8 & 9 Vict. c. 112, s. 1. On 31st Decem ber, 1845, satisfied terms of years attendant on inheritance, &c. of cept, &c. SATISFIED TERMS. 8 & 9 VICTORIA, c. 112. An Act to render the Assignment of Satisfied Terms unneces- TERMS ATTENDANT ON 31ST DECEMBER, 1845. WHEREAS the assignment of satisfied terms has been found to be attended with great difficulty, delay and expense, and to operate in many cases to the prejudice of the persons justly entitled to the lands to which they relate: be it therefore enacted, that every satisfied term of years which, either by express declaration or by construction of law, shall upon the thirty-first land, to cease, ex- day of December, one thousand eight hundred and forty-five, be attendant upon the inheritance or reversion of any lands (a), shall on that day absolutely cease and determine as to the land upon the inheritance or reversion whereof such term shall be attendant as aforesaid, except that every such term of years which shall be so attendant as aforesaid by express declaration, although hereby made to cease and determine, shall afford to every person the same protection against every incumbrance, charge, estate, right, action, suit, claim and demand as it would have afforded to him if it had continued to subsist, but had not been assigned or dealt with, after the said thirty-first day of December, one thousand eight hundred and forty-five, and shall for the purpose of such protection be considered in every court of law and of equity to be a subsisting term (b). (a) Allusion has already been made to the doctrine of attendant terms of years assigned to attend the inheritance. (Ante, p. 421.) The subject is fully explained in the Second Report of the Real Prop. Comm. pp. 7-14; and see Williams, Real Prop. 383-387, 7th ed. As to the nature of attendant terms, see Sugd. V. & P. 616 (14th ed.): and as to the merger, cesser by proviso, or presumption of the surrender of a term, see Id. 617-621. The result of this section is that all satisfied terms, which were attendant on the 31st Dec. 1845, ceased and determined on that day. The points to be determined are, (1) whether the term was on the 31st Dec. 1845, "satisfied;" and (2) was also on the same day "attendant upon the inheritance or reversion." (Davidson, Conc. Prec. 38, 7th ed.) As to when a term is "satisfied" generally, see Davidson, Conc. Prec. 38, and note. A term does not become satisfied within this act, except the beneficial interest in the whole charge secured by the term, and the beneficial interest in the whole estate are united and merged in one person. (Per James, L. J., Anderson v. Pignet, L. R., 8 Ch. 189.) As to terms attendant by implication or construction of law, see Sugd. V. & P. 625; Belaney v. Belaney, L. R., 2 Ch. 138. The intention of this act was that all mere dry satisfied terms should merge, but not terms assigned or agreed to be assigned as a protection to a mortgagee or purchaser. Therefore, where a term was outstanding in trust for a mortgagor, and by the mortgage deed, which was dated before the act, it was agreed that this term should be assigned to another person as trustee for the mortgagee to secure the mortgage debt and interest, but the deed of assignment was never executed, it was held that the term did not merge under the act. (Shaw v. Johnson, 1 Dr. & Sm. 412; 7 Jur., N. S. 1005.) A lessor, who was married in 1832, created a term by way of mortgage in the lands comprised in his lease, which ultimately became vested in a trustee for a mortgagee. The lessee subsequently acquired the fee, and then became bankrupt. Afterwards, by a deed made between the assignees in bankruptcy, the mortgagor and the mortgagee, in consideration of the release by the latter of his mortgage debt, the fee simple was conveyed to the mortgagee freed and discharged from all equity of redemption. The wife of the mortgagor was joined as a party to the deed for the purpose of releasing her right to dower: but she refused to execute it, and after her husband's death, she filed her bill to enforce her right to dower. It was held, that as the widow had not executed the deed, the term was not satisfied within the meaning of sect. 2, and that it protected the mortgagee against her claim to dower. (Anderson v. Pignet, L. R., 8 Ch. 180.) In 1838, Mary Humphreys, seised in fee, mortgaged premises for 1,000 years to Davies. In 1839, she conveyed the fee, subject to the mortgage term, to her daughter, the wife of the defendant; this conveyance was unknown