« SebelumnyaLanjutkan »
time of executing the said conveyances, deliver to the other Excbange.
the several title-deeds in his custody or power relating to the
lands conveyed in exchange (k). Expenses of 5. Each of the said parties shall pay the costs and charges conveyances.
for preparing and engrossing the (?) conveyance of the preFees of coun- mises received by him in exchange; And the fees and sel, &c.
charges of his own counsel and solicitor.
IN WITNESS, &c.
XXVII. AGREEMENT for an EXCHANGE, between
a MAYOR AND CORPORATION and a prirate Individual, to be effected by the LAND COMMISSIONERS
for England and Wales (m). AN AGREEMENT made the
day of 18–, BETWEEN the mayor, aldermen, burgesses and commonalty of the borough of — of the one part; and A. B., of &c., of the other part, WHEREBY it is agreed as follows; that is to say:
1. The piece or parcel of land, &c. [describe parcels], belonging to the said mayor, aldermen, burgesses and com
been aliened by the other party), as the purchaser might otherwise be evicted from the lands purchased, on account of a defect in the title to the lands given in exchange : vide post, tit. EXCHANGES.
(k) If the title-deeds relate to lands of greater value : vide ante, p. 405, substituting "exchanged” for “sold."
(1) If the premises are copyhold, say, “surrender of and deed of covenants relating to the premises monalty, and more particularly described in the first schedule hereunder written, and delineated in the plan hereto annexed,
received by him in exchange.” Exchanges by (m) The above Precedent is adapted from one contained in the Land Com.
3rd edition of this work, vol. i., p. 634, which provided that the missioners.
parties should apply for the King's licence, or for a private Act of Parliament, as was then necessary, when either of the parties were under any disability for the purpose of carrying the proposed arrangement into effect. Exchanges are now frequently effected by the Land Commissioners for England and Wales under the Inclosure Acts, 1845 to 1878. And partitions are
sometimes, but less frequently, effected in the same manner. Inclosure The Acts comprised under the above title are as follows, Acts, 1845 to viz. :-8 & 9 Vict. c. 118; 9 & 10 Vict. c. 70; 10 & 11 Vict. 1878.
c. 111; 11 & 12 Vict. c. 99; 12 & 13 Vict. c. 83; 15 & 16 Vict. c. 79; 17 & 18 Vict. c. 97; 20 & 21 Vict. c. 31 ; 22 & 23 Vict.
c. 43; 31 & 32 Vict. C. 89; 39 & 40 Vict. c. 56; and 41 & 42 Vict. c. 56.
In sects. 16–21 of the stat. 8 & 9 Vict. c. 118, the “persons interested for the purposes of applications under the Act described; the description includes persons in actual possession or enjoyment of lands, or receipt of the rents and profits thereof, without regard to the real amount of interest of such persons, and provisions are made to meet cases where the “persons interested” are the Crown, the Duchies of Lancaster and Cornwall, or are jointly interested or under disability. By the interpretation clause, sect. 167, it is provided that, “the word
person'shall mean and include the Queen's Majesty, and any body corporate, aggregate or sole, as well as an individual.”' And sect. 147 of this Act enacts, “ that it shall be lawful for the Exchanges commissioners, upon the application in writing of the person
sons may be made interested, according to the definition hereinbefore contained, in under sanclands not subject to be inclosed under this Act, or in lands tion of comsubject to be inclosed under this Act as to which no proceedings lands not subfor an inclosure shall be pending, and who shall desire to effect ject to be inan exchange of lands in which they respectively shall be so closed, or as
to which no interested, to direct inquiries whether such proposed exchange
inclosure is would be beneficial to the owners of such respective lands: and
pending, in case the commissioners shall be of opinion that such exchange would be beneficial, and that the terms of the proposed exchange are just and reasonable, they shall, unless notice of dissent to the proposed exchange shall be given, under the provisions hereinafter contained, cause to be framed, and confirmed under the hands and seal of the commissioners, an order of exchange, with a map or plan thereunto annexed, in which order shall be specified and shown the lands given and taken in exchange by each person so interested respectively; and a copy of such order, under the seal of the commissioners, shall be delivered to each of the parties on whose application the exchange shall have been made; and such order of exchange shall be good, valid and effectual in the law to all intents and purposes whatsoever, and shall be in nowise liable to be impeached by reason of any infirmity of estate, or defect of title of the persons on whose application the same shall have been made ; and the land taken upon every such exchange shall be, and enure to, for, and upon the same uses, trusts, intents and purposes, and subject to the same conditions, charges and incumbrances, as the lands given on such exchange would have stood limited, or been subject to, in case such order had not been made; and all expenses with reference to such order and exchange, or the inquiries in relation thereto, or to any proposed exchange, shall be borne by the persons on whose application such order shall have been made, or such inquiries undertaken : Provided always, that no exchange shall be made of any land held in right of any church or chapel, or other ecclesiastical benefice, without the consent, testified in writing, of the bishop of the diocese, and the patron of such benefice."
and therein coloured red shall, as soon as conveniently may be,
Exchanges by By the Ecclesiastical Leasing Act, 1850 (21 & 22 Vict. c. 57), ecclesiastical sect. 1, ecclesiastical corporations are also empowered to make corporations. sales and exchanges, in certain cases, with the approval of the
the same Act it is provided that lands taken in exchange in
land shall be held as freehold accordingly.”
