pressed it was held, that the concurrence of the tenant for life in the disentailing deed did not bar her power of assenting to a subsequent exercise of the power of sale and exchange, because this was a power to raise a use paramount to the estate tail, and there was nothing in the frame of the deed from which a contract could be implied that the tenant for life would not consent afterwards to the exercise of the power of sale and exchange. (Hill v. Pritchard, Kay, 394) 3 & 4 Will. 4, c. 74, s. 34. In a case where there was an adult tenant for life, and an infant tenant Vesting order. in tail, a vesting order under the Trustee Act, 1850, will, if the protector consents to it, bar all estates in remainder, and not pass a base fee only under this act. (Powell v. Matthews, 1 Jur., N. S. 973.) Protector must consent to Enlargement of Base Fee. 35. Provided always, and be it further enacted, that where an estate tail shall have been converted into a base fee, in such case, so long as there shall be a protector of the settlement by which the estate tail was created, the consent of such protector shall be requisite to enable the person who would have been tenant of the estate tail, if the same had not been barred, to exercise, as to the lands, in respect of which there shall be such protector, the power of disposition hereinbefore contained. Protector not to be controlled. 36. Any device, shift or contrivance, by which it shall be attempted to control the protector of a settlement in giving his consent, or to prevent him in any way from using his absolute discretion in regard to his consent, and also any agreement entered into by the protector of a settlement to withhold his consent, shall be void; and that the protector of a settlement shall not be deemed to be a trustee in respect of his power of consent; and a court of equity shall not control or interfere to restrain the exercise of his power of consent, nor treat his giving consent as a breach of trust. Exclusion of Equity as to Protector. 37. Provided always, and be it further enacted, that the rules of equity in relation to dealings and transactions between the donee of a power and any object of the power in whose favour the same may be exercised, shall not be held to apply to dealings and transactions between the protector of a settlement and tenant in tail under the same settlement, upon the occasion of the protector giving his consent to a disposition by a tenant in tail under this act (k). (k) Where a party has the power of appointing an estate, whether real or personal amongst several objects, and exercises such power upon condition that the party in whose favour the appointment is made shall confer on the appointor, or a stranger, some benefit at the expense of the objects of the power, such execution is fraudulent, and will be set aside in equity. (See Pawlet v. Pawlet, 1 Wils. 224; Duke of Marlborough v. Lord Godolphin, 2 Ves. sen. 71; Lane v. Page, Ambl. 233; Boyle v. Bishop of Peterborough, 1 Ves. jun. 299; Tucker v. Sanger, M'Clel. 430.) Thus, where a person having a power of jointuring, executed it in favour of his wife, but it was agreed between the parties that the wife should receive only part of the 3 & 4 Will. 4, c. 74, s. 37. jointure for her own benefit, and that the residue should be applied for the use of the husband, the execution of the power was set aside so far as it was in favour of the husband himself, on the ground of its being a fraud on the power and those creating it. (Lane v. Page, Ambl. 233; Aleyn v. Belchier, 1 Eden, 132.) So, if a parent under a power of appointing the estate unto any of his children, exclusively of the others, appoints to one, upon a previous bargain with such child that he should pay a consideration for it, equity will set aside the appointment altogether. (M'Queen v. Farquhar, 11 Ves. 467; Palmer v. Wheeler, 2 Ball & Beatty, 18; Rhodes v. Cook, 2 Sim. & Stu. 488; Farmer v. Martin, 2 Sim. 502; Green v. Pulsford, 2 Beav. 70.) The fraud consists not in the selection of one child in preference to another, but in the arrangement, which makes the appointment, though in form to the child, in effect an appointment to the father himself. To make such an appointment fraudulent, it is not necessary that it should be wholly for the benefit of the father; it is enough that it is partially so. (Jackson v. Jackson, 1 Dru. 113; 7 Cl. & Fin. 977; West, 575; Sugd. on Prop. 515-517.) So if the donee of the power appoints the fund to one of the objects of the power, upon an understanding that the latter is to lend the fund to the former, although on good security, the appointment is bad. (Arnold v. Hardwick, 7 Sim. 343. See Sugd. on Powers, 606-616, 8th ed.; 2 Chance on Pow. 441-446.) Strong suspicion that an appointment made by a father to his son was for the benefit of the father, is not sufficient to avoid the transaction. (Hamilton v. Kirwan, 2 Jones & L. 393.) But the principle of those cases has not been extended to the case of a tenant in tail in remainder joining with his father, a tenant for life, in suffering a recovery and resettling the estate, although an immediate benefit has been conferred on the son as a consideration for his barring the entail. (Tweddell v. Tweddell, Turn. & Russ. 1; Davis v. Uphill, I Swanst. 