378 (i.) Chap. XXI. estate in fee simple, or any less estate, the lands (d) entailed as against all persons claiming through his estate tail, and also as against all persons whose estates are to take effect after the determination, or in defeasance (e), of the estate tail. Right to bar entail cannot be excluded. The right of an actual tenant in tail to enlarge his estate to a fee simple cannot be restricted by any attempts on the part of the settlor or testator by inserting clauses, either that he shall not exercise the right, or by purporting to defeat the estate tail in case he exercises the right (ƒ). An "actual" tenant in tail means the tenant of an estate tail which has not been barred (g). The statutory power of disposition is incapable of exercise by any of the following persons:-(1) women who were at the passing of the Act tenants in tail ex provisione viri, under 11 Hen. VII. c. 20, except with assent (h); (2) tenants in tail restrained by Act of Parliament (i); (3) tenants in tail after possibility of issue extinct (k); and (4) issue inheritable to an estate tail in respect of their expectant interest (7). By sect 40 of the Act it is enacted that "Every disposition of lands under this Act by a tenant in tail thereof shall be effected by some one of the assurances (not being a will) by which such tenant in tail would 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." The effect of this proviso is to give statutory confirmation of the established rule, that the issue in tail who claim by paramount title per formam doni, are not bound, either at law or in equity, to carry into effect a covenant or contract by their (d) "Lands" in this Act, unless (e) As to the meaning of defeasance (f) Dawkins v. Lord Penrhyn, 4 App. Ca. 51, at p. 64. (g) 3 & 4 Will. IV. c. 74, s. 1. (h) 3 & 4 Will. IV. c. 74, s. 16. The Act of Hen. VII. is repealed by sect. 17, which is in its turn repealed by the stat. 37 & 38 Vict. c. 35, but without reviving the earlier Act. (i) 3 & 4 Will. IV. c. 74, s. 18. (k) Ibid. (Ibid. s. 20. ancestor to bar the estate tail, or to perfect an incomplete dis- Chap. XXI. entailing assurance (m). But such a covenant or contract is, independently of the Act, specifically enforceable against the tenant in tail himself, as will be hereafter seen (n). (i.) Sect. 40 further enacts that "If the tenant in tail making the disposition shall be a married Married woman, the concurrence of her husband shall be necessary to give women to effect to the same; and any deed which may be executed by her for make disposieffecting the disposition shall be acknowledged by her as hereinafter husbands' directed" (o). The concurrence of the husband is necessary though the married woman is entitled for her separate use, but a restraint on anticipation will not prevent her from barring the estate tail with such consent (p). The bankruptcy of the husband is no bar to his concurrence (q). It is not necessary that the acknowledgment should precede the inrolment of the deed (»). tions with concurrence. Women's If, however, the woman was married after the year 1882, or Effect of if her title to the property comprised in the disposition accrued Married after 1882 (s), a disposition made by her alone, without the Property Act, concurrence of her husband, and not acknowledged by her, will be effectual to bar the entail (†). 1882. A deed of disposition is not liable to be defeated by reason of Execution of its not having been executed by the releasee to uses (u). But if disposition. the disposition is made by way of grant unto and to the use of a person in trust for the grantor in fee, the deed must be executed by the grantee, or it will be liable to be avoided by his subsequent disclaimer (x). No particular form of disposition is rendered necessary by the Form of Act, provided that it be made by an assurance which, if made disposition. by a tenant in fee, would be sufficient to pass the fee simple absolute (y). A disentailing disposition made with a view to giving a mortgagor a charge upon the fee simple may accord Chap. XXI. ingly be made either by a separate deed, or by the mortgage (i.) Declaration of trust. Dispositions for limited purposes, as by way of mortgage. Effect of this enactment. deed itself. But a mere declaration of trust is not a sufficient disposition to bar the entail under the Act (z). The 21st section provides that the disposition by a tenant in tail under the Act, by way of mortgage, or for any other limited purpose, shall, to the extent of the estate created, be an absolute bar in equity, as well as at law, to all persons as against whom such disposition is by the Act authorized to be made, notwithstanding any intention to the contrary expressed or implied in the deed by which the disposition may be effected; provided that if the estate created by such disposition shall be only an estate pur autre vie, or for years absolute or determinable, or if an interest, charge, lien or incumbrance shall be created, without a term of years absolute or determinable or any greater estate, for securing or raising the same, such disposition shall, in equity, be a bar only so far as may be necessary to give full effect to the mortgage, or to such interest, lien, charge, or incumbrance, notwitstanding any intention to the contrary expressed or implied in the deed by which the disposition may be effected. The practical effect of this clause appears to be, that in case a tenant in tail creates a charge on the estate, by way of demise for a term of years, or pur autre vie, or by way of mere charge without any actual estate, the issue in tail and remainderman will be entitled, subject to the charge or incumbrance