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power of sale of the settled lands; AND WHEREAS on the III. Sale of
Mansion. last, the vendor duly gave notice (c) of
house, Manors, &c. by Tenant for
life. (c) By sect. 45 of the Act it is enacted that :
(1) A tenant for life, when intending to make a sale, of notices exchange, partition, lease, mortgage, or charge, shall give notice having been of his intention in that behalf to each of the trustees of the given. settlement, by posting registered letters, containing the notice Notice to addressed to the trustees severally, each at his usual or last- trustees. known place of abode in the United Kingdom, and shall give like notice to the solicitor for the trustees, if any such solicitor is known to the tenant for life, by posting a registered letter, containing the notice, addressed to the solicitor at his place of business in the United Kingdom, every letter under this section being posted not less than one month before the making by the tenant for life of the sale, exchange, partition, lease, mortgage, or charge, or of a contract for the same.
“(2) Provided that at the date of the notice given the number of trustees shall not be less than two, unless a contrary intention is expressed in the settlement.
" (3) A person dealing in good faith with the tenant for life is not concerned to inquire respecting the giving of any such notice as aforesaid."
This section is intended to afford protection to persons interested in remainder under the settlement against secret and improper dealings with the settled property by the tenant for life. Although purchasers dealing in good faith with the tenant for life are not concerned to inquire as to the notice having been duly given, notice must in all cases be given, as prescribed in this section, to render the transaction valid as between the tenant for life and the remainderman, and if at the time when it is intended to enter into the contract there are no trustees of the settlement within the meaning of the Act, or only one such trustee, the tenant for life must either appoint trustees or a trustee, as the case may be, in exercise of his powers under the settlement or conferred by statute (see 44 & 45 Vict. c. 41, s. 31), or, if necessary, must apply to the Court to make such appointment under sect. 38 of the Settled Land Act, 1882; and when the full number of two trustees is in existence he must give to them the prescribed notice. An injunction will be granted on the application of a remainderman to restrain a tenant for life from selling, until trustees have been duly appointed for the purposes of the Act : the remainderman is entitled to be served with the summons for the appointment of the trustees, and to object to the persons proposed: Wheelwright v. Walker, 23 Ch. D. 752. See also Re Taylor (C. A.), W. N. 1883, p. 95. The Court has refused to appoint as trustee for the purposes of the Act the tenant for life, Re Harrop, 48 L. T. 937, or his solicitor : Wheelwright v. Walker, 23 Ch. D., at p. 763 : see also Re Kemp's Estate, 31 W. R. 930, in which case the solicitor was one of the original trustees of the settlement. During the month which is to elapse between the giving the notice, and the completion of the intended sale B,- VOL. I.
III. Sale of his intention to make the sale hereby contracted to be made Mansion. house,
to each of the said trustees, and also to their solicitors, Manors, &c. by Tenant for life.
or other transaction, it will be open to the trustees to object thereto, and if they think proper, to refer the matter to the Court under sect. 44 of the Act. It is, however, to be observed that the statute does not impose any obligation on them to interfere, however improper the transaction may be; they are not liable for adopting any contract made by the tenant for life, or bound to inquire into the propriety of any purchase, &c. (sect. 42); any interference will be at their own risk as regards the costs of the application (sect. 44). See, however, the observations of Pearson, J., in Wheelwright v. Walker, 23 Ch. D. at
Form of notice.
General notice not sufficient.
