« EelmineJätka »
performed the conditions specified in sects. 1 and 2 of the said Act and defendant retained the piano. On appeal from the County Court in an action for illegal distress it was held that the words "hire-purchase agreement meant hire-purchase agreement to which the tenant was a party, and that therefore the piano was not comprised in any hire-purchase agreement within the Amendment Act, and on the facts that there was no evidence that the piano was in the possession, order, or disposition of the tenant by the consent and permission of the plaintiff under such circumstances that the tenant was the reputed owner; consequently the piano was not within the exception made by sect. 4 to the protection claimed by sects. 1 and 2, and that the defendant was. liable. I do not find that any case has been decided under the said Act where the goods in question were household furniture, pure and simple, of which the husband and wife were having the joint use, and the court might differentiate between such a case and the hire of the piano for the wife's use. If all these hirepurchase agreements entered into with the wife are governed by the case of Shenstone v. Freeman, landlords are placed in a very unenviable position, and it seems to me that unscrupulous persons need not pay rent at all, as the husband has only to take a house or flat in his name and the wife furnish it under a hire purchase agreement in her name and when the landlord applies for his rent the wife has only to give notice to the furnishing company and they come along with their declaration. A tenant who sub-lets apartments to a lodger would be in the same position as regards the lodger's rent. In view of these decisions I have advised that where any such questions are possible the agreements for tenancy should be made with the husband and wife jointly. I must apologise for the length of this letter but it seems a matter of vital importance to landlords, and a test case, if taken to the Court of Appeal, should be successful. ALFRED ALLISTONE.
Mr. PHILIP FREDERICK GARNETT, solicitor, who many years ago was well known in Liverpool legal and official circles died at his residence, South Bank, Cressington, on the 17th inst, aged ninety-two. Mr. Garnett was a son of Mr. Abraham Garnett, a West India proprietor, and was born in St. Michael's Hamlet. He was admitted in 1844, and was at the time of his death senior partner in the firm of Messrs. Garnett, Tarbet, and Co., North John-street. The esteem in which Mr. Garnett was held in legal circles was evidenced by his election to the presidency of the Liverpool Law Society. After having served for some time as a clerk to the city magistrates, he occupied the position of clerk to the now defunct Garston Local Board, and clerk to the Commissioners of Taxes, and solicitor to the Royal Insurance Company. Mr. Garnett became one of the clerks to the city magistrates in 1852, serving dur ng the period that Mr. T. S. Mansfield and Mr. T. S. Raffles acted as stipendiary magistrates. He retired in March 1862, to accept the offer of a partnership with Mr. J. Buck-Lloyd, who was Mayor of Liverpool in 1853-4. Under the style of Messrs. Lloyd and Garnett the firm existed for some time. Mr. Tarbet subsequently joined, and eventually the firm became Garnett, Tarbet, and Co., as it is to-day. In 1869 Mr. Garnett was a member of the Law Society, of the Solicitors' Benevolent Association, and of the Liverpool Law Society.
Mr. ARTHUR EDWARD SPARLING, solicitor, of the firm of Sparling and Sons, Colchester, died on the 19th inst., aged thirtyfive. Mr. Sparling was a son of the Rev Philip William Sparling, of Holme Rectory, Downham Market, and was admitted in 1904. Soon after the outbreak of the war be received a commission in the 8th Essex (Cyclists) Corps. Death resulted from pneumonia, the result of a chill. Mr. Sparling was a member of the Law Society.
Mr. REGINALD HADDOCK HORROCKS, solicitor, Radcliffe, died recently from pneumonia. Mr. Horrocks was the oldest member of the Legal Profession in Radcliffe, having been admitted in 1878.
THE BANKRUPTCY ACT 1914.
GAZETTE, FEB. 19.
To surrender at the High Court of Justice, in Bankruptcy.
HOOKE, FRANK, Junction-rd. Upper Holloway, baker. Feb. 15.
SANDGROUND, MAURICE, Wardour-st. Feb. 11.
