22 & 23 Vict. 1 M. & W. 747, 757; Stevenson v. Lambard, 2 East, 575; 2 Inst. 503; Jacob v. Kirk, 2 M. & Rob. 221.) c. 35, s. 3. Eviction by title paramount. Statutory provisions for apportionment of rent. Relief against for of covenant to insure in certain cases. If part of the land out of which a rent-charge issues is evicted by a title paramount, the rent will be apportioned; and if a rent service is chargeable on land which descends to parceners, and they make partition, and one is distrained for the whole, she may compel the others to contribution. The same doctrine will apply to co-feoffees of the land, or of different parts of the land. (Co. Litt. 146, 148, 149; Com. Dig. Suspension, E. G.; 2 Inst. 119; Bac. Abr. Rent, M. 1, 2; Averall v. Wade, Lloyd & G. temp. Sugd. 252.) If the lessee be evicted from part of the land by title paramount to the landlord, the rent may be apportionably diminished according to the proportion of the land evicted. But if the lease be bad as to part of the land by the act of the lessor, he will not be entitled to an apportioned rent in respect of so much of the land as is well demised. A lessee of one hundred acres of land accepted the lease and entered upon the land upon his entry he found eight acres in the possession of a person entitled under a prior lease from the lessor, and that person kept possession of the eight acres until half-a-year's rent became due, and excluded the lessee from the enjoyment during that period, the lessee continuing in possession of the remainder. It appeared from the dates of and averments in the pleadings, that the prior lease was for a term extending beyond the duration of the latter lease. It was held, on error (reversing the judgment of the Court of Exchequer), that the latter demise was wholly void as to the eight acres; and that the rent was not apportionable; and that the lessor was not entitled to distrain for the whole rent or any part of it. (Neale v. Mackenzie, 1 Mees. & W. 747; 2 Cr. M. & R. 84. See Tomlinson v. Day, 5 Moore, 558; 2 Brod. & B. 681.) Statutory provisions have been made for the apportionment of rent where land is taken for certain public purposes. See 8 & 9 Vict. c. 18, s. 119; 12 & 13 Vict. c. 49; 17 & 18 Vict. cc. 32, 97, 116. As to the apportionment of rent service, see further, Woodfall, L. & T. 362 et seq., 9th ed. And as to the apportionment of rent-charges, see the note to 23 & 24 Vict. c. 35, s. 10, post. Policies of Insurance. 4. A court of equity shall have power to relieve against a feiture for breach forfeiture for breach of a covenant or condition to insure against loss or damage by fire, where no loss or damage by fire has happened, and the breach has, in the opinion of the court, been committed through accident or mistake, or otherwise without fraud or gross negligence, and there is an insurance on foot at the time of the application to the court in conformity with the covenant to insure, upon such terms as to the court may seem fit (d). Relief in equity. Relief at common law against for (d) The court has jurisdiction to relieve against a breach of covenant to insure committed after the passing of this act, arising on a lease dated before the passing of the act. (Page v. Bennett, 2 Giff. 117; 6 Jur., N. S. 419; 29 L. J., Ch. 398; 8 W. R. 339.) Where a tenant had allowed judgment in ejectment to go by default, and then filed a bill for relief, the court relieved against the judgment on payment by the plaintiff of the taxed costs at law, the arrears of rent, the amount due for repairs and insurance, and 50%. costs in equity, and ordered the defendant to account for the rent. (Bamford v. Creasy, 3 Giff. 675.) By the Common Law Procedure Act, 1860 (23 & 24 Vict. c. 126), s. 2, in the case of any ejectment for a forfeiture for breach of a covenant or feiture for non-in condition to insure against loss or damage by fire, the court or a judge suring. shall have power upon rule or summons to give relief in a summary manner, but subject to appeal as mentioned in sects. 4 to 11, in all cases in which such relief may now be obtained in the Court of Chancery under the provi sions of the 23 & 24 Vict. c. 35, and upon such terms as would be imposed in such court. By sect. 3, where such relief shall be granted, the court or a judge shall direct a minute thereof to be made by indorsement on the lease or otherwise. 5. The court, where relief shall be granted, shall direct a record of such relief having been granted to be made by indorsement on the lease or otherwise. 22 & 23 Vict. c. 35, s. 4. When relief granted the same to be recorded. lieve any person more than once in respect of the 6. The court shall not have power under this act to relieve Court not to rethe same person more than once in respect of the same covenant or condition; nor shall it have power to grant any relief under this act where a forfeiture under the covenant in respect of which relief is sought shall have been already waived out of court in favour of the person seeking the relief. 7. The person entitled to the benefit of a covenant on the part of a lessee or mortgagor to insure against loss or damage by fire shall, on loss or damage by fire happening, have the same advantage from any then subsisting insurance relating to the building covenanted to be insured, effected by the lessee or mortgagor in respect of his interest under the lease or in the property, or by any person claiming under him, but not effected in conformity with the covenant, as he would have from an insurance effected in conformity with the covenant. 