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.
against prior claimants who have encouraged him to purchase; - and by Statute in various cases.
Equity will, except in favour of a mere volunteer, supply the defective execution of a power, if the defect consist defective execution of powers.
Purchaser, how far relieved against
(c) Cory v. Eyre, sup.
(d) Shropshire Union It. Co. t. Reg. and Bradley v. Riches, sup. ; Harp-ham v. Shaddock, (1881) 19 Ch. D. 207 ; Re Vernon, Ewens & Co., (1886) 33 Ch. D. 402; 50 L. J. Ch. 12; Taylor v. London and County Bkg. Co., sup.
(e) Waldrcn v. Sloper, (1852) 1 Dr. 193 ; Rice v. R., (1853) 2 Dr. 73 ; 23 L. J. Ch. 289 ; Taylor v. London and County Bkg. Co., sup.
(f) Re Richards, (1890) 15 Ch. D. 589; 59 L.J. Ch. 728.
(g) Lloyd's Bank v. Bullock, 1896, 2 Ch. 192 ; 65 L. J. Ch. 680, distinguishing Shropshire Union R. Co. v. Reg., sup.
(h) Ib.; Roberts v. Croft, (1857) 2 D. & J. 1 ; 27 L. J. Ch. 220 ; Layard v. Maud, (1867) 4 Eq. 397 ; 36 L. J. Ch. 669; and see Bickerton v. Walker, (1885) 31 Ch. D. 161 ; 55 L. J. Ch. 227 ; Taylor v. Russell, 1891, 1 Ch. 8 ; 1892, A. C. 244 ; 60 L. J. Ch. 1 ; 61 L. J. Ch. 657 ; see inf. 859 ct seq.
(i) See the cases cited in Coote on Mortgages, 7th ed. 1306. merely in the non-observance of some formality (k), but not if such formality is positively required by the Legislature (7) : nor can it supply a defect which goes to the species of the power; as where a power to appoint by will is attempted to be executed by deed (m) : and the Legislature has expressly excluded the interference of Equity, where a contract by a tenant in tail is not perfected in manner required by the Fines and Recoveries Act, 1833 (n).
By the Law of Property Amendment Act, 1859 (o), a deed executed in the presence of, and attested by, two or more witnesses in the usual way, is, so far as respects the execution and attestation thereof, to be a valid execution of a power of appointment by deed, or by any instrument in writing not testamentary, notwithstanding that any additional or other formalities may have been expressly imposed upon an exercise of the power : but this provision does not dispense with any consent, or with the performance of any act, not relating to the mode of execution or attestation, which may be required by the instrument creating the power: nor does it prevent the donee from exercising it conformably to the power by writing, or otherwise than by an instrument executed and attested as an ordinary deed.
Under Law of Property Amendment Act, 1859.
Under the "Wills Act, 1837, s. 10, an appointment by a will, executed in the ordinary form, is valid, though all the formalities prescribed by the instrument creating the power have not been observed.
Under Wills Act, 1837.
(k) Tollet v. T., (1728) 2 P. W. 489 ; 2 Wh. & T. L. C. 7th ed. 289 ; see Sug. Pow. 530 et seq. ; Farwell, 2nd ed. 335 et seq.
(l) Sug. 14th ed. 501, 742.
(m) Reid v. Shergold, (1805) l0 Ves. 370; Archibald v. Wright, (1838) 9 Si. 161 ; 7 L. J. N. S. Ch. 120.
(n) S. 47. See as to the scope of this section, Bankes v. Small, (1887) 36 Ch. D. 716 ; 56 L. J. Ch. 832 ; Hall-Bare v. S.-D., (1885) 31 Ch. D.
251 ; 55 L. J. Ch. 154; Be Montagu, 1896, 1 Ch. 549; 65 L. J. Ch. 372 ; and cf. Davis v. Tollemache, (1856) 2 Jur. N. S. 1181 ; and see Lord St. Leonards' comments, Sug. 14th ed. 468. Cf. too, Hilbers v. Barkinson, (1883) 25 Ch. D. 200; 53 L. J. Ch. 194 (a case arising out of a covenant to settle after-acquired property) ; Mills v. Fox, (1887) 37 Ch. D. 153; 57 L. J. Ch. 56; see inf. p. 1032, n. (y).
(o) Ss. 12 and 13.
The purchaser will also be protected in Equity against any person (even an infant or married woman), who, having a prior interest in the property, encourages or permits him to complete his purchase in ignorance of its existence (p) ; and if a married woman, not restrained from anticipation, does not, when she has the opportunity, repudiate her fraudulent act committed under her husband's coercion, she will be bound by it as against a purchaser who bought without notice. Thus, where a woman, shortly after her marriage, under threats from her husband, wrote and signed a paper, dated before the marriage, whereby she purported to give him her reversionary interest in a sum of stock, which the husband subsequently sold to a purchaser who had no notice of the fraud, and the wife, on being applied to on his behalf, and not being then under duress, stated that she had before her marriage made over her interest to her husband, it was held that, as against the purchaser, she had lost her equity to a settlement when the fund fell into possession (q). So, where a married woman fraudulently concealed a settlement, in order to induce a mortgagee to advance his money, and the mortgage was completed, but, before the deed was acknowledged by the married woman, the mortgagee received notice of the settlement, it was held that her estate was bound, and that she could not defeat the mortgage (r).
Relieved against incumbrancers, etc, who encourage purchase of the property.
(p) See Watts v. Cresicell, (1715) 2 Eq. Ca. Ab. 515, pi. 3 ; Savage v. Foster, (1723) 9 Mod. 35; Ibbotson v. Rhodes, (1706) 2 Vern. 554 ; Draper v. Borlace, (1699) ib. 370; Berrisford v. Milward, (1740) 2 Atk. 49; Govctty. Richmond, (1834) 7 Si. 1; Clare v. Earl of Bedford, (1723) 13 Vin. Ab. 536 ; Boyd v. Belton, (1841) 1 J. &L. 730 ; Thompson v. Simpson, (1845) 2 J. & L. 110; Overton v. Banister, (1844) 3 Ha. 503; Nicholson v. Hooper, (1838) 4 M. & C. 179; Hammersley v. De Biel, (1845) 12 C. & F. 45, 62, 88 ; see further as to infants, Stikeman v. Bauson, (1847)
1 Do G. & S. 90 ; Enron v. Nicholas, (1733) ib. 118; Wright v. Snowe, (1848) 2 De G. & S. 321; Re King,
(1858) 3 D. & J. 63; Nelson v. Stocker,
(1859) 4 ib. 458 ; 28 L. J. Ch. 760; Sharpe v. Fog, (1868) 4 Ch. 35 ; fraud by married woman; Re Lush's Trusts, (1869) 4 Ch. 591 ; 38 L. J. Ch. 650; and see and distinguish Arnold v. Woodhams, (1873) 16 Eq. 29; 42 L. J. Ch. 578 ; and see sup. pp. 5, 18 ; inf. p. 1192.