40 & 41 Vict. c. 18, s. 13. Conditions that leases be settled by not to be in the court serted in orders made under this act. Conditions where in serted, may Where a power of leasing in the settlement was subject to a consent, the court refused to vest a power under this section except subject to the same consent (Re Hurle, 2 H. & M. 196). General powers vested under this section in two sets of trustees over two different properties will not authorize a joint mining lease at a single undivided rent (Folson v. Sheard, 5 Ch. Div. 19). Where an order has been made under this section, proceedings under it must be stayed before leases can be granted under the S. L. Act, 1882 (Re Poole, 50 L. T. 585). For form of order, see Seton, 1487, 1490, 4th ed. 14. Provided always, that in orders under this act for vesting any powers of leasing in any trustees or other persons, no conditions shall be inserted requiring that the leases thereby authorized should be submitted to or be settled by the court or a judge thereof or be made conformable with a model lease deposited in the judge's chambers, save only in any case in which the parties applying for the order may desire to have any such condition inserted, or in which it shall appear to the court that there is some special reason rendering the insertion of such a condition necessary or expedient (m). (m) For a case where the lease was ordered to be settled in chambers, see Re Farnell (33 Ch. D. 599). See also the cases quoted under sect. 13 (ante). 15. Provided also, that in all cases of orders (whether under this act or under the corresponding enactment of the acts hereby be struck out. repealed) in which any such condition as last aforesaid shall have been inserted, it shall be lawful for any party interested to apply to the court to alter and amend such order by striking out such condition, and the court shall have full power to alter the same accordingly, and the order so altered shall have the same validity as if it had originally been made in its altered state; but nothing herein contained shall make it obligatory on the court to act under this provision in any case in which from the evidence which was before it when the order sought to be altered was made, or from any other evidence, it shall appear to the court that there is any special reason why in the case in question such a condition is necessary or expedient (~). Court may authorize sales of settled estates and of timber. (n) This section corresponds to 27 & 28 Vict. c. 45, s. 2 (See Re Hoyle, 12 W. R. 1124; Re Dorning, 14 W. R. 125; Re Russell, 22 W. R. 399; Re Riley, 30 W. R. 78). For form of order, see Seton, 1492, 4th ed. 16. It shall be lawful for the court, if it shall deem it proper and consistent with a due regard for the interests of all parties entitled under the settlement, and subject to the provisions and restrictions in this act contained, from time to time to authorize a sale of the whole or any parts of any settled estates or of any timber (not being ornamental timber) growing on any settled estates, and every such sale shall be conducted and confirmed in the same manner as by the rules and practice of the court for the time being is or shall be required in the sale of lands sold 40 & 41 Vict. under a decree of the court (0). (0) This section is a substantial re-enactment of 19 & 20 Vict. c. 120, s. 11, the decisions under which appear to be applicable. The existence of a power of sale in the settlement will not prevent an order authorizing a sale under this section (Sect. 38, post, p. 658; Re Thompson, Johns. 418); but in such case a sale will only be authorized subject to any consents limiting the power (Re Hurle, 2 H. & M. 196). A sale has been authorized under this section notwithstanding the opposition of a contingent remainderman (Re Spurway, 10 Ch. D. 230; see further as to consents of persons interested, sects. 