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.
Acknowledgment dispensed with.
Although the legal and equitable fee simple is vested in a married woman, she and her husband may, nevertheless, be unable (except under a statutory power, e.g., the S. L. Act, 1925), effectually to assure it to a purchaser; as where the property is held under a will or settlement which forbids alienation during coverture; for such a restriction is binding, though no trustee be interposed (r): nor had the Court any power before the Conv. Act, 1881, to dispense with it (s).
May be restrained from alienation.
A restraint on anticipation does not prevent a married woman from exercising the powers conferred on her by the S. L. Act, 1925: but the mere fact of a married woman being restrained from anticipating property to which she is otherwise absolutely entitled did not constitute her a limited owner under the S. L. Act, 1882 (t). But by the S. L. Act, 1925, it is provided that any instrument under which any land stands for the time being limited to or in trust for a married woman of full age in possession for an estate in fee simple or term of years absolute, or any other interest with a restraint on anticipation, is, for the purposes of the Act, a settlement (u).
Effect of recent Acta on the restraint.
(p) Cahill v. C, (1883) 8 A. C. 420, 425.
(q) Crofts v. Middleton, (1856) 8 D. M. & G. 192, 219; 25 L. J. Ch. 513; see judgment of L. J. K.-bruce.
(r) Baggett v. Meux, (1846) 1 Ph. 627; 15 L. J. Ch. 262; Re Gaskell's Trusts, (1865) 11 Jur. N. S. 780; 12 L. T. N. S. 763; Re Ellis' Trusts, (1874) 17 Eq. 409; 43 L. J. Ch. 444. See Re Spencer, (1885) 30 Ch. D. 183; 55 L. J. Ch. 80; Re Tippett's and Newbould's Contract, (1888) 37 Ch. D. 444; and Re Banket, 1902, 2 Ch. 333.
(s) Robinson v. Wheelwright, (1856) 6 D. M. & G. 535; 25 L. J. Ch. 385.
By the L. P. Act, 1925, s. 169, re-enacting s. 7 of the Conv. Act, 1911, where a married woman is restrained from anticipation or alienation in respect of any property belonging to her, or is by law unable to dispose of or bind such property or her interest therein, the Court may, if it thinks fit, where it appears to the Court to be for her benefit, by judgment or order, with her consent, bind her interest in such property (x).
Court may bind interest notwithstanding restraint.
A married woman, even when not entitled for her separate use either expressly or by statute, might, in exercise of a power, pass the legal estate(y). By s. 25 of the S. L. Act, 1925, it is provided - "The foregoing provisions of this Act apply to a married woman of full age, whether or not she is entitled to her estate or interest as her separate property, and she, without her husband, may exercise the powers of a tenant for life under this Act."
May convey under power.
Under the L. P. Act, 1925, s. 72 (2), re-enacting s. 50 of the Conv. Act, 1881, a married woman may, convey freehold land or things in action to her husband, and a husband may in like manner convey to his wife.
One spouse may convey to the other.
(t) Bates v. Kesterton, 1896, 1 Ch. 159; 65 L. J. Ch. 108; Be Pocock and Prankerd, 1896, 1 Ch. 302; 65 L. J. Ch. 211.
(u) S. 1 (1) (iv).
(x) Increase of income only is not a sufficient reason for the Court exercising its powers: Be Blundell, 1901, 2 Ch. 221; 70 L. J. Ch. 522. As to whether the wife is entitled to indemnity where the money is used to pay her husband's debts, see Paget v. P., 1898, 1 Ch. 470; Ball v. H., 1911, 1 Ch. 487.
(y) Wood v. W., (1870) 10 Eq. 220; 39 L. J. Ch. 790; Farwell. 3rd ed., p. 133. Under s. 1 (7) of the L. P. Act, 1925, powers operate only in Equity.
By s. 170 of the L. P. Act, 1925: (re-enacting with amendments s. 1 of the M. W. P. Act, 1907), a married woman is able to acquire, as well from her husband as from any other person, and hold, any interest in property, real or personal, either solely or jointly with any other person, as a trustee or personal representative, in like manner as if she were a feme sole (z). And a married woman is able, without her husband, to dispose of, or to join in disposing of, any interest in real or personal property held by her solely or jointly with any other person as trustee or personal representative, in like manner as if she were a feme sole (a). The section applies to a woman married (after the 31st December, 1882, and to a woman married on or before that date who became a trustee or personal representative on or after that date(b); and it operates to render valid acquisitions and dispositions made after the 31st December, 1882, but where any title has been acquired through or with the concurrence of the husband before the 1st January, 1908 (the date when the M. W. P. Act, 1907, came into operation), such title is to prevail (c).
Trust estates of married women.
The rule that the presence of a joint account clause in a mortgage does not oblige the vendor to answer a requisition as to the existence of a trust (d), has been held to apply although one of the mortgagees is a married woman (e). The clause (as adopted by s. 111 of the L. P. Act, 1925, re-enacting in substances. 61 of the Conv. Act, 1881) is a device by conveyancers to keep the trust off the title. For the sake of convenience the Courts have given effect to it by deciding that the clause does not affect a purchaser with notice of a possible trust. It is common knowledge that in nine cases out of ten the clause conceals a trust.
Married woman trustee mortgagee.
(z) Sub-s. (1). (a) Sub-s. (2).
(b) Sub-s. (3). (c) Sub-s. (4).
(d) Re Harman and Uxbridge, etc. R. Co., (1883) 24 Ch. D. 720; 52 L. J. Ch. 809; Carritt v. Real, etc. Advance Co., (1889) 42 Ch. D. at p. 272; 58 L. J. Ch. 688; and see Re Arran (Earl of) and Creer's Contract, 1912, 2 Ch. 141; Re Balen and Shepherd's Contract, 1924, 2 Ch. 365.
(e) Re West and Hardy, 1904, 1 Ch. 145; 73 L. J. Ch. 91.
But the Court (or the Legislature) chooses to put the purchaser in the position of a purchaser for value without notice (f).