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VI. That the purchasers shall presume that a mortgage condITIONS AS made by indentures dated — , and which are now in the
is enacted, “ that, after the 31st day of December, 1833, no action or suit or other proceeding shall be brought to recover any sum of money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent, at law or in equity, or any legacy, but within twenty years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same, unless in the meantime some part of the principal money, or some interest thereon, shall have been paid, or some acknowledgment of the right thereto shall have been given in writing, signed by the person by whom the same shall be payable, or his agent, to the person entitled thereto, or his agent; and in such case, no such action, suit, or proceeding shall be brought, but within twenty years after such payment or acknowledgment, or the last of such payments or acknowledgments, if more than one, was given."
Some observations on this clause will be found ante, Vol. 1, p. 261; and in addition to the case of Berringlon v. Evans, there cited, the cases of Prior v. Horniblou, 2 You. & Coll. 200, and Phillipo v. Munning, 2 My. & Cra. 309, may be consulted on the construction of the foregoing section. Of the utility of the enactment, as between claimants of money charged on land and the owners of the land, there can be little doubt; but it has not removed the difficulty which was experienced by a vendor. For, as the vendor must still satisfy the purchaser that no payment or acknowledge ment has been made for twenty years in respect of any charge which he cannot prove to have been satisfied, he has still to give evidence of a negative. And as it is impossible to give conclusive evidence of a negative, the only way to prevent disputes as to what is reasonable evidence, is to specify in the conditions what evidence the vendor can furnish, and stipulate that with that the purchaser shall be satisfied. The conditions in the text do not, perhaps, stipulate for the acceptance of any evidence, except what a purchaser might be compelled to accept without special stipulation; but they serve to shew the form of such conditions. The cases of Cooke v. Soltau, and Christophers v. Sparke, ubi supra, will furnish information as to the kind of evidence which is needed, in the absence of express stipulation, for presuming the satisfaction of a mortgage.
It may be observed, that by the statute 7 Will. 4 & 1 Vict. c. 28, it is declared, that mortgagees may bring actions to recover lands within twenty years after the last payment of principal or interest. It had been considered, that the twenty years mentioned in the 2nd and 3rd sections of the 3 & 4 Will. 4, c. 27, was to be reckoned from the date of the mortgage, as the time at which the right to recover the land had accrued.
The rules for the presumption of surrender, satisfaction, and reconvey- Rules of preance of legal estates between vendor and purchaser, are thus stated by sumption beSir John Leach, V. C.-" If the case be such, that, sitting before a jury,
y, and purchaser. it would be the duty of a judge to give a clear direction in favour of the
CONDITIONS AS possession of the vendor, was paid off and satisfied, and
that a proper reconveyance of the legal estate was made.
VII. That the purchasers shall presume the payment and satisfaction of several legacies, amounting in the whole to the sum of £- , which were charged by a will dated the day of — , and proved on the day of -- , and were thereby directed to be paid as soon as conveniently might be after the death of the testator, but for which no receipts or releases can now be produced.
VIII. That the property was by indentures of lease and release, dated respectively the — and — days of — , conveyed to the vendor by way of mortgage; but the purchaser shall accept a declaration by the vendor, that, for more than twenty years past, no interest has been paid on the said mortgage, nor the existence thereof in anywise recognised, nor any claim of redemption been made or admitted, as conclusive evidence that the mortgagor is barred by lapse of time from the right of redemption.
