S. 5. SALES AND ACTIONS. Discharge of Incumbrances on Sale. Mode of proceeding to obtain sale. 1 absolutely foreclosed if the money was not paid at the day fixed, there being usually no enlargement of time in a redemption action (Dan. Ch. Pr. 861, 5th ed.). Even were a person found willing to make the re- OTHER TRANSquired advance the owner could not be certain that the first mortgagee would consent to produce the deeds or to transfer, he might insist on reconveying. Again in an action of foreclosure a mortgagee could only obtain a sale free from the jointure if the jointress consented to release, and must necessarily sell without any release of the portions and subject to depreciatory conditions as to indemnity or as to leaving them a charge. Under this section and ss. 15, 16, and 25, the course will be simple. If an advance can be obtained to pay off the mortgages the mortgagee, assuming his mortgage to be subsequent to the Act, can be required to produce the deeds (s. 16). Whether his mortgage is subsequent to the Act or not, he can be required to transfer (s. 15). If a sale is desired, the owner can bring an action for sale (s. 25), in which the only necessary defendant would be the last mortgagee, he being the only one not certain to be paid in full, and whom it is therefore necessary to bind by the judgment for sale. The sale being made, there will be set apart (1) £10,000 and an additional 10 per cent., making £11,000 in consols to answer the jointure; (2) £22,000, including the additional 10 per cent., to answer the portions; and (3) £55,000, also including the 10 per cent., to answer the first mortgage, making a total of £88,000. The estate will thereby be cleared from all charges except the money due to the second mortgagee, and he, if not paid in full, will, as defendant, be bound by the sale. In the case of a sale out of Court, the owner can, when the contracts are signed, and on the faith of the incoming purchase-money, generally procure a temporary advance of the amount required to be paid into Court to answer the charges, and thus at once obtain a conveyance or vesting order (s. 5, subs. 2). By s. 69, subs. 7, the Court can direct Costs of appliby whom the costs of any application are to be paid. By the operation of this section, the jointress and the children entitled to portions suffer no substantial injury. They have the same security which the Court considers proper in cases of annuities and legacies payable out of personalty, with a further margin of 10 per cent. The mortgagees suffer no injury. They are always bound to accept payment on six months notice. The margin of 10 per cent. and the dividends or interest on the sum paid into Court, are ample to provide the amount due and costs. The deposit in Court and the security for costs which may be required from the plaintiff under s. 25, subs. 3, prevent the costs of a sale falling on the defendant mortgagee unless he consents. If the deposit and security are not provided, the Court can allow the action to proceed to foreclosure in the usual way. cation. Effect of s. 5 on rights of incumbrancers. incumbrancer. The Court will take care that so far as possible a mortgagee whose As to notice to charge is to be provided for by payment into Court has due notice (see s. 69 (6)) before the land is declared under subs. 2 to be freed SALES AND ACTIONS. Incumbrances on Sale. S. 5; S. 6 (1), from his incumbrance. If he be absent there will generally be an agent who receives his interest upon whom notice can be served. Upon OTHER TRANS- receipt of notice the mortgagee will have an opportunity of shewing the amount due, and whether he has any right of consolidation in respect of a mortgage on other property. If a mortgagee cannot be found he Discharge of has no valid reason to complain that some unknown equity or further advance has been disregarded. The purpose of the section is to facilitate the sale of incumbered estates, and a sale should not be prevented by the mere fact that a mortgagee cannot be found, hence the necessity for giