Gambar halaman
[ocr errors][ocr errors][merged small][merged small]

children so advanced, but the maintaining or educating or the giving of money to a child without a view to a portion or settlement in life, shall not be deemed an advancement within the Act. The interpretation clauses should be carefully read in order to see the extent of the meaning of the words used in the Act. It is only in cases of high treason, and of abetting, procuring or counselling the same, that an attainder for felony extends to the disinheriting of any heir or to the prejudice of the right or title of any person other than that of the offender, during his natural life. See 3 Wm. IV, cap. 4. (C.S. U.C. Cap. 116.)

TENURE. This term is used to denote the manner of holding lands and tenements. The most familiar instance of a tenure is given by a common lease of a house or land for a term of years. This is not however a freehold tenure, as the lessee has only a chattel interest. A tenant in fee simple has a fredhold tenure. The seller or giver of an estate in fee simple, is only a tenant to the Crown, with the liberty of putting another in his place. By 12 Car. II, cap. 24, all the tenures by Knight Service were abolished, and all tenures turned into free and common socage, except copyholds and frankalmoign, and the honorary services of grand sergeantry. But by the Constitutional Act of 31 Geo. III., it is expressly enacted that “all lands which shall be hereafter granted within the Province of Upper Canada, shall be granted in free and common socage in like manner as lands are now holden in free and common socage in that part of Great Britain called England."

Free and common socage in this Province is therefore synonymous with the term “freehold

or “fee simple.”

[ocr errors]


A joint tenancy arises where any persons hold property between them in equal shares by purchase, as where two or

[ocr errors][merged small][ocr errors][ocr errors]

more persons purchase lands and take a conveyance to them and their heirs. This is a joint tenancy, and the legal estate will go to the survivor. During the time they hold jointly neither of them has an estate in any particular part. Each has the whole with benefit of survivorship unless the tenancy be severed, and has been held to be incapable of devising his respective share by will. On the severance of a joint tenancy, a tenancy in common is created.

By Rev. Stat. Cap. 106, S. 11, wherever, by any letters patent, assurance or will executed after 1st July 1834, land has been or is granted, conveyed, or devised, to two or more persons (other than executors or trustees ) in fee simple, or for any less estate it shall be considered that such persons took or take as tenants in common and not as joint tenants unless an intention sufficiently appears on the face of the letters patent assurance or will that they are to take as joint tenants. The


mode of conveyance from one joint tenant to another of his interest is a deed of release.

Tenants in common take also by purchase but hold by distinct titles and have separate freeholds, being not seized per mie et per tout as joint tenants are. Tenancies in common descend to the heirs of each of the tenants because they have several freeholds and not an entirety of interest as joint tenants, and therefore there is no survivorship between them, but each may alienate or devise his moiety to any person.

This tenancy is more preferable to a joint tenancy as it is not subject to the right of survivorship.

All joint tenants, tenants in common, coparceners, doweresses and parties entitled to dower, tenants by the courtesy, or other creditors having liens on and all parties whosoever, interested in, to, or out of any lands in Ontario, may be compelled to make or suffer partition or sale of the said lands or any part or parts thereof under the provisions of cap. 101, of the Revised Statutes. A partition may also

. be voluntarily made by the parties by deed (2 Wm. IV. C. 35.) The proceedings for a compulsory partition are

[ocr errors][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small]

carried on in the Court of Queen's Bench, or Common Pleas, or the Court of Chancery, when the lands are situated in two or more counties; but in the County Court, or in any of the Superior Courts of Law or Equity when the lands are situated in one county only. The proceedings are commenced by filing a petition in any of the said courts, praying that a partition or sale of the lands may be made, and the practice is principally regulated by said

cap. 101.

TRANSFER OF REAL PROPERTY. A feoffment with livery of seisin is the most ancient means of conveyance. Seisin signifies the feudal possession, and is to be distinguished from actual or simple possession. Thus a tenant for a term of years has not the feudal possession or freehold, but his possession, like that of a bailiff or servant, is that of his landlord. Livery of seisin is the delivery of the feudal possession. In every conveyance (except by will) of an estate of inheritance the word “heirs” is necessary. A deed is a writing sealed and delivered, and the sealing and delivery constitute its execution. By sec. 3, cap. 98, Revised Statutes, a feoffment must be by deed. An escrow is a deed delivered conditionally and not with a view to its immediately taking effect. If the condition be performed the delivery thus becomes complete and the deed ceases to be an escrow.

