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.
(z) Everitt v. Automatic Weighing Co., 1892, 3 Ch. 506. As to the transfer of a building society mortgage, see Re Rumney and Smith, 1897, 2 Ch. 351; 66 L. J. Ch. 641; Sun Permanent Benefit Building Soc. v. Western Suburban, etc. Building Soc, 1921, 2 Ch. 438.
(a) S. 95 of L. P. Act, 1925, taking the place of s. 15 of Conv. Act, 1881. See Wolst. & Cherry, 11th ed. vol. i. p. 290.
(b) See Crosse v. Revy. Soc., (1853) 3 D. M. & G. at p. 712; Rowe v. May, (1854) 18 Beav. 613.
Under s. 44 of the T. Act, 1925 (taking the place of s. 26 of the T. Act, 1893), the High Court (e) may make an order vesting (/) land, or releasing or disposing of a contingent right therein, to any person in any of the following cases, viz.: - (1) Where a new trustee is appointed by the Court (g); (2) where a trustee is under disability (h), or is out of the jurisdiction, or cannot be found (i); (3) where it is uncertain who was the survivor of two or more trustees; (4) where it is uncertain whether the last trustee known to have been entitled or possessed is alive; (5) where there is no personal representative, or it is uncertain who is the personal representative of a deceased trustee who was entitled to or possessed of an interest in land; (6) where a trustee wilfully refuses or neglects to convey or release a right for twenty-eight days after he is required to do so; and (7) where land, or any interest therein, is vested in a trustee, whether by way of mortgage or otherwise, and it appears to the Court to be expedient.
Vesting orders under the Trustee Act.
By s. 45, where land is subject to a contingent right in an unborn person, or class of unborn persons, who on coming into existence would, in respect thereof, become entitled to or possessed of the land on any trust, the Court may release the land from the contingent right, or vest it in any person for the estate to or of which the unborn person would, on . coming into existence, be entitled.
Orders as to contingent rights of unborn persons.
(c) Or give a statutory receipt under the L. P. Act, 1925, s. 115 (1).
(d) Pearce v. Morris, (1869) 5 Ch. 227; 39 L. J. Ch. 342; Coote, 9th ed. p. 1418.
(e) The provisions as to the High Court throughout the Act apply, within their jurisdictions, to a Palatinate and County Court. See 8. 67.
(/) As to the effect of a vesting order, see s. 9 of the L. P. Act, 1925; see also s. 49 of T. Act, 1925.
(g) See e. 41 as to jurisdiction to appoint new trustees.
(h) Where an infant is a lunatic, the jurisdiction of the High Court is not affected by the Lunacy Act, 1890; see ib. s. 143.
(i) In the case of a lunatic, the judge in lunacy has similar powers; see Lunacy Act, 1890, s. 135.
And by s. 46 the Court may vest or release or dispose of land or a contingent right in land by way of security for money belonging to an infant, in like manner as in the case of a trustee under disability.
Vesting order in place of conveyance by infant mortgagee.
Where any Court gives a judgment or makes an order directing the sale or mortgage of any land, every person who is entitled to or possessed of the land, or entitled to a contingent right therein, and is bound by the judgment or order, is to be deemed so entitled or possessed as a trustee within the meaning of the Act; and the Court may, if it thinks expedient, make an order vesting the land or any part thereof for such estate as it thinks fit in the purchaser or mortgagee, or in any other person: Provided that, in the case of a legal mortgage, the estate to be vested in the mortgagee is to be a term of years (k).
Vesting order consequential on judgment for sale or mortgage.
Where judgment is given for the specific performance of a contract concerning land, or exchange of land, or generally where any judgment is given for the conveyance of land, either in cases arising out of the doctrine of election or otherwise, the Court may declare that any of the parties to the action are trustees of the land, or any part thereof, within the meaning of the Act: or may declare that the interests of unborn persons who might claim under any party to the action, or under the will or voluntary 6ettlement,of any person deceased who was during his lifetime a party to the contract or transactions concerning which the judgment is given, are the interests of persons who, upon coming into existence, would be trustees within the meaning of that Act, and thereupon may make a vesting order relating to the rights of those persons born or unborn as if they had been trustees (l).
Court may declare what parties are trustees of lands comprised in any suit for specific performance etc.
In all cases where a vesting order can be made the Court may, if it is more convenient, appoint a person to convey the land or release the contingent right; which, when duly made, is to have the effect of a vesting or releasing order (m).
Court may appoint a person to convey, 4c,
(k) S. 47 of T. Act, 1925. (l) S. 48.
Instead of making vesting order.
By the Jud. Act, 1925, s. 47 (replacing s. 14 of the Jud. Act, 1884), where any person neglects or refuses to comply with a judgment or order directing him to execute any conveyance, contract, or other document, the Court may, on such terms and conditions as may be just, order that such a conveyance, contract, or other document shall be executed by such person as the Court may nominate for that purpose; and the conveyance or other document so executed is to operate, and be for all purposes available, as if it had been executed by the person originally directed to execute it (n).
