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Debenture stock.

Investments in Ireland.

instrument creating his trust, be expressly forbidden to invest any trust fund on real securities in any part of the United Kingdom, or on the stock of the Bank of England or Ireland, or on East India Stock, it shall be lawful for such trustee, executor, or administrator to invest such trust fund on such securities or stock, and he shall not be liable on that account as for a breach of trust, provided that such investment shall in other respects be reasonable and proper (y). It seems that, notwithstanding the statutory power, the Court will not advise trustees to lay out money upon mortgage of land in Scotland (). Money paid in under the Lands Cl. Act is "cash under the control of the Court ” (a).

Where trustees have powers to invest on mortgages or bonds of railways or other companies, they may invest on debenture stock (b); and debenture stock is authorized by the Settled Land Act, 1882 (c), and the costs of investment are not payable by the tenant for life (d).

By 4 & 5 Wm. IV. c. 29, when trust money is liable to be invested in real securities in England or Wales, or Great Britain, power is given to invest in real securities in Ireland, unless such investment be expressly forbidden. But where any minor or unborn child, or person of unsound mind, is interested in the fund, the investment is to be made by the direction of the Chancery Division in England, to be obtained in any cause upon petition in a summary way (e). In a case of application upon petition under this last clause, the V. C. of England held that the concluding part must be read "to be obtained in any cause or upon petition," &c., and that the proposed security must be approved in chambers (ƒ). In a later case, where the fund was in Court, and a similar application was made, the M. R. refused a reference, on the ground that such an investment would be neglecting the interest of the infant remainderman (g). But this is opposed to another decision (h). The Court will not under this statute accede to an Irish mortgage (g).

(y) 22 & 23 Vict. c. 35, s. 32; made retrospective by 23 & 24 Vict. c. 38, s. 12. (z) Re Miles, 27 Beav. 579.

(a) St. John's Baptist Coll. 22 Ch. D. 93, C. A.; overruling Boyd's Sett. 21 W. R. 667, L. C. Selborne.

(b) 34 Vict. c. 27.

(c) 45 & 46 Vict. c. 38, ss. 21, 32.

(d) Mackenzie's Tr. W. N. 1883-111, Chitty, J.; Hanbury's Tr. ib. 116, Pear

son, J.

(e) 34 Vict. c. 27, s. 2.
(f) Exp. French, 7 Sim. 570.
(g) Stuart v. S. 3 Beav. 430.

(h) Exp. Lord Wm. Pawlett, 1 Ph. 570.

SECT. 12.

INVESTMENTS BY TRUSTEES.

331

By 33 & 34 Vict. c. 34, s. 1, all corporations and trustees in the Investments United Kingdom, holding moneys in trust for any public or chari- tions and table purposes, may invest such moneys on any real security (which charities. includes legal and equitable mortgages and charges upon lands or hereditaments of any tenure, or upon any estate or interest therein, or any charge or incumbrance thereon), authorized by or consistent with the trusts on which such moneys are held, without being deemed thereby to have acquired or become possessed of land within the meaning of the mortmain laws, or of any prohibition or restraint against the holding of land in any charter or Act of Parliament, and no contract for or conveyance of any interest in land made bonâ fide for the purpose only of such security, shall be deemed void by reason of non-compliance with 9 Geo. II. c. 36.

c. 46.

By 10 & 11 Vict. c. 46, where trust moneys are liable to be 10 & 11 Vict. invested in the purchase of lands in Ireland, an order may be obtained upon petition to the L. C. in Ireland, and after a reference to one of the masters, that such moneys may be laid out in the permanent improvement of other lands remaining unsold, or in settlement for the time being; and the moneys of persons under disability may in like manner be laid out in the improvement of the estates of such persons. And after the money has been so laid out, a further petition may be made to the chancellor for a reference to the master, to enquire whether such outlay has been properly made; and upon the report to that effect being confirmed, the trustees, or other parties petitioners, are to be released from all liability in respect of the application of the trust moneys, and the lands are, from the time of the advance, to become charged with the sum advanced, and interest, in such manner as the L. C. shall direct, and the tenant for life, and other partial owners, are to keep down the interest and instalments directed to be paid.

trustees.

