A tenant for life, with power to renew leases for lives on the usual rents and to take fines, may mortgage his interest including the fines for his own benefit (e). (16.) Settled Land Act, 1882. An infant tenant in fee, with an executory limitation over on death under twenty-one without issue, has the powers of a tenant for life under the Settled Land Act, 1882, 45 & 46 Vict. c. 38 (f). Where a settlement contains no power to sell surface land apart Surface land. from minerals, the trustees can, under the Settled Land Act (g), exercise the power, and that without the consent of the guardians of the infant tenant for life (h). If there is no beneficiary entitled to the income of property subject to a trust for sale, s. 63 does not apply, and the trustees can sell under the settlement (i). A tenant for life may exercise the powers under this Act, although the expenses of management leave him only a small surplus (k). How the solicitor's remuneration is regulated under the Act, see (7). A tenant for life has a power of sale under the Act without reference to the discharge of incumbrances or other liabilities, notwithstanding the trustee has a special power of sale under a private Act (m), and the purchase-money may be applied in discharge of incumbrances (m). A tenant for years determinable on life is not a tenant for life within the Act (0). (17.) Generally. Power to charge an estate is an incumbrance (p). An agreement to lend money on a "legal mortgage," means first mortgage (q). (e) Simpson v. Bathurst, 5 Ch. 193. (f) S. 58, sub-s. 2; Re Morgan, 24 Ch. D. 114, North, J. (g) S. 17. (h) Re Duke of Newcastle's Estates, 24 Ch. D. 129, Pearson, J. (i) Earle & Webster's Contract, 24 Ch. D. 144, Pearson, J. (k) Re Jones, 24 Ch. D. 583, V. C. Bacon, affd. W. N. 1884-126, C. A. (m) Chaytor's Estate Act. (0) Hazle's Settled Estate, W. N. 1884 -105, Pearson, J. (p) Evans v. E. 22 L. J. Ch. 785, C. A. (a) Thompson v. Clark, 11 W. R. 23, Q. B. Incumbrance. Informal agreement. (1.) Definition. A charge upon property does not imply a personal debt, but confers a mere right of realization by judicial process, and in some cases, by a power of distress. This is sometimes created by contract, and sometimes by the mere mandate of the owner of the property charged (a). (2.) Informal agreement. Any agreement in writing, however informal, by which any property real or personal is to be a security for a sum of money, is a charge, and amounts to an equitable mortgage. Thus an agreement that a creditor shall hold land at a fair rent, to be retained in satisfaction of the debt, is in the nature of a mortgage, and will be supported (b). So an informal document, signed by a trustee, admitting a breach of trust, with these words, "holding the deeds of my house and policies of assurance as a collateral security" (c). An express written agreement to make a mortgage is sufficient on the principle of equity that what has been agreed to be performed shall be performed in specie (d). So a written instrument, promising to pay a sum of money with interest "out of the estate of the deceased W. H.," and signed by all the persons interested in (a) Fish. Mtg. p. 8, ed. 3. (b) Morony v. O'Dea, 1 Ba. & Be. 109. (d) Hankey v. Vernon, 2 Cox, 12, 14; Burn v. B. 3 Ves. 582. his estate, has been held to constitute (the personalty being exhausted) an equitable mortgage on the real estate (e). Similarly a letter to the executor by a debtor to an estate, saying that he might retain the debtor's title deeds till the latter got the whole of his affairs settled with the executors (f). So a memorandum by a husband to charge all his interest in the future property of his wife (g). Advances on a railway contract were held to create an equitable lien on the profits of it (h); and an equitable mortgage may be held | as security for subsequent advances (i). Where a relation paid off a mortgage and took a