23 & 24 Vict. c. 145, 8. 1. Sale may be made under special con tees may buy in, &c. the better course to insert full express powers. (3 Davidson, Conv. 569, 3rd ed.) For the power of sale and exchange usually inserted in settlements, see 3 Davidson, Conv. 1011, 3rd ed. And for clauses to be inserted where it is desired to rely on the statutory provisions, see id. 1014 and 1061. These sections do not apply to trusts created before the 28th August, 1860. As to the powers and duties of trustees for sale, see generally, Lewin on Trusts, 312 et seq., 5th ed. 2. It shall be lawful for the persons making any such sale or ditions, and trus- exchange to insert any such special or other stipulations, either as to title or evidence of title, or otherwise, in any conditions of sale, or contract for sale or exchange, as they shall think fit, and also to buy in the hereditaments or any part thereof at any sale by auction, and to rescind or vary any contract for sale or exchange, and to resell the hereditaments which shall be so bought in, or as to which the contract shall be so rescinded, without being responsible for any loss which may be occasioned thereby, and no purchaser under any such sale shall be bound to inquire whether the person making the same may or may not have in contemplation any particular re-investment of the purchase-money in the purchase of any other hereditaments or otherwise. Trustees exercis &c. empowered to convey. 3. For the purpose of completing any such sale or exchange ing power of sale, as aforesaid, the persons empowered to sell or exchange as aforesaid shall have full power to convey or otherwise dispose of the hereditaments in question, either by way of revocation and appointment of the use, or otherwise, as may be necessary. Moneys arising from sales, &c. to be laid out in other lands; 4. The money so received upon any such sale or for equality of exchange as aforesaid shall be laid out in the manner indicated in that behalf in the will, deed or instrument containing the power of sale or exchange, or if no such indication be therein contained as to all or any part of such money, then the same shall with all convenient speed be laid out in the purchase of other hereditaments in fee simple in possession to be situate in England or Wales or in Ireland (as the case may be), or of lands of a leasehold or copyhold or customary tenure which, in the opinion of the persons making the purchase, are convenient to be held therewith or with any other hereditaments for the time being, subject to the subsisting uses or trusts of the same will, deed or other instrument of settlement in which the power of sale or exchange was contained; and all such hereditaments so to be purchased or taken in exchange as aforesaid as shall be freeholds of inheritance shall be settled and assured to the uses, upon and for the trusts, intents and purposes, and with, under and subject to the powers, provisoes and declarations, to which the hereditaments sold or given in exchange were or would have been subject, or as near thereto as the deaths of parties and other intervening accidents will admit of, but not so as to increase or multiply charges; and all such hereditaments so to be purchased or taken in exchange as aforesaid as shall be of leasehold or copyhold or customary tenure shall be settled and assured upon and for such trusts, intents and purposes, and with, under and subject to such powers, provisoes and declarations, as shall as nearly as may be correspond with and be similar to the 23 & 24 Vict. aforesaid uses, trusts, intents and purposes, powers, provisoes c. 145, s. 4. and declarations, but not so as to increase or multiply charges, and so that if any of the hereditaments so to be purchased shall be held by lease for years the same shall not vest absolutely in any tenant in tail by purchase who shall not attain the age of twenty-one years; and any such purchase as aforesaid may be made subject to any special conditions as to title or otherwise: provided that no leasehold tenement shall be purchased under the powers hereinbefore contained which is held for a less period than sixty years. 5. Provided nevertheless, that it shall be lawful for the per- or in payment of sons exercising any such power as aforesaid, if they shall think incumbrances. fit, to apply any money to be received upon any sale or for equality of exchange as aforesaid, or any part thereof, in lieu of purchasing lands therewith, in or towards paying off or discharging any mortgage or other charge or incumbrance which shall or may affect all or any of the hereditaments which shall then be subject to the same uses or trusts as those to which the hereditaments sold or given in exchange were or was subject. 