The sale. Effect of the conveyance. Sec. 38. Sec. 3. extent of her security, the sale was effectually prevented until the passing of the Act of 1858. Having given the Commissioners power to sell land, and having defined those cases where this power is restricted, the Act passes to the next stage of the proceedings, the sale itself. The 35th section prescribes the mode of sale and the nature of the conveyance, concerning which directions will be given in the next chapter. The effect of the conveyance is of course a most important consideration, and is, in fact, the basis of the measure; and yet, strange to say, this is the point on which the Principal Act was most signally defective. The object of the measure is to facilitate the transfer of land, by relieving the purchaser from the necessity of inquiring into the vendor's title. An ordinary conveyance passes only such estate and interest as the vendor has in him at the time of execution, casting, therefore, on the purchaser the burden of ascertaining the extent of such estate and interest. To free the purchaser from this, it is essential that the conveyance of the Commissioners should pass some well-defined estate or interest, amounting, in the absence of restrictive words, to an estate in fee-simple, or the largest estate known to the law. The 38th section was probably intended to effect this object; but the singular definition of the word "land," to which we have before adverted, gave this section an exactly contrary effect, and reduced the operation of the Act to a nullity. Land was, by the 3rd section, defined to be that estate or interest in any hereditaments which any person applying for a sale is possessed of, or has any mortgage, charge, or incumbrance upon. If we graft this definition on the 38th section, we shall find that the conveyance does not vest in the purchaser any defined estate in the land, but only that estate or interest which the person applying for a sale is possessed of, or has an incumbrance upon. The purchaser, therefore, is in no better position than if he had taken a conveyance from the owner, or from an incumbrancer with a power of sale; and as he only takes the estate of the person applying for a sale, he must, to ascertain that estate, investigate the title as strictly as if the Act had never passed. This defect in the Act was so fatal as to render it necessary that an Amendment Act should be passed, before any conveyance could be executed. The 10th section of the Act of 1858 removes all doubt on this head, and enacts that the conveyance shall pass the absolute fee-simple of the land, unless a lesser estate or interest is expressly mentioned. It also enacts that the conveyance shall not be set aside on the ground of the Commissioners not having jurisdiction. It is also provided that every Sec. GI. conveyance by the Commissioners shall be conclusive evidence of the propriety and regularity of all proceedings connected with it, and that no such conveyance shall be set aside for informality. No doubt can, therefore, now be entertained as to the effect of the conveyance, which is of paramount force and virtue, and cannot be questioned in any court. This, no doubt, imposes a heavy responsibility on the Commissioners, who have to guard against the danger of including in the conveyance the land of other parties, or of shutting out leases or other valuable interests. The experience, however, of the Irish court has shown that this danger is more apparent than real, as throughout the whole of their large transactions very few cases of mistakes have occurred, and those were of such trivial character that the parties who suffered by them were fully compensated out of the purchasemoney. The publicity of the proceedings was found an effectual safeguard against the occurrence of important mistakes. The only exceptions to the paramount operation Sec. 36. Sec. 13. Sec. 37 Sec. 40. of the conveyance are the rights and payments mentioned in the 36th section, with which the land is presumed to remain charged, unless expressly declared to be exempt. Provision is made for the rights of tenants, lessees, and others, by the 9th section of the Act of 1858, which has been substituted for the 33rd section of the Principal Act. The Act of 1858 contains the important provision that all conveyances by the Commissioners shall be free from stamp-duty. This was omitted in the Principal Act, which would have led to the anomaly, that while conveyances executed by the Local Commissioners would be free from stamp-duty, conveyances executed by the Commissioners in London, though of adjacent land, would have been subject to a duty of one-half per cent. The purchase-money is to be paid into the Bank of England, or into the commissariat chest of some colony; and the purchaser so paying it is discharged from any further liability in respect thereof. This is also an important element in the Act, as it effectually separates the purchaser from the vendor, and diminishes the chance of collusion. If an incumbrancer purchases, he will be allowed to retain the whole or part of his incumbrance out of the purchase-money. This is an important privilege, as it tends to induce incumbrancers to bid for the property, especially if the estate is likely to be insufficient to pay them, and it thereby adds to the number of competitors, and increases the value to be derived from the sale. On the conveyance being executed, the purchaser may have an order from the Commissioners for delivery of possession, which will be executed, in case of need, by the provost-marshal, or other officer of the colony. The next division of the Act provides for the due application of the purchase-money among the parties entitled, according to their rights and priorities, for which purpose the Commissioners have all necessary powers. The 45th Section, providing for the setting aside of money to meet annual or contingent incumbrances, has been repealed, and more extended powers have been substituted by the Act of 1858. The provisions for the protection of persons under disability have also been extended and amplified by the Act of 1858. Sec. 12. For the purpose of preventing expense, it is pro- sec. 51. vided that proceedings shall not abate by reason of death or transmission of interest, but that in such cases the Commissioners shall give notice to parties becoming interested, and shall make such orders as may appear to be necessary for their protection. The Commissioners have full power of giving or Sec. 52. withholding costs; but in general the costs of the petitioner, if an incumbrancer, will rank in priority with his incumbrance, unless the Commissioners shall otherwise direct. This provision is meant to discourage the presentation of petitions by incumbrancers having no reasonable prospect of realising their incumbrances. The costs, charges, and expenses incidental to the sale itself, and such other costs as may in the opinion of the Commissioners be considered as having been incurred for the benefit of all parties, form a charge on the purchase-money in priority to all incumbrances on the estate. Where proceedings have been pending in any Sec. 53. competent court with respect to any land which the Commissioners may order to be sold, the Commissioners are bound to take notice of such proceedings, for the purpose of ascertaining the rights and priori- Sec. 54. ties of all parties; but on an order for sale being made by the Commissioners, all such proceedings, so far as they relate to a sale, are to be suspended, and no other proceedings with that object can be instituted. The corresponding sections of the Irish Act enable the Commissioners to provide for the costs of such suspended proceedings out of the pur Partitions, exchanges, chase-moneys of the land sold, but no such provision is contained in these Acts. Such costs can therefore only be satisfied out of the purchase-money in those cases where they would have been a charge on the land had it remained unsold. Sections 55 to 60 enable the Commissioners to and divisions. effect partitions, exchanges, and divisions, the powers comprised in them being analogous to those exercised in England by the Inclosure Commissioners. These powers, though subsidiary to the powers of sale, are of a highly useful character, and have in several instances, where applications have been made for the sale of undivided shares of land, or where the boundaries of adjoining estates are illdefined, been found of great service in carrying into effect the principal objects of the Acts. Receivers. Shortly after the Acts came into operation, a difficulty was found in providing for the due protection and management of estates about to be sold in the interval between the commencement of proceedings and the actual sale, which was found in general to extend to six or eight months; as it often happened that the parties in possession declined to continue the cultivation. At the suggestion of one of the Local Commissioners, application was made to Parliament for power to appoint Receivers, and the Act of 1862 was accordingly passed, giving to the Commissioners the same powers of appointing Receivers as are possessed by the Court of Chancery. Such powers were, however, only to be exercised after the making of the absolute order; and as it was found essential in many cases to take prompt measures to protect the estate from deterioration immediately on the commencement of proceedings, Acts of 1864, the Commissioners were by the Act of 1864 Sec. 5. authorised to appoint a Receiver after making the conditional order. The rapidity with which a West Indian estate deteriorates in value, if not adequately protected and cultivated, and the great |