Page images
PDF
EPUB

PRECEDENT
XXIII.

MILL AND

MACHINERY TO

TENANTS IN

COMMON,

MORTGAGE KEPT

ON FOOT.

Executors' power to sell and convey real estate under the Act.

died on, &c., without having revoked or altered his said will, and the same was proved by the said E. F. and

practice to accept titles from the devisee or heir alone, without requiring evidence of the debts having been paid, or requiring the concurrence of the executors. The last-mentioned cases, however, have cast considerable difficulties on titles, and Lord St. Leonards is of opinion (Sugd. V. P. 662 n. (f); Sugd. Pow. 121; Sugd. Stat. 316) that it is not safe to rely on their authority. As matters therefore stand at present, in cases not within the Act 22 & 23 Vict. c. 35, a purchaser from the devisee or devisee's alienee cannot safely complete without either satisfying himself that all debts have been paid, or requiring the executors to authorise the payment of the purchasemoney to the vendor: Dart, 401.

The Act 22 & 23 Vict. c. 35, provides (s. 14), that where by any will which shall come into operation after the 13th of August, 1859, the testator shall have charged his real estate, or any specific portion thereof, with the payment of his debts, or with the payment of any specific legacy or other specific sum of money, and shall have devised the estate so charged to any trustee or trustees for the whole of his estate or interest therein, and shall not have made any express provision for the raising of such debt, legacy, or sum of money out of such estate, it shall be lawful for the said devisee or devisees in trust, notwithstanding any trusts actually declared by the testator, to raise such debts, legacy, or money as aforesaid by a sale or absolute disposition, by public auction or private contract, of the said hereditaments or any part thereof, or by a mortgage of the same, or partly in one mode and partly in the other. By s. 15, these powers are extended to all persons in whom the estate devised shall for the time being be vested by survivorship, descent, or devise, and to any persons who may be appointed under any power in the will, or by the Court of Chancery, to succeed to the trusteeship vested in the devisees in trust-an extension which no doubt includes trustees appointed under the statute 23 & 24 Vict. c 145, s. 27, since they have the same powers as the original trustees.

By s. 16 of the 22 & 23 Vict. c. 35, if any testator who shall have created such a charge as is described in the 14th sect. shall not have devised the hereditaments charged as aforesaid in such terms as that his whole estate and interest therein shall become vested in any trustee, the executor or executors for the time being shall have the same power of raising the said money as is therein before vested in the devisees in trust, and such power shall from time to time devolve to the executor for the time being; but any sale or mortgage under the Act operates only on the estate and interest, whether legal or

G. H. in the

Court of

PRECEDENT
XXIII.

MILL AND MACHINERY TO TENANTS IN COMMON,

MORTGAGE KEPT

ON FOOT.

4.-personal es

tate insufficient for payment of testator's debts; 5.-agreement

for sale by executors in order to

on, &c. AND WHEREAS the personal estate of the said J. W. proved insufficient for the payment of his debts, and although the whole of his said personal estate, except the machinery and effects. hereinafter expressed to be hereby assigned, has been exhausted in a due course of administration, the said mortgage debt and also other debts of the said J. W. remain unsatisfied; AND WHEREAS, in order to raise money for the payment of the said unsatisfied debts, the said E. F. and G. H. have agreed to sell to the said I. K. and L. M., for the sum of £6500, the said mill, hereditaments, machinery, and effects hereinafter expressed to be hereby granted and assigned respectively; AND WHEREAS 6-state of mortgage debt. the said sum of £4500, together with £250 for interest thereon and costs, making together £4750, is now owing on the security of the said indenture of [the mortgage], and upon the treaty for the said sale it was agreed that the said sum of £4750 should be paid off out of the said purchase-money of £6500, and that the said mill, hereditaments, machinery, and effects should be conveyed, assigned, and assured in manner hereinafter appearing:

equitable, of the testator, and does not render it unnecessary to get
in any outstanding subsisting legal estate. The powers given by
s. 14 last, under s. 15, as long as the chain of representation remains
unbroken, but are not exercisable by an administrator, whether cum .
testamento annexo, de bonis non, or otherwise; and s. 16 enables the
donee of the power to convey the legal estate where it was vested in
the testator. See Hunter on the Act, 49.