6. No money arising from any such sale or exchange of Money arising lands or hereditaments in England or Wales shall be laid out in from sales, &c. the purchase of lands or hereditaments situate elsewhere than nor lands exin England or Wales, and no lands situate in England or Wales changed, elseshall, under any such power as aforesaid, be exchanged for any country in which lands or hereditaments situate elsewhere than in England or changed is Wales; and no money arising from any such sale or exchange situated. of lands in Ireland shall be laid out in the purchase of lands or hereditaments situate elsewhere than in Ireland, and no lands or hereditaments situate in Ireland shall, under any such power as aforesaid, be exchanged for any lands or hereditaments situate elsewhere than in Ireland. not to be laid out, where than in the lands sold or ex Until purchase of lands, &c. money to be invested at 7. Until the money to be received upon any sale or for equality of exchange as aforesaid shall be disposed of in the manner herein mentioned, the same shall be invested at interest interest. for the benefit of the same parties who would be entitled to the hereditaments to be purchased therewith as aforesaid, and the rents and profits thereof, in case such purchase and settlement as aforesaid were then actually made (b). (b) As to the mode in which money arising from sales under the Settled Estates Act is to be applied, see ante, pp. 695, 696. And as to the securities in which trust funds can be invested, see ante, pp. 724, 728. holds may renew. 8. It shall be lawful for any trustees of any leaseholds for Trustees of relives or years which are renewable from time to time, either newable leaseunder any covenant or contract or by custom or usual practice, if they shall in their discretion think fit, and it shall be the duty of such trustees, if thereunto required by any person having any beneficial interest, present or future or contingent, in such leaseholds, to use their best endeavours to obtain from time to time a renewed lease of the same hereditaments on the accustomed and reasonable terms, and for that purpose it shall be 23 & 24 Vict. c. 145, s. 8. Restriction. Expenses of renewal. Money for equality of exchange and for renewal of leases may be raised by mortgage, &c. No sale, &c. to be made without consent of tenant for life, &c. lawful for any such trustees from time to time to make or concur in making such surrender of the lease for the time being subsisting, and to do all such other acts as shall be requisite in that behalf; but this section is not to apply to any case where by the terms of the settlement or will the person in possession for his life or other limited interest is entitled to enjoy the same without any obligation to renew the lease or to contribute to the expense of renewing the same (c). (c) The present rule adopted by courts of equity as to the proportions in which a tenant for life and remainderman must bear the expenses of renewal (where there is no express direction), is that they contribute in proportion to their actual enjoyment of the renewed lease. (3 Davidson, Conv. 611 et seq., 3rd ed. It is not clear whether renewals under the act would be subject to this rule. (Id. 623.) As to the manner in which the expenses of renewal are to be raised and paid, see further, Lewin on Trusts, 295 et seq., 5th ed.; and as to the obligation of trustees to renew sale, id. 292 et seq. 9. In case any money shall be required for the purpose of paying for equality of exchange as aforesaid, or for renewal of any lease as aforesaid, it shall be lawful for the persons effecting such exchange or renewal to pay the same out of any money which may then be in their hands in trust for the persons beneficially interested in the lands to be taken in exchange, or comprised in the renewed lease, whether arising by any of the ways and means hereinbefore mentioned or otherwise, and notwithstanding the provisions for the application of money arising from sales or exchanges hereinbefore contained; and if they shall not have in their hands as aforesaid sufficient money for the purposes aforesaid, it shall be lawful for such persons to raise the money required by mortgage of the hereditaments to be received in exchange or contained in the renewed lease (as the case may be), or of any other hereditaments for the time being subject to the subsisting uses or trusts to which the hereditaments taken in exchange or comprised in the renewed lease (as the case may be) shall be subject, and for the purpose of effecting such mortgage such persons shall have the same powers of conveying or otherwise assuring as are herein contained with reference to a conveyance on sale; and no mortgagee advancing money upon such mortgage purporting to be made under this power shall be bound to see that such money is wanted, or that no more is raised than is wanted for the purposes aforesaid. 10. No such sale or exchange as aforesaid, and no purchase of hereditaments out of money received on any such sale or exchange as aforesaid, shall be made without the consent of the person appointed to consent by the will, deed, or other instrument, or if no such person be appointed, then of the person entitled in possession to the receipt of the rents and profits of such hereditaments, if there be such a person under no disability; but this clause shall not be taken to require the consent of any person where it appears from the will, deed or other instrument, to have been intended that such sale, exchange or purchase, should be made by the person or persons making the same 23 & 24 Vict. without the consent of any other person. PART II. Powers of Mortgagees (d). c. 145, s. 10. to mortgages. 