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3 & 4 Will.4, own averment in it, that he had not such interest at the time of its execuc. 74, s. 20. tion. A conveyance by lease and release will operate as an estoppel; and
where the releasee can have the benefit of the conveyance at law, a court of equity will not interfere in his behalf. (Bensley v. Burdon, 2 Sim. & Stu. 519, afterwards affirmed by the Lord Chancellor; see 2 B. & Ad. 282.) But where A., having an equitable fee in certain lands, mortgaged the same to B., by lease and release, and the latter recited that A. was legally or equitably entitled to the premises conveyed; and the releasee covenanted that he was lawfully and equitably seised in his demesne of and in and otherwise well entitled to the same, and the legal estate was subsequently conveyed to A., and he afterwards, for a valuable consideration, conveyed the same to C.: upon an ejectment brought by B. against C., it was held, first, that there being in the release no certain and precise averment of any seisin in A., but only a recital and covenant that he was legally or equitably entitled, C. was not thereby estopped from setting up the legal estate acquired by him after the execution of the release, and
that the release did not operate as an estoppel by virtue of the words granted, bargained, sold, aliened, remised, released, &c., because the release passed nothing but what the releasor had at the time, and A. had not the legal estate in the premises. (Right d. Jefferys v. Bucknell, 2 B. & Ad. 278.) In this case there was a want of that certainty which is requisite to create an estoppel, the recital being in the alternative," that the mortgagor was lawfully or equitably entitled,” and the covenant for title was to the same effect. Sir E. Sugden, L. C., observed," an innocent conveyance by lease and release could not operate by estoppel. It is true that Sir J. Leach, in Bensley v. Burdon, did hold the contrary, and decided that an estoppel could be worked by lease and release. The point was subsequently ruled the other way in Right v. Bucknell, and it is now clearly settled, that a conveyance of this nature has no effect upon the legal estate which the party subsequently acquires.” (Lloyd v. Lloyd, 4 Dru.
& War. 369; Stackpoole v. Stackpoole, 4 Dru. & War. 347.) Estoppel by deed. The party is not estopped by a deed upon the face of which the truth
appears; for if the deed alleges the truth, it is obvious that the truth cannot be alleged against the deed, and the case of an estoppel cannot arise. While A. was in possession, B. and his eldest son, by deed truly reciting the facts, released their interest to trustees; it was admitted, that this being a release of a possibility to a party not privy in estate, and the whole truth appearing by the deed, no legal interest passed either by way of conveyance of interest, or by way of estoppel. (Doe d. Lumley v. Earl of Scarborough, 3 Ad. & El. 2; 4 Nev. & M. 730. See Doe d. Barber v. Lawrence, 4 Taunt. 23.) The recital of a particular fact in a deed will estop the party making
the statement. (1 Show. 57 ; Shelley v. \Fright, Willes, 9; Lainson v. Tremere, 1 Ad. & Ell. 792; 3 Nev. & M. 603; Bowman v. Taylor, 2 Ad. & Ell, 278; 4 Nev. & M. 264; Hill v. Manchester and Salford Waterworks Company, 2 B. & Ad. 544; Pargeter v. Harris, 7 Q. B. 708.) A party taking under a conveyance is not estopped by recitals in a previous deed, on which the title conveyed is founded, when the suit relates to other lands than those comprised in such conveyance. (Doe d. Shelton v. Shelton, 4 Nev. & M. 857; 3 Ad, & Ell. 265.) Where an untrue recital has been introduced into a deed by mistake, and without fraud, there is no estoppel in equity. (Brooke v. Haymes, L. R., 6 Eq. 25.) The execution by the lessee of the counterpart of a lease granted in exercise of a power given by a will, recited in the lease, was held an admission of the execution of such will. (Bringloe v. Goodson, 5 Bing. N. C. 738; 8 Scott, 71.) A married woman is bound by estoppel by a recital in a deed duly executed and acknowledged by her. (Jones v. Frost, L. R., 7 Ch. 773.)
An estoppel is always in some action or proceeding based on the deed in which the fact in question is recited. In a collateral action or proceeding there can be no estoppel. (Carter v. Carter, 3 Kay & J. 618.)
