« EelmineJätka »
Of Real Estates.
Class I. Miscellaneous Statutes concerning Real Estates.
MISCELLANEOUS STATUTES. (No. I.) 1 W. IV.c.46.—An act to alter and amend the Law
relating to Illusory Appointments. [16th July 1830.] WHEREAS, by deeds, wills, and other instruments, powers are fre
quently given to appoint real and personal property amongst several objects, in such manner that none of the objects can be excluded by the donee of the power from a share of such property : and whereas appointments in exercise of such powers, whereby an unsubstantial, illusory, or nominal share of the property affected thereby is appointed to or left unappointed to devolve upon any one or more of the objects thereof, are invalid in equity, although the like appointments are good and binding at law: and whereas considerable inconvenience hath arisen from the rule of equity relative to such appointments, and it is expedient that such appointments should be as valid in equity as at law: be it therefore enacted, &c. That no appointment, which from and Illusory apafter the passing of this act, shall be made in exercise of any power or pointments authority to appoint any property, real or personal, amongst several shall be valid objects, shall be invalid or impeached in equity, on the ground that
in equity as
well as at law. an unsubstantial, illusory, or nominal share only shall be thereby appointed to or left unappointed to devolve upon any one or more of the objects of such power; but that every such appointment shall be valid
No. I. and effectual in equity as well as at law, notwithstanding that any one 1 W. 4, c. 46. or more of the objects shall not thereunder, or in default of such ap
pointment, take more than an unsubstantial, illusory, or nominal share
of the property subjected to such power. Not to affect II. Provided always, and be it further enacted, that nothing in this any deed which act contained shall prejudice or affect any provision in any deed, will, declares the or other instrument creating any such power as aforesaid, which shall amount of the declare the amount of the share or shares from which no object of the share;
power shall be excluded. nor to give any
III. Provided also, and be it further enacted and declared, that
share of the property affected by the power had been thereby ap-
[No. II.] 1W. IV. c. 47.-An Act for consolidating and
amending the Laws for facilitating the Payment of Debts
[16th July 1830.]
6 & 7 W. 3, c. 14, 4 Ann. c. 5, (I.) 47 G. 3, c. 74.] And whereas it is expedient that the provisions of the said recited acts should be enlarged, and that the said recited acts should be repealed, in order that all the provisions relating to this matter should be consolidated in one act; be it therefore enacted by the king's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal,
and commons, in this present parliament assembled, and by the Recited acts authority of the same, that the said several recited acts shall be and the repealed. same are hereby repealed, but so as not to affect any of the provisions
and remedies of the said acts, or any of them, to the benefit of which
sons who died before the passing of this act.
contrivance of any debtors their creditors should be defrauded of their mitted on cre- just debts, and nevertheless it hath often so happened, that where ditors by wills. several persons having by bonds, covenants, or other specialties bound
themselves and their heirs, and have afterwards died seised in fee
(1) See the 3 & 4 W. 4. c. 104. post.
or persons making any such wills or testaments, limitations, dispo- No. II. sitions, or appointments shall have entered into any bond, covenant, or 1 W. 4, c. 47. other specialty binding his, her, or their heirs,) to be fraudulent, and clearly, absolutely, and utterly void, frustrate, and of none effect; any pretence, colour, feigned or presumed consideration, or any other matter or thing to the contrary notwithstanding.
III. And, for the means that such creditors may be enabled to Enabling crerecover upon such bonds, covenants, and other specialties, be it further ditors to recoenacted, That in the cases before mentioned every such creditor shall ver upon
bonds, &c. and may have and maintain his, her, and their action and actions of debt or covenant upon the said bonds, covenants, and specialties against the heir and heirs at law of such obligor or obligors, covenantor or covenantors, and such devisee and devisees, or the devisee or devisees of such first-mentioned devisee or devisees jointly, by virtue of this act; and such devisee and devisees shall be liable and chargeable for a false plea by him or them pleaded, in the same manner as any heir should have been for any false plea by him pleaded, or for not confessing the lands or tenements to him descended.
IV. That if in any case there shall not be any heir at law against If there is no whom, jointly with the devisee or devisees, a remedy is hereby given, heir at law acin every such case every creditor to whom by this act relief is so given
be shall and may have and maintain his, her, and their action and actions
maintained of debt or covenant, as the case may be, against such devisee or
devisee. devisees solely: and such devisee or devisees shall be liable for false plea as aforesaid.
V. Provided always, That where there hath been or shall be any Not to affect limitation or appointment, devise or disposition, of or concerning any limitations for manors, messuages, lands, tenements, or hereditaments, for the raising just debts, or or payment of any real and just debt or debts, or any portion or portions, portions for sum or sums of money, for any child or children of any person, ac
children. cording to or in pursuance of any marriage contract or agreement in writing, bona fide made before such marriage, the same and every of them shall be in full force, and the same manors, messuages, lands, tenements, and hereditaments shall and may be holden and enjoyed by every such person or persons, his, her, and their heirs, executors, administrators and assigns, for whom the said limitation, appointment, devise, or disposition was made, and by his, her, and their trustee or trustees, his, her, and their heirs, executors, administrators, and assigns, for such estate or interest as shall be so limited or appointed, devised or disposed, until such debt or debts, portion or portions, shall be raised, paid, and satisfied, any thing in this act contained to the contrary notwithstanding.
