Uses to bar dower.
Where the estate is of limited duration.
(d) Fearne, Cont. Rem. 347, n.; Co. Litt, 379 b, n. (1). (e) Ante, p. 224. (f) Ante, p. 273. (g) Ante, pp. 246, 249. (h) Ante, p. 246.
(i) See Appendix (D).
(k) Ante, p. 227.
(l) Fry v. Noble, 20 Beav. 598; 7 De Gex, M. & G. 687; Clarke v. Franklim, 4 Kay & J. 266.
Power of leasing.
Relief against defects in leases under powers.
(m) Ante, p. 26. (n) 10 Ves. 256. (o) Stat. 12 & L3 Vict. c. 26, amended by stat. 13 & 14 Vict. c. 17.
Another instance of a special power occurs in the case of the power of sale and exchange usually inserted in settlements of real estate. This power provides that it shall be lawful for the trustees of the settlement, with the consent of the tenant for life in possession under the settlement, and sometimes also at their own discretion during the minority of the tenant in possession, to sell or exchange the settled lands, and for that purpose to revoke the uses of the settlement as to the lands sold or exchanged, and to appoint such other uses in their stead as may be necessary to effectuate the transaction proposed. But it is provided that the money to arise from any such sale, or which may be received for equality of exchange, shall be laid out in the purchase of other lands; and that such lands, and also the lands which may be received in exchange, shall be settled by the trustees to the then subsisting uses of the settlement. It is further provided that, until a proper purchase can be found, the money may be invested in the funds or on mortgage, and the income paid to the person who would have been entitled to the rents, if lands had been purchased and settled. The object of this power is to keep up the settlement, and at the same time to facilitate the acquisition of lands which for any reason may be more desirable in lieu of any of the settled lands which it may be expedient to part with. The direction to lay out the money in the purchase of other lands makes the money, even before it is laid out, real estate in the contemplation of Courts of Equity (r); and though no land should ever be puchased, the parties entitled under the settlement will take in equity precisely the same estates in the investments of the money, as they would have taken in any lands which might have been purchased therewith. The power given to the trustees to revoke the uses of the settlement and appoint new uses, enables them, by virtue of the Statute of Uses, to give the purchaser of the settled property a valid estate in fee simple, provided only that the requisitions of the power are complied with. And a recent enactment enables the Court of Chancery to relieve a bona fide purchaser under such a power, in case the tenant for life, or any other party to the transaction, shall by mistake have been allowed to receive for his own benefit a portion of the purchase-money, as the value of the timber or other articles (s). Previously to this statute, the Courts of Equity had not considered themselves authorized to give relief in such a case (t). And a more recent enactment (u) embodies in the settlement the usual provisions, whenever it is expressly declared therein that trustees or other persons therein named or indicated shall have a power of sale either generally or in any particular event, or a power of exchange. But no sale or exchange under this act, and no purchase of hereditaments out of money received on any such sale or exchange, shall be made without the consent of the person appointed by the settlement to consent, or if no such person be appointed, then of the person entitled in possession to the receipt of the rents, if there be such a person under no disability. But this is not to be taken to require any consent where it appears from the settlement to have been intended that such sale, exchange or purchase should be made without any consent (x). And none of the powers of the act are to take effect or be exercisable if the settlement declares that they shall not take effect; and where there is no such declaration, then if any variations or limitations of any of such powers are contained in the settlement, the same shall be exercisable or take effect subject to such variations or limitations (y). Of this act it has been remarked by a great authority (z), that the option of declaring that the act shall not take effect " will probably be frequently acted upon, more particularly owing to the latter portion of the section; for nothing can be more difficult, not to say dangerous, than an attempt to amalgamate the powers in a settlement and the powers in the act, or to engraft the latter on the former. Where the settlement is purposely silent as to the powers conferred by the act, and the settlor approves of and chooses to rely upon them, the only inconvenience will be that the settlement itself will not inform the persons claiming under it of the powers vested in them, but it will be necessary to refer to the act for the powers conferred by it."
Power of sale and exchange.
(p) Stat. 13 & 14 Vict. c. 17, c. 3.
(q) Sect. 2.
Relief against mistaken payment by purchaser.
Powers of and exchange embodied in settlements.
(r) Ante, p. 159. (s) Stat. 22 & 23 Vict. c. 35, s. 13. (t) Cockerell v. Cholmeley, 1
Russ. & M. 418. (u) Stat. 23 & 24 Vict. c. 145, pt. 1. This act applies only to deeds executed or wills executed or confirmed or revived by codicil executed after the 28th of August, I860, the date of the act.
It was decided, in a recent case, that the ordinary power of sale and exchange contained in settlements does not authorize the trustees to sell the lands with a reservation of the minerals (a). In consequence of this decision, which took the profession rather by surprise, an act was passed (b) which confirms all sales, exchanges, partitions and enfranchisements theretofore made, in intended exercise of any trust or power, of land, with an exception or reservation of minerals, or of the minerals separately from the residue of the land (c). And it is provided that for the future every trustee and other person authorized to dispose of land by way of sale, exchange, partition or enfranchisement, may, with the sanction of the Court of Chancery to be obtained on petition in a summary way, dispose of the land wthout the minerals, or of the minerals without the land, unless forbidden so to do by the instrument creating the trust or power (d).