fact, (i. e. the presumption), then it is to be considered as without reasonable doubt; but if it would be the duty of a judge to leave it to the jury to pronounce upon the effect of the evidence, then it is to be considered as too doubtful to conclude a purchaser.” (Emery v. Grocock, 6 Mad. 54; see, too, Hillary v. Waller, 12 Ves. 239). It is not, however, very easy to say in what cases a jury would be directed to find in favour of a presumption; in the case of mortgages, payment and reconveyance will be presumed where the mortgage deeds are dated more than twenty years ago, and are in the vendor's possession; (Cooke v. Soltau, ubi supra); and of course the presumption of a reconveyance is strengthened, if a receipt for the mortgage money is indorsed on the deeds. (Ex parte Holman, 1 Sugd. V. & P. 509). If an estate is vested in trustees for a specific purpose, a reconveyance of the legal estate will be presumed after the expiration of twenty years from the time when the purpose was answered. (Hillary v. Waller, ubi supra, Doe d. Howell v. Lloyd, mentioned in Peake's Law of Evidence; Noel v. Bewley, 3 Sim. 103). But if the possession by the cestui que trusts has gone in the same channel it would have done if no conveyance by the trustees had been made, no presumption of conveyance will arise. (Goodright d. Sir R. Grosvenor v. Swymmer, 1 Kenyon, 385; Keene v. Deardon, 8 East, 248; Doe d. Miller v. Brightwen, 10 East, 583). No presumption, however, can in any case arise till after the expiration of twenty years; (Doe d. Brandon v. Calvert, 5 Taunt. 170); and if the case be that of an estate vested in a trustee, and the cestui que trust, choose to call for a reconveyance, the trustee cannot refuse to reconvey on the ground of a presumed previous reconveyance. (Goodson v. Ellison, 3 Russ. 583).
IX. That as the property is subject to a mortgage for conditions AS securing the principal sum of £ — , and interest at £— per cent. per annum, and legal notice has been given to the mortgagee of the intention to pay off the said principal sum if the mortgagee shall refuse to accept the said principal sum at or before the completion of the purchase, the purchaser shall take a conveyance subject to the said mortgage, and shall retain the sum of £— out of the purchase-money to answer the same, and shall pay the interest on the said principal sum of £- , from the date of the conveyance, all interest up to that day being paid by the vendor.
CONDITIONS as to APPORTIONMENT of RENT, CONDITIONS AS
on the Sale of the REVERSION of Property in
TO APPORTIONMENT OF
1. THAT, as the property comprised in lots — and , is let on lease to A. B., at an entire rent of £- per annum, the said rent shall be apportioned amongst the said lots in the following shares, (that is to say), the sum of £_ shall be the apportioned rent for lot — , the sum of £-- for lot — , &c., and such apportionment shall be accepted and deemed valid without the concurrence of the tenant (a).
(a) If the reversion of property which is let at an entire rent is in- Necessity of aptended to be sold in lots, or if the reversion of part only of such property portioning rent, is intended to be sold, the particulars or conditions of sale must state version, on a
incident to a rethe sums into which the entire rent is to be apportioned among the pur- sale of the re. chasers of the several lots, or among the purchasers and vendor, as the version in parts. case may be. It will be right, too, to add, (unless the tenant has previously assented to the apportionment), that such apportionment shall be accepted without the concurrence of the tenant, although it is tolerably clear that the statement of the intended apportionment precludes the purchaser from requiring such concurrence. (Walter v. Maunde, 1 Jac. & Walk. 181, 183). If, however, the statement in the particular is that “the apportioned rent for lot — is "there is ground to contend
II. Tliat, as the property intended to be sold is let on TIONMENT of lease to A. B., together with other property belonging to
that the purchaser may reasonably presume that the particular speaks of a rent already legally apportioned by a jury, or with the assent of the tenant, and may, when he finds the fact to be otherwise, refuse to complete the purchase. (Bliss v. Collins, 4 Madd. 229; S. C. 1 Jac. &
Walk. 426). Effect of appor. The tenant is not bound by any apportionment made without his consent, tionment on the
n the but may cause the rent to be apportioned anew by a jury. (Bliss v. Coltenant.
