Witnesseth. Assignment.

PREC. XVII. & demands under, the sd indre of mtge: AND THIS INDRE ALSO WITNETH that in psuance, &c., & for the conson afsd, the sd A. & B. as mtgees in further exercise of the power or authority afsd, do resply hby assn unto the sd C.: 1st, ALL THAT the life intt of the sd K., in the sd stks, funds, shares, & Personalty. secs specified in the sd 3rd schdle hto, & in any moys, stks, funds, shares, & secs hrafter representg or substituted for the same, or any of them, or any pt thof resply, & the intt, dvids, & annl income of the same respive premes, & 2ndly, ALL THOSE pols of assurce specified in the sd 4th schdle hto, & all moys assured by, or to become payable under the same resply: TO HOLD all the sd premes lastly hby assned UNTO the sd C., his exs, ads, & assns absolutely, free & dischged, &c., as above. IN WITS, &c.

Policies.

Habendum.

To pur chaser.

[Four Schdles.]

Provisions of Settled

Land Acts as to sales.

What is a settlement within the Act.

Act of 1890.

NOTE ON SETTLED LAND ACTS.

As many of the following precedents are based on or affected by th Settled Land Act, 1882 (45 & 46 Vict. c. 38), it will be convenient to insert here a short notice of the provisions of that Act, and the Amending Acts of 1884 (47 & 48 Vict. c. 18), 1887 (50 & 51 Vict. c. 30), 1889 (52 & 53 Vict. c. 36), and 1890 (53 & 54 Vict. c. 69), and the decisions and various points arising thereon, relative to sales.

By s. 2, sub-s. 1, the Act applies to all settlements both past and future of "land," (which includes land of any tenure and incorporeal hereditaments), or any estate or interest in land, whether effected by deed or will or otherwise, and whether by one or several instruments; and a settlement for the purposes of the Act means an instrument or instruments under or by virtue of which the land "stands for the time being limited to or in trust for any persons by way of succession;" but by sub-s. 4, the question whether the land is settled for the purposes of the Act is to be "governed by the state of facts and the limitations of the settlement at the time of the settlement taking effect." This definition closely follows that of the Settled Estates Act, 1877, and the words "taking effect" in sub-s. 4, evidently mean as in that Act, "coming into operation” (see 3 Dav. Prec., p. 523, note). See alse Vine v. Raleigh, [1896] 1 Ch. 37; Bates v. Kesterton, [1896] 1 Ch. 159; Re Pocock and Prankerd, [1896] 1 Ch. 302. By s. 4 of the Act of 1890, any instrument whereby a tenant for life in consideration of marriage or by way of family arrangement makes an assignment of or charge upon his estate or interest under the settlement (not being a security for money advanced), is to be deemed one of the instruments creating the settlement, and not an assignment for value within s. 50 of the Act of 1882 (as to which see infra), Re Ailesbury Settled Estates, 42 W. R. 45. This

would apply to the common case where the tenant for life charges his life estate, on a re-settlement or otherwise, with a provision for his eldest son.

ments.

