CHAPTER XVI. 1. By Trustee of Bankrupt, 171. 2. By Grantee of Rent-charge, 173. 3. By Guardian of Infants, 175. 4. By Infants, 176. 5. By Lunatic and Person of Unsound Mind, 177. 6. By Joint Tenants, Tenants 7. By Parson, 178. 8. By Churchwardens and Over- 1. By the Trustee of a Bankrupt. THE Bankruptcy Act of 1883 constitutes the present code in Bankruptcy (a), as it affects the land of a bankrupt. When a person has been adjudicated a bankrupt, all his Lands vest property passes to and vests in a trustee (b). The creditors may appoint a trustee (c), but, until a trustee is appointed, the Official Receiver is the trustee, and the bankrupt's property vests in him (d). Upon the appointment of a trustee the property passes to and vests in such trustee (e). The property passes to the trustee for the time being (f). If at any time there is no appointed trustee, the Official Receiver becomes the trustee (g). All freehold, leasehold, or customary land which belonged to or was vested in the bankrupt at the commencement of the bankruptcy, or which may be acquired by or devolve upon him before his discharge (h), vests in the trustee, (a) 46 & 47 Vict. c. 52. (b) S. 20, sub-s. 1. (c) S. 21. (d) S. 54, sub-s. 1. (e) S. 54, sub-s. 2. (h) S. 168, sub-s. 1; s. 44. in trustee upon adjudi cation. Appointment of trustee. What property vests in trustee Commencement of bankruptcy. Proof of except property held by the bankrupt upon trust for any other person (i), or property which has been extended by the Crown before adjudication (k). The commencement of the bankruptcy is the time of the act of bankruptcy being committed, upon which the receiving order is made; or, if the bankrupt committed more acts of bankruptcy than one, the time of the first of such acts of bankruptcy committed within three months next preceding the date of the presentation of the petition (l). Certain other property also, such as property which has been fraudulently or voluntarily transferred by the bankrupt, which was not vested in or belonging to the bankrupt at the commencement of the bankruptcy, vests in the trustee (m). A copy of the London Gazette, containing a notice of adjudication; an order of adjudication, is conclusive evidence of the order having been duly made, and of its date (n). of appointment of trustee. The Board of Trade certifies that the trustee has been duly appointed (o), and the certificate is conclusive evidence that he has been duly appointed (p). His appointment takes effect from the date of the certificate (q). He may commence an action before the certificate has been given, but must produce it at the trial, dated prior to the issue of the writ (). The certificate, for the purposes of any law requiring the registration, enrolment, or recording of conveyances or assignments of property, is to be deemed to be a convey (i) S. 44, sub-s. 1. (k) Ex parte Postmaster-Gene ral, 10 Ch. D. 595. (1) S. 43. (m) Ss. 45, 47-49. (0) S. 21, sub-s. 2. (q) S. 21, sub-s. 4. (r) Kelly v. Morray, L. R. 1 C. P. 667; Carrick v. Ford, L. R. 4 Ch. 247. BY TRUSTEE OF BANKRUPT; BY GRANTEE OF RENT-CHARGE. ance or assignment of property, and may be registered, enrolled, and recorded accordingly (8). The trustee is not compellable to be admitted to pro- Copyholds. perty of copyhold or customary tenure, but may deal with it as if it had been duly surrendered to such uses as he might appoint, and his appointee shall be admitted accordingly (t). leave. 173 The trustee may, with the permission of the committee May sue with of inspection (u), or of the Board of Trade if there be no committee (x), sue for the recovery of land of the bankrupt which has vested in him. He sues in his official name of "the trustee of . . . . a bankrupt " (y). If the trustee has disclaimed any property, as he Disclaimer. may do under the Act (z), he cannot afterwards sue to recover possession of it. 2. By Grantee of Rent-charge. The grantee of a rent-charge, with a power to enter and receive the rents and profits when the rent-charge is in arrear, may bring an action to recover possession of the lands (a). If the instrument creating the charge came Rent-charge prior to 1882. into operation before January 1st, 1882, there is only a power to enter if expressly given by the instrument; if it Conveyancing Act, 1881. came into operation after that date, there is an implied power to enter, if and as far as a contrary intention is not therein expressed (b). The rent-charger may enter if any portion of the rent-charge is in arrear for the period, if (s) S. 54, sub-s. 4. (t) S. 50, sub-s. 4. (u) S. 57, sub-s. 2. (x) S. 22, sub-s. 9. (y) S. 83. (2) S. 55, amended by s. 13 of the Bankruptcy Act, 1890, 53 & 54 Vict. c. 71. (a) Jemmot v. Cooly, 1 Saund. 