c. 113. and included money which a deceased person had agreed to pay for the purchase of land, and for which the vendor had a lien or charge upon that land. But the 17 & 18 Vict., c. 113 (which and the other statutes 17 & 18 Vict. relating to this subject are generally known as Locke King's Acts) enacted that when any person should, after the 31st December 1854, die seised of, or entitled to any estate or interest in any land, or other hereditaments, which at the time of his death should be charged with the payment of any sum or sums of money by way of mortgage, and such person should not, by his will, or deed, or other document, have signified any contrary or other intention, the heir or devisee to whom such lands or hereditaments should descend or be devised should not be entitled to have the mortgage debt discharged or satisfied out of the personal estate, or any other real estate, of such person, but the lands or hereditaments so charged should, as between the different persons claiming through or under the testator, be primarily liable to the payment of all mortgage debts with which they should be charged; but with a proviso that nothing in the Act contained should affect the right of the mortgagee to payment of his debt out of the personal estate of the deceased person or otherwise. In cases which came before the Court on the construction of this Act, it was held that it did not apply to a mortgage debt charged on leaseholds (2), nor to unpaid purchase-money charged on land, whatever the nature of the tenure might be (a). It was also held that a direction by a testator that his debts should be paid out of his personal estate was an expression of a "contrary intention" within the meaning of the Act, and made his personalty primarily liable to pay his mortgage debts. In consequence of these decisions there was passed (2) Solomon v. Solomon, 12 W. R. 540; In re Wormsley's Estate, 4 Ch. D. 665. (a) Hood v. Hood, 5 W. R. 74. c. 69. 30 & 31 Vict. an amending Act, 30 & 31 Vict., c. 69, which provided that in the construction of the will of any person who should die after the 31st December 1867, a general direction for payment of the debts of the testator out of his personal estate should not be deemed to be a declaration of an intention contrary to the rule established by the principal Act, unless it was declared by words expressly, or by necessary implication, referring to all or some of the testator's debts or debt charged by way of mortgage on any part of his real estate. The Act also provided that the word "mortgage" should extend to any lien for unpaid purchase-money on any lands or hereditaments purchased by a testator. c. 34. This last proviso, however, omitted the case of a vendor's lien where the purchaser had died intestate (b). Consequently a further Act was necessary. This, which 40 & 41 Vict. is the 40 & 41 Vict., c. 34, enacted that the previous Acts should, as to any testator or intestate dying after the 31st of December 1877, be held to extend to a testator or intestate seised, or possessed of, or entitled to any lands or other hereditaments, of whatever tenure, which should at the time of his death. be charged with the payment of any sum or sums of money by way of mortgage or any other equitable charge, including any lien for unpaid purchase-money. It follows that nothing short of a plain expression to the contrary will, in the case of a person who has died after the 31st December 1877, exonerate the equity of redemption from paying its own mortgage debt or enable an heir or a devisee to claim payment of unpaid purchase-money out of the personal estate. (b) Harding v. Harding, L. R. 13 Eq. 493. PART II. OF CONVEYANCING. CHAPTER I. OF THE HISTORY OF CONVEYANCING. THE first part of this work having been devoted to a consideration of the various estates in land, and of the manner in which they may be held, it is proposed in this, the second part, to try and explain the way in which the simplest forms of the principal conveyancing instruments are prepared. And in order to facilitate the comprehension of this part of our studies, it will be prefaced with a brief account of the history of conveyancing; so that the reader may understand the reasons for the changes which have been made, from time to time, in the various forms of assurance which we are about to consider. copyholds not chapter. We have seen how land may, with reference to its Assurances of tenure, be regarded as being either freehold or copy- to be conhold. But it will be remembered that copyhold land sidered in this is still transferred by the primitive method of surrendering it to the lord of the manor, who, in his turn, re-grants it to the tenant's nominee; and, since the various points relating to the subject of surrender have been discussed in our chapter on copyholds, land of this tenure will not, except incidentally, come under our present notice. As to land of freehold tenure, we saw that the Estates in land estates held in it may be either freehold or leasehold, tenure divis of freehold holds in ible into free the former again being divisible into those in possession and those in reversion or remainder, which may reversions and be placed, with reference to their mode of conveyance, possession; remainders; and terms of in a class by themselves. years. Assurances be- Feoffment with livery of seisin. We have, then, to consider the history of the assurances which relate to these divisions of freehold land. And since the principal changes introduced into conveyancing arose soon after, and in consequence of, the passing of the Statute of Uses (a), our three classes of property may, for this purpose, be conveniently treated of with reference toIst, The manner of acquiring, and dealing with, them, before the passing of the statute; 2nd, The changes and modifications in conveyancing introduced shortly after that date; and 3rd, The further alterations in this respect made since the passing of the statute down to the present day. The right of alienating the various kinds of property which have been mentioned had been a thing of slow growth, and was subject to several restrictions, derived chiefly from the rules of feudal tenure. A consequence of this was, that the earlier forms of assurance were few in number, and comparatively simple in operation. The earliest, and most important, form of conveyance was a Feoffment, accompanied by Livery of Seisin. This was employed for the creation of all estates of freehold in possession, and for the transfer of such of them as were alienable; namely, estates in fee-simple, or for life. A Feoffment was a formal statement by the feoffor, or owner of the estate, that he gave it to the feoffee, and was completed by the feoffor's publicly putting the feoffee into possession of the land which he was to hold. This public putting into possession, called Livery (a) 27 Hen. VIII. c. 10. (delivery) of the Seisin, or feudal possession of the land, was either "in deed" or "in law" according as it took place on, or in sight of, the land (b). It was essential that the feoffment and livery of seisin should be made simultaneously; and such a mode of assurance was, therefore, in general, applicable only to the creation of an estate which took effect in possession. It might, however, be employed for the creation of any remainder limited after an estate of freehold, and of a vested remainder although limited after a term of years, since the grant of a term did not transfer the feudal seisin to the termor. In such a case, livery could be made either to the lessee, to take effect for the benefit of the remainder-man (c); or to the latter himself, provided the lessee gave his consent (d). As early as the Conquest (e) it had become usual to embody the terms of a feoffment in a deed, or charter; but for a long Feoffment time afterwards this was not essential, and a deed, if made, was only evidence of the transfer, and did not, a deed. of itself, pass any estate. It should here be mentioned essential. that, after a time, the name "Feoffment" was applied only to an instrument conferring a fee-simple, that which gave an estate tail, or one for life, being called either a Gift, or a Demise or Lease, as the case might Gift and Debe (f); but since the form of words used was, as nearly as possible, the same, and livery of seisin was requisite in every case, it will be sufficient if we associate the word "feoffment" with the grant of an estate of freehold in possession; remembering at the same time that an estate tail could only be created, and not transferred, by it. sometimes accompanied by But this not mise. operation of a So great was the importance attached to a feoff- Tortious ment and livery of seisin, that it might have the effect feoffment. of transferring an estate greater than that possessed (b) Co. Litt. 48. (c) 2 Bl. Com. 166. |