Application of Compensation Money.

207

compensation to the owner of the property, but not to interfere at 8 & 9 VICT. C. 18. all with the title to that property, or to lay down any rule affecting the ownership of the property, or the manner in which the money to be given to the owner shall be engaged: (See per Lord Westbury, C, in Clephane v. Magistrates of Edinburgh, 4 MQ. H. L. 603; 14 L. T. N. S. 278, in which the House of Lords refused to order the rebuilding of a church, which had been taken by a railway company, in a manner identical with the former edifice.)

A purchase made, before reference to the master, of lands" to be Purchase before settled to the like uses," is not within this section, and the costs of reference. Costs. such a purchase were refused: (Ex parte Bouverie, 5 R. C. 431.)

ence directed.

But where, for the express purpose of avoiding a reference to the Form of order master, a vicar applied for the investment of the money paid for part where no referof the glebe in a proposed purchase of land, the title having been approved by his counsel, an order was asked for and made for sale of the stock, and application of the money to the proposed purchase, and for a conveyance to the vicar of the land, to be held by him in the same manner as the lands taken by the company had been held : (Ex parte Vicar of East Dereham, 21 L. J. (Ch.) 677.)

With some hesitation Vice-Chancellor Knight Bruce made an order, on a tenant for life's petition, that if the title should be approved the conveyance should be settled, and the consols sold, and the money paid to the vendors: (Ex parte Metherell, 20 L. J. (Ch.) 629; Re Hichin, 1 W. R. 505.)

But Vice-Chancellor Turner refused to follow Ex parte Metherell, Practice as it appeared that the order made was not, as was intended, co-ex- explained. tensive with the prayer in that case, (see 16 Jur. 512 N.,) and considered that the only order he could then make was for reference as to fitness and title, and to settle the conveyance, observing that the practice was that parties should then come back to the Court: (Ex parte Duckle, 16 Jur. 511.)

And in another case, Vice-Chancellor Turner, upon a petition for reinvestment, on an affidavit of the propriety of the proposed purchase, directed the registrar to make a note of the approval of the Court, the title to be submitted to the conveyancing counsel, and the matter to be mentioned again upon the certified opinion of the conveyancing counsel; and after having been re-submitted to him to draw the conveyance, to be again mentioned to the Court: (In re Caddick, 9 Ha. App. ix. ; 22 L. J. (Ch.) 10.) For forms of orders see 10 Ha. App. xxxvi.; Tripp's Chancery Forms, 140.

counsel.

In the last-cited case the petitioner was allowed to select from Particular conthe conveyancing counsel to the Court a particular one, to whom the veyancing matter should be submitted. But in Re Martin it was said that the Court would not make any order for that purpose: (17 Jur. 30; 22 L. J. (Ch.) 243.) By Gen. Ord. I., v. 5, however, the Court or a Judge in Chambers has a discretion to order a reference to any particular one of the conveyancing counsel.

The petition must not ask simply for a reinvestment in land, but Reinvestment must pray a reinvestment in a purchase, to be approved by a Judge subject to ap in Chambers: (Re Dunraven, 10 W. R. 56.)

proval of Judge in Chambers. And the court will direct a reference only as to the actual purchase Reference not exproposed, not as to any future or other investment in case of the posed purchase not being approved: (Ex parte Pumfrey, 4 R. C. 490.) proposed pur

pro

tended to future purchases in case

chase fail.

8 & 9 VICT. C. 18.

Conveyance drawn up in blank.

Defective title.

Undertaking of

(b) A conveyance having been drawn in blank as to the order to convey and for payment out, the proper mode of proceeding was declared to be that the engrossment should be prepared and ready for execution at the time of the application for the order, and that all but the dates and particulars of such order should be already filled up: (Re Caddick, 9 Ha. App. ix. ; 22 L. J. (Ch.) 10.)

A petition to carry into effect a contract for the purchase of land, the title to which, previous to 1824, was not to be disclosed, was refused; but a reference as to title before that date was directed, with a further direction, if it should be for the benefit of the parties, to see whether a good title could be made according to the contract: (Ex parte Lowe, 19 L. T. 310.)