By s. 18, sales and mortgages made, or to be made, under wills coming into operation before the 13th of August, 1859,-and beneficial devises (see Hunter, 51), whether previously or subsequently made in fee or in tail, or for the testator's whole interest charged with debts or legacies, and the power of such devisees to sell or mortgage as they could have done before the Act,- -are excluded from the opera

tion of the Act.

The will recited in the text is the same as that in Wrigley v. Sykes. The testator died before the 13th of August, 1859, and the legal estate was outstanding in a mortgagee, who concurred in the conveyance, but would not assign his debt: Dunstan v. Patterson, 2 Ph. 345; and see supra, p. 295, n.

pay debts;

PRECEDENT
XXIII.

MILL AND

MACHINERY TO
TENANTS IN

COMMON,

MORTGAGE KEPT

ON FOOT.

7. Witnesseth,

-receipt,

-grant, - parcels.

NOW THIS INDENTURE WITNESSETH, that, in pursuance of the said agreement, and in consideration of the sum of £4750 upon the execution of these presents paid by the said I. K. and L. M. to the said A. B. and C. D., at the request of the said E. F. and G. H. (the receipt whereof the said A. B. and C. D. hereby acknow ledge (c)), and in consideration of the sum of £1750 at the -consideration, same time paid by the said I. K. and L. M. to the said E. F. and G. H. (the payment and receipt, &c., supra, p. 296), they the said A. B. and C. D., at the request of the said C. D. and E. F. (testified by their respectively being parties to and executing these presents), do and each of them doth hereby grant and release UNTO the said I. K. and L. M., their heirs and assigns, ALL THAT mill or factory called mill, situate, &c., with the water-wheel and millwright's work, gearing, drums, and shafts thereto belonging, and other the fixtures to, in, or about the said mill, AND ALSO [Parcels, supra, pp. 207, 210, 213, 215 or 8. Habendum to 219,-General words, supra, p. 208]; To HAVE AND TO HOLD all the said premises hereinbefore expressed to be hereby granted UNTO the said I. K. and L. M., their heirs and assigns, To THE USE of the said I. K. and L. M., their heirs and assigns, for ever, as tenants in common and in equal shares; Freed and discharged from all claims and demands of the said A. B. and C. D. in respect of the principal moneys and interest, and costs, due or to accrue

use of pur

chasers as tenants in common,

-freed from mortgagees' claims.

How a purchaser should pay his money to trustees.

(c) Where purchase-money is to be paid to trustees, it should be paid only on the receipt of all the trustees: Brice v. Stokes, 11 Ves. 319; Hall v. Franck, 11 Beav. 519; and it should be paid to one, at least, of them, with the concurrence of the others. Lord St. Leonards advises, that, where all the trustees cannot be got together, the money should be paid into a bank to their joint account, on their written authority: but the tendency of the modern cases appears to be in favour of relaxing these precautions; and it seems that a payment on the receipt of the trustees, without paying the money into their hands or into a bank, is sufficient: Burris v. Shepherd, 6 Ir. Jur. 103, Exch. Ir.; Hope v. Liddell, 25 L. J. Ch. 90, S. C. 20 Jur. 105, W. R. 1855-6; Webb v. Ledsam, 1 K. & J. 385. See, however, Dart, 429.

PRECEDENT
XXIII.

