Where a mortgagee with power of sale and a trust to pay the residue to the mortgagor took possession and so remained until his death, giving his estate generally to trustees but left no heir at law, the court refused to make a vesting order under the 9th or 19th sections of this act, but made an order under this section. (Re Keeler, 11 W. R. 62.) A bastard sold a reversionary interest in realty to which he was entitled under a will; the trustees of the will subsequently conveyed the legal estate to the bastard who died without children: an order was made under this act vesting the legal estate in the purchaser. (Re Wilkinson's Trust, 12 W. R. 522.) For form of order under this section, see Seton, 793. 13 & 14 Vict. c. 60, s. 15. 16. When any lands are subject to a contingent right in an Contingent right unborn person or class of unborn persons who upon coming into of unborn trustee. existence would in respect thereof become seised or possessed of such lands upon any trust, it shall be lawful for the Court of Chancery to make an order which shall wholly release and discharge such lands from such contingent right in such unborn person or class of unborn persons, or to make an order which shall vest in any person or persons the estate or estates which such unborn person or class of unborn persons would upon coming into existence be seised or possessed of in such lands (z). (z) Orders have been made under this section, vesting in purchasers under a decree the rights and interests of unborn children (Wake v. Wake, 1 W. R. 283); and discharging in favour of purchasers the rights of unborn persons claiming under a settlement. (Hargraves v. Wright, 1 W. R. 408.) 17. Where any person jointly or solely seised or possessed of any lands upon any trust shall, after a demand by a person entitled to require a conveyance or assignment of such lands, or a duly authorized agent of such last-mentioned persons, have stated in writing that he will not convey or assign the same, or shall neglect or refuse to convey or assign such lands for the space of twenty-eight days next after a proper deed for conveying or assigning the same shall have been tendered to him by any person entitled to require the same, or by a duly authorized agent of such last-mentioned person, it shall be lawful for the Court of Chancery to make an order vesting such lands in such person or persons in such manner and for such estate as the said court shall direct; and the order shall have the same effect as if the trustee had duly executed a conveyance or assignment of the lands in the same manner for the same estate (a). (a) This and the following sections are repealed, and another provision substituted, by 15 & 16 Vict. c. 55, s. 2, post. See Rowley v. Adams, 14 Beav. 130, in which difficulties arose in the application of this section to copy holds. Power to convey in place of a re entitled to con 18. Where any person jointly or solely entitled to a contin- Power to convey gent right in any lands upon any trust shall, after a demand in place of person for a conveyance or release of such contingent right by a per- tingent right. son entitled to require the same, or a duly authorized agent of (Repealed.) such last-mentioned person, have stated in writing that he will not convey or release such contingent right, or shall neglect or S. UU 13 & 14 Vict. c. 60, s. 18. Power to convey in place of mortgagee. Application of section. refuse to convey or release such contingent right for the space of twenty-eight days next after a proper deed for conveying or releasing the same shall have been tendered to him by any person entitled to require the same, or by a duly authorized agent of such last-mentioned person, it shall be lawful for the Court of Chancery to make an order releasing or disposing of such contingent right in such manner as it shall direct; and the order shall have the same effect as if the trustee so neglecting or refusing had duly executed a conveyance so releasing or disposing of the contingent right (b). (b) This section is repealed by the 2nd section of 15 & 16 Vict. e. 55. See post. 19. When any person to whom any lands have been conveyed by way of mortgage shall have died without having entered into the possession or into the receipt of the rents and profits thereof, and the money due in respect of such mortgage shall have been paid to a person entitled to receive the same, or such last-mentioned person shall consent to an order for the reconveyance of such lands, then in any of the following cases it shall be lawful for the Court of Chancery to make an order vesting such lands in such person or persons in such manner and for such estate as the said court shall direct; that is to say, When an heir or devisee of such mortgagee shall be out of the jurisdiction of the Court of Chancery, or cannot be found: When an heir or devisee of such mortgagee shall, upon a demand by a person entitled to require a conveyance of such lands or a duly authorized agent of such last-mentioned person, have stated in writing that he will not convey the same, or shall not convey the same for the space of twenty-eight days next after a proper deed for conveying such lands shall have been tendered to him by a person entitled as aforesaid, or a duly authorized agent of such last-mentioned person : When it shall be uncertain which of several devisees of such mortgagee was the survivor: When it shall be uncertain as to the survivor of several devisees of such mortgagee, or as to the heir of such mortgagee whether he be living or dead: When such mortgagee shall have died intestate as to such lands, and without an heir, or shall have died and it shall not be known who is his heir or devisee : And the order of the said Court of Chancery made in any one of the foregoing cases shall have