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.
The provisions of this Act and the repealed Acts were largely resorted to, and proved beneficial in many cases where, from the want of an adequate trust or power in the settlement, the opportunity of effecting an advantageous sale would otherwise have been perhaps irretrievably lost; but their practical utility was greatly impaired by stringent requirements as to notices, consents, etc., the cumbrous machinery provided for the exercise of the jurisdiction, and the necessity, in all cases, of an application to the Court before any of their powers could be exercised.
General remarks on the Act.
(z) O. XIV. ; for form of certificate, see Form No. 7 in App. to Orders.
(e) In He Johnson's S. E., (1869) W. N. 87, the British Consul at
Boulogne was appointed.
(/) 0. XIV.
(g) See Forms 9 and 10, App. to Orders.
(h) Form 11. App. to Orders.
The S. L. Acts, by giving to a tenant for life generally wider powers of dealing with settled property than those which could be exercised under the S. E. Act, and by dispensing with the necessity of applications to the Court, have now rendered it unnecessary, except in a few cases, to have recourse to the S. E. Act. In cases within s. 41 of the Conv. Act, 1881, which are not within S. L. Act, 1882, s. 59, resort may still be had to the S. E. Act. Further, in the case of settlements by way of trust for sale, s. 77 is still of value for certain leases (i). Again, the power of the Court to allow grants of the settled estate at fee-farm rents is, under s. 10 of the S. L. Act, 1882, confined to cases where such grants are customary in the district, or where it is difficult to make grants on any other terms, while under s. 18 of the S. E. Act the discretion of the Court is unfettered. So, too, with regard to the laying out and dedication of streets, the discretion of the Court is less fettered under s. 20 of the S. E. Act than under s. 16 of the S. L. Act. If more than one person constitutes the tenant for life under the S. L. Acts (k), and one of such persons refuses to join in exercising the powers of a tenant for life, or his concurrence is difficult to obtain (/), it may be necessary to resort to the means provided by ss. 26 to 29 of the S. E. Act. So, too, in the case of a married woman whose interest is, neither by the settlement nor by statute, her separate property, it might be necessary to resort to ss. 50 and 51 of the S. E. Act, in order to obviate the refusal or inability of her husband to concur under s. 61 (3) of the S. L. Act, 1882. And since the powers of a tenant for life under the S. L. Acts are, by s. 50 of the Act of 1882, not in any way assignable, it follows that, if the assignee, or trustee in bankruptcy, of a tenant for life desires to exercise the statutory powers of the latter, he must seek the aid of the Court under ss. 23 and 49 of the S. E. Act, though it is doubtful whether the Court could help him.
Extension of powers and simplification of procedure by S. L. Acts.
Cases where Act still necessary.
Grants at fee-farm rents.
Laying out streets.
Tenant for life more than one person.
Assignee, or trustee in bankruptcy, of tenant for life.
(i) Re Laing, (1866) 1 Eq. 416 ; 35 L. J. Ch. 282.
(k) S. 2, sub-s. 6.
(l) See S. L. Act, 1884, s. 6, as to the consent of ouly one being necessary to the exercise of powers conferred by the settlement, though this does not always apply : lie Osborne and Brights, Ld., 1902, 1 Ch. 335 ; 71 L. J. Ch. 285.