37 & 38 Vict. c. 78, s. 7. Protection and priority by legal estates and 7. After the commencement of this act, no priority or protection shall be given or allowed to any estate, right, or interest in land by reason of such estate, right, or interest being protected by or tacked to any legal or other estate or interest in such land; and full effect shall be given in every court to this tacking not to provision, although the person claiming such priority or protection as aforesaid shall claim as a purchaser for valuable consideration and without notice: Provided always, that this section shall not take away from any estate, right, title, or interest any priority or protection which but for this section would have been given or allowed thereto as against any estate or interest existing before the commencement of this act (e). be allowed. Non-registra Middlesex, &c. cured in (e) This section was repealed as to England, by 38 & 39 Vict. c. 87, s. 129, and as to Ireland by the Conv. Act, 1881, s. 73 (See Robinson v. Trevor, 12 Q. B. D. 423). 8. Where the will of a testator devising land in Middlesex or tion of will in Yorkshire has not been registered within the period allowed by law in that behalf, an assurance of such land to a purchaser or mortgagee by the devisee or by someone deriving title under him shall, if registered before, take precedence of and prevail over any assurance from the testator's heir-at-law (ƒ). certain cases. Vendor or purchaser may obtain decision of judge in chambers as (f) Wills must be registered in Middlesex within six months from the death (7 Anne, c. 20, ss. 1 and 8; see 54 & 55 Vict. c. 64; Re Cooper, Cooper v. Vesey, 20 Ch. Div. 611). As to Yorkshire, see now 47 & 48 Vict. c. 54, ss. 4 and 14; and before that act, 8 Geo. II. c. 6, and 6 Anne, c. 35; Chadwick v. Turner, 1 Ch. 310. 9. A vendor or purchaser of real or leasehold estate in England, or their representatives respectively, may at any time or times and from time to time apply in a summary way to a judge of the Court of Chancery in England in chambers, in respect of any requisitions or objections, or any to requisitions claim for compensation, or any other question arising out of or objections, or compensa- or connected with the contract, (not being a question affecting tion, &c. the existence or validity of the contract,) and the judge shall make such order upon the application as to him shall appear just, and shall order how and by whom all or any of the costs of and incident to the application shall be borne and paid. Cases under this section. A vendor or purchaser of real or leasehold estate in Ireland, or their representatives respectively, may in like manner and for the same purpose apply to a judge of the Court of Chancery in Ireland, and the judge shall make such order upon the application as to him shall appear just, and shall order how and by whom all or any of the costs of and incident to the application shall be borne and paid (g). (9) In an action for specific performance of a contract as to real estate the ordinary form of relief is as follows:-The court (1) makes a declaration establishing the contract; (2) directs a reference as to title; and (3) gives directions consequent on the result of the reference (Seton, 4th ed. 1297, 1307). c. 78, s. 9. According to the words of this section the parties cannot, upon an 37 & 38 Vict. application under it, question either the existence or the validity of the contract, e. g., on the ground of fraud (Re Hargreaves and Thompson, 32 Ch. Div. 459; see Re Davis and Cavey, 40 Ch. D. 608; Re Sandbach and Edmondson, 1891, 1 Ch. 102). It is, however, only the existence and validity of the contract, in its inception, which cannot be questioned; and therefore questions as to rescission can be dealt with (Re Jackson and Woodburn, 37 Ch. D. 47). An application under this section cannot be treated as if an action had been brought (Re Hargreaves and Thompson, 32 Ch. Div. 456); but whatever could be done in chambers upon reference as to title where the contract had been established can be done (Re Burroughs, Lynn and Sexton, 5 Ch. Div. 604). And accordingly the same kind of evidence can be used (Ib.) The section, however, was not intended to enable the court to try in this way disputed questions of fact (Ib. 603; Re Popple and Barratt, 25 W. R. 248; Re Gray and the Metropolitan R. Co., 44 L. T. 567), but was intended to enable either vendor or purchaser to obtain a decision upon some