CHAPTER XXII. person entitled for life, shall contain a covenant to keep down the interest during his life, so that no subsequent owner shall be liable to more than six months' arrears accrued previous to the time when his title shall accrue or commence; and, in the case of a benefice, the incumbent is to keep down the interest, and also to repay, in reduction of the principal, one thirtieth part of the money every year, until the whole be repaid; and every such mortgage is to be valid in law for the purposes of the Act, and every such mortgagee and his assigns is to have the like remedies in case of non-payment as are usual in the case of mortgages of a like nature. Money raised for expenses to be paid to commissioners. Compensation for equality on partition. Concurrence of commissioners. Advance by tenant for life By the statute 11 & 12 Vict. c. 99, s. 8, it is provided that on mortgage of allotments the money shall be paid to and applied by the commissioners, and their receipt shall be a sufficient discharge for the money. By the statute 20 & 21 Vict. c. 31, ss. 7, 8, on an exchange or partition, the disproportion in value of allotments may be compensated by a rentcharge, provided the deficiency in value does not exceed one-eighth of the actual value of the land. The concurrence of the commissioners in a mortgage by a tenant for life or in tail is not required by the Act. It is sufficient that they have certified the amount to be raised; but in order to obtain from them a recognition of the fact of their having given their certificate, it is desirable that they should join in the mortgage. under an If a tenant for life advances money for expenses for expenses. Inclosure Act, and dies without having taken a mortgage on the estate, his executors will be entitled to have the charge raised (x). Mortgage, &c. for purpose of redemption. iii. Mortgages for Redemption of Land Tax.-The Land Tax Redemption Act (1) provides that, for the purpose of redeeming land tax on lands belonging to individuals, the persons in possession, but not having the absolute estate, and persons beneficially entitled to the rents and profits (except tenants at rack rent and Crown tenants), may sell part of such lands or may mortgage the same, or grant any rentcharge to the amount of the land tax: sect. 51. Tenants in tail in England may convey by deed enrolled: sect. 52. And committees, (x) Drinkwater v. Coombe, 2 S. & St. (y) 42 Geo. III. c. 116, s. 51. guardians, executors, and administrators or trustees may sell or CHAPTER XXII. mortgage on behalf of persons under disability: sect. 53. Such sales or mortgages of estates in England are to be made under the authority of two of the commissioners for the time being acting in the execution of the Act, to whom one month's previous notice of the intended sale or mortgage must be given, with a schedule stating the interest of the party desirous of selling or mortgaging, the name of the remainderman, and the particulars of incumbrances affecting the property: sects. 54, 55. Prior mortgages are not to be affected by mortgages under this Act, except as to interest; and they are to be entitled according to their priorities to advance the money required for the redemption of the land tax in preference to all others: sect. 114. All mortgages under this Act are to be enrolled within six months if the consideration exceeds 2007.: sect. 19. Proof of the execution of the mortgage deed by the commissioners is to be sufficient evidence that all requirements of the Act were duly complied with: sect. 120. Where the tenant for life has redeemed the land tax, the Redemption by tenant for remainderman can compel his representatives to receive the consideration money and clear the estate (). life. Where leaseholds are settled after redemption of the land Leaseholds. tax, the charge of the land tax does not pass, but remains in the settlor (a). Where a lessee agreed to pay the land tax, and it had been Redemption redeemed by the landlord, the lessee was still liable to pay the by landlord. amount (b). moneys. The surplus sale moneys of land sold for redemption of land Surplus sale tax may be applied in discharge of incumbrances (c), but not in repairs or improvements (d). money for iv.—Mortgages for Enfranchisement of Copyholds.-By the Power to raise Copyhold Act, 1858 (e), lords and tenants of copyholds were enfranchiseempowered, with the consent of the commissioners, to charge ment. manors and enfranchised lands respectively with the consideration or compensation for commutation or enfranchisement, and the expenses incident to the same; every such charge is to be made by a certificate of charge under the seal of the commis 91. (z) Cousens v. Harris, 12 Q. B. 726. (a) Neame v. Moorsom, L. R. 3 Eq. (b) Murray v. Parker, 19 Beav. 305. VOL. I.-R. (c) 42 Geo. III. c. 116, s. 100. (e) 21 & 22 Vict. c. 94, ss. 21-37. C C Priority of charge. CHAPTER XXII. sioners, and to be transferable by indorsement. The forms of certificate and transfer are given in sects. 36 and 37. By sect. 33 of this Act, it was provided that any such charge under that Act should be a first charge, having priority over all incumbrances affecting the land, except tithe commutation rentcharges, and statutory drainage charges. Copyhold Charge for consideration money, and By sects. 23 and 24 of the Copyhold Act, 1887 (f), it was enacted as follows: "It shall be lawful for the owner of any land enfranchised under the Copyhold Acts, although his estate may be only a limited estate, to charge the land enfranchised with the compensation money paid for such enfranchisement, and also with the expenses attending such enfranchisement, or with any part thereof respectively, with interest thereon not exceeding five pounds per centum per annum, or by way of terminable annuity calculated on the same basis. Any and every such charge may be by deed by way of mortgage with, under and subject to the provisions of the Conveyancing and Law of Property Act, 1881 (g), and shall be a first charge on the land, and shall have such priority as by the thirty-third section of the Copyhold Act, 1858 (h), is assigned to the charges there expressed to be first charges; and any moneys already invested or previously secured or charged on such land may be continued on the security of the same, notwithstanding the imposition of the said charges under the Copyhold Acts. "Any expenses paid by a lord in proceedings under the Copyhold Acts may be charged either on lands settled to the same uses as the manor or on rent-charges arising out of other enfranchisements within the manor, and every such charge shall be by deed by way of mortgage with, under and subject to the provisions of the Conveyancing and Law of Property Act, 1881 "(g). All the earlier Copyhold Acts are repealed by the Copyhold Act, 1894 (i), but so as not to affect any deeds, instruments, charges, &c. having effect under any enactment repealed by this Act. The Act of 1894 contains the following provisions with regard to raising money for enfranchisement : Sect. 36.