to the parties to the subsequent deeds. In 1842, Mary Humphreys mortgaged the premises in fee to Minshall, and in 1844 conveyed the equity of redemption to Clay, who agreed to sell a moiety of the premises to Meredith Humphreys. The executors of Davies called in his mortgage money, which was advanced by John Thompson, together with further sums for Clay and Meredith Humphreys. And in October, 1844, the executors of Davies assigned the term of 1,000 years to John Thompson, with a proviso that if Clay and Meredith Humphreys paid the moneys advanced, together with interest, on a certain day, John Thompson would assign the term as Clay and Meredith Humphreys should direct or appoint. For further assurance Minshall, and Clay and Meredith Humphreys, conveyed the fee to Richard Thompson in trust for sale, or to reconvey to Clay and Meredith Humphreys on payment of the mortgage money. In 1847, part of the premises being required for a railway, Clay received the purchase-money from the company, and therewith paid off the mortgagees. Ejectment was brought on the demise of J. Thompson against the person claiming under the conveyance of 1839: it was held, that the term had not determined under the act, and that the plaintiff was entitled to recover. (Doe d. Clay v. Jones, 13 Q. B. 774; 18 L. J., Q. B. 260.) Patteson, J., observed, "It is not necessary to decide whether the defendants claiming to have the fee can maintain that this is a satisfied term, the satisfaction of the mortgages having been made not by him, but by Clay, under a mistaken belief that the equity of redemption in fee had been conveyed to himself, because we are of opinion that this term is not within either of the alternatives in the statute for determining terms. It is not attendant on the inheritance by express declaration, there being no such declaration; neither is it by construction of law, for the trust is expressly declared to be for Clay and Humphreys, who have not the inheritance; and although they were supposed to be entitled thereto when the deed was executed, that supposition is now proved to have been founded on a mistake. That mistaken supposition has no effect upon the express words of the instrument.” (Ib.) Lord St. Leonards observes, that if the payment of the mortgage debt could have been considered as made by Clay and Humphreys out of their own money, the term should not have been treated as satisfied, and the case might have been decided in favour of the plaintiff on that ground. But that it would be difficult to support the decision if Clay and Humphreys were not to be considered as having paid off the mortgage. (R. P. Stat. 280, 2nd ed.) The decision has been disapproved by Mr. Dart 8 & 9 Vict. c. 112, s. 1. Cases under the were held not to have ceased. act where terms 8 & 9 Vict. c. 112, s. 1. Cases in which terms were held to have ceased. The exception in the section: nature of the protection. (V. & P. 467, 4th ed.), but see the observations of Lord Selborne (Anderson v. Pignet, L. R., 8 Ch. 189. In Doe d. Hall v. Moulsdale (16 Mees. & W. 689, ante, p. 194), it was contended that an outstanding term, although for some purposes destroyed by the above statute, was still to remain as a protection against actions and claims at law. The defendant was the party in possession, and required the protection of the term. The court held that, under the circumstances, the ejectment was barred, and that it was therefore unnecessary to consider the effect of the term. But the court had no doubt that the term was to be deemed to have absolutely ceased and determined under the act on the 31st December, 1845, and consequently would have afforded no defence to the action of ejectment. In 1829, A. died seised in fee of lands, of which his eldest son B. was his tenant. On his death B., supposing him to have died intestate, entered on the lands, claiming them as heir at law, and in 1830 mortgaged them in fee, and levied a fine to confirm the mortgage; and at the same time an outstanding term of 500 years was by his direction assigned to a trustee for the mortgagee. In 1835, B. sold the estate to the defendant, who paid off the mortgage; the legal estate in fee and the equity of redemption were conveyed to the defendant, and the term was assigned to a trustee for him to attend the inheritance. In 1845 it was discovered that A. had executed a will, whereby he devised the lands in fee to his second son, who thereupon brought ejectment to recover the estate from the defendant, and laid a