isolated point (Re Hargreaves and Thompson, herudest 32 Ch. Div. 459), e. g., any short point of law or constructiple and the abstract or upon the purchaser's requisitions (Re Popple and Barratt, sup.) The court has authority not only to decide the questions asked, but also to make an order which will be just, as the natural consequence of the decision (Re Hargreaves and Thompson, 32 Ch. Div. 457). Under this section the court has dealt with the following (among other) Question in questions in respect of requisitions and objections, viz., whether a requi- respect of sition as to the completeness of the abstract should be answered (Re Ford requisitions and objecand Hill, 10 Ch. Div. 365); whether a vendor's refusal to answer a requi- tions. sition was unreasonable (Re Glenton and Saunders, 53 L. T. 434); or whether succession duty was payable (Re Cooper and Allen, 4 Ch. D. 802; Re Warner, 17 Ch. D. 711); whether a purchaser was entitled to have a deed stamped (Whiting to Loomes, 17 Ch. Div. 10); whether the vendor was bound to apply for the discharge of incumbrances under sect. 5 of the Conv. Act, 1881 (G. N. R. Co. v. Sanderson, 25 Ch. D. 788); whether a purchaser was entitled to evidence that a debenture charge had not attached (Re Horne and Hellard, 29 Ch. D. 736), or that a power of sale had arisen (Re Irish, &c. Society and O'Keefe, 7 L. R. Ir. 136); what was sufficient evidence that covenants had been performed (Ringer to Thompson, 45 L. T. 580), or that a vendor had a right to convey (Re Harman and Uxbridge R., 49 L. T. 130), or that no common rights existed (Re Bridge and Macrae, 30 W. R. 539); who should pay for registry searches (Re Murray and Heggarty, 15 L. R. Ir. 510), or for production of documents (Willett v. Argenti, 60 L. T. 735); whether an estate tail had been barred (Re Dudson, 8 Ch. D. 628); whether there was a presumption of enfranchisement of copyholds (Re Lidiard, 42 Ch. D. 254); what fine was payable on a sale of copyholds under the S. L. A. 1882 (Re Naylor and Spendla, 34 Ch. D. 217); whether a post-nuptial settlement was valid (Re Foster and Lister, 36 L. T. 582); whether mortgages passed under a devise (Re Packman and Moss, 1 Ch. D. 214); questions on the construction of wills (Re Coleman and Jarrom, 4 Ch. D. 165; Re White and Hindle, 7 Ch. D. 201; Re Hutchinson and Tenant, 8 Ch. D. 540; Re Sturge and G. W. R. Co., 19 Ch. D. 444); whether the receipt of a married woman for a legacy discharged the property (Re Coward and Adam, 20 Eq. 179); whether trustees had been properly appointed (Re Walker and Hughes, 24 Ch. D. 698; Re Glenny and Hartley, 25 Ch. D. 611; Re Coates to Parsons, 34 Ch. D. 370); whether a lease had been properly granted (Hallett to Martin, 24 Ch. D. 624); whether a power of sale and exchange authorized a partition (Re Frith and Osborne, 3 Ch. D. 618); whether a power of sale under a local act was exerciseable (Re St. Saviour's, 31 Ch. D. 412); whether the trustee of a bankrupt could exercise a power of appointment (Nichols to Nixey, 29 Ch. D. 1005); questions under the S. L. A. 1882 (Re Earle and Webster, 24 Ch. D. 144; Re Hale and Smyth, 55 L. T. 151), or under the Conv. Act, 1881 (Re Higgins and Percival, 59 37 & 38 Vict. Claim for L. T. 213); whether the concurrence was necessary of the Charity Commissioners (Re Royal Society and Thompson, 17 Ch. D. 407; Finnis to Forbes, 24 Ch. D. 591), or of the husband of a married woman (Re Thompson and Curzon, 29 Ch. D. 177), or of cestui que trusts (Re Cooke, 4 Ch. D. 454); whether a good title could be made by the following persons:-an heir (Re Morton and Hallett, 15 Ch. Div. 143); a devisee (Osborne to Rowlett, 13 Ch. D. 774); an executor (Re Tanqueray-Willaume, 20 Ch. Div. 465; Re Whistler, 35 Ch. D. 561); an administrator (Re Clay and Tetley, 16 Ch. Div. 3; Re Adams and Kensington, 27 Ch. D. 394); trustees (Re Wright and Marshall, 28 Ch. D. 93; Patten to Edmonton, 48 L. T. 870; Re Arbib and Class, 1891, 1 Ch. 601); a compounding debtor (Re Kearley and Clayton, 7 Ch. D. 615); the survivor of two trustees of a bankrupt (Re Waddell, 2 Ch. D. 172), or of two liquidators of a company (Re Metropolitan Bank and Jones, ib. p. 366); whether the joint receipt of different mortgagees was a good receipt (Re Parker and Beech, 56 L. T. 95); whether trustees could be required to receive money personally (Re Bellamy, 24 Ch. D. 387; Re Flower, 27 Ch. D. 592). The court has also decided claims for compensation; e. g., whether compensation. compensation