24-29, post, p. 652, and notes). The court refused to authorize a sale to the tenant for life without inquiry (Re Hilton, 1866, W. N. 107), or to give trustees a general power of sale (Re Peacock, 15 W. R. 100; see Re Elliott, 1879, W. N. 135); but where the settlement gave a general power after the death of a tenant for life, a general power was given by the court during his life (Re Andrews, 38 L. T. 877; 26 W. R. 811). A sale may be ordered with an indefeasible title (25 & 26 Vict. c. 53, s. 49). The minerals under the land may be excepted from a sale (Sect. 19, post), or the minerals may be sold apart from the surface (Re Mallin, 9 W. R. 588; Re Gray, 1875, W. N. 106; Re Law, 7 Jur. N. S. 511). And in the latter case wayleaves may be granted, and a rent reserved in respect of surface damage (Re Milward, 6 Eq. 248). Where part of the property sold was copyhold, it was ordered to be enfranchised, and the whole sold as freehold (Re Adair, 16 Eq. 124). Property not subject to settlement should not be included in an order under this section (Re Thompson, Johns. 418); but may be if the owner consents (Grey v. Jenkins, 26 Beav. 356; see Re Spurway, 10 Ch. D. 230; Re Goodwin, 3 Giff. 620). As to the effect of an order for sale dealing with such property, see note to sect. 40 (post, p. 658); Re Shepheard (8 Eq. 571). The consideration for a sale of leaseholds under this section may be a rentcharge during the remainder of the term sold (Re Grove, 1888, W. N. 47). And under sect. 18 (post), the consideration for a building sale may be a fee farm rent (See Re Carr, 9 W. R. 776). In Re Eyre (4 K. & J. 268), it was said that the conveyance must be settled by the judge whether the parties differed or not; but in a later case this was only required when the parties differed (Re Sheffield, 1876, W. N. 152). As to a sale out of court, see R. S. C. Ord. 51, r. 1a; the note to sect. 9 of the Partition Act, 1868 (post, p. 744); and the note ante, p. 598. It seems that an order under this section will prevent a sale under the S. L. Act, 1882, until the proceedings are stayed (Re Barrs-Haden, 49 L. T. 645; 32 W. R. 194; see Re Poole, 50 L. Ť. 583). For forms of orders, see Seton, 1496-1501, 4th ed. The order for sale may be varied by inserting the name of a new trustee (Scott v. Heisch, 1875, W. N. 211). Compare with the provisions of sects. 16-22 of the present act, the powers of a tenant for life under sects. 3, 4, 16 and 17 of the S. L. Act, 1882, post, p. 677 et seq. but [Sect. 17 is now repealed by sect. 64 of the S. L. Act, 1882, somewhat similar provisions are contained in sect. 36 of the S. L. Act, 1882, post, p. 697, where see note.] c. 18, s. 16. 18. When any land is sold for building purposes it shall be Consideration lawful for the court, if it shall see fit, to allow the whole or any for land sold part of the consideration to be a rent issuing out of such land, for building which may be secured and settled in such manner as the court farm rent. shall approve (p). (p) A grant at a fee-farm rent was authorized (Re Carr, 9 W. R. 776), but a general power to trustees to make such grants was refused (Re Elliott, 1879, W. N. 135). 40 & 41 Vict. c. 18, s. 19. 19. On any sale of land, any earth, coal, stone, or mineral may be excepted, and any rights or privileges may be reserved, Minerals, &c. and the purchaser may be required to enter into any covenants or submit to any restrictions which the court may deem advisable (2). may be ex cepted from sales. Court may authorize dedication of any part of (1) For form of order excepting minerals, see Seton, 1498, 4th ed. And see the special covenant into which a purchaser was required to enter (Re Mallin, 9 W. R. 588). 20. It shall be lawful for the court, if it shall deem it proper and consistent with a due regard for the interests of all parties entitled under the settlement, and subject to the provisions and restrictions in this act contained, from time to time to direct that any part of any settled estates be laid out for streets, roads, other works. paths, squares, gardens, or other open spaces, sewers, drains, or settled estates for streets, roads, and As to laying out and making and watercourses, either to be dedicated to the public or not; and the court may direct that the parts so laid out shall remain vested in the trustees of the settlement, or be conveyed to or vested in any other trustees upon such trusts for securing the continued appropriation thereof to the purposes aforesaid in all respects, and with such provisions for the appointment of new trustees when required, as by the court shall be deemed advisable (”). (r) This section is a substantial re-enactment of 19 & 20 Vict. c. 120, s. 14, the decisions under which appear to be applicable. The object of this and the following section is the