WILLE, PAUL EDMUND, late Broadstairs, boarding-house keeper. Feb. 15. To surrender at their respective District Courts. ADAMSON, CLAUDE ALGERNON, Bridlington, motor engineer. Ct. Scarborough. Feb. 17. BISHOP, HORACE ALFRED, Lowestoft, general shopkeeper. Ct. Great Yarmouth. Feb. 15.
BROWN, ERNEST CLEMENCE, Coggeshall, seed grower. Ct. Chelmsford.
CLARKE, PERCY, Leicester, bootmaker. Ct. Leicester. Feb. 15.
HARRISON, SAMUEL WILLIAM, Birmingham, contractor. Ct. Birmingham.
HUTCHINSON, ROBERT ARTHUR, Wigan, confectioner. Ct. Wigan. Feb. 17.
JACKMAN, ALFRED BUTTERWORTH, Manchester, bookbinder. Ct. Man-
REYNOLDS, FLORENCE JANE (late trading as T. H. Summerton), Birmingham. In the Court of Appeal, on appeal from the Birmingham County Court. Nov. 12.
SCHOLEFIELD, J. E.; BOTTOMLEY, F.; and BOTTOMLEY, H. (trading as Joseph Scholefield), Bradford, timber merchants. Ct. Bradford. Feb. 17.
SURRIDGE, ERNEST E., Coggeshall, solicitor. Ct. Chelmsford. Feb. 17. SHAW, HIRAM, Sheffield, fruiterer. Ct. Sheffield. Feb. 16.
Amended notice substituted for that published in Gazette, Feb. 12. BLAKE, ARTHUR JOHN FRANCIS (described in the receiving order as A. Blake), Barking, builders' merchant. Ct. Chelmsford. Feb. 10.
GAZETTE, FEB. 23.
To surrender at the High Court of Justice, in Bankruptcy. GAMMAGE, FRANK WILLIAM, late Great Winchester-st, director of a limited liability company. Feb. 19.
GODWIN, JAMES HERBERT, Grand-av, Leadenhall Market, meat salesman.
HILL, FREDERICK WILLIAM, Mincing-la, solicitor. Feb. 18.
PEART, JOSEPH FREDERICK, Biddulph-mansions, Elgin-av, Maida Vale,
To surrender at their respective District Courts. BETHELL, JOHN HAMPSON, late Heaton Norris, wine merchant. Ct. Stockport. Feb. 18. BATTERSBY, WILLIAM, Sheffield, wholesale milk contractor. Ct. Sheffield. Feb. 19.
BATTY, HERBERT, Harlthorpe, farm foreman. Ct. Kingston-upon-Hull.
BRADLEY, CHARLES CECIL (in the petition called Charles Bradley), North Tamerton. Ct. Barnstaple. Feb. 18.
COOKE, HENRY WILLIAM, Lowestoft, blacksmith. Ct. Great Yarmouth.
DOWSE, WILLIAM, Skegness, china dealer. Ct. Boston. Feb. 19.
HARDMAN, ALFRED, Ashton-under-Lyne, wholesale fruiterer. Ct. Ashtonunder-Lyne. Feb. 18.
HUNT, WILLIAM FREDERICK, Woodhouse Faves, licensed victualler.
HYETT, WILLIAM, Highnam, baker. Ct. Cloucester. Feb. 20.
JONES, JOHN THOMAS, Clydach-on-Tawe, grocer. Ct. Neath and Aber
JUKES, CLAUDE WILLIAM, Tipton, public works contractor. Ct. Dudley. Feb. 18.
LATHAM, HENRY, Blackrod, plasterer. Ct. Bolton. Feb. 17.
MILLER, HENRY WILLIAM, late Ipswich, solicitor. Ct. Bury St. Edmunds. Feb. 18.
MATTINSON, STRETHILL LANSDALE KINSEY, Sale, insurance surveyor. Manchester. Feb. 18.
PLATT, JOHN THOMAS, Portsmouth, newsagent. Ct. Portsmouth. Feb. 19.