The Court will not allow the fund deposited to be paid to the petitioner to ap- petitioner upon his undertaking to apply it in a purchase of land, ply the fund in a but directs a reference for title: (Ex parte Craven, 17 L. J. (Ch.) 215;) and see as to misapplication of funds, Great Northern Railway Co. v. Corporation of Lancaster, 16 Jur. 677.

purchase of land.

Corporation lands.

men.

Where corporation lands are taken, and the mayor, aldermen, and citizens pray for payment out, and for a scheme to be settled as to Meeting of free- the fund, the Court will not make an order without the consent of the freemen of the town, if they are interested in the fund, and will direct a meeting of the freemen to be held for the purpose of obtaining their consent: (Re Great Northern Railway Co.'s Act, 16 Jur. 756; 6 R. C. 738; 21 L. J. (Ch.) 621.)

Conversion.

Felon's land taken no conversion.

No conversion where money

should have been,

Money paid in under this section retains the qualities of real property, and descends to the heir.

In a case before Vice-Chancellor Kindersley, where the petitioner applied for payment out to him of his share of fund, which, upon his conviction as a felon, had been carried to the account of "the share of T. B., a convicted felon," the question arose as to whether there had been a conversion of the land, in which case the Crown would have been entitled. His Honour, in deciding that there had been no conversion, said: "It appears, then, upon the authorities, that when the circumstances of the case have been brought under the 69th section of the Lands Clauses Act, the money has been held to bear the character of realty; but if, on the other hand, the circumstances have brought the case under the 78th section of the Lands Clauses Act, then the money has been held personalty." In that case a jury had been summoned, and the money had been paid in under a section in a special act, similar to the present section: (Re Harrop's Estate, 3 Drew. 726; 26 L. J. (Ch.) 516; 3 Jur. N. S. 380.)

And where the company paid the interest of the purchase-money to the tenant for life, who had devised the estate as ultimate owner but was not, paid in fee, and the capital was not paid into Court until after his death, no conversion was held to have taken place, because the money should originally have been paid into Court under the section in the special act, corresponding to s. 69: (Re Bagot, 31 L. J. (Ch.) 772.)

in under s. 69.

Trust for sale not exercised, but money paid in.

Land settled with a trust for sale at the request of a husband and wife was taken, and the price fixed by jury, but paid into Court, in consequence of a supposed defect in the title. It was held that, notwithstanding that the sale was made under the compulsory

Re-investment of Purchase-money-Conversion.

209

powers, and not under the trusts, the purchase-money might be 8 & 9 Vior. c. 18. dealt with as if it had been paid in under the section of the special

act, corresponding with the 69th section: (Re Taylor's Settlement, 9

Hare, 598.)

Real estate had been devised to a lady for life, with a remainder Conversion. to H. J. Cramer, defeasible upon an event which did not happen. The land was taken by the Manchester Improvement Commissioners, and the price paid in. The dividends were paid to the tenant for life until her decease. Upon the death of the remainderman, it was held that the estate passed to his heir-at-law, and was not converted, upon the principle that the money still remained impressed with the trust for reinvestment in other land: (Re Stewart's Estate, ex parte Cramer, 1 Sm. & G. 32; 16 Jur. 1063; 22 L. J. (Ch.) 369 ; and the same rule was followed in Re Horner's Estate, 5 De G. & Stn. 453; 7 R. C. 373 ; 22 L. J. (Ch.) 369.

In a case where an imbecile, who, previous to his imbecility, had Lunatic's land. made a will, not containing, however, any general devise of real estate, was served with notice to treat, but died before the price could be paid to him, and the company paid it into Court, no conversion was held to have taken place: (Midland Counties Railway Co. v. Oswin, 1 Coll. 80; 3 R. C. 497.)

