64. CONSTRUCTION AND EFFECT of the words, "of and in such like estates "), enabled estates only to SS. 62 (2), 63, be raised by way of use, and s. 5 enabled rent-charges to be raised by way of use. The statute does not contain any section applicable to the creation of other interests de novo (see Beaudely v. Brook, Cro. Jac. 189; Bac. Ab. Uses, F.), but s. 1 enabled them when created for a freehold interest to be conveyed to uses, as being hereditaments. Consequently under a conveyance to uses or under a power of sale and exchange, a right of way or other easement or liberty could not be created, but being in existence could be conveyed. "Deriving title" means by and according to law, consequently this s. does not confer any new power of transmitting title, nor enable the creation of any new kind of easement, nor make assignable that which was not by law assignable. For instance, a right of way in gross cannot be created capable of assignment: see Ackroyd v. Smith, 10 C. B. 164. That there may be an "estate" in an incorporeal hereditament, see Statute of Uses, s. 5, which speaks of an estate in an annual rent. OF DEEDS AND OTHER INSTRUMENTS. No new easements can be created. 63.-(1.) Every conveyance shall, by virtue of this Provision for Act, be effectual to pass all the estate, right, title, all the estate, interest, claim, and demand which the conveying parties respectively have in, to, or on the property conveyed, or expressed or intended so to be, or which they respectively have power to convey in, to, or on the same. (2.) This section applies only if and as far as a contrary intention is not expressed in the conveyance, and shall have effect subject to the terms of the conveyance and to the provisions therein contained. (3.) This section applies only to conveyances made after the commencement of this Act. The object of this section is to abolish the "all estate" clause. The "All estate section does not say that every conveyance shall be deemed to contain clause." this clause, which might be inconsistent with the terms of conveyance, as the word "conveyance" includes "lease" (see s. 2 (v.)). It merely confirms a previously existing rule of law, and applies the rule in the same cases, namely, where a contrary intention is not expressed. Even with an express "all estate" clause a lease could not pass the fee for want of the word "heirs" or "fee simple," and also because the premises would be controlled by the habendum: Co. Lit. 183 a; Buckler's Case, 2 Co. 55; Shep. Touch. 113. 64. In the construction of a covenant or proviso, or Construction of other provision, implied in a deed by virtue of this Act, implied cove nants. SS. 64, 65, (1), words importing the singular or plural number, or the (2). masculine gender, shall be read as also importing the CONSTRUCTION plural or singular number, or as extending to females, as the case may require. AND EFFECT OF DEEDS AND OTHER IN STRUMENTS. LONG TERMS. Enlargement of residue of long term into fee simple. Presumption of release of a rent. XIII.-LONG TERMS. 65.—(1.) Where a residue unexpired of not less than two hundred years of a term, which, as originally created, was for not less than three hundred years, is subsisting in land, whether being the whole land originally comprised in the term, or part only thereof, without any trust or right of redemption affecting the term in favour of the freeholder, or other person entitled in reversion expectant on the term, and without any rent, or with merely a peppercorn rent or other rent having no money value, incident to the reversion, or having had a rent, not being merely a peppercorn rent or other rent having no money value, originally so incident, which subsequently has been released, or has become barred by lapse of time (a), or has in any other way ceased to be payable, then the term may be enlarged into a fee simple in the manner, and subject to the restrictions, in this section provided. (a) The Statute of Limitations, 3 & 4 Will. 4, c. 27, does not apply to rent reserved on a lease (Grant v. Ellis, 9 Mees. & Welsby, 113; Sugden, Real Prop. Stat. 36, 63, 2nd ed.), but before that Act presumption from lapse of time operated as a bar in cases where the old Act did not apply (Doe v. Prosser, Cowper, 217); and it is conceived that the same principle would hold now, so that after non-payment of rent for a long period it would be presumed to have been released: see Eldridge v. Knott, Cowper, 214. (2.) Each of the following persons (namely): with restraint on anticipation or not, and then s. 65 (2), (3). without his concurrence; (ii.) Any person being in receipt of income as trustee, in right of the term, or having the term vested in him in trust for sale, whether subject to any incumbrance or not; (iii.) Any person in whom, as personal representative of any deceased person, the term is vested, whether subject to any incumbrance or not; shall, as far as regards the land to which he is entitled, or in which he is interested, in right of the term, in any such character as aforesaid, have power by deed to declare to the effect that, from and after the execution of the deed, the term shall be enlarged into a fee simple. (3.) Thereupon, by virtue of the deed and of this Act, the term shall become and be enlarged accordingly, and the person in whom the term was previously vested shall acquire and have in the land a fee simple instead of the term (b). This section enables the conversion into fee simple of a long term in a case where it is practically impossible that evidence of title to the reversion in fee could exist at the expiration of the term, at least where the reversion is not vested in a corporation, and where also if such evidence did exist the value of the reversion must be infinitesimally small at the time of conversion. Before the Act 8 & 9 Vict. c. 106, a tortious fee, and for all practical purposes an actual fee, could be acquired by means of a feoffment: see 1 Sand. Uses, 30, 5th ed.; 2 ib. 14 et seq. But s. 4 of that Act took away the tortious effect of a feoffment, and rendered impossible the acquisition of a fee in place of a term. The usual origin of a long term is a mortgage by demise where the right of redemption has been foreclosed or has been barred by possession and lapse of time. The fact that the land is not freehold is often overlooked, complication of title arises, and the intentions of a testator are sometimes frustrated, the leasehold interest passing under a gift not intended to include it. LONG TERMS. Section applies to cases where reversion has no appreciable value. Old mode of acquiring fee. The power to convert into a fee is given to "any person beneficially Who has power entitled" "to possession" (see definition of "possession," s. 2 (iii.), to convert. ante). Thus a tenant for life, legal or equitable, and whether the land is "subject to any incumbrance or not," can effect the conversion. A trustee can only convert where the trust is active and he is in receipt Trustee. of rent. Otherwise the beneficial owner is the person to convert. Thus a trustee under the usual trust for sale and conversion in a will §. 