was payable before completion (Aspinalls to Powell, 60 L. T. 595; Re Herbalt and Chaytor, 57 L. J. Ch. 421; Re Orange and Wright, 52 L. T. 606), or after completion (Re Turner and Skelton, 13 Ch. D. 130). As to reference to chambers, see Aspinalls to Powell (60 L. T. 595). Other ques The court has also decided other questions; e. g., what should be the form of conveyance (Re Piggott and G. W. R. Co., 18 Ch. D. 146); whether particular covenants should be inserted (Re Agg-Gardner, 25 Ch. D. 600; Re Moncton and Gilzean, 27 Ch. D. 555; Re Gray and Metropolitan R. Co., 44 L. T. 567; Re Sawyer and Baring, 51 L. T. 356; Re Mordy and Cowman, ib. 721; Re Lander and Bagley, 1892, W. N. 119); who had the right to deeds (Re Doherty, 15 L. R. Ir. 247); whether the purchaser was entitled to a rent-charge as an indemnity against rent (16.); whether a purchaser was entitled to damages for non-repair paid to the vendor by a former tenant (Re Edie and Brown, 58 L. T. 307). ↑ a posifre questions reeus ther: The court has also decided whether a right of way was included in the 'n're stuchistilahley's contract (Re Lavery and Kirk, 33 S. J. 127); whether a purchaser was bound (ontract. (1900) 2 Ch. 5 by a condition of sale alleged to be misleading (Re Marsh and Granville, 24 Ch. Div. 11; Re Sandbach and Edmondson, 1891, 1 Ch. 99); to what a condition as to misdescription applied (Re Beyfus and Masters, 39 Ch. Div. 110); whether under the conditions the vendor had the right to rescind (Re Jackson and Oakshott, 14 Ch. D. 851; G. N. R. Co. v. Sanderson, 25 Ch. D. 788; Moncton v. Gilzean, 27 Ch. D. 555; Re Dames and Wood, 29 Ch. D. 626; Re Jackson and Woodburn, 37 Ch. D. 44; Re Arbib and Class, 1891, 1 Ch. 601); whether the purchaser had the right to show the title to be defective (Re Davys and Saurin, 17 L. R. Ir. 334), or to repudiate the contract (Re Gloag and Miller, 23 Ch. D. 320); what price was payable under the contract (Re Popple and Barratt, 25 W. R. 248); whether any, and what, interest was payable (Re Piggott and G. W. R. Co., 18 Ch. D. 146; Riley to Streatfield, 34 Ch. D. 386; Re Golds and Norton, 52 L. T. 321); and the court has ordered the return of interest paid under protest (Re Young and Harston, 31 Ch. Div. 168). Return of Costs of in- The section provides that the judge shall make such order as to him shall appear just, and accordingly the court has upon a purchaser's summons ordered a return of the deposit with interest (Re Cosh and Metropolitan District R. Co., 13 Ch. D. 607; Re Hargreaves and Thompson, 32 Ch. Div. 454; Re Smith and Stott, 48 L. T. 512; see, however, Re Davis and Cavey, 40 Ch. D. 608, where a return was claimed on the ground of fraud); and has, in addition, ordered payment by the vendor of the purchaser's costs of investigating the title (Re Higgins and Hitchman, 21 Ch. D. 95; Re Ebsworth and Tidy, 42 Ch. Div. 53; Re Bryant and Barningham, 44 Ch. Div. 218); and such costs may be charged on the vendor's interest on the property (Re Yielding and Westbrook, 31 Ch. D. 344). An order to the like effect has been made on a vendor's summons (Re Higgins and Percival, 59 L. T. 213); and see the conditional order for return of 37 & 38 Vict. deposit in Re Beyfus and Master, 39 Ch. D. 112. A question as to a voluntary gift, which was held not to be within the act, was yet determined under it, counsel admitting a contract for a nominal consideration (Re Salisbury, 23 W. R. 824). c. 78, s. 9. The order on the summons may direct a reference to chambers as to the Reference to form of the conveyance (Re Moncton and Gilzean, 27 Ch. D. 564), or as to chambers. the amount of compensation (Aspinalls to Powell, 60 L. T. 595). In actions for specific performance the general rule is that the parties to Parties. the contract, or their representatives, are the necessary and sufficient parties to the action (Fry, 3rd ed. 73, 83). On a summons under this section the only persons between whom the court can decide anything are, it has been said, the vendor and the purchaser (Re Naylor and Spendla, 34 Ch. Div. 220), but other parties (e. g., a lord of the manor) may come in and be bound (ĺb.) The court may direct other parties to be served, see Re Tippett and Newbould, 37 Ch. Div. 446; a case in which the summons was subsequently by amendment made an originating summons on a question of construction. No decision will bind any party not before the court, e. g., the Crown in respect of duty (Re Cooper and Allen, 4 Ch. D. 827); nor will it prevent subsequent litigation against the same purchaser in respect of the same title (Osborne to Rowlett, 13 Ch. D. 781). A summons may be adjourned into court without discussion (Re Jackson Hearing of and Woodburn, 37 Ch. D. 47; see, however, Re Coleman and Jarrom, summons. 