112 c, ed. 1871, p. 132; Havergill v. Hare, Cro. Jac. 510; Doe v. Kensington, 8 Q. B. 429. (b) Conveyancing Act, 1881, 44 & 45 Vict. c. 41, s. 44. No demand necessary unless required by instrument. Rent-charger can hold until arrears paid. Who can enter. Right passes to represen tatives. Who may be <jected. any, fixed by the instrument (c), or, in the case of the implied power, for forty days (d). No previous demand of the arrears is necessary, unless expressly required by the instrument creating the charge (e); but, if necessary, it must be made according to the strict rules of the Common Law (ƒ). The right of the rent-charger is only to keep possession until the arrears of the charge are satisfied; and, as soon as they are satisfied, he must give up possession (g). If the entry is under the powers given by the Conveyancing Act, the rent-charger may keep possession until payment of all costs and expenses occasioned by non-payment of the rent-charge (h). This right of entry was construed strictly, and was not extended to any person to whom the right was not clearly given by the instrument creating the charge (i). Now, when the instrument creating the charge came into operation after January 1st, 1882, any person entitled to receive a rent-charge has a right to enter, if and as far as a contrary intention is not expressed (k). If a rent-charger dies after having entered into possession, and before the arrears for which he entered are satisfied, the right to possession until such satisfaction passes to his personal representatives (l). All persons claiming under a title subsequent to the instrument creating the charge may be ejected (m). (c) Havergill v. Hare, 5 Cro. Jac. 510. (h) S. 44, sub-s. 3. (i) Hassell V. Gowthwaite, (d) Conveyancing Act, 1881, Willes, 500; Havergill v. Hare, s. 44, sub-s. 3. 5 Cro. Jac. 510. (k) Conveyancing Act, 1881, 8. 44. (1) Doe v. Weaver, 2 C. & K. 754. (m) Doe v. Boulter, 6 A. & E. 675. The Common Law Procedure Act, 1852 (n), does not apply to an action to enforce a right to enter when a rentcharge is in arrear (o). 3. By Guardians of Infants. C. L. P. Act, 1852, s. 210. Guardians of infants are of two kinds, guardians in Two kinds of socage, and testamentary guardians. A guardianship in guardians. socage arises when a title to the legal estate in socage In socage. lands has descended on an infant under the age of fourteen years (p). The guardian in socage is the next of blood to whom the inheritance cannot possibly descend (q), and his guardianship continues until the infant has attained the age of fourteen years (r). A testamentary guardian is one appointed by the father Testamentary. of an infant, pursuant to 12 Car. II. c. 24, ss. 8, 9, by deed or will. His guardianship continues until the infant attains the age of twenty-one years (8), or, if a female, marries under that age (t). His power is the same as that of a guardian in socage (u). If more than one are appointed, the office survives to the survivor (x), and each while living is a complete guardian (y). Under this Act only the father can appoint a guardian (≈). By a recent Act considerable changes have been made 49 & 50 Vict. (n) S. 210, p. 76. (0) Doe v. Bowditch, 8 Q. B. 973. (p) Lit. 123; Co. Lit. 87 b. (q) Id.; R. v. Inhabitants of Wilby, 2 M. & S. 504. (r) Id. (8) S. 8; Ex parte Ludlow, 2 P. Wms. 635. (t) Mendes v. Mendes, 1 Ves. sen. 89. (u) S. 9; Roe v. Hodgson, 2 Wils. 129. (x) Eyre v. Shaftesbury, 2 P. Wms. 103; Bedell v. Constable, Vaugh. 177. (y) Eyre v. Shaftesbury, supra; Gilbert v. Schwenck, 14 M. & W. 488. (z) Ex parte Edwards, 3 Atk. 519; Blake v. Leigh, Amb. 305; Powel v. Cleanor, 2 Bro. C. C. 500; Ex parte Hopkins, 3 P. Wms. 152. c. 27. |