129.) See further as to frauds upon powers, Aleyn v. Belchier, 1 White & Tudor, L. C. Eq. 377; Re Huish's Charity, L. R., 10 Eq. 5. A voidable estate by a tenant in tail, in favour of a purchaser, con firmed by a subsequent disposition tail under this act, but not against a purchaser without notice. X. CONFIRMATION OF VOIDABLE ESTATES CREATED BY 38. Provided always, and be it further enacted, that when a tenant in tail of lands under a settlement, shall have already created or shall hereafter create in such lands, or any of them, a voidable estate, in favour of a purchaser for valuable consiof such tenant in deration, and shall afterwards under this act, by any assurance other than a lease not requiring inrolment, make a disposition of the lands in which such voidable estate shall be created, or any of them, such disposition, whatever its object may be, and whatever may be the extent of the estate intended to be thereby created, shall, if made by the tenant in tail with the consent of the protector (if any) of the settlement, or by the tenant in tail alone, if there shall be no such protector, have the effect of confirming such voidable estate in the lands thereby disposed of to its full extent as against all persons except those whose rights are saved by this act; but if at the time of making the disposition there shall be a protector of the settlement, and such protector shall not consent to the disposition, and the tenant in tail shall not without such consent be capable under this act of confirming the voidable estate to its full extent, then and in such case such disposition shall have the effect of confirming such voidable estate so far as such tenant in tail would then be capable under this act of confirming the same without such consent (7): provided always, that if such disposition shall be made to a purchaser for valuable consideration, who shall not have express notice of the voidable estate, then and in such case the voidable estate shall not be confirmed as against such purchaser and the persons claiming under him (m). (The proviso in the corresponding clause in the Irish stat. 4 & 5 Will. 4, c. 92, s. 36, is as follows: " provided always, that if such disposition shall be made to a purchaser for valuable consideration, who shall not have express notice of the voidable estate, and if the deed or instrument creating such voidable estate shall not have been registered previous to such disposition, then and in such case the voidable estate shall not be confirmed as against such purchaser and the persons claiming under him." (m) If a tenant in tail who had executed any settlement, lease or mortgage, or created any charge or incumbrance by statute, judgment, or otherwise, affecting the entailed land, afterwards suffered a recovery, its effect was to confirm such prior acts, and to make the lands chargeable with them, although before they were defeasible by the issue; for whatever act bound the tenant in tail himself, was binding on the recoverers, or the persons to whose use the recovery was suffered, who were estopped from alleging that the person against whom they had recovered had but an estate tail. (Capel's case, 1 Rep. 60; S. C., Poph. 5, 6; Beck d. Hawkins v. Welsh, 1 Wils. 277; Tourle v. Rand, 2 Br. C. C. 652; Goodright d. Tyrell v. Mead, 3 Burr. 1703; Cheney v. Hall, 2 Eden, 357; 3 Atk. 9.) A common recovery was a conveyance on record, invented to give a tenant in tail an absolute power to dispose of his estate, as if he were tenant in fee simple. (Willes' Rep. 451.) What passed by the recovery did not come out of the remainder or reversion, but in continuance of the estate tail, which was expanded into a fee simple, and persons coming in under the recovery were liable to all the charges created by the tenant in tail. A mortgagee claiming under a recovery suffered expressly to his use was postponed to a settlement by lease and release made previous to marriage by a tenant in tail. (Capel's case, 1 Rep. 60; Cheney v. Hall, Ambl. 526; and see also Goodright d. Tyrell v. Mead, 3 Burr. 1703; Tourle v. Rand, 2 Br. C. C. 652; Stapleton v. Stapleton, 1 Atk. 2.) But a recovery suffered by a tenant in tail, who had previously made a voluntary settlement, had not the effect of confirming it as against a mortgagee claiming under an instrument made subsequent to the recovery. (Cormick v. Trapaud, 6 Dow, 60.) 