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judge, &c., attached, depended, or subscribed to any such affidavits to be used in the said Court (Morgan's Stat. 144, 1st ed.; Ayckb. 288, 6th ed.).

CONVEYANCING.

I. By the Act of the last Session, called the Trustees and Mortgagees Act, passed 28th August, 1860, in all cases where by deed, will, or other instrument of settlement, executed after the passing of the Act, a power of sale is given,-there being given by the Act authority to exercise such power of sale in the way, under the restrictions, and with the powers therein mentioned, describe in a general way the powers and authorities so given by the Act?

ANS. By the act referred to, which is the 23 & 24 Vic. c. 145, the trustees, empowered to sell, may sell in lots, and either by auction or private contract, or under special conditions, and may buy in, and rescind or vary the contract for sale, and resell without being liable for any loss which may be occasioned thereby, and may convey the property so sold, and lay out the money arising from such sale in the purchase of other lands, to be settled to the same uses, or in payment of incumbrances affecting hereditaments subject to the same uses, and until such purchase may invest the money at interest for the benefit of the parties who would be otherwise entitled to the rents and profits.

II. By the same act, what power of sale is given to mortgagees under an instrument executed after the passing of the act, in what events does it arise, by whom exerciseable, and under what restrictions? What are the powers by the act conferred on mortgagees of appointing a receiver-and, observing that these statutable powers may be negatived by a declaration contained in the instrument creating the estate, would you, as the ordinary rule of practice, adopt them or not?

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ANS. By the before mentioned act, the following powers are given to a mortgagee, but only exercisable at the times or in the events following, that is to say, at any time after the expiration of one year from the time when the principal money became payable, or after any interest has been in arrear for six months, or after any omission to pay any premium or any insurance required by the mortgage deed:-1. A power to sell, or concur with any other person in selling, the property by public auction or private contract, subject to any reasonable conditions, and to rescind or vary contracts for sale, or buy in and resell the property. 2. A power to insure and keep insured the property (whether affixed to the freehold or not) which is in its nature insurable, and to add the premiums paid in respect thereof to the principal at the same rate of interest. 3. A Dower to appoint

or obtain the appointment of a receiver of the rents and profits of the property in manner thereinafter mentioned. By sec. 13 no sale is to be made until after six months' notice in writing to the person entitled to the property subject to the charge; but purchasers are not to be affected by this not being done. By sec. 17 ten days' notice in writing must be given to the person entitled to the property subject to the charge to appoint a receiver, and in case of default the mortgagee may, in writing, appoint one. Many conveyancers insert in their drafts an express declaration that the Act shall have no application, but it is submitted that this is not a judicious course of proceeding, and that it is best to frame the deed according to the intentions of the parties, and if these should not have effect to call in aid the provisions of the Act.

III. By the act of the last session to amend the law of property, what is necessary, after entering up a judgment, to be done, in order that the same may affect land as to a purchaser or mortgagee, and does it make any difference whether such purchaser or mortgagee have notice or not of the judgment?

ANS. By sec. 1 of the act referred to, which is the 23 & 24 Vic. c. 38, no judgment entered up after the passing of the Act (that is the 23rd July, 1860) will affect any land (of whatever tenure) as to a bond fide purchaser for valuable consideration, or a mortgagee, either with or without notice, unless a writ or other due process of execution shall have been issued and registered before the execution of the conveyance or mortgage, and the payment of the purchase or mortgage money. To bind such parties the execution or process must not only be issued and duly registered, but executed within three calendar months from the time when it was registered (2 L. C., N.S., 166, 167, 168).

IV. Where lands are devised, charged with the payment of debts alone, or charged with debts and legacies together, or charged with legacies only, can the devisee in either, and, if in either, which of those cases, make a good title to a purchaser or mortgagee, without his being obliged to look to the discharge of such debts and legacies ?

ANs. It was well established that where lands charged with debts alone, or with debts and legacies together, were devised in trust for sale, the devisee could make a good title, and give a sufficient receipt though there was no receipt clause; but if the legacies only were charged he could not make a title. He can now do so by the 22 & 23 Vic. c. 35, s. 14 (1 L. C., N.S., 327). By s. 22, the bond fide payment to and receipt of any person to whom any purchase or mortgage money is payable upon an express or implied trust, will discharge the person paying same from seeing to the application

thereof, unless the contrary is expressly declared by the instrument creating the trust or security (1 L. C. 329). It has been contended that this provision (the clause in the Trustees and Mortgagees Act, 1860, has no application here) has not effected anything, leaving matters just as they were before (see 2 L. C., N.S., 78-80), but this can hardly be so, and, therefore, even in the case of a legacy only, the devisee in trust (we are not considering the case of a beneficial devise charged with legacies) can make a good title and give a valid receipt (Dart's Vend. 400, 3rd ed.; Smith's Man. Eq. 129, 130, 6th ed.; 2 L. C., N.S., 79).

V. What lease is a person entitled in possession to a settled estate for his life under any settlement made after the 1st November, 1856, empowered to make, as to the duration of the lease, the rent to be reserved, and other conditions?

ANS. By sec. 32 of the Settled Estates Act (the 19 & 20 Vic. c. 120), a person entitled to a settled estate for life or years, or any greater estate, either in his own or wife's right, unless contrary to the settlement, may without application to the Court of Chancery, demise the same (except the mansion-house) and demesnes thereof for a term not exceeding twenty-one years, to take effect in possession if made for the best rent, and without fine, such rent to be incident to the immediate reversion. It must not be without impeachment of waste, and must contain proper covenants for payment of rent, &c., and re-entry on nonpayment for twenty-eight days or on nonobservance of any covenant or condition; and the counterpart must be executed by the lessee. With the sanction of the Court other and longer leases may be made of the estate (Exam. Quest. p. 27, No. VII.; 3 L. C. 105–110).

