that in order to defeat the heir-at-law's claim to land on a total or partial intestacy there must be a devise of that land in favour of someone else by the deceased owner's will. (See Fitch v. Weber, 6 Hare, 146; Snell's Eq., 5th ed., 199; H. A. Smith's Equity, 434.)

264. Where money is directed by will to be laid out in the purchase of real estate devised to uses which partly fail, who takes the undisposed-of interest, and is it taken as realty or personalty? When was the law as to the latter question settled?

He

The residuary devisee (if any), or, if none, the heir-at-law. takes it as personalty, and consequently on his death intestate the property in question will pass to his personal representatives. (This was settled by Smith v. Claxton, 4 Mad. 492; Haynes's Student's L. C. 169; Snell, 5th ed., 195-6; Cogan v. Stevens, 1 Wh. & Tud. L. C. Eq. 970; Haynes's Student's L. C. 170.)

265. A. by will devised land to the use of B. for life, with remainder to the use of the first and other sons of B. in tail, and, in default of sons, to such uses as B. should appoint. B. dies without children, and without having exercised the power of appointment. Who is entitled to the land? What is the rule of law governing the

point?

The residuary devisee under A.'s will (if any) or A.'s heir-atlaw. The rule of law is that A.'s will being ineffectual to dispose of A.'s whole interest therein, the land reverts to A. by way of a resulting use, and through A. to his residuary devisee or heir-atlaw.

266. In what way is a conveyance upon trust for creditors to be construed, and in what respects does it differ from an ordinary voluntary trust?

A. conveys an estate to trustees upon trust to realise and pay to certain scheduled creditors. A. informs some creditors of what he has done, but not others. Hare the creditors any, and what, rights under the deed?

It is construed merely as a direction to the trustees as to the method in which they are to apply the property vested in them for

the benefit of the owner of the property, who alone stands in the relation of cestui que trust, and can vary or revoke the trusts at his pleasure, so long as his creditors have not been made aware of it, and have not done anything to their prejudice upon the faith of it. The Court will not, therefore, at the instance of creditors who are looked upon, as above stated, as mere strangers, compel the trustees to execute the trusts for the payment of debts. It differs, therefore, from ordinary trusts so long as it is revocable. Where, however, such a conveyance has been acted upon, and according to some authorities if it is only communicated to the creditors, it can no longer be revoked by the grantor, since the creditors, being aware of such a trust, might be thereby induced to a forbearance in respect of their claims which they would not otherwise have exercised, and after which it would be unjust to disappoint them.

It is not clear upon the authorities whether the mere communication to the creditors by A. in the above case is sufficient to enable the creditors to take legal proceedings to enforce the performance of the trusts in their favour. The authorities, however, are clear that such creditors, unless they have by their own acts barred their own rights, can, if after being informed of the conveyance, and that they have done some act of forbearance or other like act upon the faith of it, take proceedings in the High Court (Chancery Division) to have the trusts administered under the direction of the Court. A creditor, however, who for a long time delays or refuses to execute the deed, and does not retract his refusal within the time limited, or if he sets up a title adverse to the deed, or has not performed all the fair conditions of the deed, or has taken any step inconsistent with such conditions, will not be allowed to claim the benefit of its provisions.

Those creditors to whom the above-named conveyance is unknown have no rights under nor are they prejudiced by the conveyance, and the fact of their names being mentioned in the schedule makes no difference. (H. A. Smith's Equity, 61-63.)

267. A trader, previous to leaving England, vests property in a trustee upon trust to pay his debts, but makes no communication of the fact to his creditors. What are the rights of creditors under the deed, and are these rights in any way affected if the trustee is himself a creditor?

The creditors to whom the existence of such a deed is not known have no rights thereunder. It is regarded, as it in truth is, as a conveyance of the debtor's property in the trustee for the debtor's own convenience, and the only cestui que trust is the debtor himself, by whom the deed is revocable at his pleasure, until his creditors are made aware of it and have done some act upon the faith of it which they would not have done if it had never existed. (See Garrard v. Lauderdale, 3 Sim. 1, and H. A. Smith's Equity, 61, 62.)

The deed of assignment is irrevocable as to a creditor who is trustee. (Mackinnon v. Stewart, 1 Sim. N. S. 88; La Touche v. Earl of Lucan, 7 C. & F. 772; Montefiore v. Brown, 7 H. L. Cas. 241-266; Snell's Equity, 5th ed., 94.)

VENDOR AND PURCHASER.