Land was settled to the use of a lunatic in tail, with remainders Election. over. The land being taken by a railway company, the price was paid into Court. The lunatic died, and the next tenant in tail made a will not affecting the fund, of the existence of which she was ignorant. It was held that no conversion had taken place, as no election on her part to take the fund in any way had been expressed : (Dirie v. Wright, 32 Bea. 662.)

But in a similar case to Midland Railway Co. v. Oswin, cited above, where the testator had devised his real and personal estate to different persons, and at the time his land was taken he became imbecile, and the value was paid into Court, a conversion was held to have taken place, because it was thought right to consider the testator as having made a complete contract: (In re East Lincolnshire Railway Act; Ex parte Flamank, 1 Sim. N. S. 260.)

dies before bind

And where the landowner died before conveyance, although no Conversion binding contract within the Statute of Frauds had been come to, where landowner Shadwell, V.-C., thought that the power given to the company by ing contract their act to take lands six months after notice, and to pay the made. money into Court, was sufficient; and as his Honour considered that the money had been properly paid in, he held that a conversion had been caused: (Er parte Hawkins, 13 Sim. 569.)

of more land

A testator had agreed with a railway company to sell at £500 per Mere settlement acre whatever land they might require. After his death, a contract of price in case with the tenant for life under his will was entered into for five being taken is no acres, and £2500 was paid into Court. It was held that no conver- conversion. sion had been worked by the former contract, as it only settled the price of the land, and was not a contract for purchase: (Ex parte Walker, 22 L. J. (Ch.) 888.)

chase

In the case of an option to purchase, which is unaffected by the Option to pur69th section, the land retains the original character of real estate until the option is exercised, and consequently until that time no conversion will take place: (Ex parte Hardy, 30 Bea. 206.)

8 & 9 VICT. C. 18.

Payment to incapacitated persons by mistake. Where misapplication feared.

Non-alteration

land to an infant: conversion.

Where the price of the land had been paid to the tenant in tail, and not into Court, but had been ascertained by arbitration, the Master of the Rolls directed the investment sought by him: (Ex parte Earl of Abergavenny, 4 W. R. 315.)

A railway company who bought corporation lands, having been, in consequence of disputes as to title, ejected from the land, paid the money to the corporation, and afterwards filed a bill, praying that the corporation might be ordered to pay in the money, as it was feared that they were about to misapply it. The corporation were thereupon ordered to pay into the bank a sum they admitted as having in their hands; but another part of the purchase-money having been invested on the security of certain local rates, was not included in the order: (Great Northern Railway Co. v. Corporation of Lancaster, 16 Jur. 677.)

A conversion is effected in those cases in which a person after of will devising making his will in favour of an infant contracts with a railway company, and dies without altering his will. The executors, in such a case, were held entitled to the fund paid in, and also to the compensation for severance: (In re Manchester and Southport Railway Co, 19 Bea. 365.)

Interest where

When the price of the property taken has been paid into a private money paid into bank, there to remain until the master approved the contract for a private bank. purchase as a re-investment, the company is bound to pay interest upon the fund so paid in: (Chambers v. White, 14 Jur. 1129.)

Agreement to pay interest.

Acquiescence.

ance.

A railway company agreeing to pay interest upon the purchasemoney until "the completion of the purchase," and afterwards paying the money into Court under this section, will, if the title be accepted, be bound to pay interest up to the time of payment into Court, but not longer: (Lewis v. South Wales Railway Co., 10 Hare, 119; 22 L. J. (Ch.) 209.)

But if the company, by acquiescence, admit their liability to a claim for interest until re-investment of the purchase-money, such interest will be allowed against them, notwithstanding that the money has been paid in under s. 69: (Ex parte Earl of Hardwicke, 1 De G. M. & G. 297.)

Specific perform- It has been held in Ireland, that, since upon an ordinary purchase Interest. interest is payable when there is delay on the part of the purchaser, on a bill for specific performance, a railway company must pay in terest from the time of taking possession until completion: (Blount v. Great Southern and Western Railway Co., 2 Ir. Ch. Rep. 40.)

Ward of Court.

