IX. AGREEMENT for the SALE of LAND, with AN AGREEMENT made the day of,18—, BETWEEN A. B., of &c. (hereinafter called the vendor), of Parties. (a) The provisions of the Lands Clauses Consolidation Act, Power to pur1845 (8 & 9 Vict. c. 18), with regard to the purchase of lands by agreement, are as follows: Sect. 6. "Subject to the provisions of this and the special Act it shall be lawful for the promoters of the undertaking to agree with the owners of any lands by the special Act authorized to be taken, and which shall be required for the purposes of such Act and with all parties having any estate or interest in such lands or by this or the special Act enabled to sell and convey the same, for the absolute purchase, for a consideration in money of any such lands, or such part thereof as they shall think proper, and of all estates and interests in such lands of what kind soever." chase lands by agreement. sell and con vey. Sect. 7. "It shall be lawful for all parties, being seised, pos- Parties under sessed of, or entitled to any such lands, or any estate or interest disability therein, to sell and convey or release the same to the promoters enabled to of the undertaking, and to enter into all necessary agreements for that purpose; and particularly it shall be lawful for all or any of the following parties so seised, possessed, or entitled as aforesaid so to sell, convey, or release; (that is to say), all corporations, tenants in tail or for life, married women seised in their own right or entitled to dower, guardians, committees of lunatics and idiots, trustees or feoffees in trust for charitable or other purposes, executors and administrators, and all parties for the time being entitled to the receipt of the rents and profits of any such lands in possession or subject to any estate in dower, or to any lease for life, or for lives and years, or for years, or any less interest; and the power so to sell and convey or release as aforesaid, may lawfully be exercised by all such parties other than married women entitled to dower, or lessees for life, or for lives and years, or for years, or for any less interest, not only on behalf of themselves and their respective heirs, executors, administrators, and successors, but also for and on behalf of every person entitled in reversion, remainder, or expectancy after them, or in defeasance of the estates of such parties, and as to such married women, whether they be of full age or not, as if they were sole and of full age, and as to such guardians on behalf of their wards, and as to such committees, on behalf of the lunatics and idiots of whom they are the committees respectively, and that to the same extent as such wives, wards, lunatics, and idiots respectively could have exercised the same power under the authority of this or the special Act, if they had respectively been under no disability, and as to such trustees, executors, and administrators on behalf of their cestui que trusts, whether infants, issue unborn, lunatics, femes covert or other persons, and that to the same IX. Sale of the one part, and the Land to Railway Company. Agreement for sale and purchase. Parties under * I.e. by sects. Amount of compensation in case of parties under disability to be ascertained by valuation and paid into the bank. Where vendor absolutely entitled lands may be sold on chief rents. Railway Company (hereinafter called the company) of the other part, WHEREBY It is agreed as follows, that is to say: 1. Under or by virtue of the powers, and subject to the extent as such cestui que trusts respectively could have exercised the same powers under the authority of this and the special Act if they had respectively been under no disability." Sect. 8. "The power hereinafter given to enfranchise copyhold lands, as well as every other power required to be exercised by the lord of any manor pursuant to the provisions of this or the special Act, or any Act incorporated therewith, and the power to release lands from any rent-charge, or incumbrance, and to agree for the apportionment of any such rent, charge or incumbrance, shall extend to and may lawfully be exercised by every party hereinbefore enabled to sell and convey or release lands to the promoters of the undertaking." Sect. 9. "The purchase-money or compensation to be paid for any lands to be purchased or taken from any party under any disability or incapacity, and not having power to sell or convey such lands, except under the provisions of this or the special Act, and the compensation to be paid for any permanent damage or injury to any such lands shall not, except where the same shall have been determined by the verdict of a jury, or by arbitration, or by the valuation of a surveyor appointed by two justices under the provision hereinafter contained, be less than shall be determined by the valuation of two able practical surveyors, one of whom shall be nominated by the promoters of the undertaking, and the other by the other party, and if such two surveyors cannot agree in the valuation, then by such third surveyor as any two justices shall upon application of either party, after notice to the other party, for that purpose nominate; and each of such two surveyors, if they agree, or if not, then the surveyor nominated by the said justices, shall annex to the valuation a declaration in writing, subscribed by them or him of the correctness thereof; and all such purchase-money or compensation shall be deposited in the bank for the benefit of the parties interested, in manner hereinafter mentioned." Sect. 10. "It shall be lawful for any person seised in fee of, or entitled to dispose of absolutely for his own benefit any lands authorised to be purchased for the purposes of the special Act to sell and convey such lands or any part thereof unto the promoters of the undertaking, in consideration of an annual rent*Repealed by charge payable by the promoters of the undertaking [*but except as aforesaid the consideration to be paid for the purchase of any such lands, or for any damage done thereto, shall be in a gross sum]." 