If a mortgagor pay off a mortgage, having notice that it is trust Mortgages to money, he is bound in equity to see to its application, unless he is expressly or impliedly exempted from that obligation; and even if he is so exempted, still a difficulty occurs from the necessity of producing the settlement or will creating the trust to prove the fact, and of engrafting the proof on the title, to satisfy an assignee of the mortgage, as well as future purchasers. To obviate this latter inconvenience, the better practice is for the mortgagor to execute a mortgage to the executors, or trustees, without putting notice of the trust on the mortgage, and then for the executors or

trustees.

Mortgages by trustees to execute a separate declaration of their trust. To meet the former, it is advisable not to give the mortgagor notice of the fact of the money being in trust.

(13.) Joint mortgages to trustecs.

There is a further rule in equity, viz., that if two or more persons advance their own moneys on mortgage, whether in equal proportions or not, and the mortgage is limited to them so as to create a joint tenancy at law, nevertheless, in equity, they shall be considered as tenants in common, and there shall be no survivorship between them. The consequence is, that if a mortgage is made to two or more persons without notice of the trust on the face of the deed, so that they appear to have made advances of their proper moneys, and if one of them die before the mortgage-money is paid off, the concurrence of the executor or administrator of the deceased mortgagee becomes necessary in the discharge. The contrary was held in one case (), but it cannot be supported (i). This Usual proviso. inconvenience has given rise to a proviso, now inserted in such

44 & 45 Vict. c. 41, s. 61.

instruments, viz., that if one of the mortgagees shall die before the
money is paid off, the receipt of the surviving mortgagee, or his
executors, administrators, or assigns, shall be a good and sufficient
discharge to the mortgagor, his heirs, executors, administrators,
and assigns, although, and notwithstanding, the executor or ad-
ministrator of the deceased mortgagee shall not concur therein, any
rule of the Court to the contrary in any wise notwithstanding.

By the Conveyancing and Law of Property Act, 1881 (k), the
effect of an advance on joint account is stated in s. 61.

By sub-s. (1) thereof, where in a mortgage, or an obligation for payment of money, or a transfer of a mortgage or of such an obligation, the sum, or any part of the sum, advanced or owing is expressed to be advanced by or owing to more persons than one out of money, or as money, belonging to them on a joint account, or a mortgage, or such an obligation, or such a transfer is made to more persons than one, jointly, and not in shares, the mortgage money, or other money, or money's worth for the time being due to those persons on the mortgage or obligation, shall be deemed to be and remain money or money's worth belonging to those persons on a

(h) Brazier v. Hudson, 9 Sim. 1.
(i) Vickers v. Cowell, 1 Beav. 529.

(k) 44 & 45 Vict. c. 41.

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joint account, as between them and the mortgagor or obligor; and the receipt in writing of the survivors or last survivor of them, or of the personal representatives of the last survivor, shall be a complete discharge for all money or money's worth for the time being due, notwithstanding any notice to the payer of a severance of the joint account.

This section applies only if and as far as a contrary intention is not expressed in the mortgage, or obligation, or transfer, and shall have effect subject to the terms of the mortgage, or obligation, or transfer, and to the provisions therein contained (1), and applies only to a mortgage, or obligation, or transfer made after the commencement of the Act (m).

(14.) Trust deeds for creditors.

Conveyances in trust to sell and pay creditors are in the nature of an instrument of agency, and revocable at the will of the debtor, unless the creditors are executing parties, or the deed has been acted upon by, or notice given to, the creditors (n). And in Garrard v. Lord Lauderdale (0), it was even held that notice to the creditors, though named as parties to the deed, would not be sufficient, unless they came in and signed the deed. But that doctrine has been overruled in later cases (p). And where the circumstances of the case amount to the creation of a trust, and not to a mere agency, as where the creditors and their debts are all named in the deed, and one of them, being also the solicitor of the others, is a party, the creditors are clearly entitled to the benefit of it (q). In Collins v. Reece (r) a question was raised, but not decided, whether a creditor, who had not signed or assented to the trust deed within the time fixed by the deed, was entitled to the benefit of it as against the assignees of the debtor who had become insolvent.

