Chap. IV. after a mortgage made by the trustee under the trusts of the (ii.) Remedies for recovery of annual sums charged on land. term (). Now, however, by the Conveyancing Act, 1881 (k), it is enacted as follows: S. 44.- 66 - (1.) Where a person is entitled to receive out of any land, or out of the income of any land, any annual sum, payable halfyearly, or otherwise, whether charged on the land or on the income of the land, and whether by way of rentcharge or otherwise, not being rent incident to a reversion, then, subject and without prejudice to all estates, interests, and rights having priority to the annual sum, the person entitled to receive the same shall have such remedies for recovering and compelling payment of the same as are described in this section, as far as those remedies might have been conferred by the instrument under which the annual sum arises, but not further. (2.) If at any time the annual sum or any part thereof is unpaid for twenty-one days next after the time appointed for any payment in respect thereof, the person entitled to receive the annual sum may enter into and distrain on the land charged or any part thereof, and dispose according to law of any distress found, to the intent that thereby or otherwise the annual sum and all arrears thereof, and all costs and expenses occasioned by non-payment thereof, may be fully paid. (3.) If at any time the annual sum or any part thereof is unpaid for forty days next after the time appointed for any payment in respect thereof, then, although no legal demand has been made for payment thereof, the person entitled to receive the annual sum may enter into possession of and hold the land charged or any part thereof, and take the income thereof, until thereby or otherwise the annual sum and all arrears thereof due at the time of his entry, or afterwards becoming due during his continuance in possession, and all costs and expenses occasioned by non-payment of the annual sum, are fully paid; and such possession when taken shall be without impeachment of waste. (4.) In the like case the person entitled to the annual charge, whether taking possession or not, may also by deed demise the land charged, or any part thereof, to a trustee for a term of years, with or without impeachment of waste, on trust, by mortgage, or sale, or demise for all or any part of the term, of the land charged, or of any part thereof, or by receipt of the income thereof, or by all or any of those means, or by any other reasonable means, to raise and pay the annual sum and all arrears thereof due or to become due, and all costs and expenses occasioned by non-payment of the annual sum, or incurred in compelling or obtaining payment thereof, or otherwise relating thereto, including the costs of the preparation and execution of the deed of demise, and the costs of the execution of the trusts of that deed; and the surplus, if any, of the money (i) Doe v. Lord Kensington, 8 Q. B. 429. (k) 44 & 45 Vict. c. 41. raised, or of the income received, under the trusts of that deed shall be paid to the person for the time being entitled to the land therein comprised in reversion immediately expectant on the term thereby created. (5.) This section applies only if and as far as a contrary intention is not expressed in the instrument under which the annual sum arises, and shall have effect subject to the terms of that instrument and to the provisions therein contained. (6.) This section applies only where that instrument comes into operation after the commencement of this Act. (7.) This section does not extend to Ireland." The remedies given by this section do not prevent recourse to other remedies (7). The Court has a discretionary power to order a mortgage or sale of land to raise arrears of a jointure rentcharge issuing out of rents and profits, though there is no express charge on the land (m). Chap. IV. (ii.) iii.-Registration of Annuities.-The Annuity Act (n), which Grant of required the enrolment of grants of annuities or rentcharges unless reannuity void for life or lives, or term of years, or greater estate determin- gistered. able on lives, was founded on the principle that life annuities, as offering the means of evading the laws against usury, required to be watched with peculiar jealousy. When the usury laws were repealed (by 17 & 18 Vict. c. 90), the Annuity Act shared the same fate; but by 18 & 19 Vict. c. 15, s. 12 (1855), after the passing of the Act, unless a memorandum is registered at the Common Pleas (now at the Land Registry Office (o)) in the name of the grantor any annuity or rentcharge, granted after the passing of the Act (otherwise than by marriage settlement) for one or more life or lives, or for any term of years, or greater estate determinable on one or more life or lives, shall not affect any lands, tenements, or hereditaments as to purchasers, mortgagees, or creditors, unless or until a memorandum or minute containing the name, place of abode, and title, trade or profession of the person whose estate is intended to be affected thereby, and the date of the instrument by which the