of age to show cause against the decree. (Price v. Carver, 3 M. & Cr. 157; Scholefield v. Heafield, 7 Sim. 669; Powys v. Mansfield, 6 Sim. 637; Clinton v. Bernard, Dru. 287; Flood v. Sutton, 3 Ir. Eq. 340; Daniell, Ch. Pr. 151; Fisher on Mortgages, 1018-1024.) Where a decree has been made against an infant defendant who put in. the common answer by his guardian, the general rule is, that such defendant on coming of age has the privilege of putting in a new answer, stating a different case, and of going into evidence in support of that case. privilege does not extend to foreclosure suits. (Kelsall v. Kelsall, 2 M. & Keen, 409.) This After a decree and order on further directions in a suit by creditors, the plaintiffs discovered that there was an infant tenant in tail of the deceased's real estates in existence, who was born prior to the filing of the bill. On the hearing of a supplemental suit, by which the infant was first brought before the court, the accounts were directed to be taken over again as against the infant, with liberty to the master to adopt any of the accounts before taken, if he should find it beneficial to the infant so to do. (Baillie v. Jackson, 10 Sim. 167. See Finch v. Finch, W. N. 1869, p. 191.) Infants to make conveyances under order of the court. CONVEYANCES BY INFANTS. 11. Where any suit hath been or shall be instituted in any court of equity, for the payment of any debts of any person or persons deceased, to which their heir or heirs, devisee or devisees, may be subject or liable, and such court of equity shall decree the estates liable to such debts, or any of them, to be sold for satisfaction of such debt or debts, and by reason of the infancy of any such heir or heirs, devisee or devisees, an immediate conveyance thereof cannot, as the law at present stands, be compelled, in every such case such court shall direct, and, if necessary, compel such infant or infants to convey such estates so to be sold (by all proper assurances in the law) to the purchaser or purchasers thereof, and in such manner as the said court shall think proper and direct; and every such infant shall make such conveyance accordingly; and every such conveyance shall be as valid and effectual to all intents and purposes as if such person or persons, being an infant or infants, was or were at the time of executing the same of the full age of twenty-one years (m). (m) An application under this section for an infant heir or devisee to convey must be made by petition, and not by motion. (Anon., 1 Y. & Coll. 75.) An infant devisee in tail may be ordered to convey under this section (Penny v. Pretor, 9 Sim. 135); and the conveyance must be made by the proper assurance which by law is now required for a tenant in tail. (Radcliffe v. Eccles, 1 Keen, 130.) This section of the act extends to a case where the decree for sale of the estate was made prior to the act. (Chapman v. Tennant, 2 Russ. & Mylne, 74.) Where a testator devised his estate to two persons as tenants in common in fee, and one of them died after the testator, leaving an infant heir; in a creditor's suit, after a decree for sale of the estate, the infant heir was ordered to join in the conveyance to the purchaser under this section of the act. (Brook v. Smith, 2 Russ. & Mylne, 73.) A conveyance by an infant under this section passes only such interest as the infant, if of full age, might pass. (Heming v. Archer, 8 Beav. 294.) Orders under this section will be found, Set. 825; see note to sect. 12. CONVEYANCES BY PERSONS HAVING LIMITED INTERESTS. 12. Where any lands, tenements, or hereditaments, hath been or shall be devised in settlement by any person or persons, whose estate 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 vested in any person or persons for life or other limited interest, with any remainder, limitation, or gift over, which may not be vested, or may be vested in some person or persons from whom a conveyance or other assurance of the same cannot be obtained, or by way of executory 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 (n). (n) It had been decided that where it is necessary to resort to the real assets of a deceased debtor for payment of his debts, the court might direct the money to be raised by mortgage instead of sale, and might also direct the infant heir or devisee of the debtor to convey the estate to the mortgagee. (Holme v. Williams, 8 Sim. 557.) In Smethurst v. Longworth (7 Law J., N. S., Chanc. 18), it was held that the court was not authorized to direct a mortgage of an infant's estate for payment of the ancestor's debts. By 2 & 3 Vict. c. 60, the provisions of sects. 