Estates held in autre droit.
The term might have been kept on foot.
(u) See 3 Prest. Conv.320, 321. (x) Doe d. Blight v. Pett, 11
Adol. & Ellis, 842; Jones v. Da-ries, 5 II. & X. 766; 7 II. & N 507.
(y) Co. Litt. 338 b.
(z) 3 Prest. Con v. 310, 311.
See Law v. Urlwin, 16 Sim. 377, and Lord St. Leonards' comments on this case, Sug. V. & P. 507, 13th ed.
(a) Sugd. Vend. & Par. 506, 13th ed.
Assignment in trust to attend the inheritance.
Case of a rent-charge.
Consequence of a surrender of the term.
If the purchaser, at the time of his purchase, should have had notice of the rent-charge, and should yet have procured an assignmenl of the term to a trustee for his own benefit, the Court of Chancery would, on the first principles of equity, have prevented his trustee from making any use of the term to the detriment of the grantee of the rent-charge (c). Such a proceeding would evidently be a direct fraud, and not the protection of an innocent purchaser against an unknown incumbrance. To this rule, however, one exception was admitted, which reflects no great credit on the gallantry, to say the least, of those who presided in the Court of Chancery. In the common case of a sale of lands in fee simple from A. to B., it was holden that, if there existed a term in the lands, created prior to the time when A.'s seisin commenced, or prior to his marriage, an assignment of his term to a trustee for B. might be made use of for the purpose of defeating the claim of A.'s wife, after his decease, to her dower out of the premises (d). Here B. evidently had notice that A. was married, and he knew also that, by the law, the widow of A. would, on his decease, be entitled to dower out of the lands. Yet the Court of Chancery permitted him to procure an assignment of the term to a trustee for himself, and to tell the widow that, as her right to dower arose subsequently to the creation of the term, she must wait for her dower till the term was ended. We have already seen (e), that, as to all women married after the first of January, 1834, the right to dower has been placed at the disposal of their husbands. Such husbands, therefore, had no need to request the concurrence of their wives in a sale of their lands, or to resort to the device of assigning a term, should this concurrence not have been obtained.
The term should have been assigned to attend the inheritance.
If the purchaser had notice of I he incumbrance at the time of his purchase, garded, in consequence of the trust of the term in his favour, as having any interest of a personal nature, even in contemplation of equity; but as, at law, he had a real estate of inheritance in the lands, subject to the term, so, in equity, he had, by virtue of the trust of the term in his favour, a real estate of inheritance in immediate possession and enjoyment (f). If the term were neither surrendered nor assigned to a trustee to attend the inheritance, it still was considered attendant on the inheritance, by construction of law, for the benefit of all persons interested in the inheritance according to their respective titles and estates.
(b) 3 Prest . Conv. 460.
When a term had been assigned to attend the inheritance, the owner of such inheritance was not rehe could not use the term.
Dower barred by assignment of term.
The owner of the inheritance subject to an attendant term had a real estate.
(c) Willoughby v. Willmighby, 1 T. Rep. 763.
(d) Sugd. Vend. & Pur. 510, 13th ed.; Co. Litt. 208 a, n. (1). (e) Ante, p. 227.
An act has, however, been passed "to render the assignment of satisfied terms unnecessary" (g). This act provides (h), that every satisfied term of years which, either by express declaration or by construction of law, shall upon the thirty-first day of December, 1845, be attendant upon the reversion or inheritance of any lands, shall on that day absolutely cease and determine as to the land upon the inheritance or reversion whereof such term shall be attendant as aforesaid, except that every such term of years, which shall be so attendant as aforesaid by express declaration, although thereby made to cease and determine, shall afford to every person the same protection against every incumbrance, charge, estate, right, action, suit, claim, and demand, as it would have afforded to him if it had continued to Subsist, but had not been assigned or dealt with, after the said thirty-first day of December, 1845, and shall, for the purpose of such protection, be considered in every court of law and of equity to be a subsisting term.
Term attendant by construction of law.
Act to render the assignment of satisfied terms unnecessary.
(f) Sugd. Vend, & Pur. 790, 11th ed.
(g) Stat. 8 & 9 Vict. c. 112. (h) Sect. 1.
The act further provides (i) that every term of years then subsisting, or thereafter to be created, becoming satisfied after the thirty-first of December, 1845, and which, cither by express declaration or by construction of law, shall after that day become attendant upon the inheritance or reversion of any land, shall, immediately upon the same becoming so attendant, absolutely cease and determine as to the land upon the inheritance or reversion whereof such term shall become attendant as aforesaid (k). In the two first editions of this work, some remarks on this act were inserted by way of Appendix. These remarks are now omitted, not because the author has changed his opinion on the wording of the act, but because the remarks, being of a controversial nature, seem to him to be scarcely fitted to be continued in every edition of a work intended for the use of students, and also because the act has, upon the whole, conferred a great benefit on the community. Experience has in fact shown that the cases in which purchasers enjoy their property without any molestation are infinitely more numerous than those in which they are compelled to rely on attendant terms for protection; so that the saving of expense to the generality of purchasers seems greatly to counterbalance the inconvenience to which the very small minority may be put, who have occasion to set up attendant terms as a defence against adverse proceedings. And it is very possible that some of the questions to winch this act gives rise may never be actually litigated in a court of justice.
(i) Stat. 8 & 9 Vict. c. 112, s. 2.
(k) It has been decided that a term of years assigned to a trustee in trust for securing a mortgage debt, and subject thereto to attend the inheritance, is not an attendant term within this act. Shaw v. Johnson, 1 Drew. & Smale, 412.