VI. That in all cases where any heir at law shall be liable to pay the Heir at law to debts or perform the covenants of his ancestors, in regard of any lands, be answerable tenements, or hereditaments descended to him, and shall sell, alien, or for debts, almake over the same, before any action brought or process sued out though he may against him, such heir at law shall be answerable for such debt or debts, sell estate beor covenants, in an action or actions of debt or covenant, to the value
fore action of the said lands so by him sold, aliened, or made over, in which cases
brought. all creditors shall be preferred as in actions against executors and admi. nistrators; and such execution shall be taken out upon any judgment or judgments so obtained against such heir, to the value of the said land, as if the same were his own proper debt or debts; saving that the lands, tenements, and hereditaments, bona fide, aliened before the action brought, shall not be liable to such execution.
VII. Provided always, That where any action of debt or covenant Where an acupon any specialty is brought against the heir, he may plead riens per
tion of debt is descent at the time of the original writ brought or the bill filed against
brought against him, any thing herein contained to the contrary notwithstanding; and
the heir, he the plaintiff in such action may reply that he had lands, tenements, or
riens hereditaments from his ancestor before the original writ brought or bill
descent. filed; and if, upon the issue joined thereupon, it be found for the
plaintiff, the jury shall inquire of the value of the lands, tenements, or 1 W. 4, c. 47. hereditaments so descended, and thereupon judgment shall be given
and execution shall be awarded as aforesaid ; but if judgment be given
or hereditaments so descended. Devisees to be
VIII. Provided always, That all and every the devisee and devisees liable the same made liable by this act, shall be liable and chargeable in the same as heirs at law.
manner as the heir at law by force of this act, notwithstanding the
aliened before the action brought. Traders'estates
IX. That from and after the passing of this act, where any person
to any estate or interest in lands, tenements, or hereditaments, or other
to at the suit of creditors by specialty in which the heirs were bound : Creditors by Provided always, That in the administration of assets by courts of specialty to be equity, under and by virtue of this provision, all creditors by specialty, paid first.
in which the heirs are bound, shall be paid the full amount of the debts
age of twenty-one years, either alone or together with any other person
to law, the parol did not demur.
or liable, and such court of equity shall decree the estates liable to such
(1) An application in a creditor's suit under the statute for an infant heir or devisee to convey must be made by petition and not by motion. Anon, 1 Young and Collyer, 75.
XII. That where any lands, tenements, or hereditaments hath been No. III. or shall be devised in settlement by any person or persons whose estate 1 W. 4, c. 47. under this act, or by law, or by his or their will or wills, shall be liable to the payment of any of his or their debts, and by such devise shall be Persons having vested in any person or persons for life or other' limited interest, with a life interest any remainder, limitation, or gift over, which may not be vested, or may may convey the be vested in some person or persons from whom a conveyance or other fee, if the estate assurance of the same cannot be obtained, or by way of executory is ordered to be devise, and a decree shall be made for the sale thereof for the payment of such debts or any of them, it shall be lawful for the court by whom such decree shall be made to direct any such tenant for life, or other person having a limited interest, or the first executory devisee thereof, to convey, release, assign, surrender, or otherwise assure the fee simple or other the whole interest or interests so to be sold to the purchaser or purchasers, or in such manner as the said court shall think proper; and every such conveyance, release, surrender, assignment, or other assurance shall be as effectual as if the person who shall make and execute the same were seised or possessed of the fee simple or other whole estate so to be sold.
XIII. That nothing in this act shall extend or be deemed or con- Not to repeal strued to extend to repeal or alter an act made by the parliament of act 33 G. 1, Ireland, in the thirty-third year of the reign of king George the First, (1.) relating to intituled An Act for the better securing the Payment of Bankers' Notes, debts due to
bankers. and for providing a more effectual Remedy for the Security and Payment of the Debts due by Bankers.
[No. III.] 1 W. IV. c. 60.-An Act for amending the
Laws respecting Conveyances and Transfers of Estates and
[23rd July 1830.] WHEREAS, &c. [Recites the titles of the 6 G. 4, c. 74, 2 G. 1, (I.),
5 G. 2, (I.), 7 G. 4, c. 43]: And whereas it is expedient that the provisions of the said acts should be consolidated and enlarged: be it therefore enacted, &c. that the said recited acts shall be and the same are Recited acts rehereby repealed, except so far as the same relate to stock belonging pealed, except beneficially to infants or lunatics, and also except as to such proceed- as herein menings of any description, under the same acts respectively, as shall have tioned. been commenced before the passing of this act, and which may be proceeded in according to the provisions of the said recited acts respectively, or according to the provisions of this act, as shall be thought expedient: Provided always, that the several acts repealed by the said first-recited act shall not be revived.
II. And inasmuch as, in order to avoid unnecessary repetition, cer- Rules for the tain words are used in this act as describing subjects some of which, interpretation according to their usual sense, such words would not embrace ; for the of this act. understanding of the sense attached to them in this act, be it further enacted, that the provisions of this act shall extend to and include the several other estates and persons, matters and things, herein-after mentioned; (that is to say,) those relating to land, to any manor, messuage, tenement, hereditament, or real property, of whatever tenure, and to property of every description transferrable otherwise than in books kept by any company or society, or any share thereof or interest therein; those relating to stock, to any fund, annuity, or security transferrable in books kept by any company or society established or to
(1) See also post, the 4 & 5 W. 4, c. 23, amending the law relative to the escheat and forfeiture of real and personal property holden in trust.