nor to a mere the Act; but it applies to an equitable mortgage by deposit of title deeds (a). It applies only where there is a defined and specific charge indefinite gen- on a specified estate; and a general charge on real estate eral charge on realty in aid by a testator in aid of his personal estate, does not come of personalty. within the definition of a "mortgage" on the real estate in the hands of the devisee, unless and until the amount has been accurately defined, and the devisee has expressly taken the estate subject to such ascertained charge (b). the will. An heir taking by descent after the operation of the Act will not come within the last proviso, and so will not be entitled to exoneration, though the mortgage reserving the equity of redemption to the mortgagor and his heirs was executed before 1st January, 1866; for he takes immediThe date of ately from his ancestor, and not under the deed (c): neither would he be so entitled merely because the personalty is bequeathed by a will made before 1866 (d). Where a devisee claims under a will dated before 1866, he will be within the proviso, and entitled to exoneration, though the devisor may have executed another will after that date, which, without affecting the devise, operates as a republication of the will (e). or other intention." Signification As regards the signification of a "contrary or other inof "contrary tention" in respect of non-exoneration, it has been held that a mere direction by the testator that his debts “shall be paid as soon as may be" (f), or should be paid by his executors out of his estate" (g), (which would include real estate), or merely "out of his estate" (h), is not a sufficient indication of intention that the mortgaged estate should be exonerated. (a) Pembrooke v. Friend, 1 J. & H. 132; Coleby v. Coleby, L. R. 2 Eq, 803, (b) Hepworth v Hill, 30 Bea. 476. (c) Piper v. Piper, 1 J. & H. 91. (d) Power v. Power, 8 Ir. Chan. 340. (e) Rolfe v. Perry, 32 L. J. Cha. 471. (ƒ) Pembrooke v. Friend, 1 J. & H. 132. (g) Woolstencroft v. Woolstencroft, 2 De G. F. & Jo. 347; see how ever, per Wood, V. C., in Pembroke v. Friend, supra. (h) Brownson v. Lawrence, L. R. 6 Eq. 1. Where, however, the personal estate is bequeathed on trust to pay (a), or the bequest thereof is "subject to the payment of all (the testator's) debts "(b) a sufficient intention is shewn that the mortgage debt shall be paid, and the land exonerated; under a direction to pay debts, mortgage debts are included. In Fisher on Mortgages, the law is thus stated: a bequest of residuary property on trust to sell and pay debts, (even though specialty debts be mentioned which do not include the mortgage debts), (c) or any provision of a separate fund for the debt (d), have been held to shew that the mortgaged estate was exonerated by the fund provided; the circumstances that the testator had not distinguished that debt from other debts, that no special mode of payment had been provided for it, and that the devisee of the mortgaged estate was also an executor who was directed to pay the debts, and the consideration that a gift of property after payment of a debt is a gift of so much only as remains after payment of it, and therefore cannot be claimed by the donee free from it, being considered to strengthen the above conclusion." after 1867, 'It must be borne in mind that English cases on wills Cases in Eng executed after 1867 do not apply here, so far as regards a land on wills general direction that the debts or all the debts be paid inapplicable out of personalty, as the Imp. Act 30 & 31 Vic. c. 69, here as redeclares that such direction "shall not be deemed a declar- tion that debts gards direcation of an intention contrary to the rule [against exone- be paid out of personalty, ration-Ed.] established by the [prior] act, unless such contrary, or other intention shall be further declared by words expressly, or by necessary implication referring to all or some of the testator's debts or debt charged by way of mortgage on any part of his real estate." By the same act the word "mortgage" in the prior act and the same is made to extend to a vendor's lien on lands purchased by a testator. (a) Moore v. Moore, 1 De G. Jo. & Sm. 602. (b) Eno v. Tatham, 4 Giff, 181; Mellish v. Vallins, 2 J. & H. 194. (c) Porcher v. Wilson, 12 W. R. 1001. (d) Eno v. Tatam; Mellish v. Vallins; Moore v. Moore, supra; Smith v. Smith, 3 Giff. 263; Maxwell v. Hyslop, L. R. 4 Eq. 407. as to vendor's lien. Taken from 8 & 9 Vic. c. Interpreta Act. CON STAT. CH. 90. An Act respecting the Transfer of Real Property, and the liability of certain interests therein to Execution. This Act is taken mainly from the Imp. Stat. 8 and 9 Vic. ch. 106; its history is as follows: The Imp. Stat. 7 and 8 Vic., c. 76 was passed, having for its objects some of the features embraced in the later Act, but as it was somewhat faulty, for the reasons given by Mr. Ker in his letter to the Lord Chancellor (a), it was repealed by the Stat. 8 and 9 Vic. ch. 106, which was based on the suggestions in Mr. Ker's letter, (indeed framed by him), and which re-introduced in different shape some of the features of the repealed Act and made other new enactments. Our Stat. 