Execution of instruments by order of the Court.
Where a vesting order is made under the T. Act, 1925, or under the Lunacy Act, 1890, founded on an allegation of the personal incapacity of a trustee or mortgagee, or on an allegation that a trustee or mortgagee, or the personal representative of a trustee or mortgagee, is out of the jurisdiction of the High Court, or cannot be found, or that it is uncertain which of several trustees, or which of several persons interested in a mortgage, was the survivor, or whether the last trustee or the personal representative of, or other person deriving title under, a trustee or mortgagee, or the last surviving person interested in a mortgage, is living or dead, or on an allegation that any trustee or mortgagee has died intestate without leaving a person beneficially interested under the intestacy, or has died and it is not known who is his personal representative or the person interested, the fact that the order has been so made shall be conclusive evidence of the matter so alleged, in any Court upon any question as to the validity of the order; but this section does not prevent the High Court from directing a reconveyance or surrender, or the payment of costs occasioned by any such order if improperly obtained (o).
Orders made upon certain allegations to be conclusive evidence.
(m) S. 50.
(n) See Re Edwards, (1885) 33 W. R. 578; Howarth v. H., (1886) 11 P. D. 95; 55 L. J. P. 49; Re Cathcart, 1893, 1 Ch. 466; 62 L. J. Ch. 320; Re Lumley, (1893) W. N. 13; inf. p. 1005.
(o) S. 55.
By s. 68 of the T. Act, 1925, ,the expression "trust" does not include the duties incident to an estate conveyed by way of mortgage; but, with this exception, the expressions "trust" and "trustee" include implied and constructive trusts and cases where the trustee has a beneficial interest in the trust property, and the duties incident to the office of personal representative: and "trustee," where the context admits, includes a personal representative. Although a vendor is, to some extent at least, a constructive trustee for the purchaser (p), he is not such for the purposes of the Act until there has been a decree for specific performance, unless the purchase-money has been paid (q).
So where, on a sale of copyholds, the vendor had received the purchase-money and covenanted with the purchaser for the surrender of the property, but died before any surrender was made, the Court held on petition that the customary heir, who was under disability, was a trustee for the purchaser, on the ground that the contract had been executed, and appointed a person to convey on his behalf (r).
Cases where without suit the vendor or his heir has been held a trustee for the purchaser.
Where a vendor, after tender of a conveyance settled by the judge, refused either to convey or to receive the purchase-money, he was declared a trustee, and, on the purchaser paying his purchase-money into Court, his solicitor was ordered to execute the conveyance for the vendor (s).
Vendor refusing to convey declared a trustee.
(p) See sup. pp. 265 et seq.
(q) See Re Carpenter, (1854) Kay, 418; Re Colling, (1886) 32 Ch. D. 333, 336; 55 L. J. Ch. 486; Re Burt, (1851) 9 Ha. 289; 22 L. J. Ch. 153; Re Weeding, (1858) 4 Jur. N. S. 707; Cust v. Middlcton, (1861) 9 W. R. 242; 30 L. J. Ch. 260; Re Pagani, 1892, 1 Ch. 236.
(r) Re Cuming, (1869) 5 Ch. 72; Re Crowe's Mortgage, (1871) 13 Eq. 26; 41 L. J. Ch. 32, where a similar order was made against a mortgagor who refused to surrender; Re Bradley's S. E., (1885) 34 W. R. 148; Re Jones, (1888) W. N. 217, where a wife died without having surrendered copyholds which she had by her marriage settlement covenanted to surrender to the trustees; Re Beaufort's Will, (1898) W. N. 148 (5). See also Re Lowry's Will, (1872) 15 Eq. 78; 42 L. J. Ch. 509.
(s) Warrender v. Foster, (1854) cited Seton, 7th ed. p. 1233; and see Ex p. Mornington. (1853) 4 D. M. & G. 537; 22 L. J. Ch. 966; and see under Jud. Act, 1925, s. 47, sup. p. 523; inf. p. 1005.
Where, on a sale of copyholds, the vendor covenanted to stand seised thereof in trust for the purchaser, until the surrender should be made, he was held to be a constructive trustee within the Act, without bill filed (t): so, also, the heir of a vendor who died before completion of a compulsory sale to a railway company (u): so, where an equitable reversionary interest in real estate had ,been sold and assigned to the purchaser, the legal interest, which had been improperly conveyed to the vendor, was, without suit, vested in the purchaser (x): so, where a testator directed his executors to sell and apply the proceeds, and afterwards himself contracted to sell, his heir was declared a trustee of the outstanding legal estate (y).
Various oases where vendor has been declared trustee.