Right of preemption not

Payment in, under this section, of money belonging to an infant, whose land has been taken by a railway company, does not constitute the infant a ward of Court: (Ex parte Brewer, In re Wilts, Somerset, and Weymouth Railway Co., 13 W. R. 959.)

A right of pre-emption given by will over estates taken by a railaffected by s. 69. way company, is not overridden by the provisions of the Lands Clauses Act. This was decided in a case where land had been devised to a widow for life, with remainder on trust for sale, but with a right for one of testator's sons to buy the estate for £450. The price paid by the railway company was £882, to which, on payment of the £450, the son was held entitled: (Re Cant's Estate, 4 De G. & J. 503, overruling 1 Giff. 12.)

Re-investment of Purchase-money.

211

And where a testator directed his real estate to be offered to his 8 & 9 VICT. C. 18.

children successively at a valuation, but the option was never exer- Option to pur cised, and the estate was taken by the corporation of London, the chase at a valuaquestion arose as to whether the money paid in belonged to the tion. heir-at-law or the next of kin; the Master of the Rolls held that until the option to purchase had been exercised, the estate remained in the position of realty; and as all the children had not yet attained twenty-one, and the option might therefore still be exercised, it was considered necessary to wait until the youngest attained that age, the income in the meantime to be paid to the heir-at-law of the testator: (Ex parte Hardy, 30 Bea. 206.)

sioners.

Money paid into Court by a railway company for lands purchased Consent of from a charity, may on petition be paid out, without the certificate Charity Commisof the Charity Commissioners under s. 17 of the "Charitable Trusts' Act, 1853," (16 & 17 Vict. c. 137): (Re Lister's Hospital, 6 De G. M. & G. 184, overruling In re London, Brighton, and South Coast Railway Co., 18 Bea. 608.)

Re Lister's Hospital was expressly followed by the Master of the Rolls in Re St Giles, &c., Volunteer Corps, 25 Bea. 313; 27 L. J. (Ch.) 560.

In certain applications, however, under the Trustee Acts and Where required. Private Charity Acts, the certificate of the commissioners is still apparently required. See In re Skeat's Charity, 25 L. J. (Ch.) 49 ;

1 Jur. N. S. 1037; Re Bingley Free School, 2 Drew. 283.

The fiat of the Attorney-General under Sir Samuel Romilly's Act, Fiat of Attorney(52 Geo. III. c. 101,) is not required on a petition for re-investment General. in the redemption of land-tax on other charity lands: (In re Lon

don, Brighton, and South Coast Railway Co., 18 Bea. 608.)

The consent of the Ecclesiastical Commissioners to a petition by Consent of a bishop for the application of a fund in Court, in buying up a lease- Ecclesiastical hold interest in other property belonging to the see, is not required: (Ex parte Bishop of London, 2 De G. F. & J. 14; 6 Jur. N. S. 640.)

Commissioners.

The consent of the Ecclesiastical Commissioners may, under s. 10 How signified, of the 23 & 24 Vict. c. 59, be signified by affixing their common seal 23 & 24 Vict. to a copy of the petition: (Ex parte Rector of Twyford, 1 W. N. c. 59, s. 10.

126.)

The 7th section of the 23 & 24 Vict. c. 59, extends to college Grants of annuities by comproperty; the commissioners, therefore, have power to grant a missioners, s. 7. charge by way of annuity to an incumbent of a rectory of which a college is the impropriator, for which purpose the Court will order a transfer to the commissioners of stock representing money paid in by a railway company to the account of the incumbent: (Ibid.) The commissioners will not formally recommend the grant of an annuity until the benefaction has been actually paid to their account, and a transfer is therefore previously requisite: (Ibid.) A petitioner having already paid a certain sum for the redemp- Redemption of tion of land-tax, was allowed the same out of the fund in Court: Er parte Lord Northwick, 1 Y. & C. 166; Ex parte Beddoes, 2 Sm. & G. 466.)

And a corporation will be allowed to apply part of the money deposited for the same purpose: (In re London, Brighton, and South Coast Railway Co., 18 Bea. 608.)

land-tax.