FREEHOLDS, AND LEASE HOLDS. Observations on the statute 1 & 2 Vict. c. 69. Further observations on the act 11 Geo. 4 & 1 Will. 4, c. 60, s. 8. a release on a lease for a year, and made or expressed to be made between the said G. H. of the one part, and the devisee or heir or representative 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 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 devisee, heir, or representative, (whether such devisee, heir, or representative, shall or shall not have a beneficial interest in the money paid to the executor or administrator as aforesaid), to convey such land in like manner as by the said first-recited act the said Court is empowered to appoint a person to convey in the cases therein mentioned, in the place of a trustee or the heir of a trustee, and every such conveyance shall be as effectual as if such devisee or heir or representative had executed the same." And by section 2, "That the words used in this act shall have the same effect in England and in Ireland, and shall embrace the same objects, as they would have had and embraced if the provision herein before contained had formed part of the said recited acts, (the acts 11 Geo. 4 & 1 Will. 4, c. 60, and 4 & 5 Will. 4, c. 23), or either of them." But the 3rd section of the act provided, "That the said recited acts, or either of them, shall not be construed to extend to any case of any person dying seised of any land by way of mortgage, other than such as are hereinbefore expressly provided for." It seems that the 3rd section of the last-mentioned act did not operate as a repeal of the 6th section of the act 11 Geo. 4 & 1 Will. 4, c. 60, so as to affect the case of a mortgagee dying and leaving an infant heir. (In re Gathorne, 8 Sim. 392; 1 Beav. 208). And it has been decided by the Vice-Chancellor, that the case of its being uncertain whether a mortgagee has left an heir is still within the 8th section of the 11 Geo. 4 & 1 Will. 4, c. 60. (In re Wilson, 8 Sim. 392). But the judgment in the last case seems to have been grounded on a misapprehension of an opinion of the Master of the Rolls, (see 1 Beav. 208), and is therefore of less authority. It has been recently held, that the case of a mortgagee himself being out of the jurisdiction does not come within any of the acts, (Green v. Holden, 1 Beav. 207), on the ground that the 3rd section of the stat. 1 & 2 Vict. c. 69, precludes the constructive extension of the 8th section of the stat. 11 Geo. 4 & 1 Will. 4, to any other case than that mentioned in the 1st section of the stat. 1 & 2 Vict. c. 69. Where a trustee refuses to execute a deed which has been tendered to him, and a person is appointed under the authority of the 11 Geo. 4 & 1 Will. 4, c. 60, s. 8, to convey in his place, it is not necessary that the person so conveying should execute a new deed reciting the order; he may execute the deed tendered to the trustee, it being expressed in the said [mortgagee] of the other part, it was firstly witnessed, that, in consideration of the sum of £7,000 by the said FREEHOLDS, AND LEASE HOLDS. -of the free attestation clause that he has executed it in the place of the trustee in holds. The 9th section of the statute 11 Geo. 4 & 1 Will. 4, c. 60, relates to terms of years; it enacts, "That where any person possessed of any land for any term of years 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 whether the trustee last known to have been possessed as aforesaid be living or dead, or if any trustee possessed as aforesaid, or the executor of any such trustee, shall neglect or refuse to assign or surrender such land for the space of twenty-eight days next after a proper deed for making such assignment or surrender 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 executor, to assign or surrender such land to such person and in such manner as the court shall think proper; and every such assignment or surrender shall be as effectual as if the trustee possessed as aforesaid, or his executor, had made and executed the same." This section is less extensive than those which relate to real estate, because the want of a personal representative is to be supplied by taking out administration in the regular way in the ecclesiastical court. (In the matter of Anderson, Lloyd & Goold, Cas. Tem. Sug. 27). Executors having performed their duties and invested funds upon the trusts of the will, are trustees within the meaning of the act. (Ex parte Dover, 5 Sim. 500). And where the executor of the