PREC. XXVI. Grant of copyholds. pcels, p. 377, TO THE USE of the sd B., his hrs & assns, accdg to the custom of the sd manor, subjt to the rents, fines, suits & services due & accustomed for the same: [Cort by E. with D., & also as a septe covt with the tree, if he is under any continuing liability (a), to indemnify them resply agst the rent & corts of lease, see p. 419.] IN WITS, &c. PREC. XXVII. Recitals. Married women's powers of disposition. Acknowledgments under old law. Sub-sales. XXVII. CONVEYANCE by HUSBAND and WIFE of the WIFE'S FREEHOLDS under the OLD law (b) to a SUB-PURCHASER, to whom the benefit of the contract has been transferred pending completion at an ADVANCE in PRICE (c). PARTIES, A. & B., "his wife," vendors, 1; C., origl pchaser, 2; D., sub-pchaser, 3: WHAs the sd A. & B., who intermarried (a) See above, p. 243, note (h); p. 419, note (ƒ). (b) If the marriage took place or the property was acquired by the wife after 1882, she would have an absolute power of disposition as a feme sole under the Married Women's Property Act, 1882, ss. 1, 2, and 5 (Re Drummond & Davie, [1891] 1 Ch. 524), see Prec. xxIx., infra, which is adapted to that case, and the note thereto. If both the marriage and the acquisition of the property were before 1883, the wife's power of disposition is governed by the old law; but she is nevertheless able to contract as a feme sole under s. 1 of the above Act as modified by the Amendment Act, 1893, s. 1 (as she also was to a more limited extent under the old law), with respect to her separate estate (but see post, p. 491, note); and her implied covenants for title and acknowledgment and undertaking as to muniments operate accordingly. In the case of the above precedent, as the wife's rights are governed by the old law, and the property is not settled to her separate use, the husband must concur and she must acknowledge the deed under the Fines and Recoveries Act, 3 & 4 Wm. 4, c. 74, ss. 77 et seq. By the Conv. Act, 1882, s. 7, the acknowledgment of deeds as to real estate under that Act (and see as to contingent interests, &c., 8 & 9 Vict. c. 106, ss. 6 and 7, and as to reversionary interests in personal estate under 20 & 21 Vict. c. 57), in those cases in which it is still necessary, is simplified by substituting one commissioner for two, and doing away with the filing of a certificate of the acknowledgment; so that upon the memorandum of acknowledgment by one commissioner being endorsed on or written at the foot or in the margin of the deed, the acknowledgment is complete: see the Rules of December, 1882, under (c) As to sub-sales, see 1 Dart, V & P. 581; and as to the stamp, see the Stamp Act, 1891, s. 58 (4). togr on the day of, are seised in rt of the sd B., &c., p. 362, under an indre, &c.; Contract for sale by A. & B. to C., & sub-contract for sale by C. to D. p. 372. WITNETH, that in psuance of the sd conson of the sum of £ PREC. XXVII. nesseth. NOW THIS INDRE Wit- £to the sd C., resply pd by the sd D. (the rect of wch the Act. As to the date of the acknowledgment, see Ex parte Taverner, 20 Beav. 490; 7 D. M. & G. 627; Druitt v. Willens, 23 L. R. (Ir.) 436: as to its effect, see Tennent v. Welch, 37 Ch. D. 622; and as to the effect of an order dispensing with the husband's concurrence under the Fines and Recoveries Act, s. 91, see Fowke v. Draycott, 29 Ch. D. 996. A married woman can by deed acknowledged dispose of her reversionary interest in a mortgage vested in the trustees of her marriage settlement, Miller v. Collins, W. N. 1896, 23. Application to dispense with the concurrence of a husband in a disposition by a married woman, either under the Fines and Recoveries Act or Malin's Act, are heard by a Judge of the Queen's Bench Division in Chambers, and are in the first instance made ex parte: R. S. C., Order LIV., r. 12 (B); 40 Sol. J. 194. The husband's concurrence is effectual notwithstanding his previous bankruptcy: Re Jakeman, 23 Ch. D. 344. The following is the form of acknowledgment in the Rules of December, 1882: Form of memo randum of acknow "This deed was this day produced bfe me & acknowed by, name in full of married woman or women, thrin named to be her act & deed [their sevl acts & deeds] prevs to weh acknowemt[s] the sd was [were] examined by me ledgment. septely & apart from her husbd [their respive husbds] touchg her [their] knowledge of the contents of the sd deed & her [their] consent thto, & [each of them] decld the same