23 & 24 Vict. c. 106, s. 1. Sect. 11. "The yearly rents reserved by any such conveyance shall be charged on the tolls or rates, if any, payable under the special Act, and shall be otherwise secured in such manner as shall be agreed between the parties, and shall be paid by the promoters of the undertaking as such rents become payable; and if at any time any such rents be not paid within thirty days after provisions of the ▬▬▬ Railway Act, 18-, and of the public IX. Sale of Acts incorporated therewith, the vendor, on behalf of himself Land to Rail they so become payable, and after demand thereof in writing, the person to whom any such rent shall be payable may either recover the same from the promoters of the undertaking, with costs of suit, by action of debt in any of the superior courts, or it shall be lawful for him to levy the same by distress of the goods and chattels of the promoters of the undertaking." way Com pany. Sect. 12. "In case the promoters of the undertaking shall be Power to purempowered by the special Act to purchase lands for extraordinary chase lands purposes, it shall be lawful for all parties who, under the pro- additional acrequired for visions herein before contained, would be enabled to sell and commodation. convey lands, to sell and convey the lands so authorised to be purchased for extraordinary purposes." Sect. 13. "It shall be lawful for the promoters of the under- Authority to taking to sell the lands which they shall have so acquired for sell and repurchase such extraordinary purposes, or any part thereof, in such manner and lands. for such considerations, and to such persons, as the promoters of the undertaking may think fit, and again to purchase other lands for the like purposes, and afterwards sell the same, and so from time to time; but the total quantity of land to be held at any one time by the promoters of the undertaking for the purposes aforesaid, shall not exceed the prescribed quantity." Sect. 14. "The promoters of the undertaking shall not, by Restraint on virtue of the power to purchase lands for extraordinary purposes, purchase from purchase more than the prescribed quantity from any party incapacitated under legal disability, or who would not be able to sell and persons. convey such lands, except under the powers of this and the special Act; and if the promoters of the undertaking purchase the said quantity of land from any party under such legal disability, and afterwards sell the whole or any part of the land so purchased, it shall not be lawful for any party being under legal disability to sell to the promoters of the undertaking any other lands in lieu of the land so sold or disposed of by them." without ap Sect. 15. " Nothing in this or the special Act contained shall Municipal enable any municipal corporation to sell for the purposes of corporations the special Act, without the approbation of the commissioners not to sell of her Majesty's Treasury of the United Kingdom of Great probation of Britain and Ireland, or any three of them, any lands which they the Treasury. could not have sold without such approbation before the passing of the special Act, other than such lands as the company are by the powers of this or the special Act empowered to purchase or take compulsorily." As Sect. 6.]-The promoters of the undertaking are defined in Sect. 6. sect. 2, as "the parties, whether company, undertakers, commis- Parties to the sioners, trustees, corporations, or private persons by the special agreement. Act empowered to execute such works or undertaking." regards railways, for the construction of which a certificate of the Board of Trade operating as a special Act has been issued, under the Railways Construction Facilities Act, 1864 (27 & 28 Vict. c. 121), the 30th section of that Act provides that " contracts relative to the purchase or taking of lands for the railway, IX. Sale of and all persons whomsoever having any estate or interest in Land to Rail- the hereditaments hereinafter mentioned, shall sell, and the way Com pany. Contracts ters. entered into by the promoters before the incorporation of the company by the certificate, shall be as binding on the company as if they had been entered into by the company." With respect to other undertakings, there is a great conflict of decisions as to the effect of contracts between promoters and landowners before the passing of a special Act, in consideration of the withdrawal of opposition to the passage of the bill through parliament. See the cases collected in Shelford on Railways, vol. ii. pp. 509 et seq.; and in Browne & Theobald, "Law of Railways," pp. 509–512. Space will not here permit of a full discussion of this question. The following points may, however, be regarded as settled: with promo- (i) If a company after its incorporation adopts and enjoys the benefit of a contract into which the promoters had entered