The effect of an estoppel is to prevent the party who has executed it from estoppel. impugning the general effect of the deed, or any particular statement or
clause it contains. (Cowp. 600; Co. Litt. 47 b; Doe v. Ford, 3 Ad. & Ell. 649; Gnyn v. Neath Canal Navigation Co., L. R., 3 Ex. 209.) The
Effect of an
receipt for the consideration money in the body of the deed is binding npon 3 & 4 Will. 4, the parties at law (Rountree v. Jacob, 2 Taunt. 141); and cannot be con- c. 74, ~. 20. tradicted by parol evidence (Baker v. Dewey, 1 B. & C. 704); but equity, on proof that the money was not paid, will grant relief. (Ryle v. Haggie, 1 Jac. & W.234.) But the operation of the words of the release and receipt may be restrained
the recitals in a deed, showing that the money has not been paid. (Lampon v. Corke, 5 B. & Ald. 606; 1 D. & R. 211. See Alner v. George, 1 Camp. 392; Legh v. Legh, 1 Bos. & P. 447 ; Hickey v. Burt, 7 Taunt. 42; Jones v. Herbert, 7 Taunt. 421; Payne v. Rogers, Dougl. 407.) But the receipt for the consideration money indorsed on a deed being no part of it, is not an estoppel, but only evidence open to contradiction. (Lampon v. Corke, 5 B. & Ald. 606; Graves v. Key, 3 B. & · Ad. 313.) A nominal consideration being expressed in a deed does not prevent the admission of evidence aliunde of the real consideration, provided such real consideration be not inconsistent with the deed. (Leifchild's case, L. R., 1 Eq. 231.)
The rule which requires a man to be bound by his own deliberate represen- Cases where there tations of matters of fact, may be overbalanced by weightier considerations. is no estoppel. Thus if a trustee, deriving his authority from a public act of parliament, grants by a deed unauthorized by the act, the grantor will not be estopped from insisting against the other party to the deed that he had no such power. (Fairtitle d. Mytton v. Gilbert, 2 T. R. 169. See Doe d. Baggely v. Hares, 4 B. & Ad. 435, and Webb v. Herne Bay Commissioners, L. R., 5 Q. B. 642.) So a party to the deed is not estopped from pleading its illegality (Collins v. Blantern, 2 Wils. 347; Paxton v. Popham, 9 East, 408); nor from showing that the consideration was immoral, or contrary to an act of parliament or public policy. (Prole v. Wiggins, 3 Bing. N. C. 230; 3 Scott, 601.) So a party is not estopped from showing that a deed is void under the Mortmain Act, 9 Geo. 2, c. 36. (Doe d. Preece v. Howells, 2 Ad. & Ell. 744.) But a man cannot avoid his own deed by an allegation of his own fraud, as that the deed was executed for the purpose of giving a colourable qualification to kill game. (Doe v. Roberts, 2 B. & Ald. 367. See also the cases, Doe d. Leming v. Skirron, 7 Ad. & Ell. 157; 2 Nev. & P. 123; Gaunt v. Wainman, 3 Scott, 413; Whitton v. Peacock, 2 Bing. N. C. 411; 3 M. & Keen, 792; Bringloe v. Goodson, 4 Bing. N. Č. 726; 6 Scott, 502 ; see an article on Estoppel by Deed, 5 Jur. 858, 1170.)
In order to pass a copy hold estate by surrender, the estate must pass into Copyholds not the hands of the lord, through which it must be taken. A fine differed bound by estoppel. from the case of a surrender, inasmuch as it was good against the heir by estoppel, although it passed no estate ; but if a surrender be not valid, there will be no estoppel, and no estate can pass into the hands of the lord. (Taylor v. Phillips, 1 Ves. sen. 230.) It was held that a surrender of a copyhold estate made by the heir apparent in the lifetime of the ancestor, whom he survived, did not operate by estoppel so as to prevent the heir at law of the surrenderor from recovering the possession. (Goodtitle v. Morse, 3 Term R. 365.). And a court of equity afterwards refused to compel the heir at law to surrender to the purchaser, on the ground that the original contract to convey made by one not then entitled was a personal equity attaching on the conscience of the party, and not descending with the land. (Morse v. Faulkner, 1 Anstr. 11; 3 Swanst. 429.) On the same principle devisees of contingent remainders in a copyhold, not being in the seisin, cannot make a surrender of their interest; and such a surrender will not operate by estoppel against the parties or their heirs. (Doe d. Blacksell v. Tomkins, 11 East, 185.) And where a copyhold was surrendered to the use of the husband and wife for their natural lives and the life of the longer liver of them, and after the death of the survivor of them to the right heirs of the survivor for ever : it was held that the husband and wife took a vested estate, not only for their joint lives, but also for the life of the sur· vivor, with a contingent remainder in fee to the survivor, which neither passed nor was bound by their joint surrender to a purchaser for a valuable consideration. (Doe v. Wilson, 4 Barn. & Ald. 303.) In the case last cited, Lord Tenterden, C. J., observed that the surrender to the purchaser for á valuable consideration must receive the utmost effect of which it was legally
3 & 4 Will. 4, capable, and be construed to pass all that the surrenderors could lawfully ic. 74, 8. 20. convey. Now the quantum of estate which they might lawfully convey
must be commensurate with the quantum of estate that was actually vested in them at the time of the surrender, which was an estate held in entirety for their joint lives and the life of the survivor, and that a surrender of a copyhold could not operate by estoppel. (Id. 312, 313. See Doe d. Barerstock v. Rolfe, 3 Nev. & P. 648.)