4 Ch. D. 168), or for further argument. An adjournment may be ordered either at the request of one of the parties (Re Warner, 17 Ch. D. 712), or at the discretion of the judge (Re Cooper and Allen, 4 Ch. D. 805); and the adjournment may be on part only of the summons (Re Tippett and Newbouid, 37 Ch. D.445). The judgment may be given in court if the purchaser desires it (Re Coleman and Jarrom, 4 Ch. D. 168). For the practice as to appeals from orders made in chambers under Appeals. this act, see Annual Practice, note to sect. 50 of Jud. Act, 1873. The time within which an appeal can be brought is twenty-one days (Re Blyth and Young, 13 Ch. D. 416; Re Ricketts and Avent, 1890, W. N. 16). As to the time from which this period is calculated, see R. S. C. Ord. 58, r. 15. When an order dismissing an application contains a declaration as such, or as an expression of opinion so as to bind the rights of the parties, it is not a simple refusal of the application within that rule (Re Clay and Tetley, 16 Ch. Div. 3). As a general rule the costs will follow the event (Re Davis and Cavey, Costs. 40 Ch. D. 609; Re Starr-Bowkett Society and Sibun, 42 Ch. D. 386; Re Johnson and Tustin, 30 Ch. Div. 49). If the question submitted is whether a good title can be made, and the title, even though not one which a conveyancer would recommend a purchaser to accept, is yet held good, the purchaser should pay the costs (Osborne to Rowlett, 13 Ch. D. 798). But no order was made as to costs where the difficulty arose from conflicting decisions (Osborne to Rowlett, 13 Ch. D. 774), nor where there was a fair point for discussion (Re Coward and Adams, 20 Eq. 179; Re Cosh and Metropolitan R. Co., 13 Ch. D. 613; Finch v. Jukes, 1877, W. N. 211; see Re G. N. R. Co. and Sanderson, 25 Ch. D. 788). Costs given against the vendor may be charged on his interest in the property (Re Yielding and Westbrook, 31 Ch. D. 345; Re Higgins and Percival, 59 L. T. 214). Where a respondent has not complied with an order made under this Enforcement section, a further application should be made in chambers to enforce the of order. order (Thompson v. Ringer, 44 L. T. 507); where Bucon, V.-C., dismissed a subsequent action for specific performance on the ground that this had not been done. 10. This act shall not apply to Scotland, and may be cited as the Vendor and Purchaser Act, 1874. CONVEYANCING AND LAW OF PROPERTY ACT, 1881. 44 & 45 VICTORIA, CAP. 41. An Act for simplifying and improving the practice of Con- 44 & 45 Vict. 1.-(1.) This act may be cited as the Conveyancing and Law c. 41, s. 1. of Property Act, 1881. Short title; commence ment; extent. Interpretation of property, land, &c. (2.) This act shall commence and take effect from and immediately after the thirty-first day of December one thousand eight hundred and eighty-one. (3.) This act does not extend to Scotland. (i.) Property, unless a contrary intention appears, includes real and personal property, and any estate or interest in any property, real or personal, and any debt, and any thing in action, and any other right or interest: (ii.) Land, unless a contrary intention appears, includes land of any tenure, and tenements and hereditaments, corporeal or incorporeal, and houses and other buildings, also an undivided share in land: (iii.) In relation to land, income includes rents and profits, and possession includes receipt of income: (iv.) Manor includes lordship, and reputed manor or lordship: (v.) Conveyance, unless a contrary intention appears, includes assignment, appointment, lease, settlement, and other assurance, and covenant to surrender, made by deed, on a sale, mortgage, demise, or settlement of any property, or on any other dealing with or for any property; and convey, unless a contrary intention appears, has a meaning corresponding with that of conveyance: (vi.) Mortgage includes any charge on any property for securing money or money's worth; and mortgage money means money, or money's worth, secured by a mortgage; and mortgagor includes any person from time to time deriving title under the original mortgagor (a), or entitled to redeem a mortgage, according to his estate, interest, or right, in the mort |