so created, notwithstanding any intention declared in the deed to the contrary, as, for example, the insertion of a proviso making the estate redeemable by the mortgagor or his heirs. But if a tenant in tail creates any interest by way of mortgage, exceeding his own life estate, and which, in all probability, will be in fee, the issue in tail and remainderman will be bound by it both at law and in equity, although the estate be made redeemable by the mortgagor, or the heirs of his body, or other the persons who would have been entitled under the old limitations, in case the same had not been barred; so that in the latter case a new set of limitations by way of re-settlement will be required, unless the sole intent of the instrument be to let in the mortgage. (z) Green v. Paterson, 32 Ch. D. 95, C. A. Such intent is in every case to be collected from the terms of the Chap. XXI. particular instrument (a). (i.) If the mortgage is in fee, and it is intended to re-settle the estate to the old uses, the limitations should not be introduced into the proviso for redemption, and it would seem that the new settlement should be made by a distinct deed, inasmuch as the Act declares the estate to be barred, notwithstanding any express or implied intention to the contrary in the mortgage deed; but if the mortgage be for a term of years, it is presumed the statute does not prohibit the introduction of further limitations of express uses (b). By sect. 50 of the Act entails in legal copyhold estates are made barrable by surrender, and entails in equitable copyhold estates are made barrable by surrender or by deed. Upon considering sect. 21 in connection with sect. 50, in relation to the bar of estates tail in copyholds, it may be thought that, if a legal tenant in tail of copyholds mortgage by conditional surrender, which is not followed by admittance, the estate tail will remain unaffected, if, when the money is paid off, the surrender is vacated by the entry of satisfaction; but that the estate tail would be barred if the surrender were followed by admittance (c). By sect. 71 it is provided that lands to be sold, of whatever tenure, where the money arising from the sale thereof shall be subject to be invested in the purchase of lands to be settled, so that any person, if the lands were purchased, would have an estate tail therein, and also money subject to be invested in the purchase of lands to be settled, so that any person, if the lands were purchased, would have an estate tail therein, shall for all the purposes of this Act be treated as the lands to be purchased, and be considered subject to the same estates as the lands to be purchased, would, if purchased, have been actually subject to; and, consequently, they may be disentailed if freehold or leasehold, or of any other tenure except copyhold, or if money, subject to the provisions of the Act relating to the disentailment of freeholds; if copyhold, those applicable in the case of copyholds. Where the property disentailed consists of leasehold lands (a) Plomley v. Felton, 14 App. Ca. 61, P. C.; Re Byron's Settlement, Williams v. Mitchell, (1891) 3 Ch. 474. (b) Sug. R. P. Stats. 2nd ed. Bar of entail in copyholds. Application of the provisions of the Act to entailed money, &c. Chap. XXI. for years absolute or determinable, or of money, such lands or (i.) money shall, as to the person in whose favour or for whose benefit the disposition is made, be treated as personal estate. Payment out of Court of entailed money. Disposition by tenant in tail in possession. Disposition Married woman protector. Leaseholds or money are to be disposed of by an assignment by deed to be enrolled, except in the case of bankruptcy, when the disposition is to be by the commissioner (trustee), and completed by enrolment in manner directed by the Act in regard to lands not held by copy of court roll. It has been decided that where money representing land sold, and which is liable under the settlement or statute under which it is sold to be laid out in other lands to be entailed, is in Court, a disentailing deed is necessary before it will be handed over to the tenant in tail (d). ii.-Bar of Reversionary Estates Tail.-The effect of the enactments above referred to is to enable a tenant in tail in possession of settled lands freely to bar his entail, so as to give to a mortgagee an effectual charge on the fee simple. But, as regards estates tail in remainder or reversion, in order to retain to some extent the check which the old law placed on improvident dispositions by tenants in tail, the statute makes necessary to the validity of a disposition the consent of a protector" in the place of the concurrence of the freeholder for life in possession, which was formerly essential to a common recovery. Generally speaking, this office is vested, by virtue of the statute, in the person taking beneficially (e) the first estate for years determinable on a life or lives or any greater estate (not being an estate for years) prior to the estate tail under the same settlement or will, whether by force of the actual limitations or by resulting use or trust, and an estate by the curtesy is a prior estate within the meaning of this enactment (f). When there are several owners of the prior estate, each of them is to be the sole protector as to his undivided share (g). Where a married woman is entitled to a prior estate for her separate use she alone is the protector; otherwise, she and her husband together are the protectors. (d) Re Reynolds, 3 Ch. D. 61. (e) Re Dudson's Contract, 8 Ch. D. 628, C. A. (f) 3 & 4 Will. IV. c. 74, s. 22. (g) Ibid. s. 23. See Tufnell v. Borrell, L. R. 20 Eq. 194. |