survivor of trustees refused to prove the will, it was held that the case came within the statute. (Ex parte Hagger, 1 Beav. 98). It should be observed, that these cases were not decided on the construction of the 9th section, but on the similar clauses relating to stocks in the names of trustees. The 13th section of the statute provides, that infants, lunatics, and other persons under disability, who are thereby directed to convey, may be compelled to convey, as if they were under no disability. The 16th section extends the provisions of the statute to trustees having an interest or duty to perform. (See the cases decided on the act, 7 Anne, c. 19, supra, and Hutchinson v. Stephens, 5 Sim. 498). The 16th section declares, that the heirs of vendors who have not conveyed, and persons in Assignments by persons appointed to assign in default of trustees of terms of years. (Section 9). Persons under disability to be compelled to convey. Act to extend to trustees hav ing an interest or duty. and to ven FREEHOLDS, [mortgagee] to the said G. H. paid, the said G. H. did direct, limit, and appoint, and also grant, release, ratify, COPYHOLDS, AND LEASE HOLDS. dors, nominal other construc tive trustees. -does not extend to an ex whose names estates have been purchased for others, shall be trustees purchasers, and within the meaning of the act. And the 17th section enables tenants for life, and other persons having a limited legal estate in lands contracted to be sold, but afterwards settled before conveyance, to convey the whole fee. The 18th section, as before mentioned, extends the provisions of the act to other constructive trusts; but it is to be observed, that an exchange, even where a sum of money paid for equality forms part of the consideration, is not within the meaning of these sections. (Turner v. Edgell, 1 Keen, 502). The husbands of female trustees are declared to husbands of fe- be trustees within the meaning of the act. (s. 19). See, too, before the act, Ex parte Maire, 3 Atk. 478; Ex parte Johnson, Id. 539). change. -extends to male trustees. The form of proceeding under these acts is pointed out by the statute, 11 Geo. 4 & 1 Will. 4, c. 60, s. 11. The order is to be made upon petition in any cause, or in the lunacy or matter; (see In re Fowler, 2 Russ. 449); and the petitioner may be one of the persons beneficially entitled, or a trustee, guardian, or committee, as the case may be. With respect to the shape of the order of reference, see In the matter of Pigott, (2 Russ. & My. 683); Price v. Shaw, (2 Dick. 732); Ex parte Swan, (Id. 749). The 12th section of the act empowers the Court of Chancery to direct a bill to be filed for the establishment of the right of the party seeking a conveyance; (see Goodson v. Ellison, 3 Russ. 583; Angier v. Stannard, 3 My. & Ke. 566); but the court is the judge whether the circumstances require a bill, or whether the order may be made on petition. (In the matter of the De Clifford estates, 2 My. & Ke. 624 & 820, overruling Ex parte Merry, 1 My. & Ke. 677; see, too, Ex parte Dover, 5 Sim. 500). It seems to be now settled, after some fluctuation of decision, that where a bill is filed for the purpose of having an infant heir declared a trustee for a purchaser, and a decree is made accordingly, the court will direct a conveyance to the purchaser by the same decree, and without a petition for the purpose. (Miller v. Knight, 1 Keen, 129, and note). An order, however, cannot be made on motion. (Anon. 1 You. & Col. 75). The costs of proceedings under the statute are provided for by the 25th section, which enables them to be raised out of the land to be conveyed, or otherwise, as the court shall direct. If a bill be filed by a purchaser under the 12th section for the purpose of having an infant heir declared a trustee, it is understood that the costs of the suit should be paid by the vendor, as between party and party. If a suit be rendered necessary by a trustee's refusing to convey, he will be ordered to pay all the costs of the suit. (Jones v. Lewis, 1 Cox, 199; Manners v. Charlesworth, 15th April, 1833, cited in Jemmett's edition of Sugden's Acts, 156. But see Angier v. Stannard, 3 My. & Ke. 566). The 29th section of the act extends the powers and authorities thereby given to the Court of Chancery to all his Majesty's dominions, except 1 FREEHOLDS, COPYHOLDS, AND LEASE HOLDS. and confirm (b) unto the said [mortgagee] and his heirs, ALL THAT &c., [freehold parcels], to hold the same unto and to the