The courses open to a tenant for life after a re-settlement.

(p) See the explanation given in Re Wimborne and Browne's Contract, 1904, 1 Ch. 637, 542.

(q) Above, p. 308.

(r) The Court of Appeal in Mandy's oast adopted the view of eminent real property lawyers that the words "in restoration of his former life estate" have no real conveyancing value except as an expression of intention that the express powers appendant to that estate shall not he destroyed . Sug. Pow. 71,8thed.; Davidson, Prec. Conv. iii. 596, 3rd ed.; 1899, 1 Ch. 294. And the opinion of conveyancers certainly was that where upon a re-settlement a life estate was limited to a man in restoration of his former life estate, he was tenant for life under the new settlement as we11 as the old: Bee the form of re-settlement given in Davidson, Prec. Conv. iii. 1030. 1030, 1059, 1060, where after limiting the first life estate to A. in restoration of his former estate, the powers of leas ing and of consent to the exercise of the power of sale are given to "every person hereby made tenant for life" (when in possession) without naming any person; lie-sides, it may well be asked, how in Cornwalls West's case could B. have acquired a rentoharge in priority to A.'s life estate unless A.'s estate had been entirely taken away from and then given hack to him? Hut if the deed of re-settlement did indeed restore to A. that life estate with which he had previously parted, how can it be reasonably denied he was tenant for life under the re-set-tlement?

(s) See Re Spearman's Settled Estates, 1906. 2 Ch. 502, deciding that tenant for life and tenant in tail in remainder of land free from incumbrances can, when disentailing, together appoint trustees of a compound settlement.

(t) Re Spencer's Settled Estates, 1903, 1 Ch. 75.

(u) Above, pp. 308 - 314.

(x) Above, p. 313, and n. (m).

(y) Above, p. 314.

Where there has been a settlement and re-settlement and the tenant for life in possession derives his estate solely from the re-settlement and never had the estate or the powers of a tenant for life under the original settlement, he cannot of course make title as exercising the powers of a tenant for life under the old settlement, but can only sell as tenant for life either under the compound settlement or under the re-settlement alone (z).

Sale by tenant for life deriving his estate from the resettlement alone.

As already stated (a), the tenant for life is empowered to sell and convey the settled land discharged from all the limitations of the settlement, and from all estates or interests subsisting or to arise thereunder: but this power is subject to three express qualifications or exceptions, of which the first is of all estates, interests, and charges having priority to the settlement. These may be exemplified by a lease granted or a mortgage made previously to the settlement, and also by charges to which a statutory priority is given, such as estate duty (b) or rentcharges created under the Improvement of Land Act, 1864 (c). And where there has been a settlement followed by a re-settlement or re-settlements, and the vendor purports to sell as tenant for life under the re-settlement or the last re-settlement alone, then, as we have seen (d), that resettlement will be the settlement for the purposes of the Acts, and any estate or interest still subsisting, which has been created by or under some instrument of earlier date than that re-settlement, will be an estate or interest having priority to "the settlement" (c). The second exception is of all such other estates, interests, and charges as have been conveyed or created for securing money actually raised at the date of the deed, whereby the tenant for life exercises his power of conveyance. The word other seems to relate here to the estates mentioned in the first exception; so that apparently the second exception is of all such estates, etc., other than those having priority to the settlement, as have been conveyed or created for securing money actually raised. This exception has now been judicially interpreted as being an exception (in the proper sense of the word) out of the enabling words of sect. 20 of the Settled Land Act, 1882 (f), and as including only such estates, interests and charges, conveyed or created for securing money actually raised at the date of the deed, as subsist or arise under the settlement. And it has been considered that estates, interests and charges subsisting or to arise under the settlement and conveyed or created for securing money actually raised include only such mortgages or charges as have been made in pursuance of some power or trust for the purpose either expressly contained in the settlement or"annexed by law to some estate or interest conferred by the settlement; and that these words (those printed in italics) do not extend to mortgages or charges made by some beneficiary under the settlement of the estate or interest thereby limited to him, and created in exercise of the right of alienation incident to his ownership. In particular, it has been decided that the second exception does not include a mortgage made by the tenant for life or any remainderman of his estate under the settlement, or, where the tenant for life is also the ultimate remainderman in fee simple under the settlement, a mortgage made by him of all his estate in the settled land. And it is held that, where such a mortgage has been made, the tenant for life selling under the Settled Land Act (g), so long as he has obtained the consent as required by sect. 50 (h) of any mortgagee of his own life estate, is enabled under sect. 20 to convey the settled land to the purchaser discharged from the estate of the mortgagee or mortgagees and the charge or charges so created; and that the purchaser cannot require the mortgagee or mortgagees to concur in the conveyance (i). It follows of course from this decision that where land limited to one for life with remainder to another in fee simple has been mortgaged by a joint assurance of their estates to one mortgagee, his consent is all that can be demanded on a sale by the tenant for life under the Settled Land Acts and his concurrence in the conveyance cannot be required. A fortiori, the tenant for life can convey the settled land discharged from any mortgage made by any remainderman alone of his estate or interest under the settlement, if the charge were created solely in exercise of the right of alienation incident to his ownership and not under any power or trust for the purpose contained in the settlement; and in such case neither the consent nor the concurrence of the mortgagee can be demanded. Instances of estates, interests and charges, which do fall within the terms of the second exception and cannot he displaced by the life-tenant's power of conveyance under the Settled Land Acts are those limited or created by mortgages made to secure sums of money actually raised under some trust or power contained in the settlement, such as to charge portions for younger children, for a tenant for life or in remainder to raise and charge a capital sum for his own benefit, or for the trustees of the settlement or the tenant for life or any other person entitled thereunder to raise money by mortgage for some purpose advantageous to all the beneficiaries, for example, for discharging incumbrances, enfranchising copyholds, or making improvements, or for equality of exchange or partition. The second exception also includes all estates or interests created in exercise of any power given by the Settled Land Acts (k) or any other statute for the tenant for life or any other person entitled under or by virtue of the settlement to mortgage or charge the settled land (l). And whenever it appears, upon a sale made by a tenant for life under the Settled Land Acts, that the settled land is subject to any estates or interests comprised within this second exception, the purchaser must require the persons entitled thereto to concur in the conveyance and assure their estates or interests to him (m). The second exception includes only estates or interests conveyed or created for securing money, that is, by way of mortgage or charge, and does not extend to those conveyed or created on an absolute sale, from which the settled land will be effectually discharged by the tenant-for-life's conveyance under the Settled Land Acts (n). And all charges, terms or other estates to secure charges, and powers of charging limited by or contained in the settlement but not actually put in use or exercised by raising money thereunder may equally well be displaced in the same way (o).