3 & 4 Will. 4, c. 74, s. 38. Old rule as to the But as the fine levied by a tenant in tail operated as an extinguishment Effect of fines. of the estate tail and passed a base or qualified fee, it only gave validity to the prior charges on the estate as against himself and the persons claiming under the entail, but not as against those claiming in reversion or remainder. The operation of a fine levied by a tenant in tail, who had the immediate reversion in fee in himself, was to merge the estate tail, and bring the reversion in fee into immediate possession, by which means it became liable to the incumbrances of all those who had been seised of it. Therefore, where A. settled his estate on himself for life, remainder to B. his eldest son in tail male; remainder to C. his youngest son in like manner, remainder to his own right heirs; B., being in possession, granted leases, with covenants for a perpetual renewal, and afterwards died without issue; C. the remainderman entered and levied a fine, the uses of which were declared to himself in fee: it was held, that C. was bound to a performance of B.'s covenants in the leases. (Shelburn v. Biddulph, 6 Br. P. C. 356, Toml. ed.; Symons v. Cudmore, Show. 370; S. C., 4 Mod. 1; 1 Salk. 338; Skin. 284, 317,328; 3 Salk. 335; Carth. 257; 12 Mod. 32; Holt, 666; 1 Freem. 503; 2 Atk. 204; see 7 Ves. 497.) If a man, who was tenant in tail, created an incumbrance or conveyed his estate by a voidable conveyance, and afterwards levied a fine, though for a different purpose, the first operation of the fine would be to give effect to the antecedent act, even against his own subsequent declaration; if it was a legal conveyance the fine operated as a confirmation of it, and the 3 & 4 Will. 4, c. 74, s. 38. Construction of the proviso. same rule was extended to the case of an equitable charge. (Lloyd v. Lloyd, 4 Dru. & War. 374.) A base fee created by the lease and release of a tenant in tail might be confirmed by a subsequent fine levied, even after the death of the original releasee, in pursuance of a prior covenant. (Doe v. Michelo, 8 T. R. 211, 214.) But where the fee of an estate descended on a party who was equitable tenant in tail, under articles made on his father's marriage, and such son on his own marriage agreed to make a settlement of the estate upon himself and the issue of the marriage in the usual course of family settlement, and afterwards levied a fine: it was held, that although the fine, without more, would have brought the reversion in fee into possession, yet, being coupled with a declaration of uses, the uses of the second settlement were substituted for those of the first, and that the reversion in fee did not come into possession so as to be liable to the father's judgment debts. (Browne v. Blake, 1 Molloy, 368.) The proviso at the end of this section does not require that the disentailing instrument should pass the estate to the purchaser. It is sufficient if the instrument forms part of a transaction in respect of which the person claiming the benefit of the proviso is a purchaser. (Crocker v. Waine, 5 B. & S. 697; 12 W. R. 905.) Base fee, when united with the immediate reversion, enlarged, instead of being merged. The effect of a fine in merging a base fee in the reversion. XI. ENLARGEMENT OF BASE FEES. 39. If a base fee in any lands, and the remainder or reversion in fee in the same lands, shall at the time of the passing of this act, or at any time afterwards, be united in the same person, and at any time after the passing of this act there shall be no intermediate estate between the base fee and the remainder or reversion, then and in such case the base fee shall not merge, but shall be ipso facto enlarged into as large an estate as a tenant in tail, with the consent of the protector, if any, might have created by any disposition under this act if such remainder or reversion had been vested in any other person (n). (n) If a tenant in tail with a reversion in fee to himself, levied a fine, the effect of that on the estate tail was to create a base fee, which became merged in the other fee, and let in all the incumbrances of the ancestor, which had frequently happened, in practice, from such a person being illadvised to levy a fine instead of suffering a recovery; generally speaking, when two estates unite in the same person in the same right, the smaller one is merged in the other, except in the case of an estate tail and a reversion in fee, which may exist together; in such a case, by the operation of the statute De Donis, the estate tail is kept alive, not merged in the reversion in fee. (5 Term Rep. 109, 110; 2 Rep. 61; Kynaston v. Clarke, 2 Atk. 204; Shelburn v. Biddulph, 4 Br. P. C. 594.) A base fee will merge by union with the absolute fee; the possibility of reverter on a conditional fee at common law will merge in the fee simple absolute; (Simpson v. Simpson, 4 Bing. N. C. 333; see 2 Ves. sen. 35; Hob. 323; Symonds v. Cudmore, 1 Salk. 338; Carth. 