use of the said [mortgagee], his heirs and assigns, subject nevertheless to the proviso thereinafter contained and hereinafter mentioned for redemption of the same premises; AND by the said indenture now in recital it was secondly of copyholds witnessed, that for the considerations aforesaid the said G. H. did covenant with the said [mortgagee], his heirs and assigns, that he the said G. H., or his heirs, would, at the costs and charges of him the said G. H., his heirs, executors, or administrators, at or before the next court to be holden in or for the said manor of surrender holds. or cause to be surrendered into the hands of the lord or lady of the said manor, ALL THAT &c., [first copyhold parcels], to the use of the said mortgagee, his heirs and assigns, to be holden of the lord or lady of the said manor, by the rents and services therefore due and of right accustomed, and would cause the said [mortgagee], his heirs or assigns, to be admitted tenant or tenants thereto accordingly, such surrender however, when made, to be subject to the proviso thereinafter contained and hereinafter mentioned for the redemption of the same premises, [recites ofother copythird witnessing part—similar covenant to surrender copyholds held of manor of F.]; AND by the said indenture now -leaseholds. in recital it was fourthly witnessed, that, for the considerations aforesaid, the said G. H. did assign unto the said [mortgagee], his executors, administrators, and assigns, FIRSTLY, ALL THAT &c., [leasehold parcels], to hold the same unto the said [mortgagee], his executors, administrators, and assigns, for the respective terms and subject as thereinafter and hereinafter mentioned, (that is to say), as, to, for, and concerning the premises firstly thereinbefore and herein before mentioned, for all the residue then to come of the said term of sixty years, under and subject never Scotland, and the 30th section confers them on the Court of Exchequer. (b) With respect to the informality of this form, see supra, p. 212, n. (g). FREEHOLDS, COPYHOLDS, AND LEASE HOLDS. theless to the rents, covenants, and agreements, by and in the said indenture of the day of [the lease] reserved and contained, and on the part of the lessee, his executors, administrators, and assigns, to be paid, observed, and performed, and as to, for, and concerning &c., [similar recitals for the premises comprised in the other leases thereinbefore mentioned], and subject as to all the aforesaid premises thereby assigned, or expressed and intended so to be, to the proviso thereinafter contained and hereinafter men-with proviso tioned for redemption of the same premises. And in the said for redemption. indenture now in recital was contained a proviso for redemption of all and singular the said freehold, copyhold, and leasehold hereditaments, on payment by the said G. H., his heirs, executors, administrators, or assigns, to the said [mortgagee], his executors, administrators, or assigns, of the sum of £7,000 on the day of, with interest for the same after the rate of £5 per cent. per annum in the meantime, on the days and in manner therein mentioned. AND WHEREAS, at a court holden in and for the said manor of. day of, the said premises held of the said manor of —, and by the said indenture of the day of covenanted to be surrendered as aforesaid, were duly surrendered in pursuance of the same cove -of surrender of part of the copyholds. on the nant into the hands of the lord of the said manor to the use of the said [mortgagee], his heirs and assigns for ever, according to the custom of the said manor, subject nevertheless to a condition for making void the said surrender corresponding to the proviso for redemption in the said indenture of the day of contained and hereinbefore mentioned, [similar recital of surrender of the other copyhold premises :] AND WHEREAS the said [mortgagee] died on the day of intestate and a bachelor, leaving the said A. B. and C. D. his co-heiresses at law: AND WHEREAS letters of administration of the goods and tration to him. chattels, rights and credits of the said [mortgagee] were granted on the day of by the Prerogative Court -and of the remaining part. --of death of mortgagee. -of adminis -of interest of the Archbishop of Canterbury to the said E. F.: And WHEREAS all interest for the said sum of £7,000 has been and part of prin- paid up to the day of the date of these presents, and the sum of £2,000 has been paid by the said G. H. to the said cipal having been paid. |