receipt from the mortgagee, he undertaking to reconvey, it was held an equitable mortgage (k). So, a parol agreement for a mortgagee to give up his security to a new mortgagee paying off a part of the mortgage, on the understanding that he was to have a second mortgage for the residue, was held to create a valid second mortgage (1). Also a recital of the obligor of a bond for 3,000l., that, on the Recitals. execution of a will of real estate in his favour, he had promised to provide for the obligee, was held to have created a lien on the real estate for the 3,0001. (m). Similarly a recital in an assignment of rent to a creditor but in which no further interest in the lease was conveyed, that a security was intended, was held to be an equitable mortgage of the lease (n). See other instances of equitable charges in the chapter on Tacking, pp. 878, 9; and, in the case of covenants to settle or charge land, in the chapter on Liens on Real Estate, p. 448. The costs of perfecting the equitable mortgage by conveyance or Costs of surrender falls on the mortgagor (o). A covenant that if payment be not made the creditor may, by entry, foreclosure, sale, or mortgage, levy the amount from the lands of the debtor, is an equitable mortgage (p). (e) Suart v. Toulmin, 2 Pow. Mtg. 1049 b, ed. 6. (f) Fenwick v. Potts, 8 De G. M. & G. 506. (g) Carew v. Arundell, 8 Jur. N. S. 71, V. C. Stuart; 5 L. T. N. S. 498. (h) Twynam v. Hudson, 8 Jur. N. S. 476, V. C. Stuart, reversed on other points, 4 De G. F. & Jo. 462. (i) Exp. Heathcoate, 1 Fonbl. N. R. 42. (1) Banks v. Whittall, 1 De G. & S. 536; Beckett v. Cordley, 1 Bro. C. C. 353. (m) Exp. Atkins, 2 Y. & C. Exc. 536. (0) Pryce v. Bury, 2 Drew. 41; conveyance. 45 & 46 Vict. c. 39. (3.) Power of attorney. A power of attorney, authorizing a party to take possession of lands and hold them until paid a certain sum, amounts to a contract to charge, and is not revoked by the death of the grantor (q). So a power to confess judgment in ejectment (»). Facilities are afforded by the Conveyancing and Law of Property Act, 1881 (s), for the deposit of original instruments creating powers of attorney, and for making copies evidence. Powers of attorney for valuable consideration are made irrevocable by the Conveyancing Act, 1882 (t), but the Act is not retrospective (u). Powers of attorney, whether for valuable consideration or not, may be made irrevocable for a fixed time (u). (4.) Lien from misrepresentation. A memorandum of charge by a solicitor on a mortgage debt, misrepresented as existing, was held an equitable mortgage upon an indemnity fund set apart when the mortgage was paid off (x). (5.) Sale to enforce charge. A sale will be directed to realise a charge or equitable mortgage (y). (6.) Misdescription of premises. Where in an equitable agreement a charge was stated to be on three houses in a certain lease, which only, in fact, comprised one house, evidence was admitted to explain the mistake (s). 381; Exp. Jones, 4 L. J. N. S. Bky. 59; (g) Spooner v. Sandilands, 1 Y. & C. See (r) Dale v. Smithwick, 2 Vern. 151. (s) 44 & 45 Vict. c. 41, s. 48. (x) Exp. Rogers, 8 De G. M. & G. 271; 2 Jur. N. S. 480. (y) Grissell v. Money, 38 L. J. Ch. 312, M. R. (z) Re Boulter, 4 Ch. D. 241, Bacon, C. J. 6. To whom deposit may be made, and other matters 7. Purchase or mortgage with notice of deposit. 8. Solicitor and other cases 9. Deposit of part of the deeds 10. Copyholds, and other matters 11. Renewed lease, &c. 12. Bankruptcy Page. 339 340 341 343 ib. 344 339 Frauds does deposit. THE Statute of Frauds enacts (a) that no "action shall be Statute of brought upon any contract or sale of lands, tenements, or heredita- not prevent a ments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised." Notwithstanding this statute, it is now decided that if the title deeds of an estate are (without even verbal communication) (a) 29 Car. II. c. 3, s. 4. |