VI. What is the effect of such lease, as to the interests of parties entitled to any charge or incumbrance affecting the estate out of which the lease takes effect?

ANS. By sec. 41 of the above act such a demise is not valid against persons entitled to incumbrances on the estate of the lessor, unless concurring therein.

VII. Where a will contains a power to raise money out of an estate, not confined to raising it out of the rents, or a power to charge an estate generally, would such power authorise a sale of the estate, and also a mortgage of it, both, or either, and which? ANS. A power to raise money out of an estate enables a sale of it, and likewise a mortgage; but if the latter be first made, it is doubtful whether a sale can also be made (1 Sug. Pow. 513, 7th ed.; Smith's Prop. pp. 324, 325, 2nd ed.).

VIII. State in general terms the rule for determining how far a power is suspended or extinguished by any act of the donee of the power having also an interest in the estate affecting that interest; could such a donee, after creating a charge on his estate, exercise a power in any way defeating such charge. ANS. In the case of a power appendant (as in the question) a total alienation of the estate operates as an extinguishment of the power where it cannot be exercised without defeating the interest granted it would be derogatory to the estate of the donee. But the power is not destroyed by a mortgage security or charge; but it may be suspended, curtailed, or qualified thereby. The donee cannot exercise the power so as to defeat a charge created by him on his estate (1 Sug. Pow. 57, 62; Smith's Prop. 329, 2nd ed.). As stated by Mr. Hayes (Com. 570, note, 4to. ed.), it is an established principle, founded on natural reason and justice, that if a man having a power and also an interest ulterior to the power, aliens his interest, without exercising his power, he shall not afterwards be permitted to exercise the power to the prejudice of his own alienation (see also Burt. Comp. p. 177, and note by Mr. Cooper).

IX. If a tenant for life with power of leasing were to alienate his whole life estate, would the power be extinguished? Would a power in gross-that is, a power given to a person who has an interest, but not to take effect out of that interest, be extinguished by alienation of that interest ?

ANS. Where a tenant for life with power of leasing conveys away his life estate, the power is gone (see Ans. No. VIII.). Powers in gross may well be exercised, although the donee may have previously parted with the estate to which it was annexed (1 Sugd. Pow. pp. 56, 86; Burt. Comp. pl. 176, 177).

X. Can an equitable mortgage on real property be created by a deposit of deeds, merely, without writing? If so, may or not the object of the deposit be explained by parol evidence? ANS. An equitable mortgage of real estate may be created by a mere deposit of deeds without writing. The meaning and object of the deposit may be explained by parol evidence (2 Davids. Conv. 80, et seq., 2nd ed.; Fisher's Mortg. 51, et seq.).

XI. Would such a deposit have preference over a subsequent purchaser or mortgagee of the legal estate, with or without notice of such equitable mortgage? Is a written memorandum of the deposit essential or advantageous?

ANS. An equitable mortgage will not avail against a subsequent mortgagee obtaining the legal estate, and who had no notice at the time of advancing his money of the deposit of the title deeds; it

would be otherwise if he had notice (Whitbread v. Jo., 1 Yo. and C. 303; 2 Davids. Convey. 84, 2nd ed.); and the mere omission to inquire for the title deeds is equivalent to notice (Hewitt v. Lo., 9 Hare 449). A written memorandum of the deposit is not essential, but ought to be taken to facilitate proof of the security, and, in case of the bankruptcy of the mortgagor, to entitle the mortgagee to his costs (2 Davids. Conv. 80, et seq., 2nd ed.; Fisher's Mort. 51, 421, et seq.).

XII. If a tenant in tail, in possession, or a tenant for life, pays off an incumbrance, is such incumbrance, in either and which case, deemed to be extinguished? and in what way would you proceed, to keep alive the charge, in favour of the tenant in whose case it would be otherwise extinguished?

ANS. If a tenant in tail in possession (as distinguished from one in remainder, as to whom the doctrine is different) pays off an incumbrance, it will ordinarily be treated as extinguished, and the remainderman cannot be called upon for a contribution unless the tenant in tail keep alive the incumbrance by some suitable assignment, or otherwise manifests his intention to hold himself out as a creditor of the estate in lieu of the mortgagee: because a tenant in tail in possession can make himself absolute owner of the estate: and, therefore, if he discharges incumbrances, he is presumed to do so in the character of owner, unless he clearly shows that he intends to become a creditor in respect of such discharge. This doctrine does not apply to the case of a tenant for life paying off an incumbrance. XIII. Having reference to the Act of George the Second, subjecting to certain conditions the conveyance of lands for charitable purposes, state in general terms, what descriptions of property are by that Act barred from being settled or charged for a charitable use, except in the way therein mentioned, and what is the mode of conveyance in which such object may be effected?

ANS. The Act referred to is the 9 Geo. 2 c. 36, and it is sometimes, but improperly, called the Mortmain Act, and by it no estate or interest of any kind in land, rents, or money to be laid out in land can (except for the benefit of certain public institutions) be conveyed for charitable purposes unless by deed indented, sealed, and delivered in the presence of two or more credible witnesses, and enrolled in the Court of Chancery within six calendar months next after the execution thereof, and unless the same be made to take effect in possession for the charitable use intended immediately from the making thereof, and be without any power of revocation, reservation, trust, condition, limitation, clause or agreement whatever for the benefit of the donor or grantor, or of any person or persons claiming

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