v. Bentley (supra); N. P. Bank of England v. Marsh (supra); Scott and Álvarez In re (supra); and see 4th Rule (infra). (3) Even in such a case as put in rule 2, if A. himself deliberately or accidentally discloses a defect in the title, B. can repudiate the contract, and (of course) resist specific performance. Smith v. Robinson (supra).

(4) A purchaser will in no case be made to accept a bad title in the sense that ne would not have a good holding titlethe test being, can the purchaser be ousted? Scott and Alvarez, In re (supra).

Keeping a Trust Off a Title.

Desirability of the Practice.

The established practice and custom of keeping off a title any trust affecting mortgaged property is familiar to all conveyancers. It is common knowledge among them, as was remarked by Mr. Justice Pearson in the course of his judgment in Harman and the Uxbridge and Rickmansworth Railway Co., In re (24 Ch. D. 720), that when in a mortgage deed the mortgage money is stated to belong to two or more persons on a joint account, and the conveyance is made to those persons, they are, in ninety-nine cases out of a hundred, trustees. It is a device adopted by conveyancers and accepted by the Court. For the Court has always resolutely refused to go behind the recitals in the deed and enquire what the trusts may be.

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The highly desirable and perfectly honest object of keeping the trust off the title "-for so it was characterised by Lord Cozens-Hardy, M.R., in Chafer and Randall's Contract, In re ([1916] 2 Ch. 8)-is, however, not confined to mortgage transactions. "The principle must be the same whatever the property is that is in question, and I cannot find anywhere that conveyancers recognise any distinction," said Mr. Justice Younger in the case last mentioned when it came before him in the Court of first instance. In short, the framing of recitals in a deed in such a way as not to disclose a trust is in no wise restricted to mortgage deeds. Although, as his Lordship observed, the practice may possibly have been

open to question before the case of Harman and the Uxbridge and Rickmansworth Railway Co., In re (ubi sup.), yet since that case was decided it appears to have been quite settled. And it would be disastrous to many titles if the practice were "The now disturbed. settled practice of conveyancers is to be looked upon as part of the common law," to quote the opinion concerning the same which was expressed by Lord Justice James in Ford and Hill, In re (10 Ch. D. 365, at p. 370). It is, in fact, duly recognised that great weight must be attached to the practice of conveyancers in such matters.

Reason for the Practice.

What the reason is for the practice needs, of course, no elaboration in statement. It is too obvious to call for any explanation. Inasmuch as a recital in a deed or other instrument that an owner of the legal estate in land is trustee for A. B. under a will or under a deed affects a purchaser of the land with notice of the contents of the will or of the deed, and a purchaser who has notice of a trust has notice of all parts thereof-see (inter alia) Malpas v. Ackland (3 Russ. 273)naturally it is desired to keep all notice of the trust off the title when land is vested in trustees. Otherwise, enquiry into the title of the trustees, as such, on any dealing by them with their security, would generally be necessitated-Blaiberg and Abraham's Contract, In re ([1899] 2 Ch. 340).

Purchasers will not lay out their money in acquiring property, the security of their title to which may depend upon an exhaustive investigation into the execution of trusts which can rarely be complete, and must always seem burdensome." That was how, in the judgment in the case with which we shall presently have to deal, it was pointedly made evident why the practice of keeping a trust off a title sprang into existence, having so excellent an origin.

But, as appears from Mr. Justice Pearson's decision in Harman and the Uxbridge and Rickmansworth Railway Co., In re (ubi sup.), the vendors there, who were three joint tenants, were not bound to disclose any trusts affecting the property, a purchaser from them being sufficiently protected by the recitals in the conveyance, which were in accordance

with the ordinary practice of conveyancing. So also in Chafer and Randall's Contract, In re (ubi sup.), where there was nothing more than a statement that the owner of the legal estate was seised of the hereditaments comprised in a conveyance thereof as trustee partly for himself and partly for another personit was held by the Court of Appeal, affirming the decision of Mr. Justice Younger, that no duty was imposed upon the purchaser of the hereditaments to enquire further into the matter, the recital being consistent with there being no trust in favour of any person or persons other than those specified. The recital was complete, and an unequivocal declaration of trust for the parties named.

