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. E. Act, 1925.
By the L. C. C. Act, 1845, if, upon the deposit in the Bank of the purchase-money or compensation agreed or awarded to be paid in respect of lands purchased or taken by the promoters of the undertaking, the owners or statutory owners fail to convey the land upon request, the promoters may execute a deed-poll, which will have all the effect of a conveyance by the owners or statutory owners (n): similar powers are also conferred upon the promoters of the undertaking, in the several events of the owners refusing to convey, or failing to make a title, or not being discoverable (o).
Power for promoters of public undertakings to convey to
(k) See the A. E. Act, 1925, s. 24, giving power to special personal representatives to dispose of settled land; and see the Jud. Act, 1925, s. 155, as to the power to grant separate representation in respect of trust estates. Re Bordass, 1929, P. 107.
(I) Probate or administration will not be granted to more than four persons; and if there is a minority or a life interest, administration cannot be granted to less than two persons unless it be granted to a trust corporation; see Jud. Act, 1925, s. 160; and see Re James White, 1928, P. 75; and consider Ad. of Justice Act, 1928, s. 9.
(m) For the previous law concerning the power of disposition of one of several executors over a chattel real, see Simpson v. Gutteridge, (1816) 1 Mad. 609; Sneesby v. Thome, (1855) 1 Jur. N. S. 1058; Woodfall, 22nd ed. pp. 57, 58.
Themselves upon refusal or default of owners.
Where a trustee of an outstanding legal estate refuses in a plain case to convey at the request of a party entitled to a conveyance, he will, if proceedings are taken to compel him, be fixed with costs (p): so, where a trustee for sale, with the consent of his cestui que trust, refused without sufficient reason to concur in a sale which they had agreed upon, he was ordered to pay the costs of a suit for his removal from the trusteeship (q). A trustee, however, when required to convey the estate on the ground of the trusts having terminated, is entitled to clear and satisfactory evidence of such being the fact (r). And he cannot be required from time to time to divest himself of different parcels of the trust estate, or to convey by other words and descriptions than those by which the conveyance was made to himself (s); and the rule is the same in the case of a mortgage (s).
Trustee bound to convey at request of cestui que trust.
But only by description under which he himself took estate.
On conveyance of property in mortgage the concurrence of the mortgagee in the conveyance should, where possible, be obtained, even where the mortgage is intended to be kept on foot, and notice of the conveyance should be indorsed on the mortgage deed; for as a mortgagee with several securities on two different estates is entitled, in cases not coming within s. 93 (1) of the L. P. Act, 1925 (which takes the place of s. 17 of the Conv. Act, 1881), to hold both until full payment of all that is due to him, the purchaser of the equity of redemption of one estate may have to redeem the mortgage subsisting on the other (t).
Concurrence of mortgagee should be obtained in conveyance of equity of redemption.
(n) S. 75.
(o) Ss. 76, 77. See, on the construction of a clause in a private Act, similar to s. 76, Doe v. Manchester & Bury R. Co., (1845) 14 M. & W. 687.
(p) Willis v. Hiscox, (1838) 4 M. & C. 197; Hampshire v. Bradley (1845) 2 Coll. 34; Lewin, 12th ed. p. 880. See, however, now the provisions relating to the automatic vesting of legal estates outstanding at the commencement of the L. P. Act, 1925, 1st Sch. Part II.
(q) Palairet v. Carew, (1863) 32 Beav. 564; 32 L. J. Ch. 508.
(r) Holford v. Phipps, (1841) 3 Beav. 434; 10 L. J. N. S. 209. Sec, as to a protector, Buttanshaw v. Martin, (1859) John. 89.
(s) Goodson v. Ellissan, (1827) 3 Russ. at p. 594.
A mortgagee cannot be compelled to re-convey before the time fixed for redemption, though he is tendered his principal with interest up to that time (u); nor, if the day fixed for redemption is allowed to elapse, can he subsequently be compelled to convey without either six months' notice or six months' interest paid in advance (x); though it is otherwise if the mortgagee himself has taken steps to compel payment (y); and he can now, even in the case of an equitable mortgage (z), be compelled to transfer instead of recon-veying (a). An incumbrancer, though not a party to the contract, may so act as to bind himself to concur in a sale of part only of the property (b). And where a mortgagee has accepted a tender of his principal, interest, and costs from a person having a partial interest and entitled to redeem, he is bound to reconvey (c) to him, and to deliver up the title deeds, though there may be other claimants to the property; but the re-conveyance should in such a case reserve the equities of the other persons interested (d).
Mortgagee, when bound to convey.
(0 See Jennings v. Jordan, (1881) 6 A. C. 698; 51 L. J. Ch. 129; Harter v. Colman. (1882) 19 Ch. D. 630; 51 L. J. Oh. 481; Bird v. Wenn, (1886) 33 Ch. D. 215; 55 L. J. Ch. 722; Minter v. Carr, (1894, 3 Ch. 498; 63 L. J. Ch. 705; Pledge v. Carr, 1894, 2 Ch. 328; 63 L. J. Ch. 651; 1895, 1 Ch. 51; 64 L. J. Oh. 51; Pledge v. White, 1896, A. C. 187; 65 L. J. Ch. 449. Cf. Sharp v. Richards, 1909, 1 Ch. 109.
(u) Brown v. Cole, (1845) 14 Si. 427; 14 L. J. Ch. 167; Coote, 9th ed. p. 730.
(x) Johnson v. Evans, (1889) 61 L. T. 18; Smith v. S., 1891, 3 Ch. 550; 60 L. J. Ch. 694; Coote, 9th ed. p. 732. The rule does not apply in the case of an equitable mortgage by deposit of title-deeds; Fitzgerald's Trustees v. Mellersh, 1802, 1 Ch. 385,; 61 L. J. Ch. 231; Coote, p. 733. '
(y) Bovill v. Endle, 1896, 1 Ch. 648; 65. L. J. Ch. 542; and see Letts v. Hutchins, (1871) 13 Eq. 176; Re Moss, (1885) 31 Ch. D. 90; 55 L. J. Ch. 87; Edmondson v. Copland, 1011, 2 Ch. 301, 307 - 308.