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.
(t) Cook v. Field, (1850) 15 Q. B. 460; 19 L. J. Q. B. 441.
(u) Harrington v. Long, (1834) 2 31. & K. 590; see Martyn v. Mac-namara, (1843) 2 Con. & L. 541; 4 D. & War. 411; Scully v. Delany. (1840) 2 Ir. Eq. R. 379; Cockell v. Taylor, (1851) 15 Beav. 117; 21 L. J. Ch. 545.
(x) Dickinson v. Burrell, (1866) 1 Eq. 337; 35 L. J. Ch. 371; but see Robb v. Dorrian, (1877) 11 I. R. C. L. 292; Keogh v. M'grath. (1880) 5 L. R. Ir. 516.
(y) Anderson v. Radcliffe, (1860) E. B. & E. 806. 819; 29 L. J. Q. B.128.
(z) Dawson v. G. W. S. Co., 1905, 1 K. B. 260.
An agreement in respect to a reversion may be so framed as to be impeachable as savouring of champerty (g). A plaintiff, who has an original title not founded on champerty, is not disqualified to sustain the suit by reason of his having made an improper bargain with his solicitor as to the mode of his remuneration (h). An agreement to give information on the terms of receiving a share of the property to be recovered is void for champerty if the person agreeing to give the information also agrees to actively assist in its recovery (i).
Independently of 32 Hen. 8, c. 9, a right of action in respect of waste cannot, on grounds of public policy, be avoid such conveyances only, made with that view, as were in themselves fraudulent and collusive (m). The statutes only affected the Parliamentary Law, and did not prevent the estate from passing (n).
(a) Hunter v. Daniel, (1845) 4 Ha. 420; 14 L. J. Ch. 194; and see Guy v. Churchill, (1888) 40 Ch. D. 481; 58 L. J. Ch. 345. (b) Bainbrlgge v. Moss, (1857) 3 Jur. N. S. 58.
(c) Sprye v. Porter, (1856) 7 E. & B. 58; 26 L. J. Q. B. 64.
(d) Sug. 14th ed. 357; Williams v. Protheroe, (1828) 5 Bing. 309; S. C, 3 Y. & J. 129.
(e) Co. Litt. 369 b; see Anson v. Lee, (1832) 4 Si. 364. (f) Wilson v. Short, (1848) 6 Ha. 366; 17 L. J. Ch. 289.
(g) See Reynell v. Sprye, (1852) 1 D. M. & G. 660; 21 L. J. Ch. 633; also James v. Kerr, (1888) 40 Ch. D. 449; 58 L. J. Ch. 355.
(h) Hilton v. Woods, (1867) 4 Eq. 432; 36 L. J. Ch. 941. As to what constitutes common barratry and maintenance, see Scott v. Miller, (1859) John. 221; 28 L. J. Ch. 584.
(i) Rees v. Be Bernardy, 1896, 2 Ch. 437; 65 L. J. Ch. 656.
Validly assigned, the claim to damages in such a case being in respect of a tort (k).
The L. P. Act, 1925, repeals s. 6 of the R. P. Act, 1845, and provides by s. 4 that "(2) All rights and interests in land may be disposed of, including (a) A contingent, executory, or future interest in any land, or a possibility coupled with an interest in any land, whether or not the object of the gift or limitation of such interest or possibility be ascertained;
(b) a right of entry, into or upon land, whether immediate or future, and whether vested or contingent.
(3) All rights of entry affecting a legal estate which are exercisable on condition broken or for any other reason, may, after the commencement of this Act, be made exercisable by any person and the persons deriving title under him, but, in regard to an estate in fee simple (not being a rent-charge held for a legal estate) only within the period authorised by the rule against perpetuities."
By 7 & 8 Will. 3, c. 25, s. 7, conveyances made in order to multiply voices, or to split and divide the interest in any houses or lands among several persons, to enable them to vote at Parliamentary elections, were made void; and, by the Elections (Fraudulent Conveyances) Act, 1711 (/), such conveyances, though containing conditions or stipulations of defeasance, were declared to be free and absolute. But these Acts have been repealed (ll). They did not affect a conveyance made to carry out a bond fide sale, where purchase-money was paid and possession taken without any secret reservation or trust for the benefit of the vendor, though made with a view to the multiplying of voices, or the splitting of the freehold: the intention of the statutes being, to
Splitting votes for electioneering purposes.
