3 & 4 Will. 4, c. 74, s. 34.

Where a base

fee and a protector, his consent requisite to the

exercising of

a power of disposition.

The protector to be subject

to no control

of his power

in tail, a vesting order under the Trustee Act, 1850, will, if the protector consents to it, bar all estates in remainder, and not pass a base fee only under the act (Powell v. Matthews, 1 Jur. N. S. 973).

Protector must consent to Enlargement of Base Fee.

35. Provided always, that where an estate tail shall have been converted into a base fee, in such case, so long as there shall be a protector of the settlement by which the estate tail was created, the consent of such protector shall be requisite to enable the person who would have been tenant of the estate tail, if the same had not been barred, to exercise, as to the lands, in respect of which there shall be such protector, the power of disposition hereinbefore contained.

Protector not to be controlled.

36. Any device, shift, or contrivance, by which it shall be attempted to control the protector of a settlement in giving his in the exercise consent, or to prevent him in any way from using his absolute discretion in regard to his consent, and also any agreement of consenting. entered into by the protector of a settlement to withhold his consent, shall be void; and the protector of a settlement shall not be deemed to be a trustee in respect of his power of consent; and a court of equity shall not control or interfere to restrain the exercise of his power of consent, nor treat his giving consent as a breach of trust (g).

Certain rules

of equity not

to apply between the

protector and

a tenant in tail under

the same.

Frauds on powers.

Corrupt bargain.

(g) It seems that a contract under seal by a protector to give his consent might be such a consent as is required by the act (Bankes v. Small, 36 Ch. Div. 724). It has been said that this section enables a protector to act from mere caprice, ill-will, or any bad motive (Bankes v. Le Despenser, 11 Sim. 527).

Exclusion of Equity as to Protector.

37. Provided always, that the rules of equity in relation to dealings and transactions between the donee of a power and any object of the power in whose favour the same may be exercised, shall not be held to apply to dealings and transactions between the protector of a settlement and a tenant in tail under the same settlement, upon the occasion of the protector giving his consent to a disposition by a tenant in tail under this act (h).

(h) The rules in equity as to frauds on powers were not extended to the case of a tenant in tail in remainder joining with his father, a tenant for life, in suffering a recovery and resettling the estate, although an immediate benefit was conferred on the son as a consideration for his barring the entail (Tweddell v. Tweddell, T. & R. 1; Davis v. Uphill, 1 Sw. 129).

An appointment under a power is invalid where the appointee has agreed with the appointor that a benefit shall thereby accrue to the appointor (Marlborough v. Godolphin, 2 Ves. sen. 70; Boyle v. Peterborough, 1 Ves. 310; Farmer v. Martin, 2 Sim. 502; Arnold v. Hardwich, 7 Sim. 343), or to a stranger to the power (Pryor v. Pryor, 2 D. J. & S. 205; Salmon v. Gibbs, 3 D. G. & S. 343; Birley v. Birley, 25 Beav. 299; Re Kirwan, 25 Ch. D. 373; Crawshay v. Crawshay, 43 Čh. D. 624). A mere

suspicion, however, of a corrupt agreement will not be sufficient to in- 3 & 4 Will. 4, validate an appointment (Palmer v. Locke, 15 Ch. Div. 300; Hamilton v. c. 74, s. 37. Kirwan, 2 Jo. & Lat. 393). Again, an appointment will not be invalidated (1) by the mere fact of a bargain between the appointor and appointee Langston v. Blackmore, Amb. 288; Roach v. Trood, 3 Ch. Div. 429; see Cooper v. Cooper, 5 Ch. 203), as where the bargain did not induce the appointment (Re Turner, 28 Ch. Div. 205); or (2) by a bargain between the appointor and all the objects of the power, being sui juris (Davis v. Uphill, 1 Sw. 136); or (3) by reason of the appointor having covenanted to appoint (Bulteel v. Plummer, 6 Ch. 160; Palmer v. Locke, 15 Ch. Div. 294). In some cases an appointment to a stranger may be valid if made with the assent of an object of the power; as where it can be considered as in effect an appointment to an object and a settlement by that object (Daniel v. Arkwright, 2 H. & M. 95; Wright v. Goff, 22 Beav. 207; Goldsmid v. Goldsmid, 2 Hare, 187). Where the invalidity arises by reason of a corrupt agreement, the appointment will be wholly bad, even as to the benefit appointed to an object (Jackson v. Jackson, Dru. 113); unless some consideration (e. g., marriage) has been given which cannot be restored, when the appointment may be good as to the appointee (Daubeny v. Cockburn, 1 Mer. 643); or unless the honest part of the appointment can be separated from the dishonest part, when the former may be good (Topham v. Portland, 1 D. J. & S. 572; Whelan v. Palmer, 39 Ch. D. 659). Where a corrupt appointment has been carried into effect, the appointor may be liable for loss to the trust estate (Re Deane, Bridger v. Deane, 42 Ch. Div. 9).

