Page 283 For a form of contract for sale by a tenant for life under the Settled Land Act, 1882, see Appendix, p. 842. 290 Note. Recourse to the Settled Estates Act will in future be very rare, having regard to the very extensive powers of sale out of Court now given to tenants for life and other limited owners, and to infants seised in fee, by the Settled Land Act, 1882. See Appendix, p. 835. The Court has no power under the Settled Estates Act, 1877, to direct the sale to be made out of Court: In re Harvey, 21 Ch. D. 123. 297 Note (a). See Hartley's case, L. R. 10 Ch. Ap. 157, and the cases in the Digest to the Law Reports, tit. "Company, Shares, Contract for." 298 Where the vendor is a tenant for life or limited owner, or an infant scised in fee, a sale to a railway company, if the title is otherwise good, may, it is conceived, be now generally made under the Settled Land Act, 1882 (see Appendix, p. 835), so as to avoid the necessity for a valuation, and payment of the purchase money into Court, under the Lands Clauses Consolidation Act, 1845, ss. 9, 69. The variations in the contract for that case are indicated in the form in Appendix, p. 842. 307 By the Settled Land Act, 1882, s. 3 (ii.), a tenant for life as defined by s. 2, or other limited owner as defined by s. 58, of a manor may enfranchise any copyhold or freehold tenement held of the manor by selling the freehold or seignory to the tenant with or without an exception or reservation of mines or minerals, or (s. 4 (7)) a regrant of any right of common or other easement held with the tenement; and the general provisions of the Act relating to sales apply to this case, see Appendix, p. 835, and the form of a contract for sale under the Act, p. 845. By the same Act, s. 21 (v.) and s. 33, where a copyhold or freehold tenement held of a manor is in settlement, capital money under the settlement may be applied in purchasing the freehold or seignory by way of enfranchisement. and by s. 18 money may be raised by mortgage for the purpose; see form of mortgage in Vol. II., p. 103. The Act applies to settlements by way of trust for sale, see s. 63; and to land vested absolutely in an infant, see ss. 59, 60. Form XII. 329 Form I. 332 342 For a recital of a married woman's seisin of her separate property, see Appendix p. 860. Note (c). As to the authority of a solicitor for trustees to receive the purchase money, see In re Bellamy, W. N. 1882, p. 165. 351 Note. See also Gaskin v. Balls, 13 Ch. D. 324; Nicholl v. Fenning, 359 Note (c). The enactment referred to does not render the words Page 364 Form XVII. This cannot in future be required, as a simple conveyance to a married woman (whenever married) in fee, will be equally effectual by virtue of the Married Women's Property Act, 1882, ss. 1, 2 and 5; but it may be as well to add, "as her separate ppty independently of her present or any future husband." 367 Note. The implied covenants for title of a married woman will now by the Married Woman's Property Act, 1882, s. 1, have the same operation as if she were a feme sole, to the extent of her separate property, existing or future. 371-372 These forms may be used under the Married Women's Property Act, 1882, without alteration; see the form of a convey. ance under that Act in the Appendix, p. 860, and note thereto. 382 Form VIII. The words" or the sd, husband, in her right," would be omitted where the marriage or the acquisition of the property was after 1882; see the Married Women's Property Act, 1882, ss. 1, 2, 5. 384 Line 3. The words "with the concurrence of the sd M. her husband," will be omitted in the last-mentioned case. 385 Note (4). Dele "who was himself the settlor," and add at the end of the note, "and the covenants extend to the acts of a prior owner, e.g., a testator or voluntary settlor, but if the covenants are confined to the covenantor's own acts, the proviso is not required. The proviso is adapted also to a conveyance by a tenant for life under the Settled Land Act, 1882." 386 Note. There is no provision in the Conv. Act, 1881, s. 9, as to the mode in which the benefit of an undertaking for safe custody of muniments under sub-sec. 9 is to devolve, corresponding with that in sub-sec. 3, relating to acknowledgments, but the benefit of the undertaking would no doubt by implication be held to go with the acknowledgment. 387 Note. See Add. to p. 226, and to p. 408. 398 Note (k). See Pollock v. Rabbits, 21 Ch. D. 466; and Add. to p. 351. 405 If the vendor's wife joins to release her dower, she must acknowledge the deed, unless the property was acquired by the vendor after 1882, in which case the wife can release as a feme sole under the Married Women's Property Act, 1882; see as to that Act, Appendix, p. 860, and as to the mode of acknowledgment, p. 834. 