demise in the name of the trustee, to whom the term was assigned in 1835: it was held, first, that B. had a sufficient estate to make him a good conusor of the fine; secondly, that by the operation of this statute the term had absolutely determined, and that the plaintiff could not recover upon the demise laid in the name of the trustee. (Doe d. Cadwalader v. Price, 16 Mees. & W. 603.) On the question as to what had become of the satisfied term under the 1st section of the statute 8 & 9 Vict. c. 112, Parke, B. observed, "As the plaintiff has in his declaration a demise by a trustee of the term, added to that of the real claimant of the property, we must decide whether that satisfied term did or did not continue after the 31st December, 1845; and in order to do this, we must also determine whether the party claiming the protection of the term was really entitled to that protection against an incumbrance; and as that is a question of equity, we have thrown on us the duty of a court of equity without adequate machinery. Such, however, is the operation of the act, and we must therefore decide whether the defendant, who was in possession, wanted the protection of this term. Now as we have already held that he did not, seeing that he had the legal estate wholly independent of the term, his case does not fall within the latter part of the 1st section of the statute; but it falls within the former part of it, the effect of which is, that the term actually ceased and determined by the operation of the act on the 31st of December, 1845, and consequently the plaintiff cannot recover on the demise of the trustee of the term. If it had turned out that the defendant wanted the protection of the term, on the ground that he was a purchaser for valuable consideration, it would be necessary for us to determine what course he ought to take; probably it would be necessary for him to apply to a court of equity, or to apply to this court to strike out of the declaration the demise in the name of the trustee; but as he does not want the protection of the term, it has absolutely ceased and determined on the 31st December, 1845. The defendant is therefore entitled to a verdict on all the demises." (Ib. 613, 614.) (b) "The object of the act appears to be to merge all attendant terms, but to preserve to the persons entitled the protection which a term would have afforded to them, where, upon the 31st December, 1845, it was attendant by express declaration. But even this is a limited protection; for it gives not such protection as a further assignment of it for a purchaser would confer, but such protection as it would have afforded if it had continued to subsist but had not been assigned or dealt with after the 31st December, 1845. This protection will of course extend to a new purchaser, although the term assigned to attend was left undisturbed." (Sugd. V. & P. 497, 14th ed.; Freer v. Hesse, 4 De G., M. & G. 495; see also Sugd. V. & P. 623, 624, 14th ed., as to the nature of the protection afforded by an attendant term.) The proper way of testing the right of a person to the protection of such a term is to consider whether, if the act had not been passed, equity would restrain him from setting up the term. (Cottrell v. Hughes, 15 C. B. 532.) C. being, under a deed of settlement of 1813, tenant for life, with remainder to such of his children as he should appoint, but covenanting that he was seised in fee, sold the estate in 1840 to the defendant, who had no notice of the settlement, and the residue of two terms, each of 1,000 years, was assigned by the personal representatives of H. to a trustee for the defendant to attend the inheritance. These terms had originally been created for mortgage purposes, and in 1773, the mortgage debt having been satisfied, were assigned to H. in trust to attend the inheritance for the benefit of the then owner in fee. The estate had been settled in 1778, and had also been mortgaged in 1836 and the three following years, but in none of the deeds, nor in the settlement of 1813, was any notice taken of the outstanding terms. In 1844, C. duly exercised his power of appointment, limiting the estate after his death (which took place in 1853) to the plaintiff, his eldest son, in fee. In an action of ejectment, a verdict having been taken for the plaintiff, subject to a case disclosing these facts: it was held, that, as the terms were, on the 31st December, 1845, attendant on the inheritance by express declaration, and would, if subsisting, have