development of land as a building estate, and the court cannot sanction drainage for agricultural purposes (Re Poynder, Dickson-Poynder v. Cook, 45 L. T. 403). The court will not direct roads to be made except where they are beneficial to the property in its actual state, or will be in a state immediately contemplated (Re Hurle, 2 H. & M. 196). The court has authorized leases on the terms of the lessees making roads (Re Chambers, 28 Beav. 653). The court will not require plans to be laid before it in every case (Re Hargreaves, 15 W. R. 54). For forms of orders, see Seton, 1506-1508, 4th ed. 21. Where any part of any settled estates is directed to be laid out for such purposes as aforesaid, the court may direct that executing and any such streets, roads, paths, squares, gardens, or other open maintaining spaces, sewers, drains, or watercourses, including all necessary or streets, roads, proper fences, pavings, connexions, and other works incidental and other works, and thereto respectively, be made and executed, and that all or any expenses part of the expenses in relation to such laying out and making thereof. and execution be raised and paid by means of a sale or mortgage of or charge upon all or any part of the settled estates, or be raised and paid out of the rents and profits of the settled estates or any part thereof, or out of any moneys or investments representing moneys liable to be laid out in the purchase of hereditaments to be settled in the same manner as the settled estates, or out of the income of such moneys or investments, or out of any accumulations of rents, profits, or income; and the court may also give such directions as it may deem advisable for any repair or maintenance of any such streets, roads, paths, squares, gardens, c. 18, s. 21. or other open spaces, sewers, drains, or watercourses, or other 40 & 41 Vict. works, out of any such rents, profits, income, or accumulations during such period or periods of time as to the court shall seem advisable. tions are to 22. On every sale or dedication to be effected as herein before How sales mentioned the court may direct what person or persons shall and dedicaexecute the deed of conveyance; and the deed executed by such be effected person or persons shall take effect as if the settlement had con- under the tained a power enabling such person or persons to effect such direction of sale or dedication, and so as to operate (if necessary) by way of revocation and appointment of the use or otherwise, as the court shall direct (s). (8) The wording of this section corresponds with 19 & 20 Vict. c. 120, s. 15, the decisions under which appear to be applicable. Where land was sold and a person appointed to convey, the legal estate, which was outstanding in mortgagees who were bound by the order, passed by the conveyance (Eyre v. Saunders, 28 L. J. Ch. 439). Where the land was vested in eleven persons, the court refused to order one to convey for all (Re Hole, 1868, W. N. 70). Where one of two trustees directed to convey died before completion, a new trustee was appointed and the order varied (Scott v. Heisch, 33 L. T. 498). The effect of a conveyance under this section being the same as a revocation of the uses of the settlement, the land is freed from succession duty (Re Warner, 17 Ch. D. 711). For form of order, see Seton, 1497, 1498, 1506, 4th ed. the court. to exercise powers con 23. Any person entitled to the possession or to the receipts of Application the rents and profits of any settled estates for a term of years by petition determinable on his death, or for an estate for life or any greater estate, and also any person entitled to the possession or to the ferred by receipt of the rents and profits of any settled estates as the this act. assignee of any person who but for such assignment would be entitled to such estates for a term of years determinable with any life, or for an estate for any life or any greater estate, may apply to the court by petition in a summary way to exercise the powers conferred by this act (f). (t) This section corresponds with 19 & 20 Vict. c. 120, s. 16, with the addition, however, of the words relating to an assignee. The decisions under the latter section appear to be applicable. The following have been held proper persons to petition. A widow and her children, where she was entitled during