already been or might thereafter be given or bequeathed to him Chap. XIX. by any person whomsoever, it was held that the deed poll created § 2. a valid equitable charge operating on future legacies so long as the debt existed (p). In cases not falling within the Married Women's Property Act, 1882 (q), a married woman cannot dispose of a mere expectancy, either under the Fines and Recoveries Act as regards realty (r), or under Malins' Act (s) as regards personalty (t). So a covenant to charge any property which the debtor may become possessed of at his sister's death, was held to be binding, notwithstanding his bankruptcy (u). Where a mortgagor by deed assigned to the mortgagee certain present property, and also "all moneys of or to which he then was or might during the security become entitled, under any settlement, will, or other document, either in his own right or as the devisee, legatee, or next of kin of any person," and also all real or personal property "of, in, or to which he was, or during the security, should become beneficially seised, possessed, entitled, or interested, for any vested, contingent, or any possible estate or interest," the Court refused to give any decision as to whether the general assignment of all property was not void as being too general, but held that in any case the assignment was severable, and that the assignment operated as a valid charge of a share of residuary personalty to which the mortgagor became entitled under the will of a testator who died subsequently to the mortgage (x). executor to Inasmuch as the law vests all the property of a testator in his Assent of executor for the purpose of enabling him to perform his duty of legacy. paying the testator's debts, and generally of administering his estate, the assent of the executor is necessary to entitle a legatee to take possession of his legacy, whether general or specific (y). It is therefore material for an intending mortgagee of a legacy to ascertain that the executor's assent thereto has been obtained. (p) Bennett v. Cooper, 9 Beav. 252; Beckley v. Newland, 2 P. Wms. 181; Hobson v. Trevor, 2 P. Wms. 191; Wethered v. Wethered, 2 Sim. 183; Harwood v. Tooke, 2 Sim. 192; Hyde v. White, 5 Sim. 524; Cook v. Field, 15 Q. B. 460; Re Clarke, Coombe v. Carter, 36 Ch. D. 348. (9) Post, p. 344. (r) Post, p. 327. (8) Post, p. 333. (t) Allcard v. Walker, (1896) 2 Ch. 369. (u) Lyde v. Mynn, 1 My. & K. 683. (x) Re Clarke, Coombe v. Carter, 36 Ch. D. 318, C. A.; ante, p. 317. (y) Williams on Executors (9th ed.), vol. ii. p. 1225. Chap. XIX. § 2. Notice of assignment. General and specific legacies. Power of attorney. Trust fund. The mortgagee should also, immediately on completion, give notice of the assignment to the executor, so as to prevent him. from paying the legacy to the mortgagor, and also so as to ensure priority over any subsequent incumbrancers. This question will be more fully considered in a later chapter (z). A general legacy, though assented to, is an equitable chose in action, for which no action, either of debt or of account generally, lay at common law (a). But a specific legacy, after assent, vests at law in the legatee. So it was held that a legatee of leaseholds could bring ejectment for them against the executor who had assented to the bequest (b); and that a legatee of a specific chattel could maintain trover after assent (c). In regard to the power of attorney, the assignment of a legal debt differs from that of a merely equitable chose in action, such as an interest in a general legacy or a trust fund, in assigning which a power of attorney is useless, and ought not to be, though it sometimes is, inserted (d). Trustees of a fund which is mortgaged are, if they act honestly and without notice, safe in handing over the money to the mortgagee upon his receipt, and are not concerned to inquire whether any money remains due on the mortgage. But they are not obliged to do so in all cases, and if there is any circumstance which makes it reasonable for the trustees to decline to be satisfied with the statutory receipt, they may either pay the money into Court under the Trustee Act, 1893 (e), or may pay to the mortgagee only what is due on his mortgage, according to the settled practice of the Court where a mortgaged fund is in Court (f). (z) Post, Chap. LVI. (a) Co. Lit. 89 b; Deeks v. Strutt, 5 T. R. 690. (b) Doe v. Guy, 3 East, 120. (c) Williams v. Lee, 3 Atk. 223. (d) Dav. Conv. vol. ii. pt. ii. p. 572. (e) Hockey v. Western, (1898) 1 Ch. 350, C. A. (f) Re Bell, Jeffery v. Sayles, (1896) 1 Ch. 1, C. A. Part III. AS TO WHO MAY BE MORTGAGORS AND MORTGAGEES, AND CHAPTER XX. OF THE POWER TO MORTGAGE PROPERTY, AND HEREIN OF DISABILITIES. SECTION I. WHO MAY BE MORTGAGORS GENERALLY. THE right of mortgage or conditional sale is obviously dependent Foundation on the right of free alienation of property. of right to mortgage. alienation of land. As regards real estate, burdensome restrictions on alienation, Feudal rewhether by way of sale or mortgage, appear to have been intro- strictions on duced upon the Conquest of England by the Normans. In the twentieth year of William's reign, and on the completion of Domesday-book, he summoned a meeting of all the principal landowners in London and Salisbury, accepted from them