afforded to the defendant such protection against the settlement of 1813 as a court of equity would not have restrained him from setting up in a court of law, they were within the exception of this section, and must be considered as subsisting terms. (Ib.) A term of 500 years having been created in 1738 as a security for portions for younger children, and to attend the inheritance, was afterwards assigned by the tenant for life, under a settlement made in 1784, to a trustee as a security for 100l. advanced by W., and to attend the inheritance. W. and the tenant for life afterwards conveyed the term to M., in trust for S., with a declaration of trust for certain parties: it was held, that such parties, having had notice that the object of the term was satisfied, could not set up against the parties claiming under the settlement of 1784, the term which had been assigned to W. by a person who had no right to deal with it except to the extent of his own interest. (Plant v. Taylor, 7 H. & N. 211; 8 Jur., N. S. 140; 31 Law J., Exch. 289.) A., who had married in 1832, purchased an estate in 1837, subject to a satisfied term, of which he procured an assignment to a trustee for himself. He afterwards executed three mortgages, in each of which he covenanted that the lands were free from dower; and on the occasion of the first mortgage the deed of assignment of the term was delivered to the solicitor for the mortgagee, but it did not clearly appear that he retained the exclusive possession of it. It was held that, notwithstanding the saving in this statute, the term had ceased by the operation of this act, and that the mortgagees were not entitled to its protection against A.'s wife's right of dower. (In re Sleeman, 4 Ir. Ch. R. 563; Corry v. Cremorne, 12 Ir. Ch. R. 136.) In Bass v. Wellsted, 12 Jnr. 347, a question was raised, but not decided, as to the protection against dower by a term since the above act. 8 & 9 Vict. c. 112, s. 1. A term assigned to attend the inheritance will not be presumed to have Presuming sur been surrendered, unless there has been a dealing with the estate in such a render of terms. manner as reasonable men would not have dealt with it unless the term had been put an end to. (Garrard v. Tuck, 13 Jur. 871; 18 Law J., C. P. 338; 8 C. B. 231.) Therefore, where the owner of the estate, which is subject to such attendant term, devised it without referring to the term, and the devisee mortgaged it with notice of the term, but without the mortgagee taking any assignment of the term, and the devisee afterwards conveyed the estate to trustees for sale, it was held, that there had not been such a dealing with the estate as to induce the court to presume a surrender of the term. (lb.) As to presuming the surrender of terms, see also Cottrell v. Hughes, 15 C. B. 532 (where the decision in Doe d. Putland v. Hilder, 2 B. & Ald. 782, was doubted); Doe v. Langdon, 12 Q. B. 711; Hele v. Lord Bexley, 17 Beav. 28; Sugd. V. & P., Appendix 26 (11th ed.). 8 & 9 Vict. c. 112, s. 2. Satisfied terms now subsisting, &c. to cease on becoming attend TERMS SATISFIED AFTER 31ST December, 1845. 2. Every term of years now subsisting or hereafter to be created, becoming satisfied after the said thirty-first day of December, one thousand eight hundred and forty-five, and ant upon inherit- Which, either by express declaration or by construction of law, ance, &c. of lands. shall after that day become attendant upon the inheritance or reversion of any lands, shall immediately upon the same becoming so attendant absolutely cease and determine as to the land upon the inheritance or reversion whereof such term shall become attendant as aforesaid (c). Construction of act. Not to extend to (c) See Anderson v. Pignet, L. R., 8 Ch. 180, ante, p. 643, and the note to the preceding section. 3. In the construction and for the purposes of this act, unless there be something in the subject or context repugnant to such construction, the word "lands" shall extend to all freehold tenements and hereditaments, whether corporeal or incorporeal, and to all such customary land as will pass by deed, or deed and admittance, and not by surrender, or any undivided part or share thereof respectively; and every word importing the singular number only shall extend and be applied to several persons or things as well as one person or thing; and every word importing the masculine gender only shall extend and be applied to a female as well as a male. 4. This act shall not extend to Scotland. |