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.
Lunacy Act, 1890.
By s. 22, sub-s. (1), of the L. P. Act, 1925, where a legal estate in land (whether settled or not) is vested in a lunatic or a defective, either solely or jointly with any other person, his committee or receiver shall, under an order in Lunacy or of the Court, or under any statutory power, make, or concur in making, all requisite dispositions for conveying or creating a legal estate in the name and on behalf of the lunatic or defective (y). By sub-s. (2) if land held on trust for sale is vested in a lunatic or a defective, either solely or jointly with any other person, a new trustee shall be appointed in his place, or he shall be otherwise discharged from the trust before the legal estate is dealt with under the trust for sale.
Under L. P. Act, 1925.
(z) Lunacy Act, 1908, s. 1, amending s. 116 of the Lunacy Act, 1890. See as to the title of orders under this section, s. 133, Re Purvis, 1904, 1 Ch. 373; 73 L. J. Ch. 281; Rules in Lunacy, 1919 and 1925.
(y) As regards "defectives," see Lunacy Act, 1890, s. 116; Mental Deficiency Act, 1913, s. 64; L. P. Act, 1925, s. 205 (1) (xiii).
The S. L. Act, 1925, s. 28 (1), provides that, where a tenant for life is a lunatic or a defective, his committee or receiver may, in his name and on his behalf under an order in Lunacy, exercise the powers of a tenant for life, and the order may be made on the application of any person interested in the settled land, or of the committee or receiver.
Under S. L. Act, 1925.
With reference to incapacities to sell, whether in the case of infants or in the case of persons of unsound mind, we may here refer also to the Inclosure Acts (z); the Land Tax Redemption (a) Acts; the Church Building Acts, 1818 to 1884, relating to grants of land for places of religious worship or for the residence of the minister, or burial places (b); the Acts authorising the sale or exchange of messuages or lands for parsonages or glebes (c); the Acts authorising the gift or sale by incapacitated owners of land as a site for schools (d), or for the enlargement of churchyards (e), or for sites for places of religious worship, etc. (f), the Improvement of Land Act, 1864 (g); and the Acts empowering Secretaries of State to acquire lands for the defence of the realm (h).
Incapacitated owners may Bell under various Acta.
The proposed vendor may be a married woman, in which case her capacity to contract will depend on whether she was married before 1883, in which year the M. W. P. Act, being merged in that of her husband. She was disabled to contract with anyone, without the consent of her husband; omnia quĉ sunt uxoris sunt ipsius viri (p). Under 6. 77 of the Fines and Recoveries Act, 1833, she became capable, with her husband's concurrence, of contracting in Equity, if not at Law, so as to bind her real estate, though not so as to render herself personally liable for breach of contract (q).
Married women: - Estates of, how conveyed under old law.
(r) 6 & 7 Will. Tv. c. 115, ss. 42, 46, 47; 8 & 9 Vict. c. 118, a. 20, and see the Inclosure Acts, 1845 to 1882.
(a) 42 Geo. III. c. 116, sa. 14, 53, 98; 16 & 17 Vict. c. 74, s. 117, 8. 1.
(b) 58 Geo. III. c. 45, 8. 36; 1 & 2 Vict. c. 107, 8. 9; 45 & 46 Vict, c. 21.
(c) 55 Geo. III. c. 147, ss. 12 - 21; 1 Geo. Tv. c. 6; 6 Geo. IV. c. 8; 7 Geo. Tv. c. 66; 28 & 29 Vict. c. 69, 8. 4; the Glebe Lands Act, 1888.
(d) 4 &. 5 Vict. c. 38, ss. 2, 5; and see the School Sites Acts, 1841 to 1852.
(e) 30 & 31 Vict. c. 133, ss. 4 - 8. (f) 36 k 37 Vict. c. 50. (g) S. 24.
(h) 5 & 6 Vict. c. 94, ss. 10, 18; and see the Defence Acts, 1842 to 1873, and the Military Lands Acts, 1892 to 1903.
1882, came into operation; and further, if she married before
1883, whether the property of which she seeks to dispose is property the title to which, whether vested or contingent, and whether in possession, reversion or remainder, accrued before or after the commencement of the Act. In the rare cases coming under the old law, i.e., when the marriage and acquisition of the property occurred before 1883, she may, with the concurrence of her husband, convey her freehold estates. The acknowledgment which in the case of such a conveyance was required to be made by the wife under the Fines and Recoveries Act, 1833, s. 77, has been rendered unnecessary by the L. P. Act, 1925, s. 167. Apart from the Fines and Recoveries Act, a conveyance by a married woman of her freeholds was, at Common Law, absolutely void (i). Her legal terms for years, as well reversionary (k) as in possession (in cases falling under the old law), will pass by the sole assignment of her husband (l); though whether they will be bound by his contract in the event of his death in her lifetime and before conveyance, seems to be doubtful; and in order that a reversionary term may pass by his assignment, it must be such an one as could possibly vest in possession during coverture (m). As respects her equitable terms for years, in order to perfect the title, she had to join in and acknowledge the assignment; for though the husband's sole assignment would bind her right by survivorship (n), it would not displace her equity to a settlement (a).
The disability of coverture rested upon the principle that a man and wife were one, the persona of the wife
Their power to contract as to real estate.
(i) Burton's Comp. 7th ed. 65; see Zouch v. Parsons, (1765) 3 Burr, at p. 1805.
(k) Buberley v. Bay, (1852) 16 Beav. 33; Re Bellamy, (1883) 25 Ch. D. 620; 53 L. J. Ch. 174.
(l) Burton's Comp. 7th ed. 295; Moody v. Matthews, (1802) 7 Ves. 182.
(m) Duberley v. Bay, (1852) 16 Beav. 33.
(n) Bonne v. Hart, (1831) 2 R. & M. 360; 1 L. J. Ch. N. S. 57; Duberley v. Bay, sup.
(o) Hanson v. Keating, (1844) 4 Ha. 1; 14 L. J. Ch. 13; Wortham v. Pemberton, (1847) 1 De G. & S. 644; 17 L. J. Ch. 99.
By the L. P. Act, 192-5, s. 167, it is provided that every disposition of real or personal property which a married woman is, under the Fines and Recoveries Act, 1833, or the Married Women's Reversionary Interests Act, 1857, or any other enactment, authorised to make by deed acknowledged, shall be effectual if made by her with the concurrence of her husband but without acknowledgment.