(iv.) Courts of law would not be Chap. XXI. of execution of such powers of disposition and consent respectively, and in regard to giving effect in any manner to any act or deed by a tenant in tail or protector of a settlement which in a Court of law would not be an effectual disposition or consent under this Act; and that no disposition of lands under this Act by a tenant in tail thereof in equity, and no consent by a protector of a settlement to a disposition of lands under this Act by a tenant in tail thereof in equity, shall be of any force unless such disposition or consent would, in case of an estate tail at law, be an effectual disposition or consent under this Act in a Court of law." effectual. Power of decree specific of covenant to Effect of covenant for further assur ance. Express cove nant to execute disentailing assurance. The effect of the 47th section is, that the Court cannot compel the issue in tail or the remainderman to carry out a contract by a tenant in tail to execute a disentailing assurance, or to remedy any defects in such an assurance (y). But there is nothing in the Act to affect contracts as such, and accordingly, though a covenant for further assurance generally, or even a covenant to execute a disentailing assurance, will not operate to bind the issue in tail or the remainderman under the Act, yet, as against the tenant in tail himself, non-fulfilment of the covenant may support an action for damages, or for specific performance (z). In such cases the question is whether, upon the construction of the covenant, it was the intention of the parties, expressly or by necessary implication, to bind the tenant in tail to do all in his power to give to his mortgagee an effectual charge on the fee simple. In Davis v. Tollemache (a), the covenant was for further assurance generally in the usual form, and the Court refused, in a suit for specific performance, to compel the tenant in tail, who had become bankrupt, to exercise the power of disposition reserved to him by sect. 64 of the Act by enlarging the estate conveyed by the mortgage. In this case the mortgage was not inrolled, but this point does not appear material, as the covenant, quâ contract, did not depend for its meaning or effect upon the provisions of the Act. In a recent case in the Court of Appeal, however (6), where a tenant in tail in remainder barred his estate tail without the consent of the protector, and conveyed the base fee so created to a purchaser, covenanting not only for further assurance generally, (y) Bankes v. Small, 36 Ch. D. 716, C. A. See Mills v. Fox, 37 Ch. D. 162. (z) Bankes v. Small, 36 Ch. D. 716. See Petre v. Duncombe, 7 Ha. 24. (a) 2 Jur. N. S. 1181. (iv.) but also to execute every such disentailing or other assurance as Chap. XXI. should be reasonably required, the vendor was directed, by way of specific performance of that covenant, to execute a disentailing deed so as to enlarge into a fee simple the base fee which was already vested in the purchaser. Where a tenant in tail of copyholds deposited his title deeds with an agreement to make a formal surrender to secure a loan, a remainderman who joined in the deposit was held bound to carry out the agreement (c). Where the Court has power to compel the mortgagor tenant in tail to perfect the title, it will not point out what title the mortgagor shall make; it will decree him to make such title to the mortgagee as he is capable of doing (d). of deed. Sect. 47 of the Act does not preclude the Court from rectify- Rectification ing the deed of disposition itself, on the ground of mistake or fraud, if it is shown that the instrument as executed and inrolled does not carry out the intention of the parties (e). understood. Similarly, where a disentailing disposition, duly executed and Nature of inrolled, sufficiently expressed the intention to convey the fee interest missimple in the entailed property, and clearly passed the interest of all conveying parties, the security was upheld, though the nature of the interests of the conveying parties were misunderstood by them and misrecited in the deed (ƒ). To an action for specific performance of a covenant by a tenant in tail in remainder to disentail the estate after the death of the tenant for life, judgment creditors of the tenant in tail, whose debts had been made charges on his estate under the stat. 1 & 2 Vict. c. 110, were held not to be necessary parties (g). v.-Inrolment of Dispositions.