8 & 9 Vict. c. 106, s. 4. Tortious operation of feoffment. Covenant im. 46 any tenements or hereditaments (i), except so far as the word "give" or the word "grant " may, by force of any act of parliament, imply a covenant (j). (h) A feoffment had the effect of barring or destroying contingent remainders depending upon particular estates (Archer's case, 1 Rep. 66 b). A feoffment also destroyed powers appendant and powers in gross, but not powers collateral. A feoffment was the only conveyance by which a tenant for years, by elegit, statute merchant or staple or a copyholder, could create an estate of freehold by disseisin (Co. Litt. 49; 2 Sand. on Uses, 14, 15). In consequence of the new enactment, a feoffment in fee simple, made by a tenant for life, will merely convey his life interest, and will not be a cause of forfeiture; and a feoffment by a lunatic or idiot will be void and not merely voidable, as formerly (See Shelford on Law of Lunatics, 335, 336, 2nd edit.). () As to the conditions implied on exchanges and partitions, see plied by words 4 Cruise, Dig. tit. 32, c. 6, 20. The operation of the words "grant" and grant,' "give" in creating an implied warranty of title in conveyances of estates "give," in fee simple, in gifts in tail, in leases for life, and in leases for years, is fully discussed by Mr. Butler in his note to Co. Litt. 384 a (See 4 Cruise, Dig. tit. 32, c. 24; and see 1 Davidson, Conv. 70, 103, 3rd. ed.; Doe v. Prince, 20 L. J. C. P. 223). "demise." Exception as to acts of parliament. An action of covenant will lie by the lessee against the lessor upon the word "demise" in a lease, that word importing a covenant in law on the part of the lessor that he has a good title, and that the lessee shall quietly enjoy during the term (Burnett v. Lynch, 5 B. & C. 609; Walker v. Bartlett, 18 C. B. 845; Mathew v. Blackmore, 1 H. & N. 766). But there is no implied covenant if there is an express covenant for quiet enjoyment (Line v. Stephenson, 5 Bing. N. C. 183 ̊; Merrill v. Frame, 4 Taunt. 329; Hinde v. Gray, 1 M. & G. 195; Granger v. Collins, 6 M. & W. 458; Lessenbury v. Evans, 3 M. & G. 210; Dennett v. Atherton, L. R. 7 Q. B. 316). In a contract for the demise of land, a promise of quiet enjoyment during the term is implied by law (Hall v. City of London Co., 2 Best & S. 737). Where land is demised by parol without any actual covenant, the law implies a covenant for quiet enjoyment during the term, but not a covenant for good title (Bandy v. Cartwright, 8 Exch. 913; see Robinson v. Kilvert, 41 Ch. Div. 96). Where the defendant executed a written agreement not under seal to let lands to the plaintiff, he had impliedly agreed to grant a valid lease (Stranks v. St. John, L. R. 2 C. P. 376). As to the covenants implied under sect. 7 of the Conveyancing Act, 1881, see post. (j) In the conveyance of lands to be made by the promoters of the undertaking under the Lands Clauses Consolidation Act, or the special act, the word "grant" implies certain covenants by them for title, except so far as the same shall be limited by express words contained in any such conveyance (8 & 9 Vict. c. 18, s. 132). The words "grant, bargain and sell, operated as covenants for title in deeds of bargain and sale of lands lying in the East and North Ridings of Yorkshire by stat. 6 Ann. c. 62, s. 30; 8 Geo. 2, c. 6, s. 35. Both the last-mentioned acts have been repealed by 47 & 48 Vict. c. 54, s. 51. Strangers may take immediately STRANGERS TO DEEDS. 5. Under an indenture, executed after the first day of October, one thousand eight hundred and forty-five, an immediate estate or interest in any tenements or hereditaments, and the denture, and a benefit of a condition or covenant, respecting any tenements or under an in hereditaments, may be taken, although the taker thereof be 8 & 9 Vict. c. 106, s. 5. not named a party to the same indenture; also, a deed, executed after the said first day of October, one thousand eight deed purporthundred and forty-five, purporting to be an indenture, shall ing to be an have the effect of an indenture, although not actually in- shall take dented (k). (k) It was necessary to name as parties to an indenture all persons who are intended to take an immediate estate or benefit by it (Co Litt. 231 a). This rule did not extend to remainders (Co. Litt. 231 a, 259 b), nor, it was said, to uses or the benefit of a trust (2 Prest. Conv. 394). This section does not enable the benefit of a covenant to be taken by a party not existing at the date of the deed (Kelsey v. Dodd, 52 L. J. Ch. 34, 39). Before this act a practical distinction between an indenture and a deed poll was, that no person could take an immediate estate or benefit under an indenture, unless he was named as a party to it; but any person could take an immediate estate or benefit under a deed poll, inasmuch as it is addressed to all the world (Co. Litt. 26 a, 231; Burton's Real Prop. 442, n.; 2 Prest. Conv. 394 et seq.; 1 Martin's Conv. 324). Another practical distinction between a deed poll and an indenture was, that a Covenant entered into by a deed poll with any covenantee named in the deed was valid; but a covenant in an indenture entered into with a person not a party could not be sued on by that person (Greene v. Hoare, Salk. 197; Berkley v. Hardy, 5 B. & C. 353; Southampton v. Browne, 6 B. & C. 718). But a person not a party to a deed might covenant with one who was, and would be bound by executing the deed (Salter v. Kidgly, Carth. 