4. Statutory meanings of certain clauses.

The changes made in this way by the Conveyancing Acts affect chiefly the covenants for production and safe. custody of title deeds retained by the vendor.

By sect. 9 of the Conveyancing Act, 1881, for the old covenants may now be substituted two short clauses called an acknowledgment and undertaking, and the effect of such acknowledgment and undertaking is defined. Such effect is much the same as that of the old covenants.

Taking all these sections of the Conveyancing Act, 1881, and also sect. 2 of the Vendor and Purchaser Act, 1874, as construed in Bolton v. London School Board (7 Ch. D. 766; see supra, p. 433), we can now estimate the effect of recent legislation on the form of an ordinary conveyance. Taking the clauses of such as set out above (supra, p. 434), the date and parties are as before. The recital of title, however, where the conveyance is of land held in fee simple, now usually consists merely of a recital of the vendor's seisin. The recital of contract, testatum, consideration, and receipt, are in form unaltered. The only changes in the operative words are that the word "convey" is now very generally used, while previously the most common word was "grant," and the capacity in which the vendor conveys, "as beneficial owner," etc., is set out. The parcels are the same, but the general words are altogether omitted. The exceptions and reservations are the same, but all the estate clause is omitted. As to the habendum, the only change is that for" and heirs" or "and heirs of the body," the words "in fee simple" and "in tail" may be substituted. Covenants for title, however, are altogether omitted, while for the long covenants for safe custody and production are substituted the short statutory acknowledgment and undertaking. The testimonium is as before; but the endorsed receipt is now useless, and therefore has disappeared.

POWERS CONFERRED ON PARTIES.-Another mode in

which the Acts sought to simplify conveyances was, not by implying certain clauses in the conveyance, but by giving to the parties to the conveyance certain rights and powers which previously they had not possessed, unless the conveyance expressly conferred them.

Powers and rights so conferred are of two kinds. In the first place, some are conferred on certain parties to the conveyance, whether the grantor wished them to have them or not. Incomparably the most important powers and rights of this kind arise under the Settled Land Acts, which we are to consider separately. In the second place, some are conferred on certain parties, unless the conveyance expressly excludes them. These are very analogous to the implied clauses we have been considering, and, like such implied clauses, they were designed by the legislature almost entirely for the purpose of conferring on the parties powers and rights, which in well-drawn instruments, were previously conferred expressly upon them.

These conferred powers and rights have little to do with ordinary conveyances on sale. They are given chiefly in connection with the creation of mortgages, rent charges and trusts for infants.

1. Mortgages.-The first new right conferred in connection with mortgages is the right which the mortgagor, or an incumbrancer, now has, on paying the money secured on the mortgage, to require the mortgagee to convey the mortgage debt and the mortgaged premises to a third person, instead of reconveying them to the mortgagor himself (Conveyancing Act, 1881, s. 15; Conveyancing Act, 1882, s. 12).

A second new right, closely related to the preceding, is the right of a mortgagor, so long as his equity of redemption subsists, to require the mortgagee at all reasonable times, and at the mortgagor's cost, to permit the mortgagor to inspect the title deeds of the mortgaged premises in the custody of the mortgagee (Conveyancing

Act, 1881, s. 16). This right, which cannot be excluded by any words in the mortgage deed, is given only as respects mortgages executed after 1881. Its object is, to facilitate the sale of the mortgaged premises and the transfer of the mortgage debt, by enabling the mortgagor to prove his title.

The most important, however, of the new rights and powers connected with mortgages created by the Conveyancing Acts, are the powers of leasing conferred on the mortgagor or mortgagee in possession, and the powers of sale, etc. (u), made incident to the mortgagee's estate.

By sect. 18 of the Conveyancing Act, 1881, a mortgagor of land in possession has, as against every incumbrancer, and a mortgagee of land in possession has as against every prior incumbrancer, and as against the mortgagor, power to make an agricultural or occupation (r) lease for any term not exceeding twenty-one years, and a building lease for any term not exceeding ninety-nine years, of the mortgaged land. Such leases must be made to take effect in possession not later than twelve months after their date, and the best rent reasonably obtainable must be reserved upon them, though, in the case of a building or repairing lease, the rent reserved during the first five years may be nominal.

