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PART IV.

General Provisions.

31. For the purposes of this act, a person shall be deemed to be entitled to the possession or to the receipt of the rents and income of land or personal property, although his estate may be charged or incumbered, either by himself or by any former owner, or otherwise howsoever to any extent; but the estates or interests of the parties entitled to any such charge or incumbrance shall not be affected by the acts of the person entitled to the possession or to the receipt of the rents and income as aforesaid, unless they shall concur therein (m).

(m) As to the effect of incumbrances upon a power of leasing and a power to consent to a sale, see the cases quoted ante, pp. 374, 375.

32. None of the powers or incidents hereby conferred or annexed to particular offices, estates or circumstances, shall take effect or be exerciseable if it is declared in the deed, will or other instrument creating such offices, estates or circumstances that they shall not take effect; and where there is no such declaration, then if any variations or limitations of any of the powers or incidents hereby conferred or annexed are contained in such deed, will or other instrument, such powers or incidents shall be exerciseable or shall take effect only subject to such variations or limitations (n).

(n) This is an option which will probably be frequently acted upon, more particularly owing to the latter portion of the section, to which Lord St. Leonards always entertained and expressed a strong objection; for nothing can be more difficult, not to say dangerous, than to attempt to amalgamate the powers in the settlement and the powers in the act, or to engraft the latter in the former. Where the settlement is purposely silent as to the powers conferred by the act, and the settlor approves of and chooses to rely upon them, the only inconvenience will be that the settlement itself will not inform the persons claiming under it of the powers vested in them, but it will be necessary to refer to the act for that purpose. (Sugden on Powers, 877, 878, 8th ed.; Sugden on Statutes, 301, 2nd ed.)

33. Nothing in this act contained shall be deemed to empower any trustees or other persons to deal with or affect the estates or rights of any persons soever, except to the extent to which they might have dealt with or affected the estates or rights of such persons if the deed, will or other instrument under which such trustees or other persons are empowered to act had contained express powers for such trustees or other persons so to deal with or affect such estates or rights.

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of act.

34. The provisions contained in this act shall, except as here- Commencement inbefore otherwise provided, extend only to persons entitled or acting under a deed, will, codicil or other instrument executed after the passing of this act, or under a will or codicil confirmed or revived by a codicil executed after that date.

35. This act shall not extend to Scotland.

Extent of act.

25 & 26 Vict. c. 108, s. 1.

Powers of sale,

&c. not to be invalid on the

express mention

of exception or reservation of minerals, &c.

CONFIRMATION OF SALES.

25 & 26 VICTORIA, c. 108.

An Act to confirm certain Sales, Exchanges, Partitions, and
Enfranchisements by Trustees and others.

[7th August, 1862.]

WHEREAS trustees and others, in the intended exercise of trusts or powers authorizing them to dispose of land by sale, exchange, partition, or enfranchisement, have disposed of land subject to such trusts or powers, with an exception or reservation of minerals, and either with or without rights and powers for or incidental to the working, getting, and carrying away of such minerals, or otherwise relating thereto, or have so disposed of minerals with or without such rights and powers separately from the residue of the land, such mode of disposition not being expressly authorized nor forbidden by the instrument creating the trust or power: and whereas it is expedient to confirm such dispositions as aforesaid: be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same as follows:

1. No sale, exchange, partition, or enfranchisement at any time heretofore of land by any trustee or other person, expressed ground of want of or intended to be made in exercise of any trust or power authorizing the sale, exchange, partition, or enfranchisement of land, and not forbidding the reservation of minerals, and which sale, exchange, partition, or enfranchisement shall have been made with an exception or reservation of minerals, and with or without rights or powers for or incidental to the working, getting, and carrying away of such minerals, or otherwise relating thereto, shall be invalid on the ground only that the trust or power did not expressly authorize such exception or reservation, but such sale, exchange, partition, or enfranchisement shall be deemed to have taken effect in the same manner as if the excep tion or reservation had been authorized by the trust or power; and no sale, exchange, or partition heretofore made as aforesaid of any minerals separately from the residue of the land subject to the trust or power intended to have been exercised, and either with or without such rights or powers as aforesaid, shall be invalid on the ground only that the trust or power did not expressly authorize such sale, exchange, or partition, but such sale, exchange, or partition shall be deemed to have taken effect

in the same manner as if such minerals, rights, and powers (if 25 & 26 Vict. any) had been expressly authorized to be so dealt with sepa- c. 108, s. 1. rately from the residue of such land; but this enactment shall Not to confirm not be deemed to confirm any sale, exchange, partition, or en- sales, &c. defranchisement already declared by a court of competent jurisdiction to be invalid, nor to confirm or affect any sale, exchange, partition, or enfranchisement as to the validity of which any suit or other proceeding is now pending (a).