Inclosure Acts) applicable to the powers of exchange and par-
exchanged. Stat. 15 & 16 By the stat. 15 & 16 Vict. c. 79, s. 32, power to effect parVict. c. 79. titions and exchanges is given “ where any person or persons,
interested in any undivided parts or shares of any land or other subject matter of partition, within the meaning and intent of the said recited Acts, or any of them, and also interested in the entirety of any land or other subject matter of exchange within the meaning and intent of the said recited Acts or any of them, shall be desirous at one and the same time of effecting a partition
and exchange thereof." Stat. 17 & 18 By the stat. 17 & 18 Vict. c. 97, “Undivided shares in any Vict. c. 97. land or other subject-matter of exchange, may be exchanged
under the provisions of the said Acts, upon the application of the person interested under the provisions of the said Acts, in respect of such undivided shares (sect. 2): and “the word land' shall extend to and include incorporeal as well as corporeal
belonging to the said A. B., and more particularly described in the second schedule hereunder written, and delineated in the said plan and therein coloured green.
hereditaments, and any undivided share thereof” (sect. 3). And by sects. 10 and 11 of the same Act, the commissioners are empowered to apportion fee farm rents and other fixed annual or periodical payments charged upon lands, and by the order of apportionment may, where necessary, determine boundaries of lands charged with such payments.
The stat. 20 & 21 Vict. c. 31, contains provisions with regard Stat. 20 & 21 to exchanges of land by railway and other companies (sect. 4), Vict. c. 31. and as to exchanges of lands in which her Majesty is interested in reversion (sect. 5). And the same Act provides that on an exchange, inequality of value may be compensated by a rentcharge sect. 6); and that on a partition disproportion in value of allotments in severalty may be similarly compensated (sect. 7); provided that the deficiency in value is not to exceed one-eighth of the actual value (sect. 8).
Tenants for life and other limited owners in possession may, Limited under the Inclosure Acts, initiate exchanges, &c., which, when owners. completed, will bind the remaindermen: Minet v. Leman, 20 Beav. 269; 24 L. J., Ch. 545; and now by the Settled Land Act, Stat. 45 & 46 1882 (45 & 46 Vict. c. 38), sect. 3, a tenant for life, or other Vict. o. 38. limited owner, " (iii) may make an exchange of the settled land, or any part thereof, for other land, including an exchange in consideration of money paid for equality of exchange; and (iv) where the settlement comprises an undivided share in land, or under the settlement, the settled land has come to be held in undivided shares, may concur in making partition of the entirety, including a partition in consideration of money paid for equality of partition.” By sect. 4 of that Act “ (2) every exchange and every partition shall be made for the best consideration in land or in land and money that can reasonably be obtained,” and may be made subject to any stipulations respecting title, and to any restrictions or reservations with respect to buildings, mines and minerals, &c. The Act contains provisions for enabling the settled lands to be dealt with where the limited owners are infants, lunatics, &c. See sects. 59-62.
Under the Inclosure Acts gavelkind lands may be exchanged Gavelkind for common socage lands, but the lands exchanged respectively lands. retain their original tenure : Minet v. Leman, ubi supra. The commissioners have no power, in exchanging customary freeholds, to transfer the heriots and services : Mayor and Corporation of Basingstoke v. Lord Bolton, 3 Drew. 50.
Where persons having agreed to exchange lands are desirous Applications that the exchange should be effected by the land commissioners, to land comlimited forms of application with instructions for effecting missioners. exchanges under the provisions of the Inclosure Acts may be obtained from the office of the commissioners, No. 3, St. James' Square, London. The name and residence of the valuer proposed to be employed must be submitted to the commissioners for approval, before the valuation is undertaken. The valuer
Appointment of valuer,
2. The said A. B., and the said mayor, aldermen, and burgesses, and all other necessary parties (if any), shall forthwith concur in an application to the Land Commissioners for England and Wales for an order of exchange under the hands and seals of the said Commissioners, in pursuance of the “Inclosure Acts, 1845 to 1878,” ratifying this agreement and carrying the same into effect.
3. The said properties hereby agreed to be exchanged shall be surveyed and valued by C. D., of &c., on behalf of all parties to this agreement, subject to his nomination as such valuer being approved of by the said Commissioners; and if the said nomination shall not be so approved of, or if from any other reason the said C. D. shall not be able to act as such valuer as aforesaid, then the said properties shall be surveyed and valued respectively by such other competent and trustworthy valuer, as shall be agreed upon by the said parties to this agreement, and approved of by the said Commissioners.
4. The said A. B., his heirs, executors, administrators, or assigns, shall pay all costs, charges, and expenses, of and incident to the preparing and execution of these presents, and the making of the said valuation, the obtaining such order of exchange from the said Commissioners as aforesaid. In witNESS whereof the said mayor, aldermen, burgesses, and com
Agreement respecting expenses.
Mode of pro
selected must be admittedly competent and trustworthy, and not the agent of, or connected with, either of the parties exchanging: In exchanges of glebe for other lands the bishop's consent should be obtained before the selection of the valuer. The valuation must be stamped as an appraisement. See stat. 31 & 32 Vict. c. 89, s. 2.
The application and valuation having been received and considered by the Commissioners, notice is given by advertisement in three successive weeks of the proposed exchange, and after the expiration of three calendar months from the publication of the last of such advertisements, without any notice of dissent having been given to the Commissioners, an order of exchange is made, vesting the exchanged lands in the respective parties. By the order the title (though not the tenure is effectually shifted, so as to render unnecessary the insertion, in an agreement for an exchange to be effected by the Commissioners, of any stipulations with regard to delivery of, or requisitions on title. The only material point in this respect is to satisfy the Commissioners that the applicants are "persons interested” within the meaning of the Inclosure Acts. The procedure of the Commissioners with regard to partitions is similar to that with regard to exchanges.