The Act does not prescribe the form or contents of the notice to be given; and it is considered by an eminent conveyancer that it may be a general notice, given by the tenant for life on coming into possession, to the trustees of his intention to sell all or any part of the estate, when a proper opportunity offers; and that such notice would not lapse, even in the event of a total vacancy in the trusteeship. See Wolst. S. L. Act, p. 33. But with all deference to this weighty opinion, it is conceived that this construction, until judicially confirmed, is open to question. The section does not say that if the tenant for life intends to sell he shall give notice of such intention, but that “when intending to make a sale” he shall give notice by letter, "posted not less than one month before the making by the tenant for life of the sale
.. or of a contract for the same:" it is submitted that “to make a sale” must mean to make a particular sale, whether of the whole or of a specified part of the settled lands; so that, whenever the tenant for life enters into negotiations for such sale, the notice should then be given, and if the negotiations for sale of any part of the property fall through with one intending purchaser, and fresh negotiations for sale of the same part are (after such an interval of time as to constitute the latter negotiations a separate transaction) entered into with the same or another purchaser, a fresh notice should be given. In the interval between the two transactions, circumstances may have arisen, giving ground for objecting to the sale, and if a general notice were to be held to be sufficient, it is evident that, as Mr. Wolstenholme himself admits, the protection afforded to remaindermen by this section would be so slight as to be practically almost illusory. The notice must be given one month before the making of a contract for the sale, and not merely before the completion of the sale ; and accordingly, in Wheelwright v. Walker, 23 Ch. D. 752, where there were no trustees of the settlement, a tenant for life was restrained by injunction from advertising the settled lands for sale by public auction until trustees should have been appointed for purposes of the Act, and until due notice should have been given to them.
The posting of the letters is sufficient notice, whether the letter is received or not. See Household Fire Insurance Company v. Grant (C. A.), 4 Ex. D. 216, and the cases there cited. It does not
Lincoln's Inn Fields, London ; III. Sale of NOW THESE PRESENTS WITNESS, and the vendor,
Manors, &c. appear to be open to the trustees to accept notice from the tenant by Tenant for
life. for life in any other way or through any other channel than those prescribed in this section.
Contract, The consequences of non-observance of the formalities pre- Results of not scribed are not fully or expressly stated in this section, and the giving prequestion can only be completely settled by decisions of the Court. scribed notice. The following considerations on this point must, however, be borne in mind :
(i) A tenant for life in the exercise of his powers is a trustee for all parties interested (sect. 53); see, however, the observations of Bacon, V.-C., in Thomas v. Williams, 24 Ch. D. at p. 566; his omission to give the prescribed notice would clearly be a breach of trust on his part, and consequently it is conceived he would not be in a position to enforce specific performance in case the purchaser were to refuse to carry out the contract. See Thompson v. Blackstone, 6 Beav. 470.
(ii) In case the tenant for life were to refuse to carry out the contract, a bond fide purchaser would be entitled to bring an action against him for specific performance ; but in that case the trustees or remainderman might intervene on hearing of the intended sale, and object thereto. See Wheelwright v. Walker, 23 Ch. D. 752. The transaction not having been completed would be subject to the control of the Court, and if it should be set aside, the only remedy of the purchaser would be against the tenant for life personally in respect of damage for non-performance.
(iii) Although the sale once completed cannot be set aside, unless on the ground of fraud to which the purchaser was a party, the selling tenant for life will be personally liable, as trustee for persons interested, to make good any loss to the estate occasioned by an improvident sale by him ; it cannot, however, be doubted that in such a case if the prescribed notices had been duly given, and full opportunity thus given for objections to be made to the sale, the tenant for life would have a good answer to any one seeking to make him thus liable, except in the case of fraudulent misrepresentation or collusion with the trustees.
By sect. 54 of the Settled Land Act, 1882, it is enacted that: General pro"On a sale, exchange, partition, lease, mortgage or charge, a tection of purchaser, lessee, mortgagee, or other person, dealing in good purchasers, faith with a tenant for life shall, as against all parties entitled under the settlement, be conclusively taken to have given the best price, consideration, or rent, as the case may require, that could reasonably be obtained by the tenant for life, and to have complied with all the requirements of this Act."
A purchaser would not be dealing in good faith if acting in Bond fide collusion with the tenant for life to carry out a sale at an under- purchaser. value, or in other respects prejudicial to the interests of the remaindermen, or if he had actual or constructive notice of the non-observance by the tenant for life of the requirements of the Act as regards notice to trustees of the intended sale. As to constructive notice, see Conveyancing Act, 1882 (45 & 46 Vict. c. 39), sect. 3.