Amended notice substituted for that published in Gazette, Feb. 16. MUIR, JOHN (trading Ct. as Muirs), Middlesbrough, cycle factor. Middlesbrough. Feb. 12.
GAZETTE, FEB. 19.
BISHOP, HORACE ALFRED, Lowestoft, general shopkeeper. Ct. Great Yar-
NARINSKY, ISRAEL, late New Inn-broadway. New Inn-yd, Curtain-rd, cabinet maker. Ct. High Court. Feb. 15.
NEWMAN, JOSEPH CHARLES (trading as J. C. Newman and Co.), Tottenham. coal merchant. Ct. Edmonton. Feb. 17.
NIXON, HAROLD ERNEST GWYNNE, Cosby, clothier. Ct. Leicester. Feb. 16. PAIN, ELI JOSEPH, jun., Birmingham, painter. Ct. Birmingham. SHAW, HIRAM, Sheffield, fruiterer. Ct. Sheffield. Feb. 16. THOMAS, GLYN, Swansea, accountant. Ct. Swansea. Feb. 16. WILLE, EDMUND PAUL (described in the receiving order and commonly known as Paul Edmund Wille), late Broadstairs, boarding-house keeper. Ct. High Court. Feb. 17.
Amended notice substituted for that published in Gazette, Feb. 12. BATES, ALFRED CHARLES COSHER (trading as Alfred Bates and Co.), Fleetst, advertising agent. Ct. High Court. Feb. 10.
GAZETTE, FEB. 23.
ADAMSON, CLAUDE ALGERNON, Bridlington, motor engineer. Ct. Scarborough, Feb. 20.
BATTY, HERBERT, Harlthorpe, farm foreman. Ct. Kingston-upon-Hull.
CHATTERTON, HORACE WHITEHEAD, Blomfield-st, solicitor. Ct. High Court.
COOKE, HENRY WILLIAM, Lowestoft, blacksmith. Ct. Great Yarmouth.
DowSE, WILLIAM, Skegness, china dealer. Ct. Boston. Feb. 19.
HERMAN, HYMAN, late Acton-st, Kingsland-rd, cabinet manufacturer. Ct.
HARDMAN, ALFRED, Ashton-under-Lyne, wholesale fruiterer. Ct. Ashtonunder-Lyne and Stalybridge. Feb. 18.
HEALEY, ELLEN, Leicester, furniture dealer.
Ct. Leicester. Feb. 20.
HUNT, WILLIAM FREDERICK, Woodhouse Eaves, licensed victualler. Ct. Leicester. Feb. 19.
HARDY, ANNIE MARIA (trading as Mrs. J. Hardy, described in the receiving order as Annie Hardy), Ashborne. Ct. Burton-on-Trent Feb. 17.
HARPER, HORACE, late Southend-on-Sea, butcher. Ct. Chelmsford. Feb. 19. HYETT, WILLIAM, Highnam, baker. Ct. Cloucester. Feb. 20.
JUKES, CLAUDE WILLIAM, Tipton, public works contractor. Ct. Dudley. Feb. 18.
JONES, JOHN THOMAS, Clydach-on-Tawe, grocer. Ct. Neath and Aberavon. Feb. 18.
LATHAM, HENRY, Blackrod, plasterer Ct. Bolton. Feb. 18.
Ct. Bury St. Edmunds.
MATTINSON, STRETHILL LANSDALE KINSEY, Sale, insurance surveyor.
PUNCHARD, ERNEST, Thames Ditton. Ct. Kingston, Surrey. Feb. 19.
PLATT, JOHN THOMAS, Portsmouth, newsagent. Ct. Portsmouth. Feb. 19. RUTHERFORD, WILLIAM FRANCIS (trading under the style or firm of W. F. Rutherford and Co.), Louth, coal merchant. Ct. Kingston-upon-Hull Feb. 19.