annuity (1) Searle v. Cooke, 43 C. D. 519. As to the liability of the terre tenant, see Re Herbage Rents, Greenwich, (1896) 2 Ch. 811; and see Pertwee v. Townsend, (1896) 2 Q. B. 129. (m) Hambro v. Hambro, (1894) 2 Ch. (n) 53 Geo. III. c. 141. (iii.) Chap. IV. is granted, and the annual sum or sums to be paid, be left at the Land Registry Office for registration according to the Act. By sect. 14 it is provided that the Act shall not extend to require the registry of annuities or rentcharges given by will. Effect of omission to register. It was held, on the construction of the last-mentioned Act, that want of registration does not make a grant of an annuity void as against a subsequent purchaser or incumbrancer who had notice of it, or as against the trustee in bankruptcy of the grantor (p). (p) Greaves v. Tofield, 14 Ch. D. 563, C. A. CHAPTER V. OF STOCK MORTGAGES. stock mort STOCK in the public funds may be the subject of loan. Mort- What are gages so framed as to secure the replacement of stock lent are usually known as stock mortgages. During the war in the early part of the last century, when the price of stock was so low as to yield more than 5 per cent. interest on the money invested, stock mortgages were frequent, and almost superseded money mortgages; since the repeal of the usury laws (a) they have nearly disappeared. gages. trustees may lend on One case in which they are sometimes employed is that of Whether trustees who have no power to lend on mortgage, but are desirous to accommodate cestuis que trust with a loan of money, stock mortand to secure the repurchase of the exact sum of stock sold gage. instead of the repayment of the sum of money advanced. Such a loan, being a transaction by which a less perfect security is substituted for a more perfect one, is not a proper investment of trust funds, unless expressly authorized by the instrument creating the trust (b). stock lawful. A loan of stock was lawful, notwithstanding the Stock Loans of Jobbing Act (c). The parties may agree that a sum of money equal to the dividends shall be paid in the meantime, although the dividends shall exceed 5 per cent. on the money produced by the sale of the stock; for the lender takes the hazard of the rise and fall of the market price, and if an action is brought on a bond given as a security for the transfer of stock, in estimating the measure of damages, the lender will be entitled to recover the highest value of the stock on the day of trial (d); (a) By the stat. 17 & 18 Vict. c. 90. Numerous cases on stock mortgages are collected in Coote on Mortgages (3rd ed.), p. 274. See also Att.-Gen. v. Hollingworth, 2 H. & N. 416; Baskett v. Skeel, 11 W. R. 1019; Goddard v. Lethbridge, 16 Beav. 529; Key & Elph. (7th ed.), Vol. II. p. 136. (b) Pell v. De Winton, 2 De G. & J. 19; Whitney v. Smith, L. R. 4 Ch. 513. (c) 7 Geo. II. c. 8. See Sanders v. Kentish, 8 T. R. 162. (d) Shepherd v. Johnson, 2 East, 211. Chap. V. and if a bonus has been declared on the stock, the lender will have a right to insist on the replacement of the original stock increased by the amount of bonus, and to dividends in the meanwhile on the bonus as well as on the stock (e). So a bonâ fide contract for the transfer of stock is good, though the transferor is not possessed of it at the time of the agreement (ƒ). Rights under covenant to It is not material whether the stock is actually transferred to the mortgagor, or whether the stock is sold out, and the net produce paid to him (g). If a person is indebted to another in a sum of money, an agreement between them that the debtor shall transfer to the creditor within a given time such a quantity of stock as the amount of the debt would have purchased on the day of the agreement, and pay dividends in the meantime, is lawful (h). It seems that if the re-transfer of the stock be secured merely replace stock. by a bond or covenant on the failure of the borrower to replace the stock by the appointed day, the lender may recover at his option either the present value of the stock or its value upon the day when it ought to have been replaced (¿). Statutory powers of sale, &c. Where the term is expired, redemption will be decreed on replacing the same amount of stock although the price has fallen (k). Where a rentcharge was redeemable by a specified amount of 3 per cent. consols, the party was held entitled to redeem by transferring a similar sum of new 22 per cent. consols under the National Debt (Conversion) Act, 1888 (7), and so in the case of a stock mortgage (m). By sect. 2, sub-sect. (6), of the Conveyancing Act, 1881 (n), the expression "mortgage mortgage" includes a charge for securing money's worth; the statutory powers of sale, &c., given to mortgagees by that Act consequently apply to stock mortgages, if effected by deed executed after the commencement of the Act. (e) Vaughan v. Wood, 1 My. & K. 403. (f) Mortimer v. McCallan, 7 M. & (g) Tate v. Wellings, 3 T. R. 537. 211; Shaw v. Holland, 10 Jur. 103. (1) Northumberland (Duke) v. Percy, (1893) 1 Ch. 298. (m) Re Borough's Estate, 31 L. R. Ir. 244. (n) 44 & 45 Vict. c. 41. |