or tender, after a month's notice, to the incumbrancer of such amount, the commissioners may certify the land to be freed from the incumbrance. The section only applies to perpetual rent-charges or annuities, but embraces existing It seems that a copyholder may discharge his estate from quit rents without being obliged to enfranchise.

ones.

Abolition of "Consolidation of Mortgages." While on the subject of incumbrances, it may be stated that the act practically abolishes the doctrine of consolidation of mortgages, except by express contract (sect. 17), a provision which is, in my opinion, a distinct gain, only marred by the fact that the act does not go far enough. Hitherto if A. mortgaged Tenacre to B. for £500, and afterwards mortgaged Broadlands to him for £5,000, and then gave a second mortgage on Tenacre to C., B. not only had a claim on Broadlands for the £5,000 specifically secured by it, but he might consolidate both his mortgages into one, and refuse to allow C. to redeem little Tenacre without paying the £5,000 owing on Broadlands, and this although C. might have had no notice of the mortgage on Broadlands. Such has been hitherto the doctrine of judicial equity, and it has rendered it always a very dangerous thing to advance money on a second mortgage, or to purchase an equity of redemption, lest it should subsequently turn out that the first mortgagee had another mortgage on other property of the mortgagor which he could consolidate. The new act abolishes this right as to future mortgages, unless a contrary intention is expressed in the mortgage deeds or one of them. These last words, however, rob the provision of a great deal of its utility, as the contrary intention may (to follow my former illustration) be expressed in the mortgage of Broadlands, and so give the purchaser or second mortgagee of Tenacre no notice whatever of the fact. In such a case the second mortgagee or purchaser will be in as great danger as ever.

Transfer of Mortgage in lieu of Re-conveyance. Another just provision (sect. 15) is, that a mortgagor may henceforth compel a mortgagee (not being in possession) to transfer the mortgage to a third party, instead of re-con

1

veying it, and this notwithstanding any agreement to the contrary. The provision is retrospective. Hitherto a mortgagor could not insist upon this. Of course the mortgagor cannot compel a transfer, except where he could compel a re-conveyance.

Another op

Right of Mortgagor to inspect Deeds. pressive rule of law has been, that a mortgagee cannot be compelled to produce his deeds until he is redeemed. This rule is abolished (sect. 16) with regard to future mortgages, notwithstanding any contract to the contrary, so long as the right to redeem subsists.

Sales by Court of Mortgaged Property. The 86th section of the Chancery Procedure Act gave the court power in foreclosure actions to decree a sale instead of a foreclosure. The new act repeals this section, and (sect. 25) extends the power of the court, so as to embrace both foreclosure and redemption actions, and authorizes the bringing of actions for the sole purpose of procuring a sale. The new power is very wide in its terms, and is exerciseable notwithstanding the dissent or non-appearance of mortgagor or mortgagee, and may be made summarily, and on such terms as the court may think fit. In a sale in a redemption suit, the court may, however, give the conduct of it to the defendant, and may give special directions as to his costs. These provisions are retrospective.

The section will be very favourable to mortgagors. Formerly, if a mortgagor bringing an action of redemption failed to redeem at the time appointed, he was foreclosed of all his equity of redemption. Now this need never be the case, for the court can, on his application, order a sale. It will also give an equitable mortgagee by deposit, whose only remedy formerly was foreclosure, the right of having a sale.

An order for sale after a decree for foreclosure was made under this section in Union Bank v. Ingram, W. N. C. 1882, p. 10. And in Weston v. Davidson, ibid. p. 28, on an application for a sale by defendant mortgagor, the court ordered a deposit to be paid by him into court to meet the expenses of sale, &c.

Attestation of Purchase Deed. One of the stock questions hitherto asked of a conveyancing counsel has been, whether a purchaser is entitled to have the conveyance executed by the vendor in his presence, or in that of his solicitor. The answer has been, as a general principle, yes." The new act, however, to some extent reverses this, but enacts (sect. 8) that on future sales the purchaser shall, at his own cost, be entitled to have the conveyance attested by some person appointed by him, who may (if he likes) be his solicitor.