lins, 5 B. & Ald. 876; Bac. Abr. Rent. M. 3). If this should occur, and a jury should apportion the rent differently from the apportionment made in the particular, a question may arise whether, under the compensation condition, the contract can be enforced by either party on taking or giving a proper compensation, or whether the contract be wholly void, or whether it would be held binding, and be carried into effect by compelling the party, who under the new apportionment gained an increase of rent, to pay over the increase as received from time to time to the other party. Perhaps, the latter is the correct view of the case, especially if there be no compensation condition. But it is obvious that the consent of the tenant to the apportionment should, if possible, be obtained before the sale, and that when his consent has been obtained, it should be testified by his being a party to and executing the purchase deed; the additional expense may be matter of stipulation or of arrangement between the
vendor and purchaser. Powers and re- The assignee of the reversion of part of an estate in lease has some medies of an, but not all of the rights and remedies which belong to the assignee of the assignee of the reversion of
n of reversion of the entire estate. He has the power of distress; (2 Inst. 504; part of an es Vin. Abr. Apportionment; 1 Jac. & Walk. 188; 1 Mee. & Wels. 758); tate in lease,
or of bringing an action of debt or covenant for the rent, but yet so that, if the tenant have not consented to the apportionment, he can only recover such part of the rent as the jury shall, upon a just apportionment, find to be due. (Vin. Abr. Apportionment, E.; Bac. Abr. Rent, M.3; 2 Inst. 504). He can bring actions on the lessee's covenants; (Twynam v. Pickard, 2 B. & Ald. 105); and generally has all the rights and remedies given to grantees of reversions by the stat. 32 Hen. 8, c. 34, (Evans's Statutes; Co. Lit. 215), except the benefit of conditions in their nature entire and indivisible, as a condition of re-entry. (Co. Lit. 215. a.; Knight's
case, 5 Co. 55 b). his liabilities. On the other hand, such an assignee is liable to perform the lessor's
covenants, so far as relates to that part of the property, the reversion whereof he has purchased. (Palmer v. Edwards, I Doug. 186). All outgoings payable by the lessor must be paid by the owner of the reversion of that part of the property to which they are incident; and if there are any outgoings which are not incident to any particular part of the pro
the vendor, at an entire rent of £— per annum, the sum conditions AS of £_ shall be apportioned as the rent to be incident to TIONMENT OF the reversion of the property intended to be sold; and such_ apportionment shall be accepted and deemed valid without the concurrence of the tenant (6).
CONDITIONS as to INDEMNITY against RENT- CONDITIONS AS
THAT a perpetual rent-charge of £- per annum, which is payable out of the whole property offered for sale,
perty, (as premiums on a policy of fire insurance), special arrangements must be made with respect to the apportionment of such outgoings.
The destination of the counterpart of the lease must be provided for as in the case of other title deeds; if no special stipulation be made respecting it, the purchaser will not be compelled to complete, till it is deposited in the hands of a third person for the benefit of all parties. (Shore v. Collett, Coop. 234).
See further, on the subject of apportionment, Vin. Abr. Apport.; Bac. Abr. Rent, M.; and note (d) infra, page 83. A precedent of a deed for apportioning rent amongst reversioners will be found in a subsequent part of this work.
(6) See the preceding note.
(c) A pernicious custom exists in many parts of the country, of selling Origin of perproperty in fee simple subject to a perpetual ground rent or rent-charge, petual rent.
charges. secured with powers of distress and entry. Such rent-charges are also occasionally created for charitable and other purposes; and, of course, they cannot be apportioned without the consent of the persons to whom they are payable ; a consent, which it is almost impossible to obtain in ordinary cases, because, to give it, would diminish the security for the payment.
Such rent-charges cannot be recovered in an action of debt, unless all Powers and rethe pernors of the profits of the land liable are made defendants; (Duppa medies incident
to rent-charges. v. Mayo, 4 Saund. 282); but, under the usual powers of distress and entry, the whole rent-charge may be levied upon any part of the property. Hence, when the property is sold in lots, great difficulty arises in effec- On a sale of the tually apportioning the whole rent-charge amongst the several purchasers, land, the whole so as to protect each one from being compelled to pay the whole. If the
le charged in one rent-charge be of small amount in comparison with the value of the pro- lot-in what perty, this is usually effected by stipulating, that, as between the several case, and how ?