before the incorporation, the company will in equity be bound by the contract: Edwards v. Grand Junction Canal Co., 1 My. & Cr. 650; S. C., 1 Rail. Ca. 173; Williams v. St. George's Harbour Co., 2 De G. & J. 547; Eastern Counties Rail. Co. v. Hawkes, 5 H. L. C. at p. 356. (ii) The contract must, however, be one which might lawfully be made by the company after incorporation: Preston v. Liverpool, Manchester, &c. Rail. Co., 5 H. L. C. 605. See also Taylor v. Chichester and Midhurst Rail. Co., L. R., 4 H. L. 628, where it was held that an agreement for pay ment by the company to a landowner of a sum of money as personal compensation absolutely, whether his land was taken or not, was ultra vires as being impliedly prohibited by the special Act. (iii) A contract to be valid must be unconditional, and not dependent on the taking of the land or the completion of the railway Gage v. Newmarket Rail. Co., 18 Q. B. 457. Sect. 7. Persons under disability. Tenants in tail. Tenants for life. Sect. 7.]-By 27 & 28 Vict. c. 121, s. 3, persons under disability are enabled to contract for the sale of lands to promoters before the incorporation of railway companies incorporated under that Act, but not to convey the lands. A contract by a tenant in tail under the Lands Clauses Act bars the entail, notwithstanding that he is prohibited by Act of Parliament from barring or defeating his estate tail, unless the reversion is in the Crown: Re Cuckfield Burial Board, Ex parte Earl of Abergavenny, 19 Beav. 153. And now a contract by such tenant in tail, made under the Settled Land Act, 1882, would bind the Crown. See sect. 58 (2) of that Act. An equitable tenant for life can, under this Act, contract to sell, but in such case the concurrence of the trustees is necessary effectually to convey the land: Lippincott v. Smyth, 29 L. J., Ch. 520. He can, of course, now contract to sell and convey under the Settled Land Act, 1882. A restraint on alienation is now inoperative to prevent a tenant for life from contracting to sell settled land (see Settled Land Act, 1882, s. 51); she can accordingly contract under that Act for the sale of property to a railway company as effectually as an absolute owner in fee. But by sect. 56 of that Act it is provided, that nothing in that Act shall prejudice any existing statutory powers. It would company shall purchase for the purposes of the railway and works by the said Railway Act, 18-, authorized to be therefore appear that the whole transaction may, if thought advisable, be carried through between a limited owner and a railway company, under the provisions of sect. 9 of the Lands Clauses Act, e. g. if a difficulty arises in fixing the price. IX. Sale of Land to Rail way Com pany. When the husband and wife are seised in right of the wife, Married woyet she is seised in her own right within the meaning of this men. section: Cooper v. Gostling, 11 W. R. 931; 4 Giff. 499. When the vendor's wife joins in the conveyance to release her dower, the deed should be acknowledged, where the purchasemoney is fixed by agreement and paid over to the vendor; but if the amount is ascertained under the Act, neither acknowledgment nor the concurrence of the wife in the conveyance appear to be required: Frend & Ware, Rail. Prec. 218. As to the several descriptions of guardians recognised by law, Guardians. see tit. APPOINTMENT, post. It would seem that the guardians referred to in sect. 7 are such as have the custody, not only of the person of the infant, but also of his lands, i.e. testamentary guardians and guardians appointed by the Lord Chancellor, and probably also guardians in socage, by election, and by custom. See Frend & Ware, Rail. Prec. 237. A committee cannot consent to an Act of Parliament for making Lunatics. a railway without the sanction of the Lord Chancellor: Re Brown, 1 M. & G. 201. The Court has authorized the committee to release lands taken under the Lands Clauses Act from a rent-charge upon purchase by the corporation of a government annuity of amount equal to the rent-charge: Re Brewer, 1 Ch. D. 409. Where no committee has been appointed, the company cannot safely complete without the sanction of the Court: Midland Rail. Co. v. Oswin, 3 Rail. Ca. 497. As to costs of reference to the master, and other claims before him, of necessary parties, see Re Taylor, 1 M. & G. 210; Re Walker, 7 Rail. Ca. 129; Re Briscoe, 2 De G., J. & S. 249. The necessity for a lessor's licence to assign under a covenant Lessees. to that effect in the lease is done away with by the Act: Slipper v. Tottenham and Hampstead Junction Rail. Co., L. R., 4 Eq. 112. A lessee is liable to the lessor for breaches of covenants in the lease committed before an assignment to a railway company: Mills v. East London Union, L. R., 8 C. P. 79; but not afterwards: Baily v. De Crespigny, L. R., 4 Q. B. 180. Sect. 9.-The provisions of this section must generally be Sect. 9. strictly observed. Two surveyors must be duly nominated, must Valuation. meet and discuss the matter, and issue their certificate. Mere agreement between two surveyors not appointed as directed is not sufficient: Wycombe Rail. Co. v. Donnington Hospital, L. R., 1 Ch. 268. See, however, Ex parte Rector of Adderley, 10 L. T., N. S. 131. Where upon a petition by an incumbent for investment of purchase-money of land taken for a railway, the Court, being satisfied that future interests were adequately protected, made the order prayed for, although the amount had been fixed |