Where interests taken under a settlement have afterwards been made Derivative the subject of derivative settlements, the original settlement alone, so long settleas it lasts, is the settlement for the purposes of the Act (Re Knowles, 27 Ch. ments. D. 707; Re Wright's Trustees and Marshall, 28 Ch. D. 93); and in the common case of a settlement by father and son, after a disentail, preserving the father's old life estate, it has been considered that the two settlements are for all the purposes of the Act distinct (except in a case coming within s. 4 of the Act of 1890); and that as soon as the original settlement is spent and there ceases to be a statutory tenant for life thereunder, the re-settlement alone becomes the settlement, so that any family charges subsisting under the old settlement can no longer be overriden by an exercise of the statutory powers. However, in the recent case of Re Ailesbury and Iveagh, Compound [1893] 2 Ch. 345, a different view was taken, and it was considered, having settleregard to the statutory definition of "settlement," that a series of settlements and resettlements of entailed estates by father and son of the usual type constituted together a "compound" settlement, although the then subsisting limitations arose under the last settlement alone (those of the prior settlements having run out), on the ground that, having regard to s. 2, sub-s. 4, the point of time to be looked to in determining the question whether there was a settlement in each case was the date of the settlement and not the present time; and it was accordingly held that upon trustees of the compound settlement being appointed by the Court to receive the purchase-money, the sale and conveyance by the tenant for life under the last re-settlement would overreach all the family charges which were subsisting under the prior settlements. It will be noted that this decision only applies where at the time of the re-settlement there was a "succession of estates" still subsisting under the prior settlement which was kept alive, and not to a case where the fee simple had previously come into possession; since in the latter case there never was a "succession of estates " under the two settlements taken together. The decision in Re Ailesbury and Iveagh has been much convassed, and it is not safe to act upon it. See Wolstenholme, C. A. 289; 37 Solor. J. 336. Notwithstanding the existence of such a compound settlement, it is beyond question, having regard to the previous decisions on the Act and the uniform practice, that the original settlement, so long as there is a tenant for life thereunder, remains the only settlement; and also that the second settlement, when the limitations thereof have come into possession, may still, even if the decision is correct, at the option of the tenant for life, be treated as the only settlement, so that capital money may be paid to the trustees of that settlement, although in that case the old family charges would not be overreached; or in order to overreach those charges, (according to Re Ailesbury and Iveagh if it applies) the purchase-money may be paid to trustees appointed by the Court of the compound settlement. It seems clear that s. 4 of the Act of 1890 would not have the effect of creating a compound settlement, so as to affect the powers of the trustees under the original settlement; a charge coming within that clause being in the same position as if it had been contained in the original settlement, and the enactment having the same effect as the overreaching clause commonly inserted in re-settlements by father and son.

Where two estates are settled by different instruments to the same uses Settlement the question arises whether the two instruments constitute one settlement of two estates by

different

instruments.

Act cannot be excluded.

Powers given to owner in possession.

Reversion.

according to the definition. They appear to be so far distinct that capital money arising under the first settlement cannot be applied as capital money arising under the second settlement; on the other hand they so far constitute one settlement that capital money arising under the second settlement can be applied as capital money arising under the first settlement in cases where the uses of the second settlement are declared by reference to the first settlement, Re Mundy, [1891] 1 Ch. 399, and where though the uses are not declared by reference and although originally different have in the event become identical, Re Byng, [1892] 2 Ch. 219. As to the question whether lands settled to different uses by the same instrument are comprised in different settlements within the meaning of the Act, see Re Stamford, 43 Ch. D. 84; Re Frewe, [1894] 1 Ch. 1.

The Act cannot be excluded or controlled by the settlement, s. 51; and has been held to override a previous private Act (Re Chaytor,25 Ch. D. 651); and the statutory powers of the tenant for life, as they override the settlement, are not affected by an action for the administration of the trusts by the Court (Cardigan v. Curzon Howe, 30 Ch. D. 531).

or

The powers of the Act are vested in the tenant for life, as defined by s. 2 (5); namely, the person beneficially entitled to the "possession or receipt of the rents and profits" of the settled land, for his life; and any other limited owner as defined by s. 58, where his estate is "in possession." "Possession" in ss. 2 (5) and 58 is to be read as contra-distinguished from “ remainder” "reversion" (Re Atkinson, 31 Ch. D. 577); so that it is immaterial whether the tenant for life is in possession personally or by his trustee, or (in the case of an infant) his guardian (Re Morgan, 24 Ch. D. 114, 116); or by a receiver appointed by the Court. But a minority clause by which the trustees are empowered to apply at their discretion all or any part of the rents for the maintenance of an infant, and to accumulate the rents retained for the benefit in certain events of other persons, would prevent the infant from being entitled "to the possession or receipt of the rents and profits," see Re Atkinson, ubi sup., Re Horne, 39 Ch. D. 84; and a tenant for life whose estate is subject to an out and out trust for accumulation of the whole rents during a fixed term so as to be added to corpus, has not an estate in possession within the Act, Re Strangways, 34 Ch. D. 423, but if he would be entitled to the surplus rents, if any, he is in possession within the meaning of the Act though there are none, Re Jones, 26 Ch. D. 736; Re Clitheroe, 28 Ch. D. 378, 31 ib. 135. See also Vine v. Raleigh, [1896] 1 Ch. 37. The definition of tenant for life clearly excludes the application of the Act to a settlement of a reversion, until it falls into possession.

