present or a former owner of the premises, either partially or absolutely interested in them, has taken the benefit of an Insolvent Debtors' Act, and has been discharged under it. He has conveyed all his property to the provisional assignee; but from the sufficiency of his other property, the non-appointment of particular assignees, or for some other reason, the legal estate in the property, or some portion of it, remains vested in the provisional assignee; and on a future sale or mortgage of the property, when the claims of the creditors of the insolvent are admitted to be satisfied, a difficulty presents itself as to the proper mode of getting in the legal estate.

It seems clear that the legal estate will not descend to, or vest in, the heir or devisee of the provisional assignee; for it is expressly provided by the Insolvent Debtors' Acts that the property acquired by the provisional assignees shall not vest in their heirs, executors, or administrators, but shall from time to time become vested in the provisional assignee for the time being. (a) The question then is, how the legal estate can be obtained from such provisional assignee.

The better course is, in the first place to apply to the provisional assignee, stating the circumstances, and requesting him to concur in a conveyance of the property to the purchaser or mortgagee; but this the provisional assignee sometimes declines to do. By the 13th section of the 54 Geo. III. c. 13, it is enacted, that the provisional assignee shall not be bound to do any act with respect to the estate conveyed to him, except to convey or assign the same to any person

66

(a) 54 Geo. III. c. 23. s. 12; 3 c. 57. s. 16.

Geo. IV. c. 123. s. 1; 7 Geo. IV.

or persons appointed assignee or assignees thereof for the purposes of the act ;" and therefore it is doubtful, whether under this act a provisional assignee can safely join in a conveyance or mortgage. By the General Insolvent Debtors' Act, it is enacted, (a) that every prisoner shall duly execute a conveyance and assignment to the provisional assignee of all his real and personal effects; which conveyance and assignment, when executed, shall vest all the real and personal estate and effects of such prisoner in the provisional assignee; and (b) power is given to such provisional assignee to take possession of all the real and personal estate of the prisoner; and if the court shall so order, to sell or otherwise dispose of the same according to the provisions of the act. It is further enacted, (c) that " a proper person or persons, being a creditor or creditors of such prisoner," may be appointed assignee or assignees of the estate and effects of such prisoner; and when such assignee or assignees shall have signified to the court his or their acceptance of the appointment, the estate and effects of such prisoner, vested in such provisional assignee as aforesaid, shall immediately be conveyed and assigned by such provisional assignee to the said assignee or assignees in trust for the benefit of such assignee or assignees, and the rest of the creditors of the prisoner; and after such conveyance and assignment by such provisional assignee, all the estate and effects of such prisoner shall be, to all intents and purposes, as effectually vested by relation in such assignee or assignees as if the conveyance and assignment had been made by such prisoner to him or them: provided nevertheless that no

act done under or by virtue of such first conveyance and assignment shall be thereby rendered void, or defeated, but shall remain as valid as if no such relation had taken place." Under this act, therefore, it is presumed that the provisional assignee might safely join in a sale or mortgage under the above-mentioned circumstances.

If, however, the provisional assignee will not concur, application must be made to the Insolvent Debtors' Court on the subject; and they will make such order as the circumstances of the case require.

By an act of the last session, (a) reciting that it may often happen that some interest in lands and tenements may become vested in the provisional assignee of the said court, which appears to be of no value to creditors, but nevertheless it may be reasonable and expedient that the provisional assignee should make or join in making some conveyance or assignment of the same, and that the same should be done without the expense attending advertisements and meetings of creditors, it is enacted, that it shall be lawful for the court, if no creditor shall have become assignee of his or her estate and effects, and if it shall appear fit, upon notice given by advertisement or otherwise, to the creditors, or any of them, as the court shall direct, to order the provisional assignee to make or join in making any conveyance or assignment of any such interest as to the court may appear just and reasonable, without observing the provisions of the 7 Geo. IV. c. 57. s. 20, as to the sale of real property by the provisional or other assignees of the estates of insolvent debtors.

It will be seen that this act only applies to interests "which appear to be of no value to creditors." It

(a) 1 Wm. IV. c. 38. s. 5.

therefore hardly meets the difficulty above mentioned. The application to the court may, however, receive assistance from this enactment, although it would seem that it could not act under it, but must direct the property to be sold by the provisional assignee, or appoint particular assignees for that purpose. This, however, is in its discretion.

If an assignment has been made by the provisional assignee to a particular assignee or assignees, it would seem that they may safely concur in a sale or mortgage, if all the debts are satisfied.

It sometimes happens that under these circumstances the insolvent debtor suffers a recovery. This will be invalid, as the first legal freehold will be in the provisional assignee. So also a lease and release, or any other assurance, will have no effect upon the legal estate of the insolvent debtor.

CHAPTER XIII.

OF ABSTRACTS OF TITLE UNDER LAY AND ECCLESIASTICAL CORPORATIONS AND ECCLESIASTICAL PERSONS.

THIS chapter may be divided into-I. Titles under lay corporations.-II. Titles under ecclesiastical corporations and III. Titles under ecclesiastical : — persons.

I. TITLES UNDER LAY CORPORATIONS.

Lay corporations are as competent to alien their landed property for corporate purposes as private individuals, but they can rarely show the commencement of their titles, and leases and rentals are often the only evidence of their seisin. Their titles may be treated as good under such evidence, unless there be notice that the corporation holds the land subject to some trust; and they are not, either by the trust or by an act of parliament obtained for the purpose, qualified to make a good title, to the exclusion of the trust. (a)

(a) 1 Prest. Abs. 272; 1 Sider. 162; 1 Kyd, on Corporations, 108.