11 and 12 are extended to authorize mortgages as well as sales of estates. A decree having been made in a creditor's suit for sale of part of the real estate, and a sale having taken place of freeholds and copyholds, on a petition under this act that the tenant for life might convey and surrender to the purchaser, the same was ordered, notwithstanding that the stat. 3 & 4 Will. 4, c. 104 (making copyhold estate assets for the payments of simple contract and specialty debts), was passed subsequently, the words of the former act having a prospective operation. (Branch v. Browne, 17 L. J., Ch. 435; 2 De G. & Sm. 299.) A testator devised real estates to trustees to pay debts, and to convey the Conveyances real estate, subject to such debts, to his son upon marriage in strict settle- under this section. ment. The trustees accordingly conveyed the estate to the testator's son for life, with remainder in strict settlement: it was held, that the son could convey the legal estate under this section. (Cheese v. Cheese, 15 L. J., Ch. 28.) This section does not apply to a case where an estate is devised to a trustee during the life of the cestui que trust, with remainder over, and by the disclaimer of the trustee the legal estate descended on the heir. (Heming v. Archer, 7 Beav. 515; 8 Beav. 294.) An estate was sold to a party to a suit for payment of the testator's debts, and which by the disclaimer of a trustee was vested in the heir pur autre vie, with legal remainder to the children of A. (who was living) as tenants in common. The purchasemoney was in court. It was held, that no effective conveyance could be made under the act until the class of children had been determined, by the death of A. (Heming v. Archer, 9 Beav. 366.) The case of the devisee for life, or owner of the limited estate, or first executory devisee being an infant, is provided for by 2 & 3 Vict. c. 60, 11 Geo. 4 & post; and the case of the fee being vested, subject to an executory devise, in the heir by descent, or otherwise than by devise, is provided for by 11 & 12 Vict. c. 87 (post, p. 475). 1 Will. 4, c. 47, s. 12. Where copyholds devised to an infant for life, with remainder to his first and other sons in tail, were decreed to be sold to pay the debts of the testator, and an order was made in the cause and pursuant to this statute that the guardian of the infant should surrender them to the purchaser: it was held, that the purchaser was entitled to require that an order should be made discharging the contingent rights of the unborn issue of the infant under the 29th section of the Trustee Act, 1850. (Wood v. Beetlestone, 1 Kay & J. 212.) The tenant for life of estates, decreed in a creditor's suit to be sold for payment of debts, was a trustee for the purchaser within the meaning of i Will. 4, c. 60, s. 18. (Re Milfield, 2 Phill. C. C. 254.) Orders may still be made under sects. 11 and 12 (see the forins, Seton, is for the decree or order directing the sale or mortgage to declare that Not to repeal act 33 Geo. 1 (I.) relating to debts due to bankers. 2 & 3 Vict. c. 60. IRELAND. 13. Nothing in this act shall extend or be deemed or construed to extend to repeal or alter an act made by the parliament of Ireland, in the thirty-third year of the reign of King George (o) the First, intituled "An Act for the better securing the Payment of Bankers' Notes, and for providing a more effectual Remedy for the Security and Payment of the Debts due by Bankers" (p). (0) The following words are here omitted by mistake: "the Second, intituled An Act for repealing an Act passed in this Kingdom in the eighth Year of the Reign of King George.' (p) By the third section of the Irish act, 33 Geo. 2, c. 14, all dispositions after 10th May, 1760, by bankers of real or leasehold estates, or any interest therein, to or for any children or grandchildren of any banker, are void against creditors, though for valuable consideration, and though not creditors at the time. As to the act 33 Geo. 2, c. 14, see Copland v. Davies, L. R., 5 H. L. 358. The stat. 2 & 3 Vict. c. 60, after reciting the 11th and 12th sections of the stat. 11 Geo. 4 & 1 Will. 4, c. 47, (ante, pp. 472, 473,) and that doubts were entertained whether the above sections authorized courts of equity to direct mortgages as well as sales to be made of the estates of such infant heirs or devisees, or of lands, tenements or hereditaments so devised in settlement as aforesaid, and also to authorize such sales and mortgages to be made in cases where such tenant for life, or other person having a limited interest, or such first executory devisee Recited provisions as aforesaid, is an infant, enacts, "that the said hereinbefore of 11 Geo. 4 & 1 Will. 4, c. 47, extended to autho rize mortgages as well as sales of estates. recited provisions of the said act shall extend and the same are hereby extended to authorize courts of equity to direct mortgages as well as sales to be made of the estates of such infant heirs or devisees, and also of lands, tenements or hereditaments so devised in settlement as aforesaid, and to authorize such sales and mortgages to be made in cases where such tenant for life, or other person having a limited interest, or such first executory devisee as aforesaid, is an infant. The second section enacts, "That when any sale or mortgage shall be made in pursuance of the said recited act or this act, the surplus (if any) of the money raised by such sale or mortgage which shall remain after answering the purposes for which the same shall have been raised, and defraying all reasonable costs and expenses, shall be considered in all respects of the same nature and descend or devolve in the same manner as the estate, or the lands, tenements or hereditaments so sold or mortgaged, and shall belong to the same persons, be subject to the same limitations and provisions, and be applicable to the same purposes as such estate or such lands, tenements or hereditaments would have belonged and been subject and applicable to in case no such sale or mortgage had been made (q). (1) In a creditor's suit the court has no jurisdiction, under these statutes, 11 Geo. 4 & 1 Will. 4, c. 47, and 2 & 3 Vict. c. 60, to extend the sum to be raised by way of mortgage by an infant for payment of the debts of his ancestor or devisor, so as to include money required for repairs, even where such repairs are necessary in order to obtain an advance on mortgage, and where a mortgage is much more beneficial to the infant than a sale would be. (Hill v. Maurice, 1 De G. & S. 214. See Garmstone v. Gaunt, 1 Coll. C. C. 577.) For forms of orders under the act, see Seton, 826. 