408 Note (a). If the conveyance in this case were to uses (e.g., of a settlement), the appointment would have to be direct to the uses; this would carry the benefit of the implied covenants for title according to the intention, but the ordinary form of statutory acknowledgment as to muniments could not be used for want of a grantee to uses. It would obviate this if the vendor, although he has no estate, conveys, as in p. 409, note (b), by appointment, and also (by a separate clause) by grant to a grantee to uses, to whom Page 411 419 422 the acknowledgment would be made, so as (it is conceived) to be effectual, although no estate in fact passes by the grant. Precedent V. The Married Women's Property Act, 1882, if it applies, does not necessitate any alteration in this. Line 16. For" C." read “E.” Note (d). The enactment in the Conv. Act, 1881, s. 15, has been amended by the Conv. Act, 1882, s. 12, in consequence of the decision in Teeran v. Smith, reported 20 Ch. D. 724, so as to apply notwithstanding an intermediate incumbrance. 425 Note (e). If the mortgagee has a power of attorney to assign the nominal reversion to a purchaser (see Vol. II. MORTGAGES), he can do so in his own name under the Conv. Act, 1881, s. 46; and if the power is made irrevocable, notwithstanding anything which would otherwise have operated as a revocation, see the Conv. Act, 1882, s. 8, and Add. to p. 176. This applies also to copyholds covenanted to be surrendered with declaration of trust till surrender and power of attorney. See Vol. II., MORTGAGES. 428 Precedent XIV. A tenant for life (including other limited owners) under any settlement of land past or future has now under the Settled Land Act, 1882, power to direct the investment of money in the hands of the trustees in the purchase of land or in any of the other modes provided by s. 21, whether the money arose from sales or other dispositions made under the Act (s. 22 (1, 2)), or otherwise (s. 33); see in the Appendix, p. 856, a Precedent of a conveyance to the uses-of a settlement adapted to that case. But in default of any direction by the tenant for life the trustees may re-invest the money (in whichever mode arising) at their discretion, in any manner authorized by the Act or the settlement, subject to obtaining his consent; see the above sections, and also s. 56 keeping alive concurrent powers given by the settlement. Where the purchase is made under s. 22 with capital money arising under the Act, whether the tenant for life directs the investment or not, the land must be conveyed so as to be made subject to the settlement in manner provided by s. 24 (which may be of importance with regard to leaseholds); and that section applies, it is conceived even though the money did not arise under the Act, if the tenant for life directs the re-investment under s. 33. But if the money did not arise under the Act and is re-invested under the powers of the settlement, s. 24 does not apply, see s. 55 (3); and the case is not affected by the Act, except as to the consent of the tenant for life being necessary. This Precedent is adapted to that case, but it should be made to appear that the money did not arise under the Act. 431 Precedent XV. As to the effect of a tenant for life of real estate incumbering his life estate, see the Settled Land Act, 1882, s. 50. 442 Precedent XX. If the marriage took place, or the property was acquired by the wife after 1882, she has an absolute power of disposition, as well as of contracting, as a feme sole, under the Married Women's Property Act, 1882, ss. 1, 2, 5; see a Precedent of a conveyance by a married woman adapted to that case in the Appendix, p. 860. If both the marriage and the acquisition of the property were prior to 1883, the wife's power of disposition is governed by the old law, but she is able to contract as a feme sole under the above Act, s. 1. This Precedent is adapted without alteration to such a case, but the wife's implied covenants for title and acknowledgment and undertaking as to muniments operate as if she were a feme sole, to the extent of her separate estate, existing or future. Page 443 Precedent XXI. This Precedent and the notes are applicable without alteration to a case where the marriage and the acquisition of the property were before 1883, notwithstanding the Married Women's Property Act, 1882; but the wife's implied covenants for title and acknowledgment and undertaking as to muniments will operate under the Act as if she were a feme sole. If the property was acquired by the wife (whenever married) after 1882, she may dispose of whatever estate she takes in it as a feme sole under the Act, unless restrained from anticipation; but it may be desirable to make the husband a party for the reasons stated in note (a). See Add. to p. 442. 