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Severance in Leases. Some of our most technical and pedantic learning has been bestowed upon points arising where the reversionary interest in leaseholds has been severed or split up, by the sale or devise of the property by the lessor in lots, very delicate distinctions being made, which are beyond the scope of this treatise. It suffices to say, that in future leases, the rent and benefit of the lessee's covenants, and the right of re-entry on breach, and also the obligation of the lessor's covenants, will run with the reversion notwithstanding severance; and the right of reentry will be apportioned and annexed to the severed parts (sects. 10-12). Under 22 & 23 Vict. c. 35, s. 3 (which does not appear to have been repealed), the rent or other reservation had to be legally apportioned in order to give the assignee of each part of the reversion the benefit of all conditions and powers of re-entry for non-payment of the rent or other reservation allotted to him.

Forfeiture of Leases. It has been long considered a great hardship that Courts of Equity could not relieve against forfeiture of leases under a condition of re-entry on breach of covenants, often of the most immaterial kind, with the sole exception of the covenant to pay rent and to insure. This power of re-entry has not seldom been exercised in the most oppressive way by speculators, who have bought up reversions of building leases cheap, and have taken advantage of the least breach to effect a forfeiture, and thus gain possession of the tenant's improvements before the time contemplated by the lease. This form of

chicanery will now be prevented, both in relation to existing and future leases. The 14th section of the act provides that forfeiture shall not be enforceable, unless the lessor serves on the lessee a notice specifying the breach of covenant complained of, and, if the same is capable of remedy, requiring the lessee to remedy it and make compensation in money, and unless the lessee makes default for a reasonable time to remedy the breach and compensate the lessor. In any event the court is empowered to relieve against the forfeiture on such terms as it may think fit. The section cannot be avoided by a contract to the contrary; but it does not apply to a breach of a covenant not to assign, underlet or part with the possession, nor to a condition for re-entry on bankruptcy, &c., nor (in the case of a mining lease) to the breach of a covenant to inspect the mine, books, plans, and so on. The principles of relief against forfeiture for non-payment of rent also remain as before the act.

Turning Long Terms into Fee Simple. A curious and quite new provision in the act, is that (sect. 65) which allows the owner of a long term to turn it into a fee simple without the concurrence of the reversioner, and without giving him any compensation.

The term must have been originally for not less than 300 years, and at least 200 must be unexpired, and there must be no equity of, or trust for, redemption "affecting the freeholder or other person entitled in reversion expectant on the term," and no rent incident to the reversion other than a peppercorn. The words within inverted commas would seem to imply that this section was intended to apply to a sub-term with a leasehold reversion, as it is impossible otherwise to give an adequate meaning to the words, or other person entitled in reversion, &c." If such is the case it has been pointed out that it may work a great injustice in a case like this: A., freeholder, demises land for a long term at a substantial rent to B.; B., in consideration of a fine or premium, sub-demises to C. at a peppercorn rent. C. makes the declaration by deed required by the act; his term thereby becomes enlarged into a fee simple, and A. loses his rent, or if he does not, the

strange anomaly is presented of two fee simple estates, to one of which is incident (if a very liberal interpretation is given to sub-s. 4 of the section), the payment of rent to the owner of the other.

Any person beneficially entitled to the possession of such a term, or any trustee entitled in right of the term to receive the income, or having the term vested in him in trust for sale, or any personal representatives in whom the term is vested, may turn it into a fee simple, whether it be incumbered or not. Married women (other than those entitled for their separate use, with or without power of anticipation) must have the consent of their husbands. The mode of effecting the conversion is by a declaratory deed, and the fee simple so created is to be subject to the same trusts and provisions as the term. There is a provision providing, that where a term is settled upon the same trusts as freeholds comprised in the same settlement, so far as the law permits, the term, when converted, shall be settled accordingly, and until settled shall devolve like the freeholds. The converted term carries minerals, even where the term itself was with impeachment of waste, except such minerals as have not at the time of enlargement been severed in right (which it is presumed means "reserved by the deed creating the term") or in fact, or have not been severed or reserved by an Inclosure Act or award.

The framers of the act seem to have been unaware that a reversion in a very long term has sometimes a market value. To my unbounded astonishment 2007. was paid by the termor for such a reversion in some sixty-seven acres, in a case in which I was counsel in the early part of the year. The act practically confiscates this value, whatever it may be.

Trust and Mortgage Estates on Death. Perhaps one of the most useful provisions, and one which will put an end to a great many difficult questions, is that (sect. 30) which provides, that on the death of a trustee or mortgagee of freeholds or copyholds his estate shall vest in his executor or administrator notwithstanding any express devise of