the same effect as if the heir or devisee or surviving devisee, as the case may be, had duly executed a conveyance or assignment of the lands in the same manner and for the same estate (c). (c) This clause is not confined in its operation to a case of simple reconveyance to the mortgagor. Where a mortgagee in fee (who has never been in possession or in receipt of the rents and profits) has died intestate as to the mortgaged hereditaments, and his heir cannot be found, the court may, under this act, make an order vesting the legal estate in his executors. (Boden's Trust, 1 De G., M. & G. 57; 16 Jur. 279; 21 L. J., Ch. 316; 9 Hare, 820; see Re Lea's Trust, 6 W. R. 482.) And where the personal representative of a mortgagee assigns the mortgage, the heir of the mortgagee being out of the jurisdiction, the assignee may, under this section, obtain an order vesting the legal estate. (Re Quinlan, 9 Ir. Ch. R. 306.) But such an order will not be made except in the cases of sale or transfer. (Re Hewitt, 27 L. J., Ch. 302.) A testator, in 1860, after specifically devising certain lands, &c., not including in such devise any lands or hereditaments vested in him as mortgagce or trustee, gave all the residue of his real and personal estate unto all his nephews and nieces as tenants in common. It was held, on petition by the executors, that the trust and mortgage estates did not pass to the unascertained class, but to the heir at law as trustee; and the court directed the same to be vested in the executors upon the trusts of the will. (Re Finney's Estate, 3 Giff. 465.) See the cases quoted ante, p. 653. This section only applies where the mortgagee has never been in possession or in receipt of the rents and profits of the mortgaged property. But where a mortgagee had been in receipt of the rents and profits, the court, under sect. 9, made an order vesting in her executors the legal estate outstanding in the heir at law who was out of the jurisdiction. (Re Skitter's Mortgage Trust, 4 W. R. 791; and see Re Keeler, ante, p. 657, under sect. 15.) 13 & 14 Vict. c. 60, s. 19. A bastard mortgagee, having devised her real estate in terms which did Bastard mortnot pass the legal estate in the mortgaged premises, died without issue, gagce. and the money was subsequently paid off. The crown offering no opposition, an order was made vesting the legal estate in a purchaser. (Re Minchin, 2 W. R. 179.) Where the personal representative of a mortgagee sold the mortgaged Service. property, the legal estate outstanding in the heir of the mortgagee was vested in the purchaser, without service being required on the heir of the mortgagee or the personal representative of the deceased mortgagor. (Re Wise, 5 De G. & Sm. 415.) For form of order under this section, see Seton, 793. 20. In every case where the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, shall, under the provisions of this act, be enabled to make an order having the effect of a conveyance or assignment of any lands, or having the effect of a release or disposition of the contingent right of any person or persons, born or unborn, it shall also be lawful for the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, as the case may be, should it be deemed more convenient, to make an order appointing a person to convey or assign such lands, or release or dispose of such contingent right; and the conveyance or assignment, or release or disposition, of the person so appointed, shall, when in conformity with the terms of the order by which he is appointed, have the same effect in conveying or assigning the lands, or releasing or disposing of the contingent right, as an order of the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, would in the particular case have had under the provisions of this act (d); and in every case where the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, shall, under the provisions of this act, be enabled to make an order vesting in any person or persons the right to transfer any stock transferable in the books of the Governor and Company of the Bank of England, or of any other company or society established or to be established, it shall also be Power to appoint vey in certain cases. a person to con 13 & 14 Vict. c. 60, s. 20. Cases where person has been appointed to convey. Person absolutely entitled to stock. As to lands in lawful for the Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, if it be deemed more convenient, to make an order directing the secretary, deputy secretary or accountantgeneral for the time being of the Governor and Company of the Bank of England, or any officer of such other company or society, at once to transfer or join in transferring the stock to the person or persons to be named in the order; and this act shall be a full and complete indemnity and discharge to the Governor and Company of the Bank of England, and all other companies or societies and their officers and servants, for all acts done or permitted to be done pursuant thereto (e). (d) Where real estate devised to married women and infants was sold under a decree in lots, the court appointed the plaintiff's solicitor to convey their shares to the several purchasers. (Hancox v. Spittle, 3 Sm. & Giff. 478; and see Wilks v. Groom, 6 De G., M. & G. 205, ante, p. 654.) A vendor covenanted to surrender copyholds to the purchaser, but the deed contained no declaration that until surrender the vendor and his heirs would hold in trust for the purchaser. The purchase-money was paid; and the vendor died before surrender. The customary heir being of unsound mind, the court appointed a person to convey to the purchaser without a suit being instituted to have the heir declared a trustee. (Re Cuming, L. R., 5 Ch. 72.) (e) Where stock was standing in the names of two trustees, who were both dead, the survivor having died intestate and being without a legal personal representative, a person absolutely entitled to the stock petitioned that it might be transferred directly into his own name. The court appointed the petitioner trustee of the fund for his own benefit, and ordered it to be transferred into his name. (Re Dickson, W. N. 1872, p. 223; 21 W. R. 220.) A form of petition for an order appointing a person to convey lands, whereof a trustee died seised without an heir, is given, Dan. Ch. Forms, 2047. For forms of orders see the above cases, and Seton, 794; and as to the conveyance, see Ex parte Foley, 8 Sim. 395. 