MILL AND
MACHINERY TO
TENANTS IN
COMMON,

MORTGAGE KEPT
ON FOOT.

secondly: release of

equity of redemption.

due upon the security of the said indenture of the day of, but subject to the declaration hereinafter contained. AND THIS INDENTURE ALSO WITNESSETH, that, in further pursuance of the said agreements, and for the considerations aforesaid, they the said C. D. and E. F., at the request of the said I. K. and L. M. (testified by their being parties to and executing 9. Witnesseth these presents), do and each of them doth hereby grant, release, and confirm UNTO the said N. O., his heirs and assigns, ALL THE SAID PREMISES herein before expressed to be hereby granted, And all the estate, &c.: To HAVE 10. Habendum, AND TO HOLD all the said premises lastly hereinbefore expressed to be hereby granted UNTO the said N. O., his heirs and assigns, TO THE USE of the said N. O., his heirs and assigns, for ever, IN TRUST for the said I. K. and L. M., their heirs and assigns, as such tenants in common as aforesaid, and subject to the declaration hereinafter contained, that is to say, IT IS HEREBY DECLARED, that, notwithstanding the several grants and releases hereinbefore contained, the said mortgage created by the said indenture of the day of and the said sum of

to use of trustee,

--for purchaser.

11. Declaration keeping alive

the mortgage.

paid by the said I. K. and L. M. as hereinbefore mentioned, and all interest due and to accrue due in respect thereof and of every part thereof, shall be considered and kept on foot as a subsisting charge on the said premises hereinbefore expressed to be hereby granted for the benefit of the said I. K. and L. M., their heirs and assigns, as such tenants in common as aforesaid, and as a protection against all mesne incumbrances, charges, and estates, if any such there be. AND THIS INDEN- 12. Witnesseth TURE ALSO WITNESSETH, that, in further pursuance of the said agreements, and for the considerations aforesaid, they the said E. F. and G. H. do and each of them doth hereby assign UNTO the said I. K. and L. M., -assignment of machinery; their executors, administrators, and assigns, ALL THOSE the machinery, utensils, implements, effects, and things specified in the second schedule hereunder written, and all other (if any) the machinery, utensils, implements, effects, and things now in and about or belonging to

thirdly:

PRECEDENT
XXIII.

MILL AND

MACHINERY TO
TENANTS IN

COMMON,

MORTGAGE KEPT

ON FOOT.

13. Habendum to purchasers as tenants in com

mon.

mill aforesaid, And all the interest, right, and title of the said E. F. and G. H. therein and thereto : To HAVE AND TO HOLD all the said premises hereinbefore expressed to be hereby assigned UNTO the said I. K. and L. M., their executors, administrators, and assigns, in equal shares as tenants in common [several covenants by A. B., C. D., E. F., and G. H., with I. K. and L. M., their heirs, executors, administrators, and assigns respectively, against incumbrances as to the premises granted and assigned by the covenantors respectively to I. K. and L. M., supra, p. 269. Similar covenants by E. F. and G. H. with N. 0. as to premises granted to him]. IN WITNESS, &c.

(Add two Schedules.)

PRECEDENT
XXIV.

TO USES OF A
SETTLEMENT.

1. Parties.

2. Recites the settlement.

XXIV.

CONVEYANCE to the USES of a SETTLEMENT on a
Purchase by the Trustees.

THIS INDENTURE, made, &c., between A. B., of, &c.
[vendor], of the first part; C. D., of, &c., widow [a party
consenting to the purchase], of the second part; and E. F.,
of, &c., and G. H., of, &c. [trustees of the settlement], of
the third part: WHEREAS, by an indenture of release
dated the 6th day of February, 1837, grounded on a lease
for a year, expressed to be made between [parties] (being
a settlement made in consideration of the marriage
shortly after solemnised between the said A. B. and
L. B.) (a), divers manors, messuages, lands, and heredi-
taments therein particularly mentioned, were assured and

(a) In referring in this recital to the parties to the settlement, the vendor's wife will be called "L. B. his wife, then L. F. spinster." See ante, Vol. I. p. 56.

« EelmineJätka »