferee, "subject to such right or equity of redemption as is now subsisting in the same premises under or by virtue of the said surrender of the day of - -." The covenants, (except the mortgagee's covenant against incumbrances), the provisoes, and power of sale, will in such case be omitted. (See the frame of such a mortgage, supra, Precedent LXXIII., p. 651). FREEHOLDS, COPYHOLDS, AND LEASE HOLDS. Parties. Conveyance by infant heir of mortgagee. -at common law. -under the sta- Conveyance by lunatic trus tees and mortgagees under the statutes LXXVII. TRANSFER of MORTGAGE (part of the Debt having been paid off) of FREEHOLDS, COPYHOLDS, (which have been surrendered), and LEASEHOLDS (a), the MORTGAGEE being DEAD, and his HEIR and ADMINISTRATOR joining. of THIS INDENTURE, made &c. BETWeen A. B., (a) On the death of a mortgagee of freehold or copyhold property, the legal estate, (if not disposed of by his will), descends to his heir at law, or customary heir, and great difficulty is often experienced in procuring a conveyance of it, from the heir being an infant, or inaccessible or not ascertained. At common law, an infant might convey, although his conveyance would be voidable on his coming of age; and it seems that as this conveyance of an infant trustee or mortgagee would, if he were of age, be compulsory, he would not on coming of age be allowed to avoid it. (Zouch d. Abbot v. Parsons, 3 Burr. 1794; -v. Handcock, 17 Ves. 383). But of course it would be improper to rely on this doctrine, and a partial remedy was provided by the stat. 7 Anne, c. 19, which enabled and made it compulsory on infant trustees and mortgagees to convey under the direction of the Court of Chancery. This act, however, extended only to declared and not to implied trusts; (Godwin v. Lyster, 3 P. Wms. 387); and to no case in which the infant had any duty to perform. (Attorney-General v. Pomfret, 2 Cox, 221; Ex parte Chasteney, Jac. 56); or had any beneficial interest. (Hawkins v. Obeen, 2 Ves. Sen. 559). It applied to estates in the colonies; (Ex parte Anderson, 5 Ves. 243); and under its authority an infant could levy a fine, (Ex parte Maire, 3 Atk. 479), or suffer a recovery. (Ex parte Smith, Amb. 624; Ex parte Johnson, 3 Atk. 559). The statute 4 Geo. 3, c. 16, contained similar enactments to those in the above-mentioned act with respect to lands in the Duchy of Lancaster, the counties Palatine, and Wales. Idiots and lunatics are incapable of binding themselves by deed; (Co. Lit. 247. a.; Thompson v. Leach, 2 Salk. 427); and to remedy the inconvenience of trustees and mortgagees being idiots or lunatics, the stat. 4 Geo. 2, c. 10, enabled and made it compulsory on them to convey, part; E. F., of &c., [administrator of mortgagee], of the second part; G. H., of &c., [mortgagor], of the third part; under the direction of the Lord Chancellor. This act only extended to idiots or lunatics found so by inquisition; (Ex parte Gillam, 2 Ves. Jun. 587); or by a judicial proceeding abroad in the nature of a commission; (Ex parte Lewis, 1 Ves. 298; and see Ex parte Marchioness of Annandale, Amb. 80; In the Matter of Houstoun, 1 Russ. 312); but the provisions of it were, by the statute 2 Geo. 4, c. 114, extended to the case of lunatics not having been so found. The whole of the preceding statutes were repealed by the statute 6 Geo. 4, c. 74, which made fresh provisions relative to conveyances by infant, lunatic, and idiot trustees and mortgagees, and was itself repealed by the statute 11 Geo. 4 & 1 Will. 4, c. 60. Constructive trusts were not provided for by the statute, 4 Geo. 4, (Dew v. Clark, 4 Russ. 514); but many of the enactments of the existing act were contained in it. The statute now in force with respect to conveyances of mortgaged and trust estates, where a conveyance cannot be had according to the ordinary rules of law, is the statute 11 Geo. 4 & 1 Will. 4, c. 60. The 3rd section of this statute enacts, "that where any person seised or possessed of any land upon any trust or by way of mortgage shall be lunatic, (that is, (see sect. 2), 'lunatic, idiot, of unsound mind, or incapable of managing his affairs'), it shall be lawful for the committee of the estate of such person, by the direction of the Lord Chancellor of Great Britain, being intrusted by virtue of the King's sign manual with the care and commitment of the custody of the persons and estates of persons found idiot, lunatic, or of unsound mind, to convey such land in the place of such trustee or mortgagee, to such person and in such manner as the said Lord Chancellor shall think proper; and every such conveyance shall be as effectual as if the trustee or mortgagee being lunatic had been of sane mind, memory, and understanding, and had made and executed the same." The 5th section of the statute empowers the Lord Chancellor," intrusted as aforesaid" to appoint any person he may think fit to convey in the place of a lunatic trustee or mortgagee who has not been found lunatic by inquisition, and who is not entitled to receive a larger sum than £700 for his own benefit. The 26th section of the statute extends the operation of the 3rd and 5th sections to all his Majesty's dominions, except Scotland and Ireland; and the 27th section gives the same powers in Ireland to the Lord Chancellor of Ireland. The 28th section declares, that the powers given by the act to the Lord Chancellor intrusted with the care of lunatics, may be exercised by the Lord Keeper or commissioners of the great seal when similarly intrusted. But it must be observed, that the powers given by the acts can only be exercised by the person or persons for the time being intrusted by virtue FREEHOLDS, AND LEASE HOLDS. Recital of Conveyances -and by per- -in the case of constructive trusts. (Section 18). and I. K., of &c., [transferee], of the fourth part; [Recital of leases] AND WHEREAS, by an indenture of appointment. of the sign manual with the custody of the persons and estates of lunatics. (In re Shorrocks, 1 My. & Cra. 31; In the matter of Prideaux, 2 My. & Cra. 640). With respect to the shape