(a) Where a testator devised lands to trustees for a term, and subject thereto to his son for life with remainders in strict settlement; and gave the trustees power to demise all or any part of the lands, and all or any of the mines then opened or thereafter to be opened, and to sell all or any part of the lands, the Master of the Rolls, on the authority of Cholmeley v. Paxton (3 Bing. 207, ante, p. 716), held, that under the power the trustees could not sell the lands with a reservation of the minerals. (Buckley v. Howell, 29 Beav. 516.) In consequence of this decision this act was passed.

clared invalid or

pending.

pose of land or

2. And whereas it is expedient that trusts and powers to Trustees may disdispose of land by way of sale, exchange, partition, or enfran- minerals sepachisement should be extended in the manner hereinafter appearing :

Every trustee and other person now or hereafter to become authorized to dispose of land by way of sale, exchange, partition, or enfranchisement may, unless forbidden by the instrument creating the trust or power, so dispose of such land with an exception or reservation of any minerals, and with or without rights and powers of or incidental to the working, getting, or carrying away of such minerals, or may (unless forbidden as aforesaid) dispose of by way of sale, exchange, or partition the minerals with or without such rights or powers separately from the residue of the land, and in either case without prejudice to any future exercise of the authority with respect to the excepted minerals, or (as the case may be) the undisposed-of land; but this enactment shall not enable any such disposition as aforesaid without the previous sanction of the Court of Chancery, to be obtained on petition in a summary way of the trustee or other person authorized as aforesaid, which sanction once obtained shall extend to the enabling from time to time of any disposition within this enactment of any part or parts of the land comprised in the order to be made on such petition, without the necessity of any further or other application to the court (b).

rately, without

the residue, &c.

Sanction of Court chancery re

quisite.

(b) Mortgagees are within this act, and may obtain the sanction of the Mortgagees are court, authorizing them to sell under their power of sale with a reservation within the act. of the mines and minerals. (Re Beaumont, L. R., 12 Eq. 86; Re Wilkin

son, L. R., 13 Eq. 634.)

The court will sanction a sale of land reserving the minerals, or of the minerals apart from the land without reference to any particular sale. (Re Willway, 32 L. J., Ch. 226; Re Wynn, 28 L. T., N. S. 615; S. C. 21 W. R. 695.)

Where a petition is presented for the sanction of the court to a sale of Service. the land apart from the minerals, it seems that the beneficiaries should be served or be made parties to the application. (Re Brown, 11 W. R. 19; Re Palmer, L. R., 13 Eq. 408.) But where trustees, with a power of sale

25 & 26 Vict. c. 108, s. 2.

Extent of act.

exerciseable with the consent of the tenant for life, presented a petition fər
leave to sell the land and minerals separately, Malins, V.-C., held that
service on the beneficiaries entitled in remainder was unnecessary. (Pr
Pryse, L. R., 10 Eq. 531; see Re Wynn, sup.) A petition by mortgages
under the act need not be served on subsequent incumbrancers. (Re Bean-
mont, L. R., 12 Eq. 86.)

For form of petition under this section, see Dan. Ch. Forms, 2190.
3. This act shall not extend to Ireland or Scotland.

1

SALES OF REVERSIONS.

31 VICTORIA, c. 4.

An Act to amend the Law relating to Sales of Reversions. [7th December, 1867.]

WHEREAS it is expedient to amend the law, as administered in 31 Vict. c. 4, Courts of Equity, with respect to sales of reversions:

Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons in this present parliament assembled, and by the authority of the same as follows:

1. No purchase, made bonâ fide and without fraud or unfair dealing, of any reversionary interest in real or personal estate shall hereafter be opened or set aside merely on the ground of undervalue (a).

(a) Before this act, even in the absence of fraud, mere inadequacy of price was sufficient to rescind contracts or dealings with reversioners for their reversionary interests. (See notes to Chesterfield v. Janssen, 1 White & Tudor, L. C., Eq. 593 et seq.) As to what were reversionary interests within this rule, see id. 597 et seq. Where A. was entitled to the income of property, subject to the payment of a life annuity, Lord Chelmsford held, that A.'s interest was not a reversionary interest within the rule (Webster v. Cook, L. R., 2 Ch. 542); but this has been disapproved by Stuart, V.-C. (Tyler v. Yates, L. R., 11 Eq. 276.)

The jurisdiction of the Court of Chancery over unconscionable bargains is not affected by this act; the exception in the act as to unfairness leaves the settled law as to such cases untouched. (Miller v. Cook, L. R., 10 Eq. 641; Tyler v. Yates, L. R., 6 Ch. 665.) The words of this section leave undervalue still a material element in cases in which it is not the sole equitable ground for relief. (Per Lord Selborne, Earl of Aylesford v. Morris, L. R., 8 Ch. 490.)

8. 1.

No purchase, made bonâ fide, of terests to be set

reversionary in

aside merely on the ground of undervalue.

2. The word "purchase" in this act shall include every Interpretation of kind of contract, conveyance, or assignment under or by "purchase.” which any beneficial interest in any kind of property may be

acquired.

3. This act shall come into operation on the first day of Commencement January, one thousand eight hundred and sixty-eight, and shall of act.

not apply to any purchase concerning which any suit shall be

then depending.

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