(1) Ib. sub-s. 2.

(m) Ib. sub-s. 3.

(n) Walwyn v. Coutts, 3 Sim. 14; Acton v. Woodgate, 2 M. & K. 495; Ravenshaw v. Hollier, 7 Sim. 3; Fitzgerald v. Stewart, 2 Russ. & M. 457; Page v. Broom, 4 Russ. 6; 4 C. & F. 436; Harland v. Binks, 14 Jur. 979, Q. B.; Wilding v. Richards, 1 Coll. 655; La Touche v. Lord Lucan, 7 Cl. & F. 772;

Malcolm v. Scott, 3 Ha. 39; Kirwan v.
Daniel, 5 ib. 493; Law v. Bagwell, 4 Dr.
& W. 398.

(0) 3 Sim. 1.

(p) Cosser v. Radford, 1 De G. Jo. &
Sm. 585; Montefiore v. Brown, 7 H. L.
259; Johns v. James, 8 Ch. D. 744,
C. A.

(a) Wilding v. Richards, sup.
(r) 1 Coll. 675.

333

Action by creditor.

Parties.

Power to charge in tenant for life.

A creditor deed is not void because of the non-execution of it by all the trustees, unless a provision to that effect is contained therein (s).

A creditor may bring an action to carry out the deed on behalf of himself and the other creditors who executed the deed, if very numerous (f); and such a creditor may, until a decree has been made, make terms for himself, and discontinue the action (u).

Scheduled creditors to a creditor's deed, who are not parties to it, are not, it seems, necessary parties to a suit instituted by a subsequent incumbrancer against the trustees to have the benefit of his charge out of the surplus (r). But secus where the incumbrancer is prior to the trust deed, unless it be a general trust for creditors who are not specified (y).

Under a power to mortgage contained in a trust deed of a chapel, the trustees may be mortgagees (z): but where one trustee offered to pay the debt, an injunction against the exercise of the power was granted (a).

(15.) Mortgages by tenant for life.

If tenant for life, with a power to consent to a sale by the trustees of the settlement, executes a conveyance of his life estate by way of mortgage, the power is not destroyed, and may be exercised either by the mortgagee reconveying to the mortgagor, or joining in the conveyance to the purchaser (¿).

A tenant for life with power to lease for such number of years and upon such terms as he shall "think fit" (c), or " think reasonable and proper" (d), mortgages by demise for ninety-nine years, at a peppercorn rent, such mortgage is a charge on the inheritance; the lease is not invalid on the ground of a supposed or real hardship on the remainderman, as the power is left to the discretion of the tenant for life, who may execute it for his own benefit.

(s) Small v. Marwood, 9 B. & Cr. 300.
(t) Weld v. Bonham, 2 S. & S. 91.
(u) Handford v. Storie, ib. 196; Wood
v. Westall, Yo. 305; Burdett v. Rawson,
9 Jur. 341, V. C. E.

(x) Powell v. Wright, 7 Beav. 444.
(y) 1 Dan. Ch. Pr. 199, ed. 5.

(z) Att. Gen. v. Hardy, 1 Sim. N. S.
339.

(a) Rigall v. Foster, 18 Jur. 39, V. C. Wood.

(b) Walmesley v. Butterworth, Coote, Mtg. App. ed. 3, p. 572; Alexander v. Mills, 6 Ch. 124.

(c) Sheehy v. Lord Muskerry, Ll. & G. t. Sug. 185; 1 H. L. 576; Talbot v. Tipper, Skin. 427.

(d) Mostyn v. Lancaster, 23 Ch. D. 583, C. A.

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