76; 2 Prest. Conv. 415). indenture effect as such. ALIENATION OF CONTINGENT INTERESTS. married women en 6. After the first day of October, one thousand eight hundred Contingent and forty-five, a contingent, an executory, and a future interest, and other like and a possibility coupled with an interest, in any tenements or rights of hereditaments (1) of any tenure, whether the object of the gift or entry, made limitation of such interest or possibility be or be not ascertained, deed, saving alienable by also a right of entry (m), whether immediate or future, and estates in tail; whether vested or contingent, into or upon any tenements or and as regards hereditaments in England, of any tenure, may be disposed of by deed; but no such disposition shall, by force only of joining conthis act, defeat or enlarge an estate tail, and every such dis- formity to position by a married woman shall be made conformably to the 3&4 Will. provisions, relative to dispositions by married women, of an act passed in the third and fourth years of the reign of his late Majesty King William the Fourth, intituled "An Act for the Abolition of Fines and Recoveries, and for the substitution of more simple Modes of Assurance" (n), or, in Ireland, of an act passed in the fourth and fifth years of the reign of his said late Majesty, intituled "An Act for the Abolition of Fines and 4 & 5 Will. 4, Recoveries, and for the Substitution of more simple Modes of c. 92. Assurance, in Ireland." (7) The alienation of interests of this description under the law as it existed previously to the abolition of fines and recoveries, has been already considered (See ante, p. 257). As to the alienation of the interest of a c. 74. 4, yearly tenant, see Alcock v. Moorhouse (9 Q. B. Div. 371). As to aliena- (m) It has been said that this means a right of entry in the nature of an estate or interest—that is, where a person by lapse of time has lost everything except his right of entry-but that the section does not include a right of entry for forfeiture (Hunt v. Remnant, 9 Exch. 640; Hunt v. Bishop, 8 Exch. 680). The reason being that it was at the election of the person entitled to enter whether he would take advantage of the breach (Jenkins v. Jones, 9 Q. B. Div. 131). As to the transfer of rights of re-entry for forfeiture, see Conv. Act, 1881, s. 10, sub-s. 1, post. Prior to this act all dealings with a right of entry, except by release to the person in possession, were dealings with a pretenced right within the meaning of 32 Hen. 8, c. 9, and so void and penal under that statute. Since 8 & 9 Vict. c. 106, if such a right is not fictitious in fact, it is not "pretenced" within that statute, and may be properly dealt with (Jenkins v. Jones, 9 Q. B. Div. 135). In order to recover the penalty under 32 Hen. 8, c. 9, it must be proved, not only that the title is fictitious, but, that at the time of the dealing the defendant knew that it was so (Kennedy v. Lyell, 15 Q. B. D. 491). (n) See ante, p. 292. Capacity of married women to disclaim estates or interests by deed extended to England. DISCLAIMER BY MARRIED WOMEN. 7. After the first day of October, one thousand eight hundred and forty-five, an estate or interest in any tenements or hereditaments in England, of any tenure, may be disclaimed by a married woman by deed; and every such disclaimer shall be made conformably to the said provisions of the said Act for the abolition of Fines and Recoveries, and for the Substitution of more simple Modes of Assurance (o). (0) See ante, p. 292. Contingent remainders protected as from 31st December, 1844, against the premature failure of a preceding estate. Destruction of contingent remainders. CONTINGENT REMAINDERS. 8. A contingent remainder, existing at any time after the thirty-first day of December, one thousand eight hundred and forty-four, shall be, and, if created before the passing of this act, shall be deemed to have been, capable of taking effect, notwithstanding the determination, by forfeiture, surrender or merger, of any preceding estate of freehold, in the same manner, in all respects, as if such determination had not happened (p). (p) This section of the act does not alter the rules of law as to the creation of contingent remainders (See 2 Bl. Comm. 164, 170; Watk. on Conv. tit. Remainder). In consequence of the rule that a remainder must vest in the grantee during the existence of the particular estate, or the very instant it determines, contingent remainders might be defeated by de stroying or determining the particular estate on which they depended, before the contingency happened whereby they became vested (1 Real Prop. Rep. 66, 135). Therefore, when there was tenant for life, with divers remainders in contingency, he might not only by his death, but by 8 & 9 Vict. c. 106, s. 8. alienation, surrender, or other methods, have destroyed and determined his own life estate before any of those remainders vested; the consequence of which