12 Vic. ch. 71, was taken from the first Imp. Stat., and was repealed as to most of its clauses by 14 and 15 Vic. ch. 7, which, except in one or two particulars hereafter alluded to, followed the Imp. Stat. 8 and 9 Vic. ch. 106. SECTION 1. The words and expressions hereinafter mentioned, which in tion of certain their ordinary signification have a more confined or a different words in this meaning, shall in this Act, except where the nature of the provision or the context of the Act excludes such construction, be interpreted as follows, that is to say the word "Land" shall extend to messuages, lands, tenements and hereditaments, whether corporeal or incorporeal, and to any undivided share thereof, and to any estate or interest therein, and to money subject to be invested in the purchase of land or of any interest therein; the word "Conveyance" shall extend to a feoffment, grant, lease, surrender, or other assurance of land. 12 V. c. 71, s. 1. (a) See letter in Appendix. SECTION 2. 2. All corporeal tenements and hereditaments shall, as regards Corporeal the conveyance of the immediate freehold thereof, be deemed to tenements, lie in grant as well as in livery, 14, 15 V., c. 7, s. 2. The Common Law loved simplicity and notoriety; all it required for the creation or transfer of a freehold estate in possession was a mere oral gift, coupled with livery of seisin, the gift being incomplete without livery, unless by way of release or surrender to the next in estate, or by matter of record. Corporeal hereditaments were therefore said to lie in livery. Incorporeal hereditaments of certain kinds, as for instance a freehold remainder created de novo out of lands in possession required livery, (a) and the estate arose and took effect out of the seisin of the feoffor, but all existing incorporeal hereditaments, inasmuch as no livery could from their nature be made of them, were transferred by way of grant, and were therefore said to lie in grant. deemed to lie in grant. and release. To the perfection of a conveyance by way of grant, a deed was requisite at Common Law (b). After the passing of the Statute of Uses, conveyancers availed themselves of its provisions to avoid the necessity of making livery, and conveyances by way of bargain and sale, and lease and release were Bargain and adopted. The first of these modes had many disadvantages (c); sale. Lease it was ineffective as such, if not based on a consideration of money, or money's worth; to pass a freehold estate it was necessary by the Statute of Enrolments, 27 H. 8, ch. 10, that it should be by deed, indented and enrolled: general powers, as to appoint or grant leases cannot be engrafted on a bargain and sale, (d) and it is not adapted to certain limitations as by way of shifting or springing use in the usual frame and limitations of marriage settlement. There must (a) Smith R1 Prop. 655, 3rd ed. (b) Co. Litt. 9 b, 172a. (c) As to these and other matters relating thereto, see Blackstone by Leith, p. 298; and, post, remarks under s. 14. (d) Gilbert Uses, 46; Sugden on Powers, 138; Watk. Conv. 9th ed. 357. Object and effect of section 2. be an estate in the bargainor of which seisin can be had, and not a mere right, contingency or possibility (a). For these reasons the conveyance by way of lease and release had in England, at least in all special conveyancing, entirely superseded the bargain and sale; the release operating as a conveyance at Common Law, and not by way of transmutation of possession. There was also the further reason and advantage, viz. : that the lease though operating under the Statute of Uses as a bargain and sale for a term, still did not require enrolment, as the Statute of Enrolments only applied to freehold estates. The disadvantage was that two deeds were requisite, and the lease was frequently lost and incapable of proof, and so the release, as such, in operative. The object and effect of the Statute is to give to the conveyance by way of grant, all the advantages with none of the disadvantages above explained attendant on that by way of lease and release (b). Being the creature of the Act it is not, of course, a Common Law conveyance as regards an immediate freehold, but it will operate in the same way as regards all uses and powers declared, and should be adopted in every case where the facts do not render other modes of conveyance, as by way of surrender, assignment, release, &c., more appropriate. The word grant is the only operative word used in the Act respecting short forms of conveyances, Con. Stat. c. 91, from which, however, it must not be inferred that as an operative word it is to supersede all others; such was not the intention of the Legislature; in fact, the use of the word grant in the original Act, 9 Vic. ch. 6, was, as hereafter explained (c) in treating of that Act, a singular mistake of the Legislature, which may have led to fatal consequences if uses were declared, for on the passing of that Act lands did not lie in grant. The operative word of conveyance therefore should be such as is appropriate to the facts; thus, if tenant for life in possession conveys to him next in remainder or reversion (a) Watk. Conv. 9th ed. 355. (b) See 12 Vic. c. 71 sec. 2. |