258; Crow v. Baldmere, 5 T. R. 109;) an estate tail after possibility of issue extinct, (Co. Litt. 27 b,) an estate of mere freehold, legal or conventional, (Co. Litt. 338 b,) a term of years, (Salmon v. Swann, Cro. Jac. 619; Hughes v. Robotham, Cro. Eliz. 302,) or estate at will, (Vin. Abr. tit. Est. at Will,) will be extinguished by the acquisition of the fee. On the subject of merger of base fees, the Real Property Commissioners made the following remarks: "If a tenant in tail, claiming the immediate remainder or reversion in fee, bars his estate tail by means of a fine instead of a recovery, he frequently prejudices his title by merging in the remainder or reversion the base fee acquired by the fine, as he thereby not only lets in all the charges and estates made and created by the persons The rule, that where there is in the same person a legal and equitable interest the former absorbs the latter, (Wade v. Paget, 1 Br. C. C. 367,) must be always understood with some qualification, as it holds only where the legal and equitable estates are co-extensive and commensurate, but is not admitted where a party has the whole legal estate and a partial equitable estate, as the latter will continue to subsist for the benefit of the person seised of the whole legal estate. (Champernoon v. Williams, 2 Ch. C. 63 -78; 1 Vern. 13; Robinson v. Cummings, Forr. 164; 1 Atk. 473; Brydges v. Brydges, 3 Ves. 126; see Capel v. Girdler, 9 Ves. 509; Selby v. . Alston, 3 Ves. 339; Alston v. Wells, Dougl. 771, 2nd ed.) In order to effect a merger by the union of legal and equitable interests in the same party they must be of the same quality, and an estate tail and fee simple not being of the same quality, an equitable estate tail in a copyhold does not merge by the accession of the legal fee. (Merest v. James, 6 Madd. 118; Brown v. Blake, 1 Molloy, 382.) 3 & 4 Will. 4, c. 74, s. 39. Merger by union of legal and equit able interests in same person. make a disposition by deed as if seised in fee. but not by will or contract; and if a married husband's con woman, with her currence. XII. MODES IN WHICH DISPOSITIONS OF LAND UNDER THIS ACT BY TENANTS IN TAIL ARE TO BE EFFECTED. 40. Every disposition of lands under this act by a tenant in Tenant in tail to tail thereof shall be effected by some one of the assurances (not being a will) by which such tenant in tail could have made the disposition if his estate were an estate at law in fee simple absolute provided nevertheless, that no disposition by a tenant in tail shall be of any force either at law or in equity, under this act, unless made or evidenced by deed; and that no disposition by a tenant in tail resting only in contract either express or implied, or otherwise, and whether supported by a valuable or meritorious consideration or not, shall be of any force at law or in equity under this act, notwithstanding such disposition shall be made or evidenced by deed (o); and if the tenant in tail making the disposition shall be a married woman, the concurrence of her husband shall be necessary to give effect to the same; and any deed which may be executed by her for effecting the disposition shall be acknowledged by her as hereinafter directed (p). (0) This section of the act adopts an established rule that the issue in Old rule as to tail was not bound, either at law or in equity, to complete any contract or effect of contracts agreement made by his ancestor, respecting the estate tail, because the by tenant in tail. issue claims, by a paramount title per formam doni, from the person by whom the estate tail was originally granted, and not from his ancestors. (3 Rep. 41 b; 1 P. Wms. 271; 2 Ves. sen. 634; Hob. 203; 1 Ch. Cas. 171; 2 Ventr. 350; 1 Lev. 237; 2 Eq. Cas. Abr. 28, pl. 34; Attorney-General Day, 1 Ves. sen. 218.) And such rule applied, although the ancestor had covenanted to levy a fine or suffer a recovery, and had received part, or even the whole of the purchase-money, and a decree had been made against him to levy a fine or suffer a recovery; and he died in contempt and in prison for not obeying such decree. (Prec. Ch. 278; 2 Vern. 306; Gilb. Eq. R. 104; 1 Ves. sen. 224.) And even where tenant in tail, in pursuance V. |