Powers not The powers of the tenant for life are not affected by the existence of affected by incumbrances on the settled land, or on his life estate, whether created by incumthe settlement or otherwise (s. 2 (7), and s. 50 (1, 4)), e.g., a mortgage, or a brances. charge of jointure or portions secured by a term or otherwise under the same or a prior settlement (see as to the latter, s. 20 (2)); although the whole of the rents may be absorbed by expenses and interest (Re Jones, 24 Ch. D. 583; 26 Ch. D. 736). So also a trust for accumulation of the rents for discharging incumbrances, which may at any time cease or be put an end to by the tenant for life by paying off the charges, does not affect his powers (see s. 58, sub-s. 1 (vi.); Re Clitheroe, 28 Ch. D. 378; 31 Ch. D. 135; Williams v. Jenkins, [1893]1 Ch. 700); and it follows that his powers would not be affected by a mortgagee taking possession.

Tenant for

The tenant for life cannot assign or release or contract not to exercise his

powers (s. 50 (1, 2)); but he cannot exercise them to the prejudice of an life cannot assignee or incumbrancer on his life estate without the latter's consent, with assign a saving as to ordinary rack-rent leases (s. 50 (3)); (see Re Sebright, 33 Ch. powers. D. 429); but this is subject to the modification made by s. 4 of the Act of 1890 (see above); as to a person having merely a rentcharge, see Re Ailesbury and Iveagh, [1893] 2 Ch. 345, discussed, 37 Solor. J. 336.

owners the

Act

applies.

The Act (s. 2 (5), and s. 58), applies to the following limited owners when To what entitled in "possession," viz., 1. A tenant for his own life. 2. A tenant in limited tail. 3. A tenant in fee simple subject to an executory gift or limitation over in any event. 4. A person entitled to a base fee, including a tenant for life thereof, Re Morshead, W. N. 1893, 180. 5. A tenant for years determinable on life other than a lessee at a rent. 6. A tenant pur autre vie, with the like exception. 7. A tenant for his own or any other life, or for years determinable on life, whose estate is liable to cease during the life or to be defeated by an executory gift over (see Re Morgan, 24 Ch. D. 114, and the peculiar case of Re Hazle, 26 Ch. D. 428, 29 Ch. D. 78), or is subject to a trust for accumulation (see Re Clitheroe, 28 Ch. D. 378; 31 Ch. D. 125; Re Strangways, 34 Ch. D. 423). 8. A tenant in tail after possibility of issue extinct. 9. A tenant by the curtesy (see the Amendment Act of 1884, s. 8); and 10. A person entitled to the rents under a trust for payment thereof to him during his own or any other life, whether subject to expenses of management or not, or until sale or until forfeiture on bankruptcy or other event, Re Pocock and Prankerd, [1896] 1 Ch. 302.

concur

Where there are two or more persons entitled concurrently as tenants in As to common or joint tenants or otherwise, they together constitute the tenant persons for life, s. 2 (6). In Re Atkinson, 30 Ch. D. 605; 31 Ch. D. 577, it was held entitled that the common trust creating a life estate protected against bankruptcy, rently. &c., by means of a discretionary trust for the application of the income for the benefit of all or any exclusively of specified objects for the time being in esse, did not under this clause or s. 58 constitute the objects pro tem. of the trust a compound tenant for life within the Act.

The Act applies to a settlement of an undivided share, s. 2 (10, i), and As to where the settlement comprises an undivided share, or where under the undivided settlement the land has come to be held in undivided shares, the tenant for shares. life of a share may join in the exercise of the statutory powers with the owners of or persons having power of disposition over the other shares, s. 19. In Re Collinge, 36 Ch. D. 517, where under the settlement the land had come to be held in undivided shares, one of which remained in settlement, it was held that the tenant for life of the latter share could not sell without the concurrence of the owner of the other; but this clearly could not apply to the case of a settlement originally comprising only an undivided share, the other share being held under a distinct title. It may here be mentioned that where there are several concurrent owners entitled in possession under the same settlement, it is conceived that they must all join in an application for sale under the Settled Estates Act, 1877 (see s. 23), the dispensing powers given by ss. 25-28 having reference only to remaindermen (see s. 24) ; and that the orders in Re Dryden, 50 L. J. Ch. 752, and Re Thorp, W. N. 1876, 251, were therefore ultra vires.

