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coveries), a contingent interest in real estate could be conveyed by fine; (Doe d. Christmas v. Oliver, 10 B. & C. 181); but, after that statute, contingent interests in real estate in England could not be conveyed at law, but merely in equity, as a matter of contract; (3 Martin's Conveyancing, 178, 179; 4 Martin's Conveyancing, 301): the Irish Act for the Abolition of Fines and Recoveries, 4 & 5 W. 4, c. 92, authorised the conveyance of contingent interests in hereditaments in Ireland. This state of the law was attempted to be remedied by the 5th section of the Transfer Act (a); the attempt succeeded very imperfectly, but the present act seems to give a complete power to dispose of all contingent and future interests in hereditaments of any tenure, except that as to rights of entry the enactment is confined to England (6). A person taking a conveyance under this enactment will stand precisely in the place of the person from whom he takes, and will become entitled in possession or absolutely, if the grantor would have become so en

(a) See supra, p. 12.

(b) This section, as it came from the framers, applied to England only; but in Parliament the words "in England" were struck out in the first branch, and the reference to the Irish Recovery Act added. The words "in England," in the second branch, were, it is supposed, left in through inadThe addition of the reference to the Irish Recovery Act introduces an apparent ambiguity in section 7, as to which of the recovery acts is intended, though all real question is obviated by the context.

vertence.

Contingent remainders.

titled, but not otherwise. With respect to copyholds, no surrender will be necessary in the case of a disposition under the act; but the person to whom the conveyance is made will, on its falling into possession, be entitled to admittance in the place of the person originally entitled.

SECTION 7.-This clause is intended to preclude a question which has been made, whether a married woman can disclaim by force of the Act for the Abolition of Fines and Recoveries, 3 & 4 Will. 4, c. 71. The enactment is confined to England alone, but the Irish Act, 4 & 5 Will. 4, c. 92, sect. 68, expressly authorises a disclaimer by a married woman (a).

SECTION 8.-With respect to this enactment see the observations, supra, pp. 51, 52, and the remarks in Mr. Bellenden Ker's Letter, (supra, pp. 36-47). It will be observed that only such of the contingent remainders created before the passing of the act are protected as have been existing since the 31st of December, 1844; that is, only such of the contingent remainders created before the passing of the act as had not failed or been destroyed before the 31st of December, 1844, and could not, by means of the 8th sect. of the Transfer Act, have failed or been destroyed since that day by the destruction or merger of the pre

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ceding estate. The practical benefit to conveyancing of this section is the same as that which was derived from the corresponding section of the Transfer Act; viz. the omission (which has now become usual) of the limitations to trustees to preserve contingent remainders.

It should be borne in mind that no alteration has been made in the rule, that a contingent remainder cannot be limited without a particular estate of freehold to support it; or in the rule that the remainder will fail if the particular estate determine by effluxion of time, or by some event on which it was, in its creation, limited to determine, before the remainder becomes vested. (See supra, pp. 43 et seq.)

SECTION 9.-The object of this section is to do away with the rule that the covenants of, and remedies against a lessee, and the obligations on the lessor, being incident to the immediate reversion, cease as regards the land on the surrender or merger of that reversion. (Webb v. Russell, 3 T. R. 678; Wootley v. Gregory, 2 You. & J. 536; Burton v. Barclay, 7 Bing. 745; Thorn v. Woolcombe, 3 B. & Adol. 586). The rule was altogether technical, was productive of injustice when it did operate, and occasioned a good deal of expense and trouble in preventing its operation when foreseen (a). The present enactment, however,

(a) See supra, pp. 47, 48.

72

OBSERVATIONS ON THE ACT 8 & 9 VICT. c. 106.

does not remedy the similar evil, which arises when the immediate reversion is extinguished, otherwise than by surrender or merger. This is a case which may happen when a lease has been granted by the trustees of a term, which is afterwards extinguished, either by virtue of a proviso for cesser contained in the instrument creating it, or of the act of the 8 & 9 Vict. c. 112, infra, p. 88; or where a lease, out of which under-leases have been granted, has, on a purchase of the fee by the lessee, been assigned to attend the inheritance. It may, however, be maintained, perhaps, that in these cases there is no extinguishment on the ground that, neither a proviso for cesser, nor the act referred to, will extinguish a term or lease, so long as there are rents and covenants legally incident thereto, inasmuch as the trusts of the term are not fully performed, or the term or lease become a satisfied term, so long as such rent and covenants are incident thereto.

OBSERVATIONS

ON

THE ACT 8 & 9 VICT. CAP. 112.

As this act makes a great change in the law, it may be interesting to the Profession to be acquainted with its origin and history.

history of the

The first clause (except the preamble) and the Origin and substance of the second clause were framed by the act. Author of the present Work, and, after being submitted to the revision of a learned friend of great eminence as a conveyancer, were, in the spring of 1844, given to Lord Brougham to be proposed for insertion, if his lordship should think fit, in the bill then before the House of Lords for simplifying the transfer of property. That bill, in a very abridged form, ultimately passed into the late Act to simplify the Transfer of Property; but the clauses referred to were not introduced, and were afterwards printed, with a note explaining their origin and intended purpose, in the first

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