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.
Where the power is annexed to an office, the persons who fill the office at the time of execution can exercise the power, (f); it is a question of intention whether the power is given to the person or annexed to the office (g). "Every power given to trustees which enables them to deal with or affect the trust property is prima facie given to them ex officio as an incident of their office, and passes with their office to the holder or holders thereof for the time being. Whether a power is so given ex officio or not depends in each case on the construction of the document giving it, and little regard is now paid to such minute differences as those between 'my trustees,' 'my trustees A. and B.,' and 'a. and B. my trustees'; the testator's reliance-on the individuals to the exclusion of the holders of the office for the . time being must be expressed in clear and apt language" (h).
Powers annexed to an office.
(z) Offen v. Harman, (1859) 1 D. F. & J. 253; 29 L. J. Ch. 307; A.-g. v. Sitwell, (1835) 1 Y. & C. 559, 582; 5 L. J. N. S. Ex. Eq.86; Wiles v. Gresham, (1854) 2 Dr. 258.
(a) Phillips v. Edwards, (1864) 33 Beav. 440.
(b) Atwaters v. Birt, (1601) Cro. Eliz. 856; Far. Pow. 3rd ed. pp. 161 - 162.
(c) Far. Pow. 3rd ed. p. 515.
(d) See Sykes v. Sheard, (1863) 2 D. J. & S. 6; 33 L. J. Ch. 181; and cf. Jefferys v. Marshall, (1871) 19 W. R. 94. See now the L. P. Act, 1925, s. 26 (1). (e) Co. Litt. 113 a; Vincent v. Lee, ib.
(f) Brassey v. Chalmers, (1852) 16 Beav. 233.
(g) Far. Pow. 3rd ed. p. 516.
(h) Per Farwell, J., Be Smith, 1904, 1 Ch. 139, 144; 73 L. J. Ch. 74.
A consent is not necessarily invalid because it benefits the consenting party (i). In the case of a lunatic, the committee may consent by order of the judge (k).
Consents on behalf of lunatics.
By s. 104 (1) of the S. L. Act, 1925 (taking the place, of s. 50 of the S. L. Act, 1882), the powers of a tenant for life are not capable of assignment or release, and do not pass to a person, by operation of law or otherwise, as assignee ,of a tenant for life, but remain exercisable by the tenant for life notwithstanding any assignment; and a contract by a tenant for life not to exercise bis-powers under the Act is void. Where an assignment for value of the interest of the tenant for life is made after the commencement of the Act, the consent of the assignee is not requisite to the exercise of the tenant for life's powers under the Act (I); but the assignee is to be entitled to the same or the like estate or interest in or charge on the land, money, or securities for the time being representing the property comprised in the assignment, as he had by virtue of the assignment in such property (m).
Powers of tenant for life not assignable.
Where an assignment for value of the interest of a tenant for life has been made before the commencement of the S. L. Act, 1925, s. 104 is to operate without prejudice to the rights of the assignee, excepting that unless the assignee is actually in possession his consent is not to be requisite for the making of leases (n). And where such an assignment for value has been made before the commencement of the Act, then on the exercise by the tenant for life of any powers conferred by the Act, a purchaser is not to be concerned to see or inquire whether the consent of the assignee has been obtained (o).
Where by assignment or otherwise a tenant for life has ceased to have any substantial interest in the settled land, the Court, on certain conditions, has power to make an order authorising the trustees to exercise on his behalf the powers of a tenant for life under the S. L. Act, 1925 (p).
(i) Clark v. Seymour, (1834) 7 Si. 67.
(k) Lunacy Act, 1890, ss. 120 (1), 128; and see s. 26 (2) of the L. P. Act, 1925.
(l) It was otherwise under the Act of 1882.
(m) Sub-s. (4). (n) Sub-s. (3).
(o) Sub-s. (5).
As a general rule, a power of or trust for sale, out and out, for a purpose or with an object beyond the raising of a particular charge, does not authorise a mortgage; but where it is for raising a particular charge, and the estate itself is settled or devised subject to that charge, there it may be proper under the circumstances to raise the money by mortgage; which will then be supported as a conditional sale (q). On the other hand, a restriction against raising a sum of money by sale of an estate has been held also to preclude a mortgage (r). A lease was, prima facie, not within the scope of a trust for sale (s). But where property held under one lease is put up for sale in lots by a trustee, the usual practice may be adopted of providing in the conditions that if all the property is sold, the purchaser of the lot largest in value shall take an assignment of the lease and execute underleases to the purchasers of the other lots, and that if any lot is not sold the vendor; will grant underleases to the respective purchasers of the lots sold (t).. "I may take it," said Romer, L. J., "that an underlease in substance is not justified; but where an underlease is a pure matter ,of a conveyancer's expedient, a method of conveyancing for carrying out a sale, then I cannot see that there is any valid objection to it"(u).
Power of sale, when it authorises a mortgage.
By the T. Act, 1925, s. 16, it is provided that where trustees are authorised to pay or apply capital money for any purpose or in any manner, they shall have power to raise the money required by sale, conversion, calling in, or mortgage of all or any part of the trust property in possession. The section applies notwithstanding anything to the contrary contained in the instrument creating the trust, but does not apply to trustees of property held for charitable purposes (x), or to trustees of a settlement for the purposes of the S. L. Act, 1925, not being also the statutory owners (y).
(p) S. 24.
(q) See Stroughill v. Anstey, (1852) 1 D. 31. & G. at p. 645; 22 L. J. Ch. 130; Page v. Cooper, (1853) 16 Beav. 396; Far. Pow. 3rd ed. 102; Re Bellinger, 1898, 2 Ch. 534; 67 L,. J. Ch. 580.
(r) Bennett v. Wyndham, (1857) 23 Beav. 521, but qu. See this case explained in Havelock v. H., (1881) 17 Ch. D. 814, 815.
(s) Evans v. Jackson, (1836) 8 Si. 217; Oceanic Steam Navigation Co. v. Sutherberry, (1880) 16 Ch. D. 236. See now 3. 28 (1) of the L. P. Act, 1925.
(t) Be Judd and Poland's Contract, 1906, 1 Ch. 684.
(u) 1906, 1 Ch. p. 690.