8. Where, on the bonâ fide purchase after the passing of this act of a leasehold interest under a lease containing a covenant on the part of the lessee to insure against loss or damage by fire, the purchaser is furnished with the written receipt of the person entitled to receive the rent, or his agent, for the last payment of rent accrued due before the completion of the purchase, and there is subsisting at the time of the completion of the purchase an insurance in conformity with the covenant, the purchaser or any person claiming under him shall not be subject to any liability, by way of forfeiture or damages or otherwise, in respect of any breach of the covenant committed at any time before the completion of the purchase, of which the purchaser had not notice before the completion of the purchase; but this provision is not to take away any remedy which the lessor or his legal representatives may have against the lessee or his legal representatives for breach of covenant. 9. The preceding provisions shall be applicable to leases for a term of years absolute, or determinable on a life or lives or otherwise, and also to a lease for the life of the lessee or the life or lives of any other person or persons. Rent-charges. 10. The release from a rent-charge of part of the hereditaments charged therewith shall not extinguish the whole rentcharge, but shall operate only to bar the right to recover any part of the rent-charge out of the hereditament released without prejudice, nevertheless, to the rights of all persons interested in the hereditaments remaining unreleased, and not concurring in or confirming the release (e). same covenant, &c. Lessor to have benefit of an in formal insurance. Protection of purchaser against forcovenant for insurance against cases. feiture under fire in certain Preceding provileases for a term sions to apply to of years absolute, &c. Release of part of land charged not to be an extinguishment. (e) A person having a rent-charge, by releasing all his right in part of Release of rent charges. 22 & 23 Vict. c. 35, s. 10. Extinguishment of rent-charges. Apportionment of rent-charges. Release of part of land charged not to affect judgment. the land charged extinguishes the whole rent, because it issues out of every part, and cannot be apportioned. (18 Vin. Abr. 504.) But a person having a rent-charge may release part of it to the tenant of the land, and reserve part, for the grantee deals only with that which is his own, namely, the rent, and not with the land. (Co. Litt. 148 a; 3 Vin. Abr. 10, 11.) So if the lessee surrender part of the land to the lessor, the rent services will be apportioned. (Co. Litt. 148.) If a man, having a rent-charge issuing out of lands, purchases any part of them, the rent-charge is extinct in the whole (Litt. s. 222), because the rent is entire and against common right, and issuing out of every part of the land (Co. Litt. 147 b; 1 Roll. Abr. 234; see Gilb. on Rents, 152), although it is otherwise where part of the lands out of which the rent issues descends on the grantee. (1 Roll. Abr. 236, pl. 5.) If the grantee of a rent-charge purchases part of the land, and the grantor, by his deed reciting such purchase, grants that he may distrain for such rent-charge in the residue of the land, this amounts to a new grant. (Co. Litt. 147 b.) A rent-charge is extinguished by a devise to the grantee of part of the land out of which the rent-charge issues, notwithstanding the devise is expressly made over and above the rent-charge. (Dennet v. Pass, 1 Bing. N. C. 388; 5 Moor. & S. 218.) As to the apportionment of a rent-charge charged on lands devised to trustees, see Mills v. Cobb, L. R., 2 C. P. 95. A rent-charge was payable out of property part of which comprised mines and was settled upon the eldest son, and part was agricultural land, and was settled upon the younger children. The mining property produced a larger income, but being of a fluctuating nature, and liable to great diminution, was valued at seven years' purchase, and the agricultural property at thirty years' purchase. It was held, that the two properties must contribute to the rent-charge in proportion to the actual income de anno in annum, and not in proportion to the capitalized value. (Ley v. Ley, L. R., 6 Eq. 174.) For conditions of sale apportioning a rent-charge, where the property charged is sold in lots, see 1 Prideaux Conv. 58, 7th ed. And for a deed containing mutual covenants by several purchasers in such a case, see 2 Prideaux Conv. 667, 7th ed. Judgments. 11. The release from a judgment of part of any hereditaments charged therewith shall not affect the validity of the judgment as to the hereditaments remaining unreleased, or as to any other property not specifically released, without prejudice, nevertheless, to the rights of all persons interested in the hereditaments or property remaining unreleased, and not concurring in or confirming the release (ƒ). (f) In 1824, judgments were obtained against A., tenant in tail of Whiteacre, which was, subsequently on A.'s marriage in the same year, settled upon A. for life, with remainders over, and a recovery suffered to the uses of the settlement. In 1825, A. purchased the fee of Blackacre. In 1829, the plaintiff agreed to lend 2,0007. on mortgage of Blackacre in fee and of A.'s life estate in Whiteacre, provided the judgment creditors would release Blackacre. The judgment creditors accordingly executed a deed poll, reciting that A. had requested them to release Blackacre from the incumbrances thereon by their judgments, and that they being satisfied that the residue of A.'s land was a sufficient security for their judgments had agreed thereto; and by the operative part of the deed they released, exonerated, and for ever discharged Blackacre from their respective judg ments, and from all writs of execution and executions, and every other writ then sued out or thereafter to be sued out against Blackacre by virtue of their respective judgments or otherwise in relation thereto, and they agreed for their respective judgments only to indemnify A. for all costs, damages and expenses which should at any time be incurred by reason of 22 & 23 Vict. c. 35, s. 11. Blackacre being attached in execution under those judgments. The mort- A., who had contracted to purchase real estate from B., made default in payment of the purchase-money, and the estate was resold to B. under a decree of the court in a suit for specific performance. Several judgment creditors of A. claimed interests in the property, and A. filed a bill against them praying that the property might be declared free from their claims. Before the hearing, all the defendants except C. agreed to release their claims; and at the hearing the court granted the relief prayed, and ordered C. to pay all the costs of the suit. (Moscrop v. Sandeman, 9 Jur., N. S. 1146.) Where a tenant by elegit took a conveyance of part of the lands extended, in satisfaction of part of his debt, it was held that his tenancy by elegit on the rest of the lands was extinguished, and that his judgment was satisfied. (Hele v. Lord Bexley, 17 Beav. 14.) Purchase by judgment creditor of part of land extended. Powers. of powers. 