The Doctrine Recently Illustrated.

The decision of the Court of Appeal in Chafer and Randall's Contract, In re (ubi sup.), was applied by Mr. Justice Younger

in the recent case of Soden and Alexander's Contract, In re (87 L. J. Ch. 529 (noted ante, p. 33, Mag.), in circumstances which are distinctly novel. Before mentioning, however, what these circumstances were the learned Judge's declaration of the principles upon which the examination in detail of the provisions of the deeds in that case ought to proceed the lands being vested in trustees, and it being desired to keep notice of the trust off the title is well worthy of close consideration. His Lordship gathered them from the summary of the law as laid down in the authority above cited.

After asserting that the recognised practice of conveyancers in this respect is not confined to a case of a mortgage held by trustees, Mr. Justice Younger went on to point out that their custom is, on the occasion of property being transferred on an appointment of new trustees, to frame recitals in the deed accounting for the transfer while not disclosing the trust. The learned Judge proceeded thus: "When recitals of this kind are met with they are accepted by a purchaser without enquiry; and none the less are they so accepted although conveyancers are well aware for what purpose such statements are in all probability made.' Conveyancers, in other words, who have the remotest claim to be classed as such, have had drilled into them from their earliest studentship days what can be the only per

missible aim and design of recitals when they are so disguised by the draftsman thereof. Knowing this, they do not seek to go behind the statments, as his Lordship was careful to add. And then he furnished this extremely cogent reason to account for that which would elsewise appear to be an attitude of apathetic complacency: "They abstain from enquiries which, if answered, would oust their client from the position of a purchaser for value obtaining the legal estate in good faith without notice of any trust." And he concluded his exposition of the exact aspect of affairs with a quotation of the words used by Mr. Justice Sargant in Chafer and Randall's Contract, In re (ubi sup.): "They accept the statements at their face value.'

There is a presumption that all things have been rightly done, as is compressed into the time-honoured maxim, Omnia præsumuntur ritè esse acta. That itself is the familiar abbreviation of the rather fuller aphorism which is contained in Coke upon Littleton (at p. 232): Omnia præsumuntur ritè et solemniter esse acta donec probetur in contrarium. And Mr. Justice Younger did not hesitate to hazard the opinion that this attitude of conveyancers has its ultimate justification in the presumption aforesaid. But his lordship was abundantly right-if we may say so with all due deference-in his expression of doubt whether "the practice of accepting without enquiry statements, the ulterior purpose of which is all but self-evident, would have continued so long, or been extended so far as it has, had it not always been recognised that the purpose embodied a highly desirable and perfectly honest object'" repeating the encomium to which Lord Cozens-Hardy, M.R., thought fit to give utterance, as we have already intimated. Manifestly, the practice would never have been allowed to enure had it not possessed the virtues which the late Master of the Rolls was at pains to ascribe to it.

Circumstances of the Case.

The circumstances which gave rise to the question that Mr. Justice Younger was called upon to determine in Soden and Alexander's Contract, In re (ubi sup.) can be quite briefly stated in order to bring out the cause of dispute. Upon the sale of certain freehold messuages and premises by A. and B. to X.,

Four deeds were abstracted, among others, namely the following: (1) A conveyance dated in March, 1899, and made between C., D., and A. and D., A., and B., in which it was recited that the hereditaments conveyed were the property of D., A., and B. as joint tenants in equity as well as at law," and that they had requested C., D., and A. to convey to them, and the premises were conveyed to D., A., and B., their heirs and assigns for ever, "to the intent that the same hereditaments and premises may be held and enjoyed by them as joint tenants in equity as well as at law, and be transmissible accordingly." The only covenant for title was against incumbrances. (2) A conveyance dated in November, 1900, and made between D., A., and B., and A., B., E., and F., which contained recitals similar to those in the last preceding conveyance, and was in the same form and comprised the same covenant only. (3) A re-lease dated in November, 1906, in which, after a recital that the premises were then the property of A., B., and F. "as joint tenants in equity as well as at law," E., at the request of A., B., and F. as trustee released the premises to A., B., and F., their heirs and assigns "to the intent that the same premises may be vested in them alone as joint tenants.' (4) A re-lease, dated in June, 1910, in which, after a recital that the premises were then the property of A. and B., “as joint tenants in equity as well as at law," F.,