It has been seen that by the 15th section of this act, (ante, p. 320,) every actual tenant in tail, whether in possession, remainder, contingency, or otherwise, has power to alien; and as this clause is applied to copyholds by the 50th section of this act (see post), it should seem that a contingent tenant in tail of copyholds may now dispose of such interest by the modes prescribed by this act. (See 8 & 9 Vict. c. 106, s. 6, post.)
Dispositions for limited Purposes. Extent of the 21. Provided always, and be it further enacted, that if a a tenant in tall by tenant in tail of lands shall make a disposition of the same way of mortgage, under this act, by way of mortgage, or for any other limited or for any other limited purpose.
purpose, then and in such case such disposition shall, to the extent of the estate thereby created, he an absolute bar in equity as well as at law to all persons as against whom such disposition is by this act authorized to be made, notwithstanding any intention to the contrary may be expressed or implied in the deed by which the disposition may be effected: provided always, that if the estate created by such disposition shall be only an estate pour autre vie, or for years absolute or determinable, or if, by a disposition under this act by a tenant in tail of lands, an interest, charge, lien or incumbrance shall be created without a term of years absolute or determinable, or any greater estate for securing or raising the same, then such disposition shall in equity be a bar only so far as may be necessary to give full effect to the mortgage, or to such other limited purpose, or to such interest, lien, charge or incumbrance, notwithstanding any intention to the contrary may be expressed or
implied in the deed by which the disposition may be effected (x). Effect of this (x) By this section of the act, if a tenant in tail makes a mortgage in fee
with a proviso for redemption in the usual form, he will thenceforth be entitled to the equity of redemption discharged from the entail ; but if he creates an estate pour autre vie, or for years only, or an“ interest, charge, or incumbrance,” without a term of years, by way of mortgage, the entail will be affected only to the extent of the charge created, although there be an express declaration of intention that the deed shall operate as a complete bar of the entail. Assuming, what is not clear, that a conveyance by a tenant in tail to a trustee to the use of a mortgagee for a term of years, with remainder to such uses as the tenant in tail should appoint, or to the use of himself in fee, would not extinguish the entail altogether, it will be necessary, where the object is to make a mortgage for years, or to create a charge, and to bar the entail in the equity of redemption, to attain the latter object by a distinct deed, either before or after the creation of the mortgage or charge. Assuming also, what is not clear, that where a mortgage in fee is made with a proviso that on payment of the money the estate shall be reconveyed to the former uses, either by reference or by express limitation to the same uses, that the entail would not be revived, it will be necessary to have a distinct deed for preserving the entail, as to the equity of redemption; it may, however, be contended that the object of this section is not to apply to express limitations, but merely to prevent a simple declaration that
the entail shall or shall not be barred from having any operation ; (see 3 f: 4 Will. 4, 9 Jarm. Conv. 404, 405;) and therefore that, by one deed either of the last- c. 74, s. 21. mentioned objects may be accomplished. In mortgages in fee, whether of freeholds or copybolds, when it is intended that the equity of redemption shall be discharged from the entail without any further assurance, it will be proper to frame the proviso of redemption not so as to make the estate of the mortgagee void on payment of the money, but to direct that he shall reconvey it (which is the usual form) to the uses intended; for if the condition in the former case should be performed, it might be contended that the tenant in tail became seised of his former estate tail. (See further as to the effect of this section, 1 Hayes, Conv. 183–185, 5th ed.)
It has been suggested, as following from a comparison of the present sec- Mortguge of ention with sect. 50, post, that if a legal tenant in tail of copyholds mortgages tailed copybolds. by conditional surrender which is not followed by admittance, but the money is paid off and the surrender vacated by the entry of satisfaction, the estate tail remains unaffected; but that the estate tail would be barred if the surrender were followed by admittance. (2 Davidson, Conv. 583, 3rd ed.)
Interests, charges, liens or incombrances may be created by a tenant in Interest, charge, tail under the act ; but they must be created, and not left to vest in contract. lien or incum(Sugd. R. P. Stat. 197.) Sect. 40 (post) expressly requires in every case a formal legal assurance: it would seem, therefore, that the words “interest, charge, lien or incumbrance” do not include an equitable mortgage by mere deposit of title deeds.