-The Act further renders inoperative every assurance of freeholds effected under the Act (except certain leases), though otherwise effectual for disposing of the estate, unless it is inrolled in Chancery (now the Enrolment Department of the Central Office) within six months from the date of execution (h). Every consent of a protector to a disentailing assurance, if Of consent of protector. (c) Bryce v. Bury, 2 Drew. 11. D. 251, C. A. (f) Evans v. Jones, Kay, 29. (h) 3 & 4 Will. IV. c. 74, s. 41. Chap. XXI. given by a distinct deed, is void unless such deed is inrolled in like manner, either at or before the time when the assurance is inrolled (i). (v.) Dispensation with inrol ment as to copyholds. Relation back of inrolled deeds. Inrolment in case of bankruptcy. Precautions to be observed by mortgagee as to inrolment. In the case of copyholds, where a disposition by a tenant in tail is effected by surrender or by deed, the surrender, or the memorandum thereof, or a copy thereof, or the deed of disposition, or the deed, if any, by which the protector shall consent, requires no inrolment otherwise than by entry on the court rolls (k). A disentailing assurance by a tenant in tail of copyholds, if not entered on the court rolls of the manor within six months after execution, is void (7). An indorsement by the steward that the deed was produced to him is not a sufficient inrolment (m). If the protector consents by deed, such deed must be executed by him and produced to the lord or his steward at or before the time when the surrender is made by which the disposition is effected, or otherwise the consent will be void (n). The consent, if not given by deed, must be given by the protector to the person taking the surrender, and provision is made for evidencing the fact of the consent having been given, (1) out of Court, or (2) in Court (0). A disentailing assurance may be inrolled within six months after execution, notwithstanding the death of the tenant for life who executed it (p). Every inrolled deed operates and takes effect as from the date of its execution, with the exception that every such deed shall be void as against a purchaser for valuable consideration claiming under a deed, although subsequently executed, if such subsequent deed shall be the first inrolled (g). Sect. 59 of the Act contains provisions as to the inrolment of deeds of disposition of freeholds, and entry on court rolls of deeds of disposition of copyholds, and of deeds of consent, in the case of the bankruptcy of tenants in tail. Having regard to these provisions, it is obvious that it is of the utmost importance to a mortgagee of disentailed lands to see that his security is rendered effectual as against subsequent mortgagees of the same lands by an immediate inrolment of his assurance. Indeed, he ought not to part with his money until (i) 3 & 4 Will. IV. c. 74, s. 46. (1) Honywood v. Foster, 30 Beav. 1; (m) Boyd v. Pawle, 14 W. R. 1009. (p) Re Piers, 14 Ir. Ch. R. 452. (v.) the assurance has been inrolled, nor until he has ascertained Chap. XXI. that up to the time of actual inrolment no other assurance of the mortgaged lands by the tenant in tail has been inrolled. These precautions will prevent the mortgagee's security from being prejudiced by any dealing with the property of which he has not express notice; for none of the provisions in the Act respecting voidable estates have the effect of confirming them against purchasers for value without notice. As the inrolment of a disentailing assurance relates back to its execution, it follows that intermediate conveyances by the persons deriving title under it will have their full effect. Usual form of powers of mortgaging. Power of leasing, when includes CHAPTER XXII. OF MORTGAGES BY LIMITED OWNERS UNDER POWERS. SECTION I. OF MORTGAGES UNDER EXPRESS POWERS OF MORTGAGING. i.-Express Powers of Mortgaging in Settlements and Wills.The express powers of mortgaging which, before the passing of the Settled Land Act, 1882 (a), were not unfrequently inserted in strict settlements of real estate by deed or will were, according to the general practice, given to the trustees of the settlement, not to the tenant for life; but, usually, such powers were made exerciseable by the direction or with the consent of the tenant for life, if of full age, and then only for certain specified purposes, such as providing money for raising portions, renewal of leases, enfranchisement of copyholds, equality of exchange, or paying off incumbrances. Powers of mortgaging are even now sometimes inserted in such settlements, where money is likely to be required for purposes other than those for which tenants for life. are by statute empowered to raise money by mortgage of the settled lands (b); but the consent of the tenant for life is now necessary to the exercise by the trustees of any such power (c). It is conceived, however, that no such consent would be necessary to the exercise of a power by trustees for raising charges by mortgage or sale, since the trustees would have a title paramount to the tenant for life (d). If a tenant for life with power to lease for such number of years and upon such terms as he shall "think fit" (e), or "think (a) 45 & 46 Vict. c. 38. (b) See ibid. s. 18, and the Settled Land Act, 1890 (53 & 51 Vict. c. 69), 8. 11. (c) 45 & 46 Vict. c. 38, ss. 18, 56 (2). See as to several tenants for life, 47 & 48 Vict. c. 18, s. 6. (d) See Wolst. (8th ed.) 387; and cf. Re Carne's Settled Estates, (1899) 1 Ch. 324. (e) Sheehy v. Lord Muskerry, 1 H. L. C. 576; Talbot v. Tipper, Skin. 427. |