c. 39, s. 2.

45 & 46 Vict. be made in that office by any act described in Part I. of the first schedule to the Conveyancing Act of 1881 (a), or by any other act, he may deliver in the office a requisition in that behalf, crown debts, referring to this section.

judgments,

&c.

(2.) Thereupon the proper officer shall diligently make the search required, and shall make and file in the office a certificate setting forth the result thereof; and office copies of that certificate shall be issued on requisition, and an office copy shall be evidence of the certificate.

(3.) In favour of a purchaser, as against persons interested under or in respect of judgments, deeds, or other matters or documents, whereof entries are required or allowed as aforesaid, the certificate, according to the tenour thereof, shall be conclusive, affirmatively or negatively, as the case may be.

(4.) Every requisition under this section shall be in writing, signed by the person making the same, specifying the name against which he desires search to be made, or in relation to which he requires an office copy certificate of result of search, and other sufficient particulars; and the person making any such requisition shall not be entitled to a search, or an office copy certificate, until he has satisfied the proper officer that the same is required for the purposes of this section.

(5.) General rules shall be made for purposes of this section, prescribing forms and contents of requisitions and certificates, and regulating the practice of the office, and prescribing, with the concurrence of the Commissioners of her Majesty's Treasury, the fees to be taken therein; which rules shall be deemed Rules of Court within section seventeen of the Appellate Jurisdiction Act, 1876, as altered by section nineteen of the Supreme Court of Judicature Act, 1881, and may be made, at any time after the passing of this act, to take effect on or after the commencement of this act (b).

(6.) If any officer, clerk, or person employed in the office commits, or is party or privy to, any act of fraud or collusion, or is wilfully negligent, in the making of or otherwise in relation to any certificate or office copy under this section, he shall be guilty of a misdemeanour.

(7.) Nothing in this section or in any rule made thereunder shall take away, abridge, or prejudicially affect any right which any person may have independently of this section to make any search in the office; and every such search may be made as if this section or any such rule had not been enacted or made.

(8.) Where a solicitor obtains an office copy certificate of result of search under this section, he shall not be answerable in respect of any loss that may arise from error in the certificate.

(9.) Where the solicitor is acting for trustees, executors, agents, or other persons in a fiduciary position, those persons also shall not be so answerable.

(10.) Where such persons obtain such an office copy without a solicitor, they shall also be protected in like manner.

(11.) Nothing in this section applies to deeds inrolled under 45 & 46 Vict. the Fines and Recoveries Act, or under any other act, or under

any statutory rule.

(12.) This section does not extend to Ireland.

c. 39, s. 2.

3 & 4 Will. 4,

c. 74.

3.-(1.) A purchaser shall not be prejudicially affected by Restriction on notice of any instrument, fact, or thing unless

(i.) It is within his own knowledge, or would have come to his knowledge if such inquiries and inspections had been made as ought reasonably to have been made by him; or

(ii.) In the same transaction with respect to which a question of notice to the purchaser arises, it has come to the knowledge of his counsel, as such, or of his solicitor, or other agent, as such, or would have come to the knowledge of his solicitor, or other agent, as such, if such inquiries and inspections had been made as ought reasonably to have been made by the solicitor or other agent.

(2.) This section shall not exempt a purchaser from any liability under, or any obligation to perform or observe, any covenant, condition, provision, or restriction contained in any instrument under which his title is derived, mediately or immediately; and such liability or obligation may be enforced in the same manner and to the same extent as if this section had not been enacted.

(3.) A purchaser shall not by reason of anything in this section be affected by notice in any case where he would not have been so affected if this section had not been enacted.

(4.) This section applies to purchases made either before or after the commencement of this act; save that, where an action is pending at the commencement of this act, the rights of the parties shall not be affected by this section (c).

(c) In a case where this section was much discussed, the same solicitor acted for mortgagor and mortgagee. The court refused to impute to the mortgagee notice either of facts known to the mortgagor, or of facts which had come to the knowledge of the solicitor when acting in previous transactions for other mortgagees of the same property (Re Cousins, 31 Ch. D. 671). The inquiry which ought reasonably to be made by an intending mortgagee is, to investigate the title: Gainsborough v. Watcombe Co., 53 L. T. 116; where a mortgagee was held entitled as a purchaser for value without notice, on the ground that an investigation would have disclosed no flaw.

Leases.

constructive notice.

4.-(1.) Where a lease is made under a power contained in a Contract for settlement, will, act of parliament, or other instrument, any lease not preliminary contract for or relating to the lease shall not, for the lease.

part

45 & 46 Vict. purpose of the deduction of title to an intended assign, form part of the title, or evidence of the title, to the lease.

c. 39, s. 4.

Appointment of separate

sets of

trustees.

Disclaimer of power by trustees.

Effect of power of

(2.) This section applies to leases made either before or after the commencement of this act (d).

(d) See V. & P. Act, 1874, sect. 2, rule 1, ante, p. 566; Conv. Act, 1881, sect. 13, ante, p. 586; S. L. Act, 1881, s. 31 (4), post, p. 696.

Separate Trustees.

5.-(1.) On an appointment of new trustees, a separate set of trustees may be appointed for any part of the trust property held on trusts distinct from those relating to any other part or parts of the trust property; or, if only one trustee was originally appointed, then one separate trustee may be so appointed for the first-mentioned part.

(2.) This section applies to trusts created either before or after the commencement of this act (e).