ROSKILLY, THOMAS (trading as W. Roskilly and Son), St. Keverne, grocer. Ct. Truro. Feb. 20. SMITH, HARRY WILLIAMS (described in the receiving order as Harry William Smith), Cannon-st, insurance broker. Ct. High Court. Feb. 20. SCHOLEFIELD, JOSEPH EDWARD; BOTTOMLEY, FRED SCHOLEFIELD (described in the receiving order as F. Bottomley); and BOTTOMLEY, HARRY SCHOLEFIELD (described in the receiving order as H. Bottomley) (trading as Joseph Scholefield), Bradford, timber merchants. Ct. Bradford. Feb. 19. WEBB, CHARLES, late Pontardulais, labourer Ct. Swansea. Feb. 20.
ORDER ANNULLING AND RESCINDING ORDER.
WING, CHRISTOPHER HENRY, Liphook, auctioneer. Ct. Fortsmouth.
[Feb. 27, 1915.
CHARCES MODERATE AND INCLUSIVE.
OFFICES 14, BELL YARD, TEMPLE BAR, W.C.
Tel. Nos., CENTRAL 6150 and HOLBORN 900.
City 11. POULTRY (Tel. No., CENTRAL 8151).
CLARKE On the 15th inst.. at Roydon, Parkstone, Dorset, the wife of William Edward Clarke, Barrister-at-law.
FULTON. On the 23rd inst., at a nursing home in London, David Fulton, Barrister-at-law, Temple, eldest son Rev. John Fulton, Garvald, Haddingtonshire.
LE RICHE. On the 13th inst., Ebenezer Le Riche, of Plowden-bldgs. Temple, Barrister-at-law.
TOMBS. On the 15th inst.. at Fishguard, William Thomas Symonds Tombs, Solicitor, aged 52.
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Vol. 138.-No. 3753
Courts-martial in War Time.
THE general public will undoubtedly appreciate the action of the Admiralty in not holding courts-martial at the present time in the case of officers who are superseded or who lose a ship, save where in their unfettered discretion it is thought desirable to do so. Courts of this description to be of the slightest value to the accused must be held with open doors, for a trial in camera is worse than no trial at all. No doubt, when peace is again declared, any officer who desires it will be given the fullest opportunity of justifying himself before a court composed of his professional brethren, but the exercise by the Admiralty of their powers of removal or supersession during war must be absolute, in the same way as obtains in the other branch of the service.
Ambiguity of Taxing Statutes.
THE judgments delivered this week by five judges in the case of London County Council v. Perry again brings into prominence the difficulty that exists with regard to various statutes that impose the duty of taking out establishment licences. In the case in question, the point was whether a man employed to drive a motorcar belonging to a firm of upholsterers for business purposes was a taxable male servant, and we entirely agree with Mr. Justice DARLING that it is little creditable to the Legislature that a taxing statute which every taxpayer ought to be able to understand should be in such a state, owing to legislation by reference and to its ambiguity, that five judges could not come to a conclusion about it. Equal difficulties have arisen on the exemption from carriage licences in the case of a waggon or cart constructed or adapted for use and used solely for the
conveyance of goods or burden in the course of trade or husbandry," and on all these questions the decided cases are almost impossible to reconcile. When these taxes were levied by the Revenue authorities, a general policy ruled throughout the country, and a broader view was taken than now obtains with the various county councils. It would be perfectly simple for the Legislature to clear away all doubts, taxing men and vehicles when used for "luxury or dignity," and freeing the subject from taxation when they are used for trade or business. And this should be done without delay.
carried from America to Germany in the Wilhelmina, and the case will be tried in due course.
Germany has sent a reply to informal American suggestions for a basis of compromise between the belligerents as to their procedure affecting neutral trade. The German reply, however, is only tentative pending the British answer. The American suggestions are stated to be still under consideration in London.
As might have been expected, Mr. Asquith's announcement has given rise to comment and criticism. The application of old principles to new circumstances opens the door for much discussion, but action will probably soon resolve some of the prevailing doubts.