as trustee" at the request of A. and B. re-leased the premises to A. and B., their heirs and assigns" to the intent that the same hereditaments and premises may be held and enjoyed by them as joint tenants in equity as well as at law, and be transmissible accordingly." All four deeds were stamped with a 10s. stamp only.

The

Mr. Justice Younger applied the principles laid down in the authorities which we have been discussing above. That is to say, the conclusion which his Lordship arrived at was that, according to the recognised practice of conveyances, no one of the deeds, nor their cumulative effect, gave notice to the purchaser that the vendors were trustees of the property which was comprised in the same. learned Judge was further of opinion that the stamping of the deeds-although the last deed was subsequent to section 74 of the Finance (1909-10) Act, 1910-having regard to section 13 of the Conveyancing Act, 1911, gave no such notice. On the other hand, Mr. Justice Younger's scrutiny led him to hold that, as the correspondence between the solicitors to the parties, notice of a trust was given; and that, therefore, the purchaser was entitled to the further abstract which he asked for.

Notwithstanding the decision thus pronounced, the conveyancing practice which forms the subject-matter of this article becomes strongly fortified by the way in which Mr. Justice Younger expressed his views concerning its advantages. His Lordship did so in these eloquent terms: "It can hardly be doubted that the proper and beneficial disposition of trust estates by trustees, who, either mediately or immediately, have had confidence reposed in them by the author of the trust or the Court, should not be hampered by the burden of answering elaborate domestic questions, even if the conventions necessary in the majority of cases to obviate them should destroy, in the comparatively rare instances of abuse, the claim of cestuis que trust to follow the trust property into the hands of the purchaser. It is better that this claim should be lost, and the cestuis que trust in these cases

be left to their remedy against their trustees personally, than that the value for purposes of realisation of trust property should in the mass be generally prejudiced.

Mr. Justice Younger's judgment, if it does not add much that is actually fresh to what was said by the learned Judges of the Court of Appeal in the case of Chafer and Randall's Contract, In re (ubi sup.) concerning the conveyancing practice of keeping a trust off a title has, at least, the distinctive merit of presenting that practice in an exceptionally intelligible light. Of considerable service will it prove, therefore, to the practitioner in guiding him through the tortuous paths which he has to traverse. It was perhaps an extreme-and on that account a somewhat difficult-case with which the learned Judge had to deal. We see no reason, however, to doubt that in applying the principles laid down in the earlier authorities, his Lordship came to an unchallengeably right conclusion. And his decision will probably have a far-reaching operation in the future. As his Lordship remarked, 'the tendency of later decisions had been in the direction of extending rather than of narrowing the range of recitals which must be accepted." Consequently, he has merely acted in accordance with those authorities.

Tithe Act, 1918.

8 & 9 Geo. V., Cap. 54.

An Act to amend the Tithe Acts, 1836 to 1891. [21st November, 1918.

Be it enacted, &c. :

1. Method of computation of tithe rentcharge. (1) The sum which on or before the first day of January, nineteen hundred and twenty-six, becomes payable under the Tithe Acts, 1836 to 1891, in respect of any tithe rentcharge, shall be the sum payable in respect of that rentcharge as ascertained by the septennial average prices published under the Corn Returns Act, 1882 (45 & 46 Vict. c. 37), in the month of January, nineteen hundred and eighteen.

(2) The Board of Agriculture and Fisheries. shall, after the twenty-fifth day of December in the year nineteen hundred and twenty-five, and in each succeeding year, compute in the

same manner as the septennial average is directed to be computed under the Corn Returns Act, 1882, and shall publish in the London Gazette in the month of January following the average price of each sort of British corn for the preceding fifteen years, and the sum payable under the Tithe Acts, 1836 to 1891, in respect of any tithe rentcharge payable after the first day of January, nineteen hundred and twenty-six, shall be ascertained by the average prices so computed for the preceding fifteen years in substitution for the septennial average referred to in the Corn Returns Act, 1882.