66 The stat. 11 & 12 Vict. c. 87, after reciting the 12th section of the 11 Geo. 4 & 1 Will. 4, c. 47, (ante, p. 473,) “ And that such provision did not extend to the case of lands, tenements or hereditaments of a deceased debtor which are by descent or otherwise than by devise vested in the heir or co-heirs of such debtor, subject to an executory devise over in favour of a person or persons not existing or not ascertained, and that it was expedient that the said provision of the said act should be extended to such case:" it is enacted, that in cases in other respects falling within the said thereinbefore recited provisions of the said act the same act shall extend and is hereby extended to any case in which any lands, tenements or hereditaments of any deceased person shall by descent or otherwise than by devise be vested in the heir or co-heirs of such person, subject to an executory devise over in favour of a person or persons not existing or not ascertained; and in any such case it shall be lawful for the court mentioned in the said recited provision to direct such heir or co-heirs, notwithstanding such heir or such co-heirs, or any of them, may be an infant or infants, 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 heir or co-heirs who shall make and execute the same was or were seised or possessed of the fee simple or other whole estate so to be sold, and, if an infant or infants, was or were of full age. 2 & 3 Vict. c. 60. Surplus of money sale or mortgage to descend in the arising from such same manner as the estates so sold or mortgaged would have done. Recited provision to extend to lands, debtor, in certain &c. of a deceased cases. * Sic. c. 104. Freehold and copyhold estates in all cases to be ment of simple contract or specialty debts. PAYMENT OF DEBTS OUT OF REAL ESTATES. 3 & 4 WILLIAM IV. c. 104. An Act to render Freehold and Copyhold Estates Assets for 3 & 4 Will. 4, WHEREAS it is expedient that the payment of the debts of all persons should be secured more effectually than is done by the laws now in force: be it therefore enacted, that from and after the passing of this act, when any person shall die seised of or entitled to any estate or interest in lands, tenements or hereditaments, corporeal or incorporeal, or other real estate, whether assets for the pay- freehold, customaryhold, or copyhold, which he shall not by his last will have charged with or devised subject to the payment of his debts, the same shall be assets to be administered in courts of equity for the payment of the just debts of such persons, as well debts due on simple contract as on specialty; and that the heir or heirs at law, customary heir or heirs, devisee or devisecs of such debtor shall be liable to all the same suits in equity at the suit of any of the creditors of such debtor, whether creditors by simple contract or by specialty, as the heir or heirs at law, devisee or devisees of any person or persons who died seised of freehold estates was or were before the passing of this act liable to in respect of such freehold estates at the suit of creditors by specialty in which the heirs were bound; provided always, that in the administration of assets by courts of equity under and by virtue of this act all creditors by specialty in which the heirs are bound shall be paid the full amount of the debts due to them before any of the creditors by simple contract or by specialty in which the heirs are not bound shall be paid any part of their demands (a). Lands applicable as assets under this act. (a) This statute makes freehold estates subject to simple contract debts, which were before subject to specialty debts, but it applies only to estates which the testator has not charged or devised subject to the payment of his debts. It is not the case that all estates subject to the payment of debts will now be liable to be sold without the intervention of a court of equity. The rule that a charge of debts is equivalent to a trust to sell for the payment of debts, leaves the distinction between estates subjected to the payment of debts by the will of the debtor and estates subject to debts by the operation of the law, precisely as it was before this act. (Ball v. Harris, 4 My. & Cr. 264.) As to what constitutes a charge of debts on realty, see ante, p. 467. Under this act freehold estates over which a testator has a general power of appointment, and which he appoints by will, are assets for the payment of his simple contract debts. (Fleming v. Buchanan, 3 De G., M. & G. 976.) Where a party dies without heirs, and his land escheats to the lord, it is applicable to payment of debts under this statute, but whether it is so applicable in priority to estates specifically devised seems to be questionable. (Evans v. Evans, 6 Jur. 380; 5 Beav. 114; Hughes v. Wells, 9 Hare, 749.) |