THE United States," said Viscount Bryce the other day in discussing America's attitude in the war, is the greatest of neutral Powers." Although the vast majority of the American people blame the German Government for the outbreak of strife, the American Government has, Viscount Bryce pointed out, necessarily declared itself absolutely neutral-neutral in letter and in spirit. The United States has always endeavoured to keep itself clear of entanglements in Old World diplomacy. In the present war questions of international law and usage have arisen between the United States and the belligerents on both sides, and, in warfare of such unprecedented magnitude, the path of neutrality is excessively difficult. Even America feels it necessary to be prepared, and is taking steps to organise a large body of men who have had military training so that they may be in readiness in case of emergency, but so far no departure from neutrality is foreshadowed.
America, as well as Holland and the Scandinavian countries, will be seriously affected by the measures which the allies have taken against Germany, but neutrals have no ground for saying that any steps are being taken by us in excess of international rights. In making his statement in Parliament on Monday, Mr. Asquith said that if, as a consequence of our action, neutrals suffer inconvenience and loss of trade, we regret it, but we beg them to remember that this phase of the war was not initiated by us. We do not propose either to assassinate their seamen or to destroy their goods. Although Mr. Asquith advisedly abstained from making use of the words "blockade," "contraband," and other technical terms of international law, he made it clear that our action will be in accord with international law 80 far as neutrals are concerned. The measures to be taken will be enforced without risk to neutral ships or to neutral or non-combatant lives, and with strict observance of the dictates of humanity. The allied Governments will hold themselves free to detain and take into port ships carrying goods of presumed enemy destination, ownership, or origin. Due notification is given, and ships which sailed before the declaration will not be affected. Germany has not declared and cannot declare an effective blockade, but we have done so in self-defence. We suffered inconvenience from similar action during the American Civil War. The American Government then declared that, however much it regretted the inconvenience, it could not relinquish any of its belligerent rights in favour of trade with the territory with which it was at war. The position is now reversed, but the United States must still recognise the same rule. Mr. Asquith spoke in a tone of high and impressive seriousness. Germany has placed itself outside the law. The Premier, brushing technicalities aside, appeals to fundamental principles which are above the law. "We shall carefully avoid," he declared, "any measure which would violate the rules either of humanity or of honesty." However much their material interests may be affected, neutrals cannot complain.
The Dacia, the steamship transferred from German to American ownership, has been captured by the French and taken nto the naval harbour at Brest. Little doubt is entertained that a decree of condemnation will be pronounced by the French Prize Court. Meanwhile a writ has been issued in the English Prize Court with reference to the cargo of foodstuffs which was being
SALES OF LAND FREE FROM INCUMBRANCES. LIKE many other terms in common use, it is easier to use the phrase "free from incumbrances" than to explain its meaning. An incumbrance has been said to be a liability attaching to the land. It is abundantly clear that this is a faulty definition, and a pernicious one too, for it is one of those statements which from one point of view appears to be accurate, while from another point of view it is obviously wrong. Half a truth is more dangerous than a complete terminological inexactitude.
We propose in this article to consider the nature of the liabilities which fall within the meaning of the word "incumbrances." We shall also deal with the general rights of vendors and purchasers in respect of the clearance of these liabilities off the land. We shall point out the facilities afforded by the Legislature by the Conveyancing Act of 1881 for ridding land of incumbrances, and incidentally we shall draw the reader's attention to the significance of the recent case before Mr. Justice Sargant-Re Wilberforce's Trust; Wilberforce v. Wilberforce (111 L. T. Rep. 797; (1915) 1 Ch. 94)-where the learned judge had to decide what his Lordship described as a very difficult and important question on the effect of those statutory provisions.
In the first place let us grapple with the definition of the term "incumbrance," where lands are agreed to be sold free from incumbrances. An incumbrance is, no doubt, a liability attaching to land. No owner may rightfully use his land in such a manner as to cause a nuisance to his neighbour. That is an inherent liability-namely, to avoid causing a wrong. But this liability is clearly no "incumbrance." It is a general inherent liability. It attaches by common right. It would not necessarily be a logical deduction from this that an incumbrance is a liability attaching to land against common right. Nor would that appear to be an accurate statement; for although no incumbrance, according to the usually accepted meaning of that word, can be said to attach by common right, the converse does not hold good. It cannot be said that no form of liability attaching to land by common right can be found ever to have been described in our courts as an incumbrance. On the contrary, ancient quit rents are liabilities attaching by common right under the old manorial system, yet they are usually treated as falling within the term "incumbrance."