21. As to any lands situated within the duchy of Lancashire or the counties palatine of Lancaster or Durham, it shall be lawful for the Court of the Duchy Chamber of Lancaster, the Court of Chancery in the county palatine of Lancaster, or the Court of Chancery in the county palatine of Durham, to make a like order in the same cases as to any lands within the jurisdiction of the same courts respectively as the Court of Chancery has, under the provisions hereinbefore (f) contained, been enabled to make concerning any lands; and every such order of the Court of the Duchy Chamber of Lancaster, the Court of Chancery in the county palatine of Lancaster, or the Court of Chancery in the county palatine of Durham, shall, as to such lands, have the same effect as an order of the Court of Chancery: provided always, that no person who is anywhere within the limits of the jurisdiction of the High Court of Chancery shall be deemed by such local courts to be an absent trustee or mortgagee within the meaning of this act. (ƒ) The provisions of this act as well subsequent as prior to this section, and also the provisions of 15 & 16 Vict. c. 55, have been extended to lands and personal property in the county palatine of Lancaster. (17 & 18 Vict. c. 82, s. 11.) As to orders in lunacy see Re Ormerod, 3 De G. & J. 249, p. 668, post. 22. When any person or persons shall be jointly entitled with any person out of the jurisdiction of the Court of Chancery (g), or who cannot be found, or concerning whom it shall be uncertain whether he be living or dead (h) to any stock or chose in action upon any trust, it shall be lawful for the said court to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, or to sue for or recover such chose in action, or any interest in respect thereof, either in such person or persons so jointly entitled as aforesaid, or in such last-mentioned person or persons together with any person or persons the said court may appoint; and when any sole trustee (i) of any stock or chose in action shall be out of the jurisdiction of the said court, or cannot be found, or it shall be uncertain whether he be living or dead, it shall be lawful for the said court to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, or any interest in respect thereof, in any person or persons the said court may appoint (k). 13 & 14 Vict. c. 60, s. 22. when trustees of stock out of the jurisdiction. (g) The husband of an executrix out of the jurisdiction was held to be a Trustees out trustee within this section. (Ex parte Bradshaw, 2 De G., M. & G. 900.) of jurisdiction. Where a lunatic or infant trustee is also out of the jurisdiction, the case falls within the provisions applicable to the cases of lunacy and infancy. (Re Cramer, 5 De G. & Sm. 312; see Re Smith's Trusts, I. R., 4 Eq. 180. Where a trustee of stock was absent from England in command of a merchant vessel on a voyage to India, it was held that he was not out of the jurisdiction within the meaning of 11 Geo. 4 & 1 Will. 4, c. 60. (Hutchinson v. Stephens, 5 Sim. 498.) A debtor resident in India pledged shares held by him in a joint-stock banking company in England with a creditor in England, with an authority by letter to sell, which was communicated to and recognized by the banking company. The creditor, in exercise of the authority, sold the shares to a purchaser. Upon the petition of the purchaser, it was held, that the shares were "stock," and that the debtor in India, being a constructive trustee, was a trustee for the purchaser within this act, and the court made an order directing a specified person to transfer the shares to the petitioner. (Re Angelo, 5 De G. & S. 278.) (h) Where stock was standing in the names of A. and B. as trustees for Death of trustee a lunatic, and A. had died long previously, but no proof upon which the unprovable. bank would act could be furnished of his death, an order under this section was made upon B.'s death, appointing the bank's officer to concur with B.'s executor in transferring the stock into court. (Re Bourke, 2 De G., J. & S. 426.) (i) It is said that the term "sole trustee" has a clear and definite meaning, Sole trustee. and that it means a person originally a sole trustee or one who has become sole trustee by surviving. A. and B. being trustees, the Master found that it was uncertain whether A. was living or dead, but B. was living; afterwards B. died. It was held, that A. was not a sole trustee within the meaning of this section. (Re Randall's Will, 1 Drew. 401.) (k) Bank stock was standing in the names of four trustees, one of whom Form of order. was abroad and inaccessible. There being some inconvenience in removing him, the court, under this section, vested the right to receive the past and future dividends in the three other trustees during their joint lives. (Re Peyton, 25 Beav. 317; 2 De G. & J. 290.) See, however, as to future dividends, Re Hartnall, 5 De G. & Sm. 111, post. It should appear on the face of the order that the trustee is out of the jurisdiction. (Re Mainwaring, 26 Beav. 172.) And see the form of order made under this section in Coles v. Benbore, W. N. 1873, p. 60, post, p. 682. |