An appointment is void where there is no bargain, but it is clear that Corrupt inthe appointor intends to benefit either himself (Henty v. Wrey, 21 Ch. tention. Div. 342; Wellesley v. Mornington, 2 K. & J. 143; Re Little, Harrison v. Harrison, 40 Ch. Div. 424), or a stranger to the power (Re Marsden, 4 Drew. 594; see Topham v. Portland, 5 Ch. 40; Whelan v. Palmer, 39 Ch. D. 648). A release of a power by the donee with a view to his own benefit is valid (Re Radcliffe, Radcliffe v. Bewes, 1892, 1 Ch. 227). A bona fide appointment is not necessarily void merely because a benefit in fact accrues to the appointor (Henty v. Wrey, sup. ; Re Huish, 10 Eq. 5; Beere v. Hoffmeister, 23 Beav. 101), or to a stranger (Fearon v. Debrisay, 14 Beav. 635; Roach v. Trood, 3 Ch. Div. 440).

A purchaser with notice of the invalidity of an appointment will not Purchasers. get a good title (Palmer v. Wheeler, 2 Ba. & Be. 18), nor will a purchaser without notice, in the case of an equitable interest (Daubeny v. Cockburn, 1 Mer. 626). But a mere suspicion of a fraudulent appointment is not a good objection by a purchaser to title (M'Queen v. Farquar, 11 Ves. 467; Green v. Pulsford, 2 Beav. 70).

X. CONFIRMATION OF VOIDABLE ESTATES CREATED BY
TENANT IN TAIL.

estate by a

chaser, con

38. Provided always, that when a tenant in tail of lands A voidable under a settlement, shall have already created or shall hereafter tenant in create in such lands, or any of them, a voidable estate, in favour tail, in favour of a purchaser for valuable consideration, and shall afterwards of a purunder this act, by any assurance other than a lease not requiring firmed by a inrolment, make a disposition of the lands in which such voidable subsequent estate shall be created, or any of them, such disposition, whatever disposition of its object may be, and whatever may be the extent of the estate in tail under intended to be thereby created, shall, if made by the tenant in this act, but tail with the consent of the protector (if any) of the settlement, not against a or by the tenant in tail alone, if there shall be no such protector, without

such tenant

purchaser

notice.

3 & 4 Will. 4, have the effect of confirming such voidable estate in the lands c. 74, 8. 38. thereby disposed of to its full extent as against all persons except those whose rights are saved by this act; but if at the time of making the disposition there shall be a protector of the settlement, and such protector shall not consent to the disposition, and the tenant in tail shall not without such consent be capable under this act of confirming the voidable estate to its full extent, then and in such case such disposition shall have the effect of confirming such voidable estate so far as such tenant in tail would then be capable under this act of confirming the same without such consent (k): provided always, that if such disposition shall be made to a purchaser for valuable consideration, who shall not have express notice of the voidable estate, then and in such case the voidable estate shall not be confirmed as against such purchaser and the persons claiming under him (7).

Old rule as to the effect of

recoveries in confirming prior acts of

tenant in tail.

(k) The proviso in the corresponding clause in the Irish stat. 4 & 5 Will. 4, c. 92, s. 36, is as follows: "provided always, that if such disposition shall be made to a purchaser for valuable consideration, who shall not have express notice of the voidable estate, and if the deed or instrument creating such voidable estate shall not have been registered previous to such disposition, then and in such case the voidable estate shall not be confirmed as against such purchaser and the persons claiming under him."