The usual mode of conveyance in this Province is by what is known as the Statutory Conveyance—the operative word in which is “ grant." See cap. 102 Revised Statutes. Considerations in a deed are either good or valuable. A good consideration is founded upon natural love and affection between near relations by blood. А valuable consideration is founded on something deemed valuable, as money, goods, services or marriage.

Every deed or contract is void when made for fraudulent purposes, or in violation of law, and by 13 Eliz. c. 5, conveyances of landed estates and also of goods made for the purpose of delaying, hindering or defrauding credi

[ocr errors]



[ocr errors]

tors, are void as against them unless made upon valuable consideration and bona fide to any person, without notice of such fraud. And by a subsequent statute 27 Eliz. c. 4, voluntary conveyances of any estate in lands are also void as against subsequent purchasers for valuable consideration.

The Insolvent Act of 1875 declares all conveyances made in contemplation of insolvency an unjust preference and void. See Davidson v. Ross, 24 Gr. p. 22. Revised Statutes, cap;

95, enact that all
poreal tenements and hereditaments shall, as
gards the

of the immediate freehold thereof, be deemed “ to lie in grant as well as in livery,that is to say, shall require a deed in writing and under seal for their effectual conveyance.

It further enacts, that a feoffment otherwise than by deed shall be void at law, and that no feoffment shall have a tortious operation," that is to say, the feoffee shall not take an estate larger than that possessed by the feoffor. A reference is here made to the previous law under which if a tenant for his own life should have made a feoffment for an estate in fee simple the feoffee would not thereby have acquired an estate for the life of the feoffor, but would have become seized of an estate in fee simple by wrong.

By the same statute it is also enacted, that a partition and exchange of any land and lease required by the law to be in writing of any land, and an assignment of a chattel interest in any land, and a surrender in writing of any land not being an interest which might by law have been created without writing shall be void unless made by deed. That a contingent, an executory, and a future interest, and a possibility, coupled with an interest in any land, whether the object of the gift or limitation of such interest or possibility be or be not ascertained, and also a right of entry, whether immediate or future, and whether vested or contingent into and upon any land, may be dis posed of by deed, and that neither the words “grantor

exchange" in any deed shall create any warranty or

[ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][merged small][merged small]
[ocr errors]

right of re-entry or covenant by implication, except in cases where by any act in force in Ontario it is declared that the word “grant” shall have such effect. The same statute declares that any corporation aggregate in this Province capable of taking and conveying land shall be deemed to be capable of doing so by deed of bargain and sale, in like manner as any person in his natural capacity, subject nevertheless to any general limitations or restrictions as to holding or conveying real estate which may be applicable to such corporations. Formerly a corporation could not convey by bargain and sale, because they could not be seized of a use or trust for another person. A deed of bargain and sale does not require registration as indispensable to render it a valid conveyance, but the necessity of registration is to prevent a subsequent purchaser from gaining priority.

Until the passing of 9 Vic. c. 6, (Revised Statutes, cap. 102), commonly called, The Act to facilitate the conveyance of Real Property,forms of deeds in use in this Province were comparatively long and cumbrous. Deeds under this statute are called “ Statutory Deeds,are much shorter than the old form although in effect the same, and since the passing of the late Registry Act have come into general use in the Province on account of the saving of expense in their registration. There are two schedules to the act, the one containing the covenants in the short the other the long form. The act then enacts, that any deed made in pursuance of that statute or referring thereto, and containing the short covenants, shall be taken to have the same effect and be construed as if containing the covenants in the long form. It also enacts that a deed or part of a deed failing to take effect by virtue of the act shall still be as valid as if the act had not been passed.

The Act 14 & 15 Vic. c. 8, (Revised Statutes 105), is the corresponding act with respect to leases, and the provisions are of the same nature, but it may be useful to notice the effect of some of the usual covenants in a statutory lease, so that a lessee may know what constitutes a


« SebelumnyaLanjutkan »