65 (4), (5). would be the proper person to effect a conversion, but not the trustee under a settlement holding the term on trusts corresponding to the limitation of the freeholds. There the equitable tenant for life would be the proper person. LONG TERMS. Mortgagor but not mortgagee. Effect of conversion. Where no A mortgagee cannot convert, as it would be improper to allow him to change the nature of his mortgagor's estate. But the mortgagor can convert, the conversion being no injury to the mortgagee. (b) The effect of subs. 3 is to defeat the reversion in fee in the same way as on a disentail, so that the fee acquired by conversion is free from all dealings affecting the original fee. It has been suggested (see Clerke and Brett's Conv. A. p. 162), that A. having a lease for 999 years at a rent might demise to B. for 500 years without rent, taking a fine, and then B. could acquire the fee. Still the rights of A., such as they might be, would be preserved under subs. 4. But the section seems to apply only to a term immediately under the fee, the expression "other person entitled " meaning "other person entitled in remainder or reversion after the freeholder." (4.) The estate in fee simple so acquired by enlargement shall be subject to all the same trusts, powers, executory limitations over, rights, and equities, and to all the same covenants and provisions relating to user and enjoyment, and to all the same obligations of every kind, as the term would have been subject to if it had not been so enlarged. (5.) But where any land so held for the residue of a term has been settled in trust by reference to other land, being freehold land, so as to go along with that other land as far as the law permits, and, at the time of enlargement, the ultimate beneficial interest in the term, whether subject to any subsisting particular estate or not, has not become absolutely and indefeasibly vested in any person, then the estate in fee simple acquired as aforesaid shall, without prejudice to any conveyance for value previously made by a person having a contingent or defeasible interest in the term, be liable to be and shall be conveyed and settled in like manner as the other land, being freehold land, aforesaid, and until so conveyed and settled shall devolve beneficially as if it had been so conveyed and settled. Under subs. 5, where there has been no dealing for value with the dealing tenure ultimate beneficial interest in the term, and that interest has not is changed; (7). LONG TERMS. become absolutely and indefeasibly vested (as where the term has been S. 65 (5), (6), settled in the usual way, and no tenant in tail by purchase has attained twenty-one), the land on the enlargement of the term is for all purposes of descent, devise, &c., changed from leasehold to fee simple. It will no longer vest absolutely in the first tenant in tail who attains twentyone, but will descend under the entail if not disentailed. This result is the same as that produced where leaseholds are sold under a power of sale and the proceeds invested in fee simple land. Where there has been a conveyance for value the effect of that conveyance is preserved. Thus suppose the settlement to be on A. for life, remainder to his sons successively in tail, remainder to C. in tail, remainder to D. in fee, A. has no son of age, the term has not become absolutely and indefeasibly vested in any person, therefore the estate in fee simple acquired by enlargement should be conveyed to the uses of the settlement, and in the meantime will devolve accordingly as to the equitable interest. But C. will become absolutely entitled to the term in case A. dies without having a son who attains the age of twenty-one or dies under that age without leaving issue inheritable, and if C. has mortgaged this contingent interest then the mortgagee will take the fee obtained by enlargement in the same event in which he would have taken the term, but the equity of redemption will devolve under the entail. If a son of A. attains twenty-one before the enlargement is effected, then he becomes absolutely and indefeasibly entitled to the term, and this subs. 5 does not apply, but under subs. 4 the fee acquired is subject to the same trusts as the term, that is, a trust for the son absolutely, and no disentail is required. Under a will the land will pass as freehold or leasehold, according to its tenure at the time of the testator's death. (6.) The estate in fee simple so acquired shall, whether the term was originally created without impeachment of waste or not, include the fee simple in all mines and minerals which at the time of enlargement have not been severed in right, or in fact, or have not been severed or reserved by an inclosure Act or award. (7.) This section applies to every such term as aforesaid subsisting at or after the commencement of this Act. Subs. 6 in effect gives to the owner of a fee obtained by enlargement the right to the mines in fee as well as the land, except in those cases where there is a possibility that the mines can be shewn to be vested in some other person than the reversioner in fee. Mines severed in right (as by conveyance separately from the land) will also be severed in fact, but the words "in fact" seem also required to save the title of a person in possession of mines without obliging him to shew that they have been severed in right. See Precedents, post, applicable to this section. contra where a conveyance for value. Saves the right to mines not vested in surface owner. |