(7) If a tenant in tail who had executed any settlement, lease or mortgage, or created any charge or incumbrance by statute, judgment, or otherwise, affecting the entailed land, afterwards suffered a recovery, its effect was to confirm such prior acts, and to make the lands chargeable with them, although before they were defeasible by the issue (Capel's case, 1 Rep. 60; S. C., Poph. 5, 6; Beck v. Welsh, 1 Wills. 277; Tourle v. Rand, 2 Br. C. C. 652; Goodright v. Mead, 3 Burr. 1703; Cheney v. Hall, 3 Atk. 9; Ambl. 526; Stapleton v. Stapleton, 1 Atk. 2); but not if the Effect of fines. settlement was voluntary (Cormick v. Trapaud, 6 Dow, 60). As to the similar effect of a fine in such a case, see Shelburn v. Biddulph (6 Br. P. C. 356, Toml. ed.); Symonds v. Cudmore (Show. 370; 1 Salk. 338; Skin. 284, 317, 328; 3 Salk. 335; Carth. 257; 12 Mod. 32; Holt, 666; 1 Freem. 503; 2 Atk. 204); see 7 Ves. 497; Lloyd v. Lloyd (4 Dru. & War. 374); Browne v. Blake (1 Molloy, 368).

Cases on s. 38.

A base fee voidable by the issue in tail was, notwithstanding an intervening bankruptcy, confirmed by a subsequent assurance enrolled under the act (Hankey v. Martin, 49 L. T. 560).

The proviso at the end of this section does not require that the disentailing instrument should pass the estate to the purchaser. It is sufficient if the instrument forms part of a transaction in respect of which the person claiming the benefit of the proviso is a purchaser (Crocker v. Waine, 5 B. & S. 697).

Base fee, when united

XI. ENLARGEMENT OF BASE FEES.

39. If a base fee in any lands, and the remainder or reversion in fee in the same lands, shall at the time of the passing of this act, or at any time afterwards, be united in the same person, and at any time after the passing of this act there shall be no intermediate estate between the base fee and the remainder or reverbeing merged. sion, then and in such case the base fee shall not merge, but

with the immediate reversion, enlarged,

instead of

c. 74, s. 39.

shall be ipso facto enlarged into as large an estate as a tenant in 3 & 4 Will. 4, tail, with the consent of the protector, if any, might have created by any disposition under this act if such remainder or reversion had been vested in any other person (m).

reversion.

(m) Generally speaking, when two estates unite in the same person in The effect of the same right, the smaller one is merged in the other, except in the case a fine in of an estate tail and a reversion in fee, which may exist together; in such merging a a case, by the operation of the statute De Donis, the estate tail is kept base fee in the alive, not merged in the reversion in fee (5 Term Rep. 109, 110; 2 Rep. 61; Kynaston v. Clarke, 2 Atk. 204; Shelburn v. Biddulph, 4 Br. P. C. 594). But if a tenant in tail with a reversion in fee to himself, levied a fine, the effect was to create a base fee, which became merged in the other fee, and let in all the incumbrances of the ancestor. A base fee will merge by union with the absolute fee; the possibility of reverter on a conditional fee at common law will merge in the fee simple absolute (Simpson v. Simpson, 4 Bing. N. C. 333; see 2 Ves. sen. 35; Hob. 323; Symonds v. Cudmore, 1 Salk. 338; Carth. 258; Crow v. Baldmere, 5 T. R. 109); an estate tail after possibility of issue extinct (Co. Litt. 27 b), an estate of mere freehold, legal or conventional (Co. Litt. 338 b), a term of years (Salmon v. Swann, Cro. Jac. 619; Hughes v. Robotham, Cro. Eliz. 302), or estate at will (Vin. Abr. tit. Est. at Will), will be extinguished by the acquisition of the fee. On the subject of merger of base fees, the Real Property Commissioners made the following remarks: "If a tenant in tail, claiming the immediate remainder or reversion in fee, bars his estate tail by means of a fine instead of a recovery, he frequently prejudices his title by merging in the remainder or reversion the base fee acquired by the fine, as he thereby not only lets in all the charges and estates made and created by the persons through whom he derived the remainder or reversion, but also renders it necessary, afterwards, to make out his title to the remainder or reversion, which, in many instances, is attended with great difficulty and expense" (1 Real Property Report, p. 28; but see Sperling v. Trevor, 7 Ves. 497). It will be observed that this difficulty is removed by this section of the act, by preserving base fees from merger, and enlarging them, when united with the immediate reversion, into as large an estate as the tenant in tail, if in possession, could have created.