The test whether a liability amounts to an incumbrance or not would appear to depend on the question of notoriety. If it is a notorious matter that a form of liability attaches to land, then it is not to be regarded as an incumbrance. At any rate, this would appear to be the ground for excluding both tithe and land tax from the category of incumbrances. Land tax was imposed by statute on all land in the country. Therefore when a vendor sells land free from incumbrances the purchaser must take it that he is not to expect the land freed from all liability in respect of this universal statutory charge. Again, tithe attaching as of common right, the vendor is not to expect to get the land free of this liability either. It is open, of course, to a vendor to contract to sell the land free from either of these liabilities, but that is quite a different matter.
Now, is an easement an incumbrance? In one sense it is, for on an open contract the purchaser can object to an easement and refuse to complete. Thus, in the case of Heywood v. Mallalieu (49 L. T. Rep. 658; 25 Ch. Div. 357) it came to the purchaser's knowledge prior to completion that there was an
adverse right, claimed and used by neighbours, entitling them to wash and dry their clothes in the kitchen. It must be admitted that this was hardly compatible with the future enjoyment of the house by the purchaser. The right here was an easement, or, at any rate, a claim to an easement, which, although it had not been upheld by the court, was of such a nature as to induce Vice-Chancellor Bacon to refuse to grant a decree of specific performance of the contract to buy the house. The case is remarkable in this, that the question of the adverse right lay, if we may use the expression, in rumour. The vendor had, apparently, heard of the adverse claim, but treated it with some contempt. The purchaser, however, also heard of it, but he treated the matter in quite a different way. He refused to buy, and the court refused to force him to complete. "When a man,” said the learned Vice-Chancellor, "who is going to buy a house and finds out there are some claims upon it, seeking to know what they are, is told, 'Oh, you may dismiss the subject from your mind, nobody will ever hear of the claims again,' I cannot say that a decree for specific performance ought to be made. against him."
A more recent case before Mr. Justice Warrington shows clearly that the existence of a negative easement is an objection to a title under an open contract. In this case-Pemsel v. Tucker (97 L. T. Rep. 86; (1907) 2 Ch. 191)—a perusal of the abstract disclosed the existence of an agreement made some ten years previously whereby the vendor agreed with a neighbour not to do anything to prejudice the right to light to the windows of that neighbour's adjoining premises. This agreement apparently was not under seal and so would not have amounted to a grant of a true legal negative easement. But the purchaser had notice of it, and could not therefore escape the consequences. He took an objection to the title on these grounds, and the learned judge held that the vendor had not made a good title to the property. After stating that the purchaser's objection was that the vendor could not make a title such as he was bound to make under an open contract, because he had by the documents of title which he had produced shown that he and the purchasers from him with notice would be under an obligation to the adjoining owner not to do anything which would interfere with or prejudicially affect the windows of the adjoining house, his Lordship gave it as his opinion that that was a good objection. "I do not see how he can get over that objection," said the learned judge, unless I were to hold, as, of course, we know it is impossible to hold, that a vendor makes a good title on an open contract where it appears that the property is subject to some restrictive stipulation, something which would entitle a third person to interfere with the free use which the purchaser may choose to make of the property which is the subject-matter of the contract."
We have set out the words of Mr. Justice Warrington at some length, for they show the true principle why the existence of easements, positive as well as negative, prevents the purchaser from making a good title. There is an adverse interference with the future use of the property. It appears to us that there is little or no difference in this respect between a positive, or, as they are sometimes called, affirmative easements, and negative easement. A positive or affirmative easement, such as a right of way, is just as restrictive of user of the land over which the way exists as a negative easement imposed on that land. True, the measure of the burden may be greater in the case of a negative easement such as a right to light. In that case the owner of the land cannot build so as to obstruct the windows of
the adjoining owner. This probably will be a heavier burden on the servient owner than in the case of a right of way over that tenement. But in the case of a right of way, the servient owner cannot interfere with the enjoyment of the way, and consequently it may with accuracy be said that the existence of the way is restrictive of the servient owner's user of his own land. In passing, we may observe that this view appears to have been taken by the Legislature, at any rate as regards sect. 11 of the Conveyancing Act 1911.