-"(1) Where an enfranchisement is effected under this Act, the tenant may charge the land enfranchised with all money for expenses of paid by him as the compensation or consideration for the enfranchisement, and with his expenses of the enfranchisement, or with the consent of the lord, with any compensation payable, or with any part thereof respectively. tenant. "(2) Where land is conveyed as the consideration for a voluntary enfranchisement under this Act, and the person conveying the land (f) 50 & 51 Vict. c. 73. (h) 21 & 22 Vict. c. 94, set out sup. (i) 57 & 58 Vict. c. 46. is absolute owner of the land conveyed, he may charge the land CHAPTER XXII. enfranchised with such reasonable sum as the Board of Agriculture consider to be equivalent to the value of the land conveyed, and with the expenses of the conveyance. 66 '(3) Where a lord purchases under this Act a tenant's interest in land, he may charge the land purchased, and the manor and any land settled therewith to the same uses, with the purchase-money and the expenses of the purchase. (4) When a charge may be made under this section, the expenses of the charge may be made included in the charge. 66 (5) A charge under this section may be for a principal sum, and interest thereon, not exceeding five per cent. per annum, or may be by way of terminable annuity calculated on the same basis. '(6) A charge under this section may be by deed by way of mortgage, or by a certificate of charge under this Act. "(7) A charge under this section shall be a first charge on the manor or land subject to the charge, and shall have priority over all incumbrances whatsoever affecting the manor or land, except tithe rentcharge, and any charge having priority by statute, notwithstanding that those incumbrances are prior in date. (8) Any money secured on land may be continued on the security thereof, notwithstanding a charge under this section." Sect. 37.-"(1) Expenses incurred by a lord in proceedings under Charge for this Act may "(a) be paid out of any consideration or compensation money "(2) A charge under this section shall be by deed by way of mortgage, or by a certificate of charge under this Act. "(3) This section does not apply to the expenses of a purchase by the lord of a tenant's interest under this Act." lord's ex- tenant's title proves bad. Sect. 38. "If a tenant or person claiming to be tenant pays any Charge for money in respect of the compensation or consideration for an consideration enfranchisement under this Act, and is afterwards evicted from the money where land enfranchised, he may claim against the land enfranchised the amount of the money, or so much of it as is not charged on the land under the other provisions of this Act, and that amount shall be a charge on the land with interest thereon at the rate of four per cent. per annum from the date of the eviction." Sect. 39. "If a mortgagee pays under this Act any compensation Charge for or consideration money or expenses in respect of an enfranchise- money paid by mortgagee. ment of or redemption of a rentcharge on the mortgaged property, the amount so paid shall be added to his mortgage, and the mortgaged property shall not be redeemable without payment of that amount and interest thereon." CHAPTER XXII. Mortgage for equality money, &c. Power to raise money by mortgage. Transfer of incumbrances &c. SECTION III. OF MORTGAGES UNDER THE SETTLED LAND Acts. i.-Power for Tenant for Life to Mortgage Settled Lands.Powers of mortgaging settled lands are conferred upon tenants for life thereof by sect. 18 of the Settled Land Act, 1882 (j), for the purposes mentioned in the section, which is as follows:— "Where money is required for enfranchisement, or for equality of exchange or partition, the tenant for life may raise the same on mortgage of the settled land, or of any part thereof, by conveyance of the fee simple or other estate or interest the subject of the settlement, or by creation of a term of years in the settled land, or otherwise, and the money raised shall be capital money arising under this Act." These powers are extended by sect. 11 of the Settled Land Act, 1890 (k), whereby it is provided that "(1.) Where money is required for the purpose of discharging an incumbrance on the settled land or part thereof, the tenant for life may raise the money so required, and also the amount properly required for payment of the costs of the transaction on mortgage of the settled land, or of any part thereof, by conveyance of the fee simple or other estate or interest the subject of the settlement, or by creation of a term of years in the settled land, or any part thereof, or otherwise, and the money so raised shall be capital money for that purpose, and may be paid or applied accordingly. "(2.) Incumbrance in this section does not include any annual sum payable only during a life or lives, or during a term of years absolute or determinable." In addition to the powers of mortgaging conferred upon him on land sold, by the above sections, the tenant for life on a sale, exchange or partition, where there is an incumbrance affecting land sold or given in exchange, or on partition, "with the consent of the incumbrancer, may charge that incumbrance on any other part of the settled land, whether already charged therewith or not, in exoneration of the part sold or so given, and, by conveyance of the fee simple or other estate or interest the subject of the settlement, or by creation of a term of years in the settled land, or otherwise, make provision accordingly" (1). (j) 45 & 46 Vict. c. 38, s. 18. (7) 45 & 46 Vict. c. 38, s. 5. |