shall they affect the power of any such devisee or devisees to sell or mortgage as he or they may by law now do (o).

The bond fide payment to, and the receipt of any person to whom any purchase or mortgage money shall be payable upon any express or implied trust, shall effectually discharge the person paying the same from seeing to the application or being answerable for the misapplication thereof, unless the contrary shall be expressly declared by the instrument creating the trust or security (p).

Section 11.

Powers conferred on Ecclesiastical Corporations.

The acts of 21 & 22 Vict. c. 57, and 24 & 25 Vict, c 105, confer powers on ecclesiastical corporations, with the approval of the ecclesiastical commissioners, upon obtaining the consents required by the act to sell, exchange, partition, and enfranchise in manner authorized by the acts.

Section 12.

Powers conferred by Lord Cranworth's Act.

Lord Oranworth's Act (q), which was passed on the 28th August, 1860, recites, that it was expedient that

(o) lb. s. 18. (?) 23 & 24 Vict. c. 145.

\p) lb. s. 23.

S. N

certain powers and provisions which it was then usual to insert in settlements, mortgages, wills and other instruments should be made incident to the estates of the persons interested, so as to dispense with the necessity of inserting same in terms in every such instrument.

The first part of the act, which has been repealed by the Settled Land Act, 1882 (r), as from the 31st December, 1882, relates to trustees for sale and trustees of renewable leaseholds, and enacts! that, where by will, deed or other instrument of settlement it is expressly declared that trustees or other persons therein named or indicated shall have a power of sale over any hereditaments, it shall be lawful for such trustees or other persons, whether such hereditaments be vested in them or not, to sell either together or in lots, and either by auction or private contract, and either at one time or at several times, and (in case the power shall expressly authorize an exchange) to exchange any hereditaments which for the time being shall be subject to the uses or trusts aforesaid, for any hereditaments in England or Wales or in Ireland (as the case may be), and upon such exchange to give or receive any money for equality of exchange (s).

It shall be lawful for the person making any such sale or exchange to insert any such special or other stipulations, either as to title or evidence of title or otherwise, in any conditions of sale or contract for sale,

[ocr errors][ocr errors]

or exchange as they shall think fit, and also to buy in the hereditaments or any part thereof at any sale by auction, and to rescind or vary any contract for sale or exchange, and to resell without being responsible for any loss which may be occasioned thereby; and no purchaser under any such sale shall be bound to inquire whether the person making the same may or may not have in contemplation any particular re-investment of the purchase-money in the purchase of any other hereditaments or otherwise (t), and for the purpose of completing any such sale or exchange the persons empowered to sell or exchange shall have power to convey or dispose of the hereditaments in question either by -way of revocation and appointment of the use or otherwise (w).

The money so received upon any such sale, or for equality of exchange as aforesaid, shall be laid out in the manner indicated in that behalf in the will, deed or instrument containing the power of sale or exchange, or if no such indication be therein contained as to all or any part of such money, then the same shall with all convenient speed be laid out in the purchase of other hereditaments of freehold, leasehold, copyhold or customary tenure in manner as in the act particularly mentioned; provided that no leasehold tenement should be purchased under the powers thereinbefore contained which is held for a less period than sixty years (x).

[ocr errors][ocr errors]

Provided that it shall be lawful for the persons exeroising any such power as aforesaid, if they shall think fit, to apply any money to be received upon any sale or for equality of exchange as aforesaid or any part thereof, in lieu of purchasing lands therewith, in or towards paying off or discharging any mortgage or other charge or incumbrance which shall or may affect all or any of the hereditaments which shall then be subject to the same uses or trusts as those to which the hereditaments sold or given in exchange were or was subject (y).

No money arising from any such sale or exchange of lands or hereditaments in England or Wales shall be laid out in the purchase of lands or hereditaments situate elsewhere than in England or Wales, nor shall lands in England or Wales be exchanged for others situate elsewhere; and the same rule applies to lands and hereditaments sold or exchanged in Ireland (s).

It shall be lawful for any trustees of any leaseholds for lives or years which are renewable from time to time either under covenant or contract or by custom or usual practice, if they shall in their discretion think fit, and it shall be the duty of the trustees if thereunto required by any person having any beneficial interest, present or future or contingent, in such leaseholds, to use their best endeavours to obtain from time to time a renewed lease of the same hereditaments; but it is provided that the power is not to extend to any case where the person in possession for his life or other

(y) 23 & 24 Vict. c. 145, s. 5. (z) B. s. 6.

limited interest is entitled to enjoy the same without any obligation to renew or contribute to the expense of renewal (a). And the act provides for the raising of the money for equality of exchange or renewal of leases by mortgage of the hereditaments to be received in exchange or contained in the renewed lease (as the case may be), or of any other hereditaments for the time being subject to the subsisting uses or trusts to which the last-named hereditaments shall be subject (b).

No sale, exchange or purchase is to be made without the consent of the person appointed to consent by the will, deed or other instrument, or if no such person be appointed, without the consent of the tenant for life, if there be such a person under no disability, except in cases where it appears from the will, deed or other instrument to have been intended that such sale, exchange or purchase should be made by the person or persons making the same without the consent of any other person (c).

The second part of the act relates to mortgages, and has been repealed by the Conveyancing and Law of Property Act, 1881, sect. 71, as from the 31st December in that year; but as such repeal does not affect the validity or invalidity of instruments executed or any thing done before the commencement of the repealing act, the provisions of Lord Cranworth's Act relating to mortgages are retained, and the provisions of such re

(a) lb. B. 8. (c) lb. s. 10.

(b) lb. s. 9. . . i

« PreviousContinue »