2. Regulation of pension to retired incumbent.]-A pension to a retired incumbent of a benefice, whether awarded before or after the passing of this Act, which under the Incumbents Resignation Act, 1871, Amendment Act, 1897 (50 & 51 Vict. c. 23), is variable, shall from time to time vary with and be regulated by the average prices by which under this Act the sum payable in respect of any tithe rentcharge is ascertained.

3. Compulsory redemption of rentcharges exceeding twenty shillings.]-A tithe rentcharge, notwithstanding that it exceeds twenty shillings, shall, on the application of the owner of the land charged therewith, and without the consent of the owner of the rentcharge, be directed by the Board of Agriculture and Fisheries to be redeemed under and in accordance with the Tithe Acts, 1836 to 1891, as amended by this Act, unless, owing to any exceptional circumstances, the Board otherwise direct.

4. Consideration for redemption. ]--(1) The consideration money payable on the redemption of a tithe rentcharge on any land under the Tithe Acts, 1836 to 1891, or this Act, shall, in lieu of the amount authorised or directed by the Tithe Acts, 1836 to 1891, be such an amount as may be agreed by the owners of the land and of the rentcharge, and in default of such agreement as may, on the application of the owner of the rentcharge or of the owner of the land or any part thereof, be determined by the Board of Agriculture and Fisheries, in accordance with the provisions contained in the First Schedule to this Act, to be fair compensation for the redemption.

(To be continued.)

THE CONVEYANCER is published monthly. Notice of non-receipt of any number must be given to the Publishers not later than the end of the month of issue. After the end of that month the Publishers accept no liability for non-delivery. COMMUNICATIONS respecting matters of an Editorial nature should be addressed to The Editor of the Conveyancer," at 3, Chancery Lane, London, W.C.2. CONTRIBUTIONS or manuscript forwarded with a view to insertion in the publication must be sent at the risk of the sender, although every effort will be made to return drafts or unsuitable copy. SUBSCRIPTION RATES :-Annual Subscription (payable in advance), £1 10s., inclusive of Postage; Single Copies, 2s. 9d. (postage, 2d. extra). EDITORIAL AND PUBLISHING OFFICES:-3, Chancery Lane, London, W.C.2.

Though these omitted words are not necessary in a conveyance for value (see Elphinstone's Introduction to Conveyancing, 7th edition, p. 12), they are in common use and should certainly be inserted. And the grant should be made "unto " the grantee "To hold unto and to the use of " the grantee.

Subscribers are requested to make a note of this opposite the clause referred to. It has also been suggested that, in the third line, it might be well to indicate what the hereditaments are. This is quite unnecessary, in view of section 53 of the Conveyancing Act, 1881, and also of the fact that the mortgage and transfer will always be in the hands of the same person.

We take the opportunity to draw attention to the following corrections which should be made:

Form 6 ("Miscellaneous Precedents "), vol. iii., p. 531: in the fifth line of clause 2, after the words" [new trustees] "add" their heirs and assigns."

VOL. 4.

Doorways, openings primarily constructed for the purpose of being closed and thus excluding light, are not within section 3 of the Prescription Act, 1832, so as to give a prescriptive right to light passing through them when opened. Levett v. Gas and Coke Co. ([1919] 1 Ch. 24; 88 L. J. Ch. 12).

As to when the holders of debenture stock are entitled to object to the reduction of the capital of the company by whom the stock is issued, see Meux Brewery Co., Lim., In re ([1919] 1 Ch. 28; 88 L. J. Ch. 14).

Where an application is made, under Order LVIII. rule 15, for leave to enlarge the time for appealing, there must be some proper weighty grounds to support the application. It is not necessarily a ground for enlarging the time to appeal that in some other case a different view has been taken by a higher Court. Wigfull & Sons, Lim., Trade Mark, In re (88 L. J. Ch. 30).

I