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.
(n) Re Cardross, (1878) 7 Ch. D. 728; 47 L. J. Ch. 327; Shipway v. Ball, (1881) 16 Ch. D. 376; 50 L. J. Ch. 263; and see Re D'angibau, (1880) 15 Ch. D. at p. 234; 49 L. J. Ch. 756.
(o) Re Armit, (1871) I. R. 5 Eq. 352; Re D'angibau. sup.. p. 235.
By the S. L. Act, 1925, s. 1 (1), any instrument under which any land stands for the time being limited intrust for any person in possession being an infant, for an estate in fee simple or for a term of years absolute, is for the purposes of the Act a settlement. And by s. 1 (2), where an infant is beneficially entitled to land for an estate in fee simple or for a term of years absolute and by reason of an intestacy or otherwise, there is no instrument under which the interest of the infant arises, a settlement shall be deemed to have been made by the intestate, or by the person whose interest the infant has acquired. Sect. 26 provides that where an infant is solely ,and beneficially entitled in possession to land for an estate in fee simple or for a term of years absolute, or would, if of full age, be a tenant for life of, or have the powers of a tenant for life over settled land, then, during the minority of the infant, if the settled land is vested in a personal representative the personal representative (until a vesting instrument has been executed pursuant to the Act), and in every other case the trustees of the settlement, shall have all the powers conferred by the Act and the settlement on a tenant for life and on the trustees of the settlement. This provision applies where two or more infants are jointly entitled, but only until an infant entitled in possession attains full age. But it does not apply where an infant is jointly entitled in possession to an estate in fee simple or to a term of years absolute with a person of full age, nor does the provision apply where an infant if of full age would, together with a person of full age, have the powers of a tenant for life (u). The transitional provisions for bringing this legislation into effect are contained in the L. P. Act, 1925, Sched. I., Part III., and the S. L. Act, 1925, Sched. II., para. 3.
Under S. L. Act, 1925.
(p) Hearle v. Greenback, sup., at p. 710.
(q) Re D'angibau, tup.
(r) Vaizey on Settlements, pp. 382 et seq.
(s) King v. Bellord, sup.
(t) Flight v. Bolland, (1828) 4 Russ. 298.
By the custom of gavelkind, an heir at the age of fifteen might, for valuable consideration (x), convey for an estate in possession, lands which he took by descent; the conveyance being by feoffment, and livery of seisin being delivered by him in person (y). But the custom of gavelkind has now been abolished (z); and by s. 51 of the L. P. Act, 1925, it is provided that all lands and all interests therein shall lie in grant and that the same are incapable of being conveyed by livery or feoffment, the use of the word "grant," however, not being necessary; and by s. 52 all conveyances of land (with the exceptions therein mentioned) are void for the purpose of passing the legal estate unless made by deed (a).
Infant might Bell under custom of gavelkind.
(u) S. L. Act, 1925, s. 26 (3), (4) and (5).
(x) See Re Maskell and Goldfinch, 1895, 2 Ch. 525, 528; 64 L. J. Gh. 678.
(y) 4 Bac. Ab., 7th ed., pp. 49, 50; Elton's Tenures of Kent, pp. 82 et seq.
(z) See L. P. Act, 1922, 12th Sch.; and A. E. Act, 1925, s. 45.
(a) There were other incidents attaching to gavelkind land, besides that of equality in descent among males of the same degree and the power of an infant to convey by feoffment and livery of seisin. It does not appear that by the new legislation the other incidents have been wholly abolished, excepting that by the L. P. Act, 1922, Sched. XII. (1) (d), they are abolished as to enfranchised land.
If an infant were to convey, asserting that he had attained his majority, and the purchaser paid the money and obtained possession, the infant would, it is conceived, be restrained from afterwards recovering possession except upon the terms of refunding the purchase-money (b). Where an infant received a premium for a lease of his lands purported to be granted by a guardian, upon the infant's false assertion, a return of the premium with interest was decreed (c).
Fraudulent sale by, relieved against.
In the absence of any false assertion by the infant, relief will not be granted against him upon the ground that the other contracting party believed him to be of full age (d). While on the one hand infancy is a legal indulgence not to be used by the infant for the purposes of fraud, on the other hand it is not to be infringed upon by persons who, knowing of the infancy, must be taken also to know the legal consequences which attach to it (e). At Law, the fraudulent representation by an infant that he was of full age was held not to render him liable to an action by the party who has been thereby induced to contract with him (f); and this now holds good both at Law and in Equity (g). "One cannot make an infant liable for the breach of contract by changing the form of action to one ex delicto" (h).
If there be misrepresentation.
Infants' ' Relief Act, 1874.
(b) Simpson, 4th ed., p. 77; and see Overton v. Banister, (1844) 3 Ha. 503; Campbell v. Ingilby, (1856) 21 Beav. 573; 1 De G. & J. 393; 26 L. J. Ch. 654; Bristow v. Eastman, (1794) 1 Esp. 172; and see judgment in Hannah v. Hodgson, (1861) 30 Beav. 19, 29; 30 L. J. Ch. 738.
(c) Esron v. Nicholas, (1733) 1 De G. & S. 118.
(d) Stikeman v. Dawson, (1847) ib. 90; 16 L. J. Ch. 295; Wright v. Snowe, (1848) 2 De G. A S. 321; Ex p. Jones, (1881) 18 Ch. D. 109; 50 L. J. Ch. 673; and cf. Lempriere v. Lange, (1879) 12 Ch. D. 675; and see Cowern v. Nield, 1912, 2 K. B. 419; Stocks v. Wilson, 1913, 2 K. B. 235, 245-7.
(e) Nelson v. Stocker, (1859) 4 D. & J. 458; 28 L. J. Ch. 751; and see lnman v. I., (1873) 15 Eq. 260.