(k) Defries x. Milne, 1913, 1 Ch. 98. (l) 10 Anne, c. 31 (Ruff. c. 23), 8. 1. (ll) Representation of the People Act. 1918. s. 47.
Under the Benefices Act, 1898 (Amendment) Measure,
1923, after two presentations made after the 14th July,
1924, it will not be possible to dispose of an advowsom by way of sale or other-transfer for valuable consideration. Whilst an advowson remains alienable, the right to sell it with the next presentation as part thereof, or the next presentation alone, can only be exercised whilst there is an incumbent. By the Benefices Act, 1898, s. 1, a transfer of a right of patronage of a benefice (o.) is invalid unless
(a) it is registered in the diocesan registry within one month from its date or such extended time as the bishop allows,
(b) transfers the whole interest of the transferor in the right, and (c) more than twelve months have elapsed since the last institution or admission to the benefice (p). An agreement for any exercise of a right of patronage in favour, or on the nomination, of any particular person, and any agreement on the transfer of such right of patronage (a) for the re-tnansfer of the right, or (b) for postponing payment of any part of the consideration for the transfer until a vacancy or for more than three months, or (c) for payment of interest until a vacancy or for more than three months, or (d) for any payment in respect of the date at which a vacancy occurs, or (e) for the resignation of a benefice in favour of any person, is made invalid (q). The expression "transfer," used in s. 1, includes any assurance passing or creating any legal or equitable interest inter vivos, but not a transmission on marriage, death, or bankruptcy, or otherwise by operation of Law or a transfer on the appointment of a new trustee where no beneficial interest passes (r).
Selling an advowson or next presentation:
- under Benefices Act, 1898.
(m) Riley v. Crossley, (1846) 2 C. B. 146; 15 L. J. C. P. 144; Alexander v. Newman, (1846) 2 C. B. 122; 15 L. J. C. P. 134; Thorniley v. Aspland, (1846) 2 C. B. 160; 1 Lutw. Reg. Ca. 423; Newton v. Hargreaves, (1846) 2 C. B. 163; 15 L. J. C. P. 154.
(n) Phillpotts v. P., (1850) 10 C. B. 85; 20 L. J. C. P. 11.
(o) See definition in s. 13.
(p) Sub-s. (1). (q) Sub-s. (3). (r) Sub-s. (6).
And it is provided that nothing in the section shall prevent the reservation or limitation in a family settlement of a life interest to the settlor, or in a mortgage the reservation of a right of redemption (s).
In the case of public companies registered after 1900, any contract made by such company before the date at which it is entitled to commence business within the meaning of 8. 87 of the Companies (Consolidation) Act, 1908, is provisional only, and does not bind the company until the date when it is so entitled (ss).
Contracts within Companies Act, 1908.
A mortgagee cannot, in Equity, contract with the mortgagor, at the time of the loan, for the absolute purchase of the land at a specific sum in case of default being made in payment of the mortgage money at the appointed time, on the settled principle that an agreement which clogs the equity of redemption is invalid (t); but this does not interfere with a purchase of the equity of redemption by the mortgagee as a distinct and subsequent transaction; nor does it preclude a subsequent agreement giving the mortgagee an option to purchase the mortgaged property though such option may deprive the mortgagor of his right to redeem (u), nor an agreement by the mortgagor at the time of the loan, to give the mortgagee a right of preemption in case of the mortgagor selling the property during the continuance of the security (x).
Contracts by mortgagee with mortgagor.
(s) Sub-s. (7). (ss) Companies Act, 1929, s. 94 (4).
(t) Jennings v. Ward, (1705) 2 Vern. 520; Willett v. Winnell, (1687) 1 Vera. 488; Eq. Ca. Ab. 313, pl. 14; Samuel v. Jarrah Timber, etc. Corp., 1904, A. G. 323; 73 L. J. Ch. 526. See generally as to this doctrine, Be Beers v. Brit. S. A. Co., 1913, A. C. 53; G. & C. Kreg-linger v. New Patagonia Co., 1914, A. C. 25.
(u) Reeve v. Lisle, 1902, A. C. 461; 71 L. J. Ch. 768; and see Noakes v. Rice, 1902, A. C. 24; 71 L. J. Ch. 139; Samuel v. Jarrah Timber, etc. Corp., sup.; and see Bradley v. Carritt, 1903, A. C. 253; 72 L. J. K. B. 471.
(x) Orby v. Trigg, (1722) 9 Mod. 2; Coote, 9th ed. p. 23.