This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
A proposed vendor, though having a good title to, and being the absolute owner of property, and standing in no fiduciary relation towards the proposed purchaser, may yet be unaer some personal incapacity, which may prevent a sale; that is to say, he may be, 1st, an infant; if so,any conveyance executed by him will generally be voidable by him when he comes of age, or by his personal representatives on his death under age (a).
Since 1925 it is impossible for any conveyance by an infant to pass the legal estate, as s. 1 (6) of the L. P. Act, 1925, provides that a legal estate in land is not capable of being held by an infant" (b).
The L. P. Act, 1925, contains the useful provision that the persons expressed to be parties to any conveyance shall, until the contrary is proved, be presumed to be of full age at the date thereof (c). By the Infants' Settlement Act, 1855 (d), a male infant not under twenty or a female not under seventeen may, with the sanction of the Court, make a valid settlement of real or personal estate on marriage, and may execute a power of appointment (unless it is expressly declared that the power shall not be exercised by an infant), and such appointment will not, under s. 2 of the Act, be invalidated by the death of the infant under twenty-one unless such infant exercised the power as owner of an entailed interest (e). Sect. 27 (3) of the S. L. Act, 1925, provides - " Nothing in this Act affects the powers conferred by the Infants' Settlement Act, 1855, provided that a legal estate in land is not vested in an infant." By the joint effect of s. 19 of the M. W. P. Act, 1882, and s. 2 of the M. W. P. Act, 1907, a covenant by the husband to settle the property of his infant wife binds and passes any interest in any property of the wife to which he may become entitled on her death provided that she dies during infancy. In various special cases, infants, or their guardians, are enabled, by statute, to sell and convey land for purposes connected with religion (f), charity (g), instruction (h), literature, science and the fine arts (i), or works of a public nature (k). These provisions cannot, since the passing of the L. P. Act, 1925, apply to legal estates in land (l).
Settlements of infants' property.
(a) Any deed which takes effect by delivery, is, if executed by an infant, voidable only; but letters of attorney, and deeds which delegate a mere power, and convey no interest, are absolutely void: Zouch v. Parsons, (1765) 3 Burr. 1794; Anon. v. Handcock, (1810) 17 Ves. 383; Allen v. A., (1842) 2 D. & War. 307; Paget v. P., (1882) 11 L. R. Ir. 26.
(b) As to the divesting of legal estates from infants on the 1st January, 1926, see the L. P. Act, 1925, Sched. I., Part III., and S. L. Act, 1925, Sched. II., para. 3.
(c) S. 15. (d) 18 & 19 Vict. c. 43.
(c) Re Scott, 1891, 1 Ch. 298; 60 L. J. Ch. 461.
An infant can convey personal property and could, prior to 1926, convey real property, under a power simply collateral, i.e., a simple power of sale without an interest (m); and personalty even under a power in gross where an intention appears that it should be exercisable as regards the personalty during the minority (n), and where the infant's interest is not affected thereby (o). It appears to be an open question whether a power in gross over real estate is exercisable during infancy (p). Jessel, M.r., expressed an opinion (q) that it was, and on appeal James and Brett, L. Jj., assented, but Cotton, L.j., was of a contrary opinion. In a learned work (r) the view is expressed that no powers are generally exercisable by infants, if they require discretion for their proper exercise, but that all powers may be made exercisable during infancy, if the donor shows such an intention. It is important to bear in mind that by s. 1 (7) of the L. P. Act, 1925, it is provided that every power of appointment over land, whether created before or after the 1st January, 1926, operates only in Equity. Not only is an infant unable to convey, he cannot contract for the sale of land (s), or do any other act which requires an exercise of discretion: and if he enter into a contract for the sale of lands, he cannot, during infancy, enforce it; as otherwise there would be no mutuality of remedy (t).
May exercise certain powers.
(f) Under the Church Building Act, 1818, s. 36, guardians and trustees on behalf of infants are empowered to sell lands for the purposes of the Act or to enfranchise copyholds. Under the Church Building Act, 1822, the Commissioners may take land for building or enlarging any church or for making or enlarging any churchyard; and the provisions of the Church Building Acts, 1818, s. 36, and 1819, s. 15, apply. For a list of the Church Building Acts, 1818 to 1884, see the Short Titles Act, 1896. By the Consecration of Churchyards Act, 1867, the provisions of the School Sites Acts, 1841 and 1849, are extended to authorise grants for the enlargement of churchyards. Under the Places of Worship Sites Act, 1873, s. 3 (extended by the Places of Worship Sites Amendment Act, 1882), the guardian of an infant is empowered to convey sites for churches, etc, ministers' residences, and burial places, and to give receipts for the purchase-money.
(g) See the Charitable Trusts Act, 1853, s. 27, amended by the Charitable Trusts Amendment Act, 1855, s. 41; and the Charitable Trusts Act, 1887, s. 3.
(h) By the School Sites Act, 1841, s. 5, the guardian of an infant is authorised to convey land for the purposes of the Acts and to give a receipt for the purchase-money.
(i) The Literary and Scientific Institutions Act, 1854.
(k) See the Union and Parish Property Act, 1835, ss. 1, 2; the Land Drainage Act, 1861, s. 28; the Defence Act, 1860, ss. 11, 29; and the L. C. C. Act, 1845, ss. 7, 8.
(l) S. 1 (6).
(m) Sug. Pow., 8th ed., 177; Hearle v. Greenbank, (1749) 3 Atk. 695; King v. Bellord, (1863) 1 H. & M. at p. 347; 32 L. J. Ch. 646.