a surrender of their lands, and re-granted them on performance of homage and the oath of fealty. The mesne lords, on their subinfeudations, also demanded homage and fealty, and it was held that the bond of allegiance was mutual, each being bound to defend and protect the other. From this flowed the doctrine that the tenant could not transfer his feud without his lord's consent, nor the lord his seignory without his tenant's consent, although the tenants (even of the Crown, it should seem) might grant subinfeudations (i.e. to hold of themselves) without licence. It was further held, that the tenant could not subject his lands Chap. XX. to his debts by execution of law, for, if he could, he might have § 1. effected that circuitously which he could not by direct means have accomplished. Nor, if the lands came to him by descent, could he alien them without the consent of the next collateral heir (a). By these restraints on alienation, mortgages of land must have been nearly extinguished (b). Statute Quia All persons not under disability may The improving spirit of the age struggled hard against the fetters on alienation, and at length the statute of Quia Emptores Terrarum (c), passed in the reign of a monarch deservedly styled the English Justinian, gave a general licence of free alienation to all, except the immediate tenants of the Crown, at the same time that it abolished the power of subinfeudation; thus at once simplifying the tenure, and giving freedom to the alienation, of the land of the realm. Fines on alienation by tenants in capite were not abolished until 12 Car. II. c. 24 put an end to the remaining feudal burdens. On the removal of the restrictions which impeded the circulation of landed property, mortgages of land became general. These restrictions never applied to personalty, including chattel interests in land, to which little importance was attached under the feudal laws. The result is that, at the present time, all persons beneficially possessed of or entitled to property of any description, real or now mortgage personal, and not being under any disability, may freely mortgage such property to the extent of their estate or interest therein. The disabilities constituting exceptions to this general rule will be now considered. their pro perty. State of the law prior to Property SECTION II. MORTGAGES OF PROPERTY OF MARRIED WOMEN. i.-Disability of Coverture.-Coverture till recently, like infancy or lunacy, constituted a disability which generally prevented a married woman from mortgaging or otherwise dealing with her property, and though this disability is removed (a) Wright's Ten. 168. (b) Feudalia, invito domino, aut agnatis, non rectè subjiciuntur hypo thecæ, quamvis fructus posse esse, re- by the Married Women's Property Act, 1882 (d), in the case of women married on or after the 1st January, 1883, and also in the case of women married before that date so far as relates to property to which they have since become entitled, yet a consideration of the former law is still necessary as regulating cases not coming within the operation of that Act. Chap. XX. § 2 (i). currence, Will. IV. to mortgage ii. Mortgages of Real Estate of Married Women.-By the General common law, a wife's real estate was held by her husband in her with huspower of wife, right during the marriage, and he alone could dispose of the band's conrents and profits. The wife could only dispose of the reversionary under 3 & 4 interest which would accrue to her if she should survive her husband, subject to his marital rights, and also to his right to curtesy; and even of this interest she could dispose only with the concurrence of her husband. A husband and wife together could, however, effectually convey the lands of the latter to a purchaser or mortgagee by means of a fine duly levied in the Court of Common Pleas. And by the Fines and Recoveries Act (e), s. 77, a married woman might by deed acknowledged by her, with the concurrence of her husband, dispose, by way of mortgage or otherwise, of her estate, whether legal or equitable, and whether in possession or reversion, of lands of any tenure (except copyholds in certain cases), and of money subject to be invested in the purchase of lands. on trust for sale. The statutory power enabled a married woman, with her Lands devised husband's concurrence, to dispose of her interest in the proceeds of lands, even though such proceeds had been properly invested by her trustees on a mortgage of land (f) devised or settled upon trust for sale (g); but she cannot pass such interest except by deed acknowledged (h). A declaration of trust of copyholds by a married woman by a Copyholds. deed acknowledged is a disposition within the section and will bind her customary heir (i). Where trustees of a settlement which contained no power Lands imto invest in land, in breach of trust invested part of the properly purtrust funds in the purchase of a house, it was held that the trustees for (d) 45 & 46 Vict. c. 75, considered post, p. 344. (e) 3 & 4 Will. IV. c. 74. (f) Miller v. Collins, (1896) 1 Ch. 573, C. A. (g) Bowyer v. Woodman, L. R. 3 Eq. 313; Re Jakeman's Trusts, 23 Ch. D. 344. (h) Frank v. Bollans, L. R. 3 Ch. 717; Miller v. Collins, supra. (i) Carter v. Carter, (1896) 1 Ch. 62. chased by wife. |