County Courts agreements for sale or lease.
Trust estates liable to debts.
The Statute of Frauds.
(c) Stat. 30 & 31 Vict. c. 48, s. 7.
(d) Stat. 30 & 31 Viet. c. 142, s. 9.
(e) Stat. 20 Car. II. c. 3, s.10. Before this provision the Court of Chancery had refused to give the bond creditor any relief. Bennet v. Box, 1 Cha. Ca. 12; Prat v. Colt, ib. 128. These decisions, in all probability, gave rise to the above enactment. See 1 Wm. Black. 159; 1 Sand. Uses, 27G (289 5th ed.)
The same Statute of Frauds also gave a remedy to the creditor who had obtained a judgment against his debtor, by providing (g) that it should be lawful for every sheriff or other officer to whom any writ should be directed, upon any judgment, to deliver execution unto the party in that behalf suing of all such lands and hereditaments as any other person or persons should be seised or possessed of in trust for him against whom execution was sued, like as the sheriff or other officer might have done if the party against whom execution should be sued had been seised of such lands or hereditaments of such estate as they be seised of in trust for him at the time of execution sued. This enactment was evidently copied from a similar provision made by a statute of Henry VII. (h), respecting lands of which any other person or persons were seised to the use of him against whom execution was sued; and which statute of course became inoperative when uses were, by the Statute of Uses (i), turned into estates at law. The construction placed upon this enactment of the Statute of Frauds was more favourable to purchasers than that placed on the statute of Edward I. (k), by which fee simple estates at law were first rendered liable to judgment debts. For it was held that although the trustee might have been seised in trust for the debtor at the time of obtaining the judgment, yet if he had conveyed away the lands to a purchaser before execution was actually sued out on the judgment, the lands could not afterwards be taken; because the trustee was not, in the words of the statute, seised in trust for the debtor at the time of execution sued (l). The act for extend-ing the remedies of creditors against the property of debtors (m), however, deprived purchasers of this advantage, in consideration perhaps of the greater facilities which it afforded in the search for judgments; for it provided (n) that execution might be delivered, under the writ of elegit, of all such lands and hereditaments as the person against whom execution was sued, or any person in trust for him, should have been seised or possessed of at the time of entering up the judgment, or at any time afterwards; and a remedy in equity was also given to the judgment creditor against all lands and hereditaments of or to which the debtor should at the time of entering up the judgment, or at any time afterwards, be seised, possessed or entitled for any estate or interest whatever at law or in equity (o). But the still more recent enactments (p), to which we have before referred (q), greatly diminished the effect of these provisions.
The Statute of
(f) Stat. 3 & 4 Wm. & Mary, c. 14, s. 2; 47 Geo. III. c. 74; 11 Geo. IV & 1 Will. IV. c. 47; 3 & 4 Will. IV. c. 104; 32 & 33 Vict. c. 46; ante, pp. 77-80.
(g) Stat. 29 Car. II. c. 3, s. 10. (h) Stat. 19 Hen. VII. c. 15. (i) Stat. 27 Hen. VIII. c. 10. ( k) Stat. 13 Edw. I. C. 18; ante, p. 81.
Trust estates are subject to debts due to the crown in the same manner and to the same extent as estates at law(r). They are also equally liable to involuntary alienation on the bankruptcy of the cestui que trust. But, on the bankruptcy of the trustee, the legal estate in the premises of which he is trustee remains vested in him and does not pass to the trustee for his creditors (s); and the same rule formerly applied to cases of insolvency (t).
(l) Sunt v. Coles, Com. 226; Harris v. Pugh, 4 Bing. 335; 12 J. B. Moore, 577.
(m) Stat. 1 & 2 Vict. c. 110; ante, p. 83.
(n) Sect, 11.
(o) Sect. 13.
(p) Stats. 2 & 3 Vict. c. 11,
5. 5; 23 & 24 Vict. c. 38, ss. 1,2;
27 & 28 Vict. c. 112.
(q) Ante, pp. 84 - 86.
(r) King v. Smith, Sugd. Ven. & Pur. Appendix, No. 15, p. 1098, 11th ed.
(s) Slut. 32 & 33 Vict. c. 71, s. 15, par. (1).
(t) Sims v. Thomas, 12 Ad. & EL 536.
The circumstance of property being vested in trustees sometimes occasions inconvenience. A trustee may become lunatic, or may leave the country, or may refuse to convey, when required, the lands of which he is trustee; or he may die intestate without an heir, or leaving an infant heir, on whom, if he was a sole or a sole surviving trustee, the lands will descend at law. In order to remedy the inconvenience thus occasioned to the persons beneficially entitled, it is provided by recent acts of parliament (u) that, in the case of a lunatic trustee, the Lord Chancellor, or the persons entrusted by the Queen's sign manual with the care of the persons and estates of lunatics, and the Court of Chancery in other cases, may make an order vesting the lands in any other person or persons; and such an order will operate as a valid conveyance of such lands accordingly. It is also provided that, whenever it is expedient to appoint a new trustee, and it is inexpedient, difficult or impracticable so to do without the assistance of the Court of Chancery, that Court may make an order appointing a new trustee or new trustees, either in substitution for or in addition to any existing trustee or trustees (x), or whether there be any existing trustee or not (y). The Court of Chancery is also empowered to appoint a new trustee in the place of any trustee who shall have been convicted of felony (z). And upon making any order appointing a new trustee, the Court may direct that any lands subject to the trust shall vest in the person or persons, who, upon the appointment, shall be the trustee or trustees for such estate as the Court shall direct; and such order will have the same effect as if the person or persons who before such order were the trustee or trustees (if any) had duly executed all proper conveyances of such lands (a). Property held in trust for charities may also be vested by the Court in new trustees, or in the official trustee of charity lands, without any conveyance (b). But every such order is now chargeable with a stamp duty of 10s. (c). All the power and authority of the Court of Chancery, in any of the above-mentioned matters, is now vested in the County Courts, in all proceedings in which the trust estate or fund to which the proceeding relates, shall not exceed in amount or value the sum of five hundred pounds (d). By another act of parliament (e) provision is made for vesting the property of congregations or societies for purposes of religious worship or education in new trustees from time to time without any conveyance. The provisions of this act have recently been extended to Literary and Scientific Institutions (f); and also to burial grounds (g). An act has also been passed which contains a general provision for the appointment of new trustees, similar to the powers for that purpose ordinarily inserted in well-drawn trust deeds. This act, which is intituled "An Act to give to Trustees, Mortgagees and others certain Powers now commonly inserted in Settlements, Mortgages and Wills," extends to instruments executed, or wills confirmed or revived by codicil executed, after the 28th of August, 1860, the date of the act (h). It provides (i) that whenever any trustee shall die, or desire to be discharged from, or refuse, or become unfit or incapable to act in the trusts or powers reposed in him, the surviving or continuing trustees or trustee, or the acting executors or administrators of the last surviving or continuing trustee, or the last retiring trustee, may, if there be no person nominated for that purpose by the instrument creating the trust, or no such person able and willing to act, appoint a new trustee. And every such trustee, and also every trustee appointed by the Court of Chancery, either before or after the passing of the act, is invested with the same powers as if he had been originally nominated by the instrument creating the trust (k). And the above-mentioned power of appointing new trustees may be exercised in cases where a trustee nominated in a will has died in the lifetime of the testator, as well as where he may have died after the testator's decease (l). It is now provided that a conveyance or transfer made for effectuating the appointment of a new trustee, is not to be charged with any higher duty than 10s. (m).