III. Sale of so far as relates to the acts on his part to be performed, Mansion
house, agrees with the purchaser, and the purchaser, so far as relates Manors, &c. to the acts on his part to be performed, agrees with the by Tenant for
vendor as follows, that is to say :
1. The vendor shall sell, and the purchaser shall purchase, Sale and purchase. for the price of £-- (to be paid in manner hereinafter Parcels.
mentioned), ALL THAT the mansion-house known as
acres or thereabouts, and situate in the parishes of W. X. Y. and Z. respectively, and in the county of aforesaid, and all which hereinbefore mentioned premises are particularly described in the schedule hereunder written and delineated in the map or plan hereunto annexed; And Also all those the two several manors or lordships, or reputed manors or lordships of X. and Y., in the county of aforesaid, with their respective rights, members, and appurtenances; And Also all that the advowson and right of patronage and presentation of and to the rectory of aforesaid ; And Also all other (if any) the lands, tenements, and hereditaments whatsoever situate in the parishes of W. X. Y. and Z. respectively, and of or to which the vendor is now seised or entitled as tenant for
life in possession, under or by virtue of the said will. Particulars as 2. The bulk of the property is of freehold tenure, but to tenure, &c. subject as to part thereof to a fee farm rent of £
per annum payable to the lord of the manor of Z.; or thereabouts are of copyhold tenure, and are held of the manor of 2. aforesaid, at quit rents amounting altogether to £
per annum, and are also liable to fines and heriots ; and the remainder of the property, comprising
acres or thereabouts, is of leasehold tenure, and held for the unexpired residue of a term of years
from the day of
18–, granted by an indenture of lease dated the
18–, and expressed to be made between [parties] at the yearly rent of £and subject to the lessees' covenants, and conditions therein contained. Subject and except as herein is mentioned the property will be sold absolutely free from incumbrances.
&c. to be
3. The tenant's fixtures in and about the mansion-house, III. Sale of
Mansionand all iron hurdles and iron fencing, and all the timber and
house, timberlike trees, tellers, pollards and saplings, down to the value Manors, &c.
by Tenant for of one shilling per stick, and the underwoods and plantations life. down to the stem (except the shrubs, plants, and fruit, and other
Fixtures, trees in the flower garden and kitchen gardens adjoining the timber, crops, mansion-house), and all agricultural machinery and imple- taken at a ments, and the growing crops, dung, and compost, and all valuation, acts of husbandry and all rights usually appraised by the custom of the country as between an incoming and an outgoing tenant shall be paid for by the purchaser at the time fixed for the completion of the sale at a valuation to be made by two referees, one to be nominated by the vendor and the other by the purchaser, or by an umpire to be appointed by such referees before proceeding to a valuation; but if either the vendor or purchaser shall refuse or neglect to nominate a valuer, and to notify such nomination in writing to the other of them, before the
next, or if the valuer nominated by either party shall refuse or neglect to act, then the decision and valuation shall be made by the referee (if duly notified as aforesaid) of the other party alone.
4. The purchaser shall allow the vendor to have the use, Vendor to until the
next, of the barns, dressing barns. rooms, stack-yards and farm buildings, on the home farm.
5. Upon or immediately after the execution of this Payment of contract the purchaser shall pay by way of deposit into the deposit (d).
have use of
(d) Unless the purchase-money is, by direction of the tenant Payment of for life
, paid into Court, it must be paid to the trustees of the purchasesettlement to be invested or applied by them as capital money Settled Land arising under the Act; the payment must not be made to“ fewer
Act, 1882. than two persons as trustees of the settlement, unless the settlement authorizes the receipt of capital trust-money of the settlement by one trustee" (sect. 39); and the receipt of the trustees, or of one trustee, if empowered to act, or of the personal representatives or representative of the last surviving or continuing trustee, is the only proper discharge to the purchaser for the payment of the purchase-money or any part thereof (sect. 40), except in the case of payment into Court, which effectually exonerates the person paying in the money (sect. 46). It frequently happens that trustees have no existing account
any bankers, and it may not be thought worth while to open an account in their names, merely for the purpose of receiving the amount of the deposit. It must be borne in mind