11. Where any principal money is secured or charged by Powers incident deed on any hereditaments of any tenure, or on any interest therein, the person to whom such money shall for the time being be payable, his executors, administrators and assigns, shall, at any time after the expiration of one year from the time when such principal money shall have become payable, according to the terms of the deed, or after any interest on such principal money shall have been in arrear for six months, or after any omission to pay any premium on any insurance which by the terms of the deed ought to be paid by the person entitled to the property subject to the charge, have the following powers, to the same extent (but no more) as if they had been in terms conferred by the person creating the charge; namely, 1st. A power to sell or concur with any other person in To sell. 2nd. A power to insure and keep insured from loss or damage To insure. ceiver. 3rd. A power to appoint or obtain the appointment of a re- To appoint receiver of the rents and profits of the whole or any part of the property in manner hereinafter mentioned. (d) Where it is intended that the mortgagee should not have all or any of the powers conferred by the act, it may be prevented by express declaration. (Sect. 32, post.) It was Mr. Waley's opinion that when the act is not relied on, the powers and incidents of the act should not be excluded, except in cases where a positive reason for exclusion exists; but that (without special reference) the resources of the act should be left available as auxiliary, and, if required, supplemental to those expressly conferred by the instrument. (2 Davidson, Conv. 756, 3rd ed.) A clause varying the statutory provisions is given, id. 865. And see a precedent where powers of sale and insurance are supplied by reference to the act. (Davidson, Conc. Prec. 150, 7th ed.) The statutory provisions are in some particulars more beneficial, and in others less beneficial to the mortgagee than the provisions of an ordinary mortgage deed. (See 2 Davidson, Conv. 637, 3rd ed.) pur 12. Receipts for purchase-money given by the person or per-chase-money sufsons exercising the power of sale hereby conferred shall be suffi- ficient discharges. cient discharges to the purchasers, who shall not be bound to see to the application of such purchase-money. 13. No such sale as aforesaid shall be made until after six Notice to be given before sale; but from inquiry as to sale. 23 & 24 Vict. months' notice in writing given to the person or one of the perc. 145, s. 13. sons entitled to the property subject to the charge, or affixed on some conspicuous part of such property; but when a sale has purchaser relieved been effected in professed exercise of the powers hereby concircumstances of ferred, the title of the purchaser shall not be liable to be impeached on the ground that no case had arisen to authorize the exercise of such power, or that no such notice as aforesaid had been given; but any person damnified by any such unauthorized exercise of such power shall have his remedy in damages against the person selling. Application of 14. The money arising by any sale effected as aforesaid shall purchase-money. be applied by the person receiving the same as follows; first, in payment of all the expenses incident to the sale or incurred in any attempted sale; secondly, in discharge of all interest and costs then due in respect of the charge in consequence whereof the sale was made; and, thirdly, in discharge of all the principal monies then due in respect of such charge; and the residue of such money shall be paid to the person entitled to the property subject to the charge, his heirs, executors, administrators or assigns, as the case may be. Conveyance to the purchaser. Owner of charge deeds and convey ance of legal estate. 15. The person exercising the power of sale hereby conferred shall have power by deed to convey or assign to and vest in the purchaser the property sold, for all the estate and interest therein, which the person who created the charge had power to dispose of, except that in the case of copyhold hereditaments the beneficial interest only shall be conveyed to and vested in the purchaser by such deed (e). (e) Where leaseholds are mortgaged by demise it was suggested by Mr. Waley that a question might be raised under this section, whether the mortgagee could convey to a purchaser the reversion left in the mortgagor. (2 Davidson, Conv. 976, n. (e), 3rd ed.) It has since been decided by the Master of the Rolls that in such a case this section enables the mortgagee to convey the reversion. (Hiatt v. Hillman, 19 W. R. 694.) As to the effect of this section where the mortgagor has registered with an indefeasible title under 25 & 26 Vict. c. 53, see Re Richardson, L. R., 12 Eq. 398; 13 Eq. 142. 16. At any time after the power of sale hereby conferred may call for title shall have become exerciseable, the person entitled to exercise the same shall be entitled to demand and recover, from the person entitled to the property subject to the charge, all the deeds and documents in his possession or power relating to the same property, or to the title thereto, which he would have been entitled to demand and recover if the same property had been conveyed, appointed, surrendered or assigned to and were then vested in him for all the estate and interest which the person creating the charge had power to dispose of, and where the legal estate shall be outstanding in a trustee the person entitled to a charge created by a person equitably entitled, or any purchaser from such person, shall be entitled to call for a conveyance of the legal estate to the same extent as the person creating the charge could have called for such a conveyance if the charge had not been made. |