(e) See Conv. Act, 1892, sect. 6, post, p. 634; Savile v. Couper (36 Ch. D. 520); Re Moss' Trusts (37 Ch. D. 513); Re Paine (28 Ch. D. 725); and the cases quoted ante, p. 521. The trusts must be permanently distinct (Re Hetherington, 34 Ch. D. 211).

Powers.

6.-(1.) A person to whom any power, whether coupled with an interest or not, is given, may, by deed, disclaim the power; and, after disclaimer, shall not be capable of exercising or joining in the exercise of the power.

(2.) On such disclaimer, the power may be exercised by the other or others, or the survivors or survivor of the others, of the persons to whom the power is given, unless the contrary is expressed in the instrument creating the power.

(3.) This section applies to powers created by instruments coming into operation either before or after the commencement of this act (f).

(f) See Conv. Act, 1881, sect. 52, and note, ante, p. 613; and as regards release of powers by married women see note, ante, p. 296. A renunciation of executorship was held to be a disclaimer of a power of sale (Re Fisher and Haslett, 13 L. R. Ir. 546). The power given by the Settled Land Acts cannot be disclaimed (S. L. Act, 1882, s. 50, post, p. 705).

[Sect. 7, referring to acknowledgments by married women, is inserted ante, p. 306.]

Powers of Attorney.

8.-(1.) If a power of attorney, given for valuable consideraattorney, for tion, is in the instrument creating the power expressed to be irrevocable, then, in favour of a purchaser,

value, made absolutely irrevocable.

(i.) The power shall not be revoked at any time, either by anything done by the donor of the power without the concurrence of the donee of the power, or by the death, marriage, lunacy, unsoundness of mind, or bankruptcy of the donor of the power; and

c. 39, s. 8.

(ii.) Any act done at any time by the donee of the power, in 45 & 46 Vict. pursuance of the power, shall be as valid as if anything done by the donor of the power without the concurrence of the donee of the power, or the death, marriage, lunacy, unsoundness of mind, or bankruptcy of the donor of the power, had not been done or happened; and

(iii.) Neither the donee of the power nor the purchaser shall at any time be prejudicially affected by notice of anything done by the donor of the power, without the concurrence of the donee of the power, or of the death, marriage, lunacy, unsoundness of mind, or bankruptcy of the donor of the power.

(2.) This section applies only to powers of attorney created by instruments executed after the commencement of this act.

9.-(1.) If a power of attorney, whether given for valuable Effect of consideration or not, is in the instrument creating the power power of attorney, for expressed to be irrevocable for a fixed time therein specified, not value or not, exceeding one year from the date of the instrument, then, in made irrefavour of a purchaser,

(i.) The power shall not be revoked, for and during that fixed time, either by anything done by the donor of the power without the concurrence of the donee of the power, or by the death, marriage, lunacy, unsoundness of mind, or bankruptcy of the donor of the power; and

(ii.) Any act done within that fixed time, by the donee of the power, in pursuance of the power, shall be as valid as if anything done by the donor of the power without the concurrence of the donee of the power, or the death, marriage, lunacy, unsoundness of mind, or bankruptcy of the donor of the power, had not been done or happened; and

(iii.) Neither the donee of the power, nor the purchaser, shall at any time be prejudicially affected by notice either during or after that fixed time of anything done by the donor of the power during that fixed time, without the concurrence of the donee of the power, or of the death, marriage, lunacy, unsoundness of mind, or bankruptcy of the donor of the power within that fixed time.

(2.) This section applies only to powers of attorney created by instruments executed after the commencement of this act.

vocable for fixed time.

Executory Limitations.

limitations.

10.-(1.) Where there is a person entitled to land for an Restriction estate in fee, or for a term of years absolute or determinable on on executory life, or for term of life, with an executory limitation over on default or failure of all or any of his issue, whether within or at any specified period or time or not, that executory limitation shall be or become void and incapable of taking effect, if and as soon as there is living any issue who has attained the age of twenty-one years, of the class on default or failure whereof the limitation over was to take effect.

45 & 46 Vict.

(2.) This section applies only where the executory limitation c. 39, s. 10. is contained in an instrument coming into operation after the commencement of this act.

Amendment

of enactment

respecting long terms.

Long Terms.

11. Section sixty-five of the Conveyancing Act of 1881 (g) shall apply to and include, and shall be deemed to have always applied to and included, every such term as in that section mentioned, whether having as the immediate reversion thereon the freehold or not; but not

(i.) Any term liable to be determined by re-entry for condition broken; or

(ii.) Any term created by sub-demise out of a superior term, itself incapable of being enlarged into a fee simple.

(g) Ante, p. 617.

Reconvey

ance on

mortgage.

Mortgages.

12. The right of the mortgagor, under section fifteen of the Conveyancing Act of 1881 (), to require a mortgagee, instead of re-conveying, to assign the mortgage debt and convey the mortgaged property to a third person, shall belong to and be capable of being enforced by each incumbrancer, or by the mortgagor, notwithstanding any intermediate incumbrance; but a requisition of an incumbrancer shall prevail over a requisition of the mortgagor, and, as between incumbrancers, a requisition of a prior incumbrancer shall prevail over a requisition of a subsequent incumbrancer.

(h) Ante, p. 589.

Restriction on repeals in this act.

Saving.

13. The repeal by this act of any enactment shall not affect any right accrued or obligation incurred thereunder before the commencement of this act; nor shall the same affect the validity or invalidity, or any operation, effect, or consequence, of any instrument executed or made, or of anything done or suffered, before the commencement of this act; nor shall the same affect any action, proceeding, or thing then pending or uncompleted; and every such action, proceeding, and thing may be carried on and completed as if there had been no such repeal in this act.