268. You are instructed by a client to prepare conditions of sale with a view to sale by auction of an estate of which he is absolute owner, consisting of freeholds, copyholds, and renewable leaseholds. You find on investigating the title that your client acquired the copyholds and a portion of the freeholds under the will of his father (dated in 1838), who died in 1850, and that he enfranchised a portion of the copyholds in 1863; that he acquired another portion of the freeholds under an exchange effected in 1868, in exchange for some land of which he was seised in fee as heir-at-law of his uncle, who died in 1842; and that he acquired another portion of the freeholds by an award under an inclosure in 1852. The leaseholds are held under a lease which has from time to time been renewed on surrender of the prior lease, the last renewed lease having been granted in 1868. What conditions restrictive of the title to be shown would appear to you to be necessary?

With regard to the freeholds acquired under the will, we should insert a condition preventing the purchaser from requiring any evidence of the vendor's father's possession at the time of his death, and state that there is no specific description of the property offered. for sale, but the purchaser must be satisfied with the general description contained in the will, unless the purchaser wishes to

have a declaration by the vendor that he has held the property consistently with that description since 1850, at the purchaser's expense, which, if given, shall be conclusive evidence thereof.

With regard to the copyholds acquired under the will and afterwards enfranchised, no special provision need now be made, because by sect. 3 of the Conveyancing and Law of Property Act, 1881, the purchaser cannot, in the absence of a special provision in the conditions of sale, call for the title to make the enfranchisement. If the sale was made prior to 1st January, 1882, and there was no special condition to the contrary, the purchaser might not only call for the copyhold title which has been enfranchised, but to the title of the lord of the manor down to the time of the enfranchisement, except in the case where the enfranchisement was made under the Copyhold Acts, 1852 and 1858. The exchange having been made since 31st December, 1844, and most probably under the powers of the "General Enclosure Act, 1845," and the purchaser being at liberty, in the absence of an express agreement, to call for the title to the land given in exchange up to the date of the exchange, in addition to the title to the land taken in exchange after that date, we should preclude the purchaser from calling for the title to the land given in exchange, and make the award conclusive evidence of the exchange and the requisite consent having been given. With regard to the renewed lease of 1868, we should make that the commencement of the title to the property comprised in it, and preclude the purchaser from calling for any earlier title or any surrendered lease. (1 Prideaux, 11th ed., "Conditions of Sale.")

269. Give an outline of the conditions usually inserted in conditions of sale of an estate comprising freehold, copyhold, and leasehold properties, showing the object of each condition.

Clause 1. Biddings, and whether sale is with a reserve price, or vendors reserve their right to bid; 2. Deposit; 3. Timber on freeholds to be paid for at a valuation; 4. Date for completion, as to payment of interest on purchase-money, and as to delivery of possession and payment of outgoings; 5. Special conditions as to the commencement of title, and as to the other matters which the state of the respective titles may require provision to be made. 6. Pre

cludes the purchaser from calling for evidence of earlier leases in the case of renewable leaseholds; 7. Delivery of abstract and commencement of each title; 8. Identity; 9. The properties are sold subject to easements, and as to apportionment of rents of two or more properties held under one lease. The copyholds are sold subject to the rights of the lord of the manor; 10. Errors in particulars not to annul the sale, but to be the subject of compensation; 11. Time for making requisitions; power for vendor to rescind in certain cases; 12. The vendor to execute proper assurances; 13. As to custody of deeds and acknowledgments and undertakings for their safe custody, &c.; and 14. Power for vendor to re-sell in case of purchaser's default. memorandum to comply with the Statute of Frauds is added by indorsement. (1 Prideaux, 11th ed., 49.)

A

270. What is the effect upon the legal position of the vendor and of the purchaser respectively of verbal declarations, made by an auctioneer at a sale, qualifying particulars and conditions of sale, which are afterwards duly signed?

Written or printed conditions of sale cannot be verbally varied at the time of sale by the auctioneer, and parol evidence will not be admitted in equity on the part of the plaintiff to vary the written contract, although the purchaser agrees to abide by the conditions and declarations made at the sale. But any personal information which the purchaser may have received would be a ground for receiving parol evidence, and using the same as a defence against an application for specific performance. Fraud, mistake, or surprise, are respectively grounds for receiving parol evidence in defence to an application for specific performance, but if none of these circumstances exist, evidence cannot be offered to contradict, explain, or vary the written contract.

The particulars of sale should give an accurate description of the property, and no reliance should be placed by the vendor on statements made at the sale. (1 Prideaux, 11th ed., 32.)

271. On a sale by auction of a freehold estate by order of trustees, one of whom is a married woman, the contract is signed by the