was, that he utterly defeated them all. As, if there were tenant for life, with remainder to his eldest son unborn in tail, and the tenant for life, before any son was born, surrendered his life estate, he by that means defeated the remainder in tail to his son: for his son not being in esse when the particular estate determined, the remainder could not then vest; and, as it could not vest then by the rules of law it never could vest at all. In these cases, therefore, it was necessary to have trustees appointed to preserve the contingent remainders; in whom there was vested an estate in remainder for the life of the tenant for life, to commence when his estate determined. If, therefore, his estate for life determined otherwise than by his death, the estate of the trustees, for the residue of his natural life, would then have taken effect, and become a particular estate in possession, sufficient to support the remainders depending in contingency (2 Black. Com. 171). The above clause will supersede the necessity of a limitation of Section estates to trustees during the life of the tenant for life, to support the supersedes contingent remainders expectant upon the determination of the life estate necessity of by forfeiture, surrender or merger. trustees to See Egerton v. Massey (3 C. B. N. S. 338; 27 L. J. C. P. 10), as to the preserve destruction of a contingent remainder by merger. The act only applies to the three cases of forfeiture, surrender or merger. If at the time when the particular estate would naturally have expired, the contingent remainder be not ready to come into immediate possession, it will still fail as before (Williams' Real Prop. 296, 14th ed.) contingent remainders. Contingent remainders of copyholds were never liable to destruction by Contingent the sudden termination of the particular estate on which they depend. remainders in But there is no distinction between freeholds and copyholds in those cases copyholds. where the particular estate expires naturally and regularly before the happening of the contingency (Scriv. Cop. 60, 6th ed.) Quasi-contingent remainders in copyholds were protected from destruction by the estate of the lord of the manor (Pickersgill v. Grey, 30 Beav. 352). By 40 & 41 Vict. c. 33, it is enacted that every contingent remainder 40 & 41 Vict., created by any instrument executed after the passing of the act (the 2nd c. 33. of August, 1877), or by any will or codicil revived or republished by any will or codicil executed after that date, in tenements or hereditaments of any tenure, which would have been valid as a springing or shifting use or executory devise or other limitation had it not had a sufficient estate to support it as a contingent remainder, shall, in the event of the particular estate determining before the contingent remainder vests, be capable of taking effect in all respects as if the contingent remainder had originally been created as a springing or shifting use, or executory devise, or other executory limitation. Equitable contingent remainders (e. g., arising by a limitation of an Equitable equity of redemption) were not subject to the old rule which made legal remainders. contingent remainders liable to be defeated by the failure of the particular estate (Astley v. Micklethwait, 15 Ch. D. 59). And where an equitable contingent remainder became clothed with the legal estate after the passing of 40 & 41 Vict. c. 33, it was not defeated by the failure of the prior life interest (Re Freme, Freme v. Logan, 1891, 3 Ch. 167). REVERSION EXPECTANT ON LEASE. 9. When the reversion expectant on a lease, made either before or after the passing of this act, of any tenements or hereditaments, of any tenure, shall, after the said first day of October, one thousand eight hundred and forty-five, be surrendered When the reversion on a the next estate to be lease is gone deemed the reversion. 8 & 9 Vict. c. 106, s. 9. Act not to extend to Scotland. or merge, the estate which shall for the time being confer as (9) This section of the act is retrospective in its operation (Upton v. It sometimes happened, where the immediate reversion on a lease was a term, or other particular estate, that it became merged in some other estate in the same land; and, where that was the case, not only the benefit of the covenants, but the rent and all remedies for it, were lost (3 Real Prop. R. 49). The object of this section is to prevent such consequence, and to preserve covenants of, and remedies against, a lessee, and the obligations on the lessor which are incident to the immediate reversion (Webb v. Russell, 3 T. R. 678; Wootley v. Gregory, 2 Yo. & J. 536; Burton v. Barclay, 7 Bing. 745; Thorne v. Woolcombe, 3 B. & Ad. 586; 2 Platt on Leases, 393-399). The disclaimer of a trustee in bankruptcy under the Act of 1869 is a surrender within this section (Smalley v. Hardinge, 7 Q. B. Div. 524; see Re Roberts, Ex p. Brook, 10 Ch. Div. 110). As to the effect of a disclaimer under the Act of 1883, see Re Morgan (22 Q. B. Div. 592), and cases there quoted. The above section only applied to the case of surrender or merger of the immediate reversion. As to the severance of the reversion, see now Conv. Act, 1881, s. 10, sub-s. 1, post. |