widowhood with remainder to her children (Williams v. Williams, 9 W. R. 888); trustees where there was no equitable tenant for life (Vine v. Raleigh, 24 Ch. D. 238; see Re Smith, 1878, W. N. 196), but not in such a case a receiver (24 Ch. D. 243). Jessel, M.R., considered that the words of the section did not apply to a tenant for life whose life estate was subject to a power of management in others (Taylor v. Taylor, 1 Ch. D. 432; 20 Eq. 302; but see 3 Ch. Div. 147). Orders have been made on the petition of a tenant for life and the trustees of prior terms (Ex p. Puxley, I. R. 2 Eq. 237; Re Harris, 42 L. T. 583; and see Re Smith, 1878, W. N. 196; Re Williams, 20 W. R. 967). Where one share was settled after the petition had been presented, the trustees of the settled share were joined as co-petitioners (Re Wilkinson, 21 W. R. 537). It was said by Jessel, M.R., that no person other than those described can petition (Taylor v. Taylor, 1 Ch. D. 431; but see Re Harris, sup.) It seems that a petition is necessary although an action is 40 & 41 Vict. c. 18, s. 23. With whose pending (Harvey v. Clark, 25 Beav. 7). The assignee of a tenant for life can petition under this act for a sale (Re Ebsworth and Tidy, 42 Ch. Div. 23). He could not sell under the S. L. Act, 1882; see s. 50. post, p. 705). As to the title, &c., of the petition, see S. E. Act Orders (post, p. 665); Re Burnley (23 W. R. 546). See the rules adopted by the Practice Masters stated in the Annual Practice. See also as to petitions, R. S. C. Ord. 52, rr. 16, 17. 24. Subject to the exceptions hereinafter contained, every consent such application to the court must be made with the concurrence or consent of the following parties; namely, application to be made. Court may dispense with consent in respect of certain estates. Notice to be Where there is a tenant-in-tail under the settlement in existence and of full age, then the parties to concur or consent shall be such tenant-in-tail, or if there is more than one such tenant-in-tail, then the first of such tenants-in-tail and all persons in existence having any beneficial estate or interest under or by virtue of the settlement prior to the estate of such tenant-in-tail, and all trustees having any estate or interest on behalf of any unborn child prior to the estate of such tenant-in-tail: And in every other case the parties to concur or consent shall be all the persons in existence having any beneficial estate or interest under or by virtue of the settlement, and also all trustees having any estate or interest on behalf of any unborn child (u). (u) The reference to exceptions ("the exceptions hereinafter contained") in the present section is wider than the similar reference in 19 & 20 Vict. c. 120, s. 17; but except in this respect the wording of the two sections is identical. The following cases were decided on the older section. It did not apply to petitions dealing with purchase-money (Re Cleveland, 1 Dr. & Sm. 481; Re Sexton Barnes, 10 W. R. 416). The concurrence was held necessary, of remaindermen (Re Merry, 15 W. R. 307); of persons interested in a term for raising portions (Re Boughton, 12 W. R. 34), or in the proceeds of a trust for sale after the death of the tenant for life (Re Ives, Bailey v. Holmes, 3 Ch. D. 690), or interested contingently under a subsettlement (Re Dendy, 4 Ch. D. 879). Trustees could only concur on behalf of unborn persons (Grey v. Jenkins, 26 Beav. 351; Eyre v. Saunders, 4 Jur. N. S. 830), not living cestuis que trusts (Re Boughton; Re Ives; Re Dendy, sup.) 25. Provided always, that where an infant is tenant-in-tail under the settlement, it shall be lawful for the court, if it shall think fit, to dispense with the concurrence or consent of the person, if only one, or all or any of the persons, if more than one, entitled, whether beneficially or otherwise, to any estate or interest subsequent to the estate tail of such infant (v). (v) See Camden v. Murray (27 S. J. 652). 26. Provided always, that where on an application under this given to per- act the concurrence or consent of any such person as aforesaid shall not have been obtained, notice shall be given to such person in such manner as the court to which the application shall be in the appli- made shall direct, requiring him to notify within a time to be sons who do not consent to or concur cation. |