The deposit of title deeds is evidence of an agreement to execute a mort- Equitable mortgage, and an equitable title to a mortgage is, in the Court of Chancery, as good as a legal title in a court of law. (Ex parte Wright, 19 Ves. 258.) It has long been settled law, that a mere deposit of deeds, without a single word passing, operates as an equitable mortgage, if no other purpose be shown; (Ex parte Kensington, 2 Ves. & B. 83; Ex parte Langston, 17 Ves, 230;) a rule which has often been reprobated, and, as it seems, is not to be extended. (Ex parte Wetherell, 11 Ves. 398; Ex parte Haigh, 11 Ves. 403; Norris v. Wilkinson, 12 Ves. 192.) So the deposit of the copy of court roll, by which a copyhold estate is held, gives a lien thereon in the nature of a mortgage. (Ex parte Warner, 19 Ves. 202.) A written agreement accompanying the deposit must primâ facie determine the purpose for which it was made; (Ex parte Coombe, 17 Ves. 371; Ex parte Mountfort, 14 Ves. 607 ;) though a deposit originally for a particular purpose may be enlarged by a subsequent parol agreement. (Ex parte Kensington, 2 Ves. & B. 84.) Where the object of the deposit is not evidenced by writing, the court must decide upon parol evidence with what intent the deposit was made, although in truth it is in the very teeth of the Statute of Frauds, 29 Car. 2, c. 3. (Ex parte Whitbread, 19 Ves. 211; Ex parte Haigh, 11 Ves. 402; Norris v. Wilkinson, 12 Ves. 197; see 2 Hov. Suppl. to Ves. jun. 148. On equitable mortgages, see 5 Jarm. Conv. by Sweet, 109 et seq. ; Coote on Mortgages, ch. viii.; Shelford on the Law of Bankruptcy, pp. 407-410, 3rd ed.; Russel v. Russel, 1 White & Tudor, L. C., Eq. 674.)
estate under a
VIII. DEFINITION OF THE PROTECTOR. 22. If at the time when there shall be a tenant in tail of the owner of the lands under a settlement there shall be subsisting in the same
first existing lands or any of then, under the same settlement, any estate for settlement, prior years determinable on the dropping of a life or lives, or any under the same greater estate (not being an estate for years), prior to the estate settlement, to be tail, then the person who shall be the owner of the prior estate, the settlement. or the first of such prior estates, if more than one, then subsisting under the same settlement, or who would have been so if no absolute disposition thereof had been made (the first of such prior estates, if more than one, being for all the purposes of this
3 & 4 Will. 4, act deemed the prior estate), shall be the protector of the settlec. 74, s. 22.
ment so far as regards the lands in which such prior estate shall be subsisting, and shall for all the purposes of this act be deemed the owner of such prior estate, although the same may have been charged or incumbered either by the owner thereof or by the settlor, or otherwise howsoever, and although the whole of the rents and profits be exhausted or required for the payment of the charges and incumbrances on such prior estate, and although such prior estate may have been absolutely disposed of by the owner thereof, or by or in consequence of the bankruptcy or insolvency of such owner, or by any other act or default of such owner; and that an estate by the curtesy, in respect of the estate tail, or of any prior estate created by the same settlement, shall be deemed a prior estate under the same settlement within the meaning of this clause; and that an estate by way of resulting use or trust to or for the settlor shall be deemed an estate under the same settlement within the meaning of this clause (y).
(y) In cases of lunacy the Lord Chancellor is protector. (See post, ss. 33, 48.) Where there is a tenant in tail in possession and a tenant in tail in remainder under the same settlement, the tenant in tail in posses. sion is the protector as to the tenant in tail in remainder under this statute; and where the tenant in tail in possession is a lunatic, the Lord Chancellor will, as such protector, consent to a disentailing deed by the tenant in tail in remainder, where it is for the benefit of the near relatives of the lunatic. (In re Blewitt, 6 D., M. & G. 187, overruling In re Blewitt, 3 M. & Keen, 250; In re Wood, 3 M. & Cr. 266. See note to section 48, post.) When there will be a resulting trust, see Hill v. Bishop of London, 1 Atk. 618; King v. Denison, 1 Ves. & B. 260; Cook v. Hutchinson, 1 Keen, 42; Lewin on Trusts, 115 et seq., 5th ed.
more owners of a
Protector as to undivided Shares. Each of two or 23. Provided always, and be it further enacted, that where prior estate to be
two or more persons shall be owners, under a settlement, within the sole protector the meaning of this act, of a prior estate, the sole owner of as to his share.
which estate, if there had been only one, would in respect thereof have been the protector of such settlement, each of such persons, in respect of such undivided share as he could dispose of, shall for all the purposes of this act be deemed the owner of a prior estate, and shall, in exclusion of the other or others of them, be the sole protector of such settlement to the extent of such undivided share (z).
(z) See Church v. Edwards, 2 Br. C. C. 180; Oakley v. Smith, Amb. 90; 1 Eden, 261; 3 Prest. Conv. 90 et seq.
Protector in case of Married Women. Where a married 24. Provided always, and be it further enacted, that where
a married woman would, if single, be the protector of a settletector, and where ment in respect of a prior estate, which is not thereby settled, band together or agreed or directed to be settled, to her separate use, she and shall be protector.
woman alone shall be the pro