to be freely & voluntarily exted by her [& I declare that I am not intted or concerned eir as a pty or as a solor or clerk to the solor for one of the pties or orwise in the transon givg occasion for the sd acknowemt]. a Judge, &c., or, a perpetual Commr, A purchaser dealing with a married woman is not bound to inquire into Enquiry the existence of a settlement: Lloyd's Banking Co. v. Jones, 29 Ch. D. 221; as to but it is a prudent precaution to do so: Ward v. Duncombe, [1893] A. C. 369. settlement. (d) This implies covenants for title by B., binding her separate estate, as Covenants for title. PREC. XXVII. unto the sd D., peels, p. 377: habendum to D. in fee, p. 393. [Acknmt & undertakg by A. as to munimts belonging to B. (a), p. 418]. IN WITS, &c. (b). PREC. XXVIII. Recitals. Acknowledgment. her separate estate. XXVIII. CONVEYANCE of FREEHOLDS belonging to a MARRIED WOMAN absolutely for her SEPARATE USE under the OLD law, to the USES of a WILL in STRICT SETTLEMENT, on a purchase by the TRUSTEES (c). VARIATIONS where the HUSBAND is made a PARTY (d). PARTIES, A., married woman, 1; [B., husbd, 2;] C., tree, 3; D. & E., trees of will & grtees to uses, pchasers, 4. Recite deed to the acts of herself and her predecessors in title, by A. as to the acts of himself and B., and her predecessors in title, and by C. as to his own acts only, he being a purchaser for value; see p. 399, note. C. would sometimes be made to covenant only against incumbrances (which would be effected by making him convey as tree ";) but it is better to make him give the full covenants, and there can be no reason against his doing so. (a) It is conceived that the deeds must be considered in law as in the sole possession of the husband in right of the wife, and that the husband is therefore the proper person to give the statutory acknowledgment, see p. 413. (b) To be acknowledged by B. (c) For a form for a purchase by a tenant for life under the Settled Land Act, see p. 476. This precedent is for a case in which there is no person possessing the powers of the Act; otherwise his concurrence would be necessary under s. 56; see note on the Act, pp. 456 et seq. Disposition (d) A married woman entitled to property, real or personal, for her by married separate use, without any restraint upon anticipation, can, independently of woman of the Married Women's Property Act, 1882 (as to which see infra, p. 490, note), dispose of the beneficial interest by deed or will, as if she were a feme sole, Elph. Introd. 298. She cannot, however (apart from that Act) pass the legal estate, except where, in the case of freeholds (as in the text), she has a power of appointment operating under the Statute of Uses (see p. 397, note). If this is not the case, and the legal estate is vested in trustees, they must join to convey it; if there are no trustees, and the husband is at law seised in right of his wife, he must concur in the conveyance, which must in that case be acknowledged by the wife, so as to pass the legal estate. Even if the property is settled on the wife so as to enable her to convey the whole legal and equitable estate, it is desirable to obtain the concurrence of the husband, by way of confirmation, lest the wife should have dealt with the property in his favour, and also that he may covenant for the title. PREC. XXVIII. or will whby," the hds hby assured," were conveyed or devised to such uses as A. shd appt, & in default of apptmt to the use of C. in fee, in trust for the septe use of A.: Contract for pchase by the trees of the will of X., from A., p. 370, form v. Agrmt that [B. &] C. shd "[resply] join in these psnts in mner hinafter appearg." NOW THIS INDRE WITNETH, that in Witpsuance, &c., & in conson of the sum of £ now pd by the nesseth. ment. sd D. & E., out of moys arisg as afsd, to the sd A. as her septe este (the rect, &c.), the sd A., as benefl owner (e), in exercise of the power vested in her under the sd indre of, &c. [will], as hinbfe is recited, & of every other power enablg her in this behalf, doth hby appt (f), that ALL & SINGR the hds hby grtd Appoint shl (subjt as hinafter mentd), henceforth go & remain To THE USES, upon the trusts, & subjt to the powers & provons hinafter expd concerng the same: AND THIS INDRE ALSO WITNETH, that in further psuance of the sd agrmts, & for the conson afsd, the sd C., as tree (e), by the diron of the sd A., doth hby grt, & the sd A., as benefl owner (e) doth hby grt Grant. & confirm [& the sd B., as benefl owner (e), at the reqt of the sd A. doth hby also grt & confirm] unto the sd D. & E., peels, p. 377; Habendum to D. & E., & their hrs, subjt, &c., to tenancies, To the uses of will, p. 395. [Acknowemt & undertakg as to munimts retained, p. 418 (g).] IN WITS, &c. (e) This implies the same covenant by A. binding her separate estate, and Covenants also by B., if he is a party and conveys as beneficial owner, with D. and E., for title. as in the last Precedent, and also a covenant by C. against incumbrances; see p. 400, note. (f) If the conveyance is to a purchaser in fee, the appointment and grant may be united in one clause, as in Prec. IV., p. 432. (9) The acknowledgment must be given by the person or persons in actual Acknowpossession of the deeds (see p. 414, note); if they are in the custody of the ledgment. wife, the husband should join in it, as it may be a question whether, although the property is the wife's separate estate, the possession of the deeds would not be deemed in law to be that of the husband, or of the husband and wife jointly, in her right; see p. 415, note (b). PREC. XXIX. Recitals. The Married Women's Property Act, 1882. Power to acquire and dispose of property. Women marrying after the Act. Women marrying before the Act. Settle ments not to be affected. Old law in XXIX. CONVEYANCE of FREEHOLDS by a MARRIED WOMAN as a feme sole under the MARRIED WOMEN'S PROPERTY ACT, 1882. VARIATIONS where the HUSBAND joins to CONFIRM and COVENANT for the TITLE (a). PARTIES, A., vendor, the wife of B. of, &c. 1; [The sd B. 2;] C., pchaser, 3. Recite A.'s seisin in fee, form II., p. 362; Con (a) The Married Women's Property Act, 1882, 45 & 46 Vict. c. 75, has repealed (s. 22) the Married Women's Property Acts, 1870 and 1874 (which had only a very limited operation), and effected a most important change, as from the 1st of January, 1883, the date of the commencement of the Act, in the legal status of married women. By s. 1 (1) every married woman, whether married before or after the Act, was made capable of acquiring, holding, and disposing by will or otherwise of any property, real or personal (including by s. 24 choses in action), as her separate property in the same manner as if she were a feme sole, without the intervention of a trustee. The question whether in any particular case her property is to be deemed her separate property is dependent on ss. 2 and 5 of the Act (subject, however, to the effect of s. 19, as to which see next page). By s. 2 every woman marrying after the commencement of the Act is enabled to hold as her separate property, and to dispose of in manner aforesaid, all real and personal property belonging to her at the time of marriage, or acquired by or devolving on her after marriage, including her separate earnings; and by s. 5 every woman married before the commencement of the Act is enabled to hold and dispose of in manner aforesaid as her separate property all real and personal property, her title to which, whether vested or contingent, and whether in possession, reversion, or remainder, accrues after the commencement of the Act. This last provision, after numerous conflicting decisions, was held by the Court of Appeal, in Reid v. Reid, 31 Ch. D. 402, not to apply where the title had arisen before the Act, but the property did not fall into possession till afterwards, so that a woman married before 1st January, 1883, who was then entitled to a reversionary or contingent interest, does not, on its falling into possession or becoming absolute, acquire it as her separate property under the Act. But a mere spes successionis as one of a class of possible next of kin, is not a "contingent title" within s. 5; Re Parsons, 45 Ch. D. 51, dissenting from Re Beaupré, 21 L. R. Ir. 397. It is provided, however, by s. 19, that the Act is not to affect any settlement or any restriction on anticipation; as to the effect of this, see Hancock v. Hancock, 38 Ch. D. 78; Stevens v. Trevor-Garrick, [1893] 2 Ch. 307; infra, SETTLEMENTS. The old law as to a married woman's power of disposing of her property force as to is thus entirely superseded as to all property which is by the Act made her property separate property, as to which she is enabled to dispose of both the legal and equitable estate as a feme sole (subject to any settlement or restraint on anticipation), but the Act does not remove the disabilities of a woman acquired by married woman |