A tenant for life (which in the Act and in the following remarks includes Power of other limited owners having the powers of one) is by the Act invested with sale. very large powers of selling "the land or any easement right or privilege over or in relation to the same" (s. 3 (i)); which includes power to create

Sale for rent

charge. Enfranchisement.

Reservations and restrictions.

Timber.

Mansion house, &c.

Power of

tenant for

life to convey.

and sell to an adjoining landowner an easement or right over the settled land; but it is a question whether it authorises the release and extinguishment of an existing easement or right held with and annexed to the settled land, over adjoining land.

As to sales or grants in fee for a rentcharge, see s. 10, and the Act of 1890, s. 9, and the Small Holdings Act, 1892, 55 & 56 Vict. c. 31, ss. 12, 13.

The power of sale includes power to enfranchise copyholds or freeholds held of a settled manor (s. 3 (ii)); and see the Copyhold Act, 1894, repealing and by ss. 26, 34, 35 replacing the Copyhold Act, 1887, ss. 24, 25, 26, as to expenses and enabling the lord of the manor in certain cases to give receipts for the compensation money although his estate in the manor may be only a limited one. The sale must be at the best price that can reasonably be obtained (s. 4 (1)); but as to sales for purpose of artizans' dwellings, see 53 & 54 Vict. c. 70, s. 74, and as to small holdings, see the Small Holdings Act, 1892, ss. 12, 13. The Act gives the usual subsidiary powers (s. 4 (3, 4, 5)), and authorises the making of reservations or imposition of restrictions with respect to building on or other user of the land, or mines or minerals, or for the purpose of the more beneficial working thereof or with respect to any other thing to be made binding so far as the law permits by covenant, condition, or otherwise, on the tenant for life and the settled land or any part thereof, or on the other party and any land sold to him" (s. 4 (6)); and, on a sale for building purposes, to appropriate and lay out roads, &c., with sewers, &c. (s. 16); and also power to sell the surface without the mines and minerals (as defined by s. 2 (10, iv.)); and vice versa, with or without a reservation or grant of powers of working, easements, &c. (s. 17 (1)).

On a sale of an estate with the timber on it, the tenant for life, though empowered to cut and sell timber for his own use, is not entitled to the price of the timber; Re Llewellin, 37 Ch. D. 317, above p. 248, note (b).

"The principal mansion house and the pleasure grounds and park and lands usually occupied therewith," cannot be sold or exchanged without the consent of the "trustees of the settlement" (as defined by the Act; see infra), or an order of Court (see s. 10 of the Act of 1890, substituted for s. 15 of the original Act); but where the house is usually occupied as a farmhouse, or the house and grounds, &c., usually occupied therewith do not exceed 25 acres, the house is not to be deemed a principal mansion house. As the Act overrides the settlement, the Court may order a sale of the mansion house, though expressly negatived by the settlement (Re Brown, 27 Ch. D. 179). As to the considerations which should guide the Court in consenting to a sale of the mansion house, &c., or the reverse, see Bruce v. Ailesbury, [1892] 1 Ch. 506, A. C. 356. The word "principal" does not of course imply that there should necessarily be a second mansion or house. The clause would in many cases prevent the sale under the Act, unless the requisite consent were obtained, of outlying parts of the estate intermixed with small portions of wood or coppice usually kept in hand and "occupied with" the mansion. It would also apply to land which has been usually occupied with the mansion, though at the time of sale let to a tenant. See the form of order authorising the sale of the mansion house, &c., Seton, 1519; and see Re Spurway, 10 Ch. D. 230.

By s. 20 (1) full power is given to the tenant for life to execute the necessary conveyance to effectuate the sale, or the creation of the easement or right sold, "for the estate or interest the subject of the settlement or for any less estate or interest," "including copyhold or customary or leasehold