By sect. 19 of the same Act, where the mortgage is by deed, the mortgagee has, as incident to his estate, the following powers:

1. A power, when the mortgage money has become due, to sell the mortgaged property or any part of it (y).

2. A power, at any time after the date of the mortgage, to insure and keep insured against loss by fire anything of an insurable nature forming part of the mortgaged property.

(u) Implied powers of sale, etc., were first given by Lord Cranworth's Act, 1860 (23 & 24 Vict. c. 145).

(x) Brown v. Peto, [1900] 2 Q. B. 653.

(y) See Born v. Turner, [1900] 2 Ch. 211.

3. A power, when the mortgage money has become due, to appoint a receiver.

4. A power, while the mortgagee is in possession, to cut and sell timber not planted for shelter or ornament.

These powers arise only in mortgages executed after 1881, and may be modified (2) or excluded by the mortgage deed.

As regards the power of sale, by sect. 20, it is to arise only after notice to pay the mortgage debt, and failure for three months to pay it; or, after interest has been in arrear for two months; or, after there has been a breach of a provision in the mortgage deed, other than the covenant to pay the debt.

The money arising from the sale, and from the insurance and sale of timber, must be applied in the mode customary heretofore, that is, in discharge of prior incumbrances, in payment of costs and expenses, and in satisfaction of principal, interest, and other money due under the mortgage, the balance, if any, being paid to the subsequent mortgagees, or to the mortgagor. But a mortgagee may require money received on an insurance to be expended in restoring the premises (sects. 21 and 23.)

2. Rentcharges.-Formerly, when a rent or any other annual payment was charged upon land, it was customary to secure its payment, in the case of settlements, at any rate, by the creation of a term of years to be held in trust to raise it. Now, sect. 44 of the Conveyancing Act, 1881, renders this no longer necessary. By that section, the person entitled to an annual sum charged on land, or payable out of the income of land, whether strictly speaking a rentcharge or not, is entitled, unless a contrary intention appears in the instrument creating the charge, (1), if the annual sum, or part of it, is unpaid for twenty-one days after the time appointed for payment, to

(z) See Berry v. Halifax Commercial Banking Co., [1901] 1 Ch.

distrain; (2) if it is unpaid for forty days, to take possession of and hold the land, and take the income until the arrears are paid, and while in possession he is not impeachable for waste; or (3), if it is unpaid for a like period he can, by deed, demise the land to a trustee, who may by mortgage, sale, or demise, or other reasonable means, raise and pay the annual sum and all arrears and costs.

3. Trusts for Infants.-It was usual, in deeds creating trusts for the benefits of infants, to give the trustees of the will or settlement large powers during the infancy of the beneficiaries for the management of the lands, and for the maintenance of the infant entitled to them. The Conveyancing Act, 1881, now gives the following powers:

In the first place, it is enacted by sect. 41, that, when a person seised of or entitled to land for an estate in fee simple or for any leasehold interest at a rent is an infant, the land shall be deemed to be a settled estate within the Settled Estates Act, 1877.

This enactment is now of little practical importance, since, as we shall see, it is superseded by sects. 59 and 60 of the Settled Land Act, 1882.

In the second place, as regards instruments coming into operation after 1881, where there is nothing in them to the contrary, it makes the following provisions for the management of infants' estates and maintenance of infants:

By sect. 42, if and as long as any person who would but for this section be beneficially entitled to the possession of any land is an infant, and being a woman also unmarried, the trustees (if any) appointed for this purpose by the settlement (a), and (failing them) the persons if any who are for the time being under the settlement trustees with power of sale of the settled land or any part thereof, or

(a) In re Helyar, Helyar v. Beckett, [1902] 1 Ch. 391.