12. A deed hereafter executed in the presence of and attested Mode of execution by two or more witnesses in the manner in which deeds are ordinarily executed and attested shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by deed or by any instrument in writing not testamentary, notwithstanding it shall have been expressly required that a deed or instrument in writing made in exercise of such power should be executed or attested with some additional or other form of execution or attestation or solemnity: provided always, that this provision shall not operate to defeat any direction in the instrument creating the power that the consent of any particular person shall be necessary to a valid execution, or that any act shall be performed in order to give validity to any appointment, having no relation to the mode of executing and attesting the instrument, and nothing herein contained shall prevent the donee of a power from executing it conformably to the power by writing or otherwise than by an instrument executed and attested as an ordinary deed, and to any such execution of a power this provision shall not extend (g). (g) At common law signing is not essential to the validity of a deed, though sealing is. And, accordingly, the common form of attestation to a deed used to be "sealed and delivered by the party in the presence of us." It was decided, however, in Wright v. Wakeford (17 Ves. 454; 4 Taunt. Wright v. Wake213), where a power was required to be executed with a consent testified ford. by writing under hand and seal attested by two or more credible witnesses, and the attestation clause did not express that the witnesses attested the signing as well as the sealing and delivery of the deed; that the power was not well executed. Preston's Act (54 Geo. 3, c. 168) was passed to cure Preston's Act. the defect thus arising as to all instruments intended to exercise powers and executed before the 30th July, 1814. The above section was passed to provide a further remedy. See, further, Sugden on Powers, 234 et seq., 8th ed. By 1 Vict. c. 26, s. 10, ante, p. 511, an appointment by will is to be exe- Appointments by will. cuted like other wills and to be valid, although other required solemnities are not observed. 13. Where under a power of sale a bonâ fide sale shall be made of an estate with the timber thereon, or any other articles attached thereto, and the tenant for life or any other party to the transaction shall by mistake be allowed to receive for his own benefit a portion of the purchase-money as the value of the timber or other articles, it shall be lawful for the Court of Chancery, upon any bill or claim or application in a summary way, as the case may require or permit, to declare that upon payment by the purchaser, or the claimant under him, of the full value of the timber and articles at the time of sale, with such interest thercon as the court shall direct, and the settlement of the said principal monies and interest, under the direction of the court, upon such parties as in the opinion of the court shall be entitled thereto, the said sale ought to be established; and upon such payment and settlement being made accordingly the court may declare that the said sale is valid, and thereupon the legal estate shall vest and go in like manner as if the power had been duly executed, and the costs of the said application as between solicitor and client shall be paid by the purchaser or the claimant under him (h). (h) Before this act, trustees having a power of sale only could not sell the estate separate from the timber standing upon it, though the tenant for life was without impeachment of waste, and might have cut the timber previously to the sale. (Cholmeley v. Paxton, 3 Bing. 207; 5 Bing. 48; §. C. nom. Cockerell v. Cholmley, 10 B. & C. 564; 3 Russ. 565; 1 Russ. & M. 418; 1 Cl. & Fin. 60. See 25 & 26 Vict. c. 108, post.) [The 14th, 15th, 16th, 17th and 18th sections of this act are inserted ante, pp. 484-488.] [The 19th and 20th sections of this act, as to inheritance, are inserted ante, p. 442.] Assignment of Personalty. 21. Any person shall have power to assign personal property now by law assignable, including chattels real, directly to himself and another person or other persons or corporation, by the like means as he might assign the same to another (¿). (i) At common law a man could not assign personalty to himself and another: a rule which occasioned inconvenience in the transfer of trust property. Thus where leaseholds were held upon trust, and on the retirement of a trustee it was wished to vest the trust property in the continuing and a new trustee, according to the course formerly adopted, the leaseholds were assigned by the continuing and retiring trustees to a provisional trustee, and by him re-assigned to the continuing and new trustees. By virtue of the above section the continuing and retiring trustees can assign directly to the continuing and new trustees. (See Davidson, Conv. 600, 2nd ed.) As to the means by which a man can convey real estate to himself, see Williams' Real Prop. 173, 7th ed. |