of the orders of reference under the act, see In the matter of Pigott, (2 Russ. & My. 683). See, too, the 11th and 25th sections, and the observations infra. By the 20th section of the statute, the foregoing provisions are extended to include all persons being lunatic, who by force of any law for payment of debts out of real estate would, or thereafter might be, compelled to convey any land if of sound mind. (See Ex parte Tutin, 3 Ves. & Bea. 150; and supra, p. 235, n. (e); see, too, Scholefield v. Heafield, 8 Sim. 470; Ball v. Harris, Id. 485; Holme v. Williams, Id. 557 ; Smethurst v. Longworth, 2 Keen, 603; and the recent statute 2 & 3 Vict. c. 60). By the 6th section of this act, any person seised or possessed of any land upon any trust, or by way of mortgage, being under the age of twenty-one years, is enabled to convey the same by the direction of the Court of Chancery to such person and in such manner as the court shall think proper. The seventh section contains a similar enactment as to lands situate in the Duchy of Lancaster, the Counties Palatine, and Wales, which however, so far as relates to Chester and Wales, is rendered superfluous by the stat. 11 Geo. 4 & 1 Will. 4, c. 70, § 14, abolishing their peculiar courts. The 8th section of the act enacts, "That where any person seised of any land upon any trust, shall be out of the jurisdiction of or not amenable to the process of the Court of Chancery, or it shall be uncertain, where there were several trustees, which of them was the survivor, or it shall be uncertain whether the trustee last known to have been seised as aforesaid, be living or dead, or if known to be dead, it shall not be known who is his heir, or if any trustee seised as aforesaid, or the heir of any such trustee, shall neglect or refuse to convey such land for the space of twenty-eight days next after a proper deed for making such conveyance shall have been tendered for his execution by, or by an agent duly authorized by, any person entitled to require the same, then and in every or any such case it shall be lawful for the said Court of Chancery to direct any person whom such Court may think proper to appoint for that purpose, in the place of the trustee or heir, to convey such land to such person and in such manner as the said Court shall think proper, and every such conveyance shall be as effectual as if the trustee seised as aforesaid, or his heir, had made and executed the same." The 18th section of the act extends all the provisions therein before contained, to every case (other than the cases therein mentioned) of a constructive trust or trust arising or resulting by implication of law; but provides, that in every case where the alleged trustee has or claims a beneficial interest adversely to the party seeking a conveyance or and release, assignment and covenant, bearing date the grounded so far as the same operated as day of FREEHOLDS, COPYHOLDS, AND LEASE HOLDS. the 8th and 18th sections. transfer, no order shall be made for the execution of a conveyance or transfer by such alleged trustee, until after it has been declared by the Court of Chancery in a suit regularly instituted in such court, that such person is a trustee for the person so seeking a conveyance or transfer. Now it will be seen, that the 8th section applies only to trustees, and Observations on therefore, where a mortgagee died intestate and his heir was not known, it was held, that the Court could not by the help of the 18th section, on payment of the money, appoint a person to reconvey. (In re Goddard, 1 My. & Ke. 25; In re Newman, Law Journal, Vol. 13, p. 124; In re Stanley, 5 Sim. 320; In re Dearden, 3 My. & Ke. 508). And so likewise, where the devisees of a mortgagee refused to convey. (Ex parte Payne, 6 Sim. 645). But where a mortgagee had obtained a decree for sale (in Ireland) and then died, it was held that his infant heir was a trustee within the meaning of the 8th and 18th sections. (Prendergast v. Eyre, Lloyd & Goold, Cas. Tem. Sug. 11). In order to remedy the difficulty which arose in the preceding cases, it was enacted by the statute 4 & 5 Will. 4, c. 23, s. 2, that where any person seised of any land upon trust, or by way of mortgage, dies without an heir, it shall be lawful for the Court of Chancery to appoint a person to convey such land in like manner as is provided by the act 11 Geo. 4 & 1 Will. 4, c. 60, in case such trustee or mortgagee had left an heir, and it was not known who was such heir; and such conveyance shall be as effectual as if there was such heir. Statute 4 & 5 s. 2. Observations on the act 4 & 5 Will. 4, c. 23, s. 2. It was held, that this act, by providing for the case of a mortgagee dying without an heir, by reference to the act of the 11 Geo. 4 & 1 Will. 4, c. 60, assumed that the 8th and 18th sections of the last-mentioned act did apply to the case of a mortgagee having left an heir who was unknown. (Ex parte Whitton, 1 Keen, 278; In re Stanley, 7 Sim. 170). But the correctness of these decisions was doubted, and in consequence the act of the 1 & 2 Vict. c. 69 was passed, by which it was enacted, "That where any person seised of any land by way of mortgage, shall Statute 1 & 2 Vict. c. 69. have departed this life without having been in possession of such land, or in the receipt of the rents and profits thereof, and the money due in respect of such mortgage shall have been or shall be paid to his executor or administrator, and the devisee or heir or other real representative or any of the devisees or heirs or real representatives of such mortgagee shall be out of the jurisdiction, or not amenable to the process of the Court of Chancery, or it shall be uncertain, where there were several devisees or representatives who were joint tenants, which of them was the survivor, or it shall be uncertain whether any such devisee or heir or representative be living or dead, or if known to be dead, it shall not be known who was his heir, or where such mortgagee or any such devisee or heir or representative shall have died without an heir, or if any such |