The rule, that where there is in the same person a legal and equitable Merger by interest the former absorbs the latter (Wade v. Paget, 1 Br. C. C. 367), union of legal holds only where the legal and equitable estates are co-extensive and and equitable commensurate, but is not admitted where a party has the whole legal interests in estate and a partial equitable estate (Champernoon v. Williams, 2 Ch. C. same person. 63-78; 1 Vern. 13; Robinson v. Cummings, Forr. 164; 1 Atk. 473; Brydges v. Brydges, 3 Ves. 126; see Capel v. Girdler, 9 Ves. 509; Selby v. Alston, 3 Ves. 339; Alston v. Wells, Dougl. 771, 2nd ed.) The estates must also be of the same quality, and an estate tail and fee simple not being of the same quality, an equitable estate tail in a copyhold does not merge by the accession of the legal fee (Merest v. James, 6 Madd. 118; Brown v. Blake, 1 Molloy, 382). See now as to merger, Judicature Act, Jud. Act, 1873, s. 25 (4); Snow v. Boycott, 1892, W. N. 89; Chambers v. Kingham, 1873. 10 Ch. D. 743.

XII. MODES IN WHICH DISPOSITIONS OF LAND UNDER THIS ACT

BY TENANTS IN TAIL ARE TO BE EFFECTED.

40. Every disposition of lands under this act by a tenant in Tenant in tail tail thereof shall be effected by some one of the assurances (not to make a being a will) by which such tenant in tail could have made the disposition by

deed as if

3 & 4 Will. 4, c. 74, s. 40. seised in fee, but not by will or con

tract; and if

a married

woman, with

her husband's

concurrence.

Old rule as to effect of contracts by tenant in tail.

Effect of this

section upon contracts by tenant in tail.

No particular form of disentailing deed necessary.

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 (n); and if the tenant in tail making the disposition shall be a married woman, the concurrence of her husband shall be necessary to give effect to the same; and any deed which may be executed by her for effecting the disposition shall be acknowledged by her as hereinafter directed (0).

(n) This section of the act adopts an established rule that the issue in tail was not bound, either at law or in equity, to complete any contract made by his ancestor, respecting the estate tail, because the issue claims by a paramount title per formam doni, from the person by whom the estate tail was originally granted, and not from his ancestors (3 Rep. 41 b; 1 P. Wms. 271; 2 Ves. sen. 634; Hob. 203; 1 Ch. Cas. 171; 2 Ventr. 350; 1 Lev. 237; 2 Eq. Cas. Abr. 28, pl. 34; A. G. v. Day, 1 Ves. sen. 218). And such rule applied, although the ancestor had received part, or even the whole of the purchase-money, and a decree had been made against him to levy a fine (Prec. Ch. 278; 2 Vern. 306; Gilb. Eq. R. 104; 1 Ves. sen. 224; see Franks v. Mainwaring, 2 Beav. 115). And even where tenant in tail, in pursuance of a covenant had acknowledged a fine, but died before it was perfected (2 Vern. 3). And the rule was applicable to copyholds, and to equitable tenants in tail of lands whether freehold or copyhold (See Sugd. V. & P. 227, 11th ed.; 1 Prest. Conv. 153).

There is nothing in this section to affect contracts as such, and therefore, although they will not operate to bar or bind the entail under the act, nor can equity give to them that operation, yet they may still be recovered upon at law, or be made the foundation of a specific performance against the tenant in tail. A specific performance of a covenant for further assurance in a mortgage by a tenant in tail in remainder not inrolled was refused by Stuart, V. Č., in Davis v. Tollemache (2 Jur. N. S. 1181). But it has since been decided by the Court of Appeal that, notwithstanding sect. 47 (post), the Court will decree, as against the tenant in tail, specific performance of a contract for disentailment entered into by him with a purchaser (Bankes v. Small, 36 Ch. Div. 716). 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 (Bryce v. Bury, 2 Drew. 11). See further Sugd. R. P. Stat. 197, 2nd ed.; Hilbers v. Parkinson (25 Ch. D. 202); Hall-Dare v. Hall-Dare (31 Ch. Div. 251); Dering v. Kynaston (6 Eq. 210).

No particular form of disentailing deed is necessary; any deed which by its legal operation would have conveyed the fee simple, if the grantor had been seised in fee, will, if executed by a tenant in tail in possession and duly inrolled, bar the entail (Nelson v. Agnew, I. R. 6 Eq. 232). A mere declaration of trust is not a disposition" under this act (Green v. Paterson, 32 Ch. Div. 95).

Where a disentailing deed operates as a grant, and not by the Statute of Uses, it must be executed by the grantee; if not, it may be rendered inoperative by the subsequent disclaimer by the grantees (Peacock v. Eastland, 10 Eq. 21). But where the disentailing deed operates by the Statute of Uses, it is not necessary that it should be executed by the grantees to uses (Nelson v. Agnew, sup.)