Easements, indeed, appear to stand on precisely the same footing as regards the question of incumbrances as do restrictive covenants. The existence of restrictive covenants is an objection to the title on an open contract or on a contract which does not
bind the purchaser to buy subject to the covenants. tive covenants are not usually spoken of as incumbrances. Therefore it would appear that, according to the usual acceptation of the phrase, neither an easement nor a restrictive covenant affecting the land is an incumbrance.
Again, a subsisting lease is an objection to a title if the vendor has contracted to give vacant possession, as is shown by such a case as Caballero v. Hentz (30 L. T. Rep. 314; L. Rep. 9 Ch. 447) In that case the vendor agreed to sell a freehold public-house as the same was then in the occupation of a particular named person. In the conditions of sale it was stated that the property was sold subject to the several "tenancies" then existing. The purchaser assumed that this meant that the property was held on the usual yearly tenancy. In point of fact it transpired that the tenant held under a lease for twenty-one years, and the purchaser refused to complete. Lords Justices James and Mellish held that this was an objection to the title not covered by the conditions of sale, and they refused to enforce specific performance.
As every conveyancer knows, it is a common thing to find that the land is in mortgage when the abstract is delivered. The vendor, unless, of course, he is merely selling the equity of redemption, must have the mortgage reconveyed or the land released by the mortgagee. The existence of a mortgage at the time of the contract for sale which the mortgagor can redeem is no objection to the title. The mortgagor can redeem and call upon the mortgagee to reconvey. If, however, the mortgagor for some reason cannot call upon the mortgagee to reconvey, the objection is fatal. Vice-Chancellor Leach in Esdaile V Stephenson (1822, 6 Madd. 366) laid it down that where a necessary party to the title was neither in law nor equity under the control of the vendor, but had an independent interest, unless some legal or equitable obligation on the part of that stranger was shown, the court would not treat the title as good; but, on the other hand, where it could be shown, as in the case of a mortgagee, that the mortgagee was under an obligation to join in the sale, there the court would hold that on payment of the mortgage debt a good title could be shown. It is clear that no objection could be taken by the purchaser in such a case that the mortgagee would be entitled to the usual six months' notice before payment off of the mortgage, for a mortgagee cannot refuse to take the mortgage money and interest for the six months in lieu of notice if tendered to him. Referring to the practice of paying six months' interest to the mortgagee in lieu of notice, Lord Esher, when Master of the Rolls, in the case of Johnson v. Evans (1889) W. N. 95) remarked: The practice is not disputed, and I take it to be the inveterate practice that a mortgagor must either give six months' notice of his intention to pay off the mortgage money or pay six months' interest in advance in lieu of notice. It is said, however, that there is no judicial authority that this is a good practice; but, as I said during the argument, there shall be one very soon, because I now say that, in my opinion, it is an exceedingly good practice and a practice that ought to be maintained. '
Now we shall turn to the statutory use of the word "incumbrance." In the Conveyancing Act 1881 the word "incumbrance" is defined (sect. 2 (vii.) as including a mortgage in fee or for a less estate and a trust for securing money, and a lien, and a charge of a portion, annuity, or other capital or annual sum. The term "incumbrance is freely used throughout the Land Transfer Acts, and, judging by the provisions of those statutes, it is used in the meaning we have ascribed to it above-namely, as including mortgages and charges. The Land Transfer Act of 1875 (sect. 18) set out a large category of liabilities, rights, and interests which were thereby declared not to be deemed to be incumbrances within the meaning of that Act. These liabilities, thus excluded from the meaning of the word "incumbrance" in