445 Precedent XXII. As this is a conveyance in pursuance of the testator's contract and not under a trust for sale, the power of the trustees to convey is, of course, not affected by the Settled Land Act, 1882; but if the contract were invalid, there might be a question as to this. See, as to trusts for sale, Add. to p. 448. With regard to the purchaser's settlement: As the purchase-money does not arise from any sale or disposition under the Settled Land Act, 1882, and the settlement is not a settlement of "land" within that Act, so as to bring the case within s. 33, the case as to this seems to be in no way affected by the Act; see Add. to p. 428. But if the money arose under the Act, or the case falls within s. 33, the tenant for life would have a right under s. 22 (2), or s. 33, to direct the investment. 448 Precedent XXIII. By the effect of the Settled Land Act, 1882, s. 63, where land is held in trust for sale, if the proceeds of sale and the rents until sale are settled in trust for a tenant for life, or other limited owner having the powers of a tenant for life, the powers of sale and other powers of the Act are vested in him; and although, by s. 56, the power of the trustees to sell is kept alive, the consent of the tenant for life is necessary to its exercise. But if the sale is to raise money for payment of debts or legacies, the Act would not apply. This Precedent is adapted without alteration to a case where the sale monies are not settled within the meaning of the Act; otherwise the tenant for life or limited owner would be a necessary consenting party under the Act (unless the sale is for payment of debts, &c.), as to the freeholds, and also as to the leaseholds if sold under the trust for sale, and not by the executors as such, in which case their power of sale would, of course, be paramount. Where the sale monies are divisible into shares, some of which are settled, as frequently happens under a will, the consent of the tenant for life of each share would be necessary. Where the tenant for life is an infant, the power of consenting on his behalf is by s. 60 vested in the trustees, so that this gives rise to no difficulty. As to the case of the tenant for life being a married woman or a lunatic, see ss. 61, 62, and Appendix p. 839, note. In the common case where the settlement is by deed, and the trusts of the sale monies are declared by a separate deed, it seems that the purchaser must require production of that deed in order to ascertain who are the necessary consenting parties. See Appendix, p. 840. In the case of settlements by trust for sale, it must depend on the circumstances of each case, whether the sale will be best made by the trustees with the consent of the tenant or tenants for life, or by the latter (if competent) alone. See Precedents in Appendix. Page 449 Precedent XXIV. This Precedent requires no alteration with reference to the Settled Land Act, 1882. See Add. to p. 448. 450 This Precedent also requires no alteration with reference to the Settled Land Act; but as to the married women parties of the 2nd part, the necessity for the concurrence of the husbands and acknowledgment is removed by the Married Women's Property Act, 1882, unless they were married and their title arose before 1883. See Appendix, p. 860, and as to acknowledgments, see p. 834. The purchaser in this ease being a married woman, can, under the last mentioned Act, ss. 1, 2, and 5, purchase as a feme sole and take a conveyance to herself in fee without a trustee, and the Precedent should be altered accordingly. See Appendix, Precedent X., p. 863. 451 Note (c). The enactment referred to has been amended by the Conv. Ib. Act, 1882, s. 11. Note (d). If the conveyance as to the leaseholds is under the trust for sale, and not by the executors in that character, the consent of any of the beneficiaries who are tenants for life under the Settled Land Act, 1882, would be necessary independently of the special reason here existing. 454 Precedent XXVII. needs no alteration with reference to the Settled Land Act, 1882, as the power of the trustee to sell with the consent of the tenant for life is kept alive by s. 56 of the Act; but the sale would now usually be by the tenant for life under the statutory power, and the form of conveyance would in that case be simpler: see Appendix, Precedent IV., p. 843. But there being here only one trustee the tenant for life could not sell under the Act until a second trustee is appointed, unless the proviso in s. 45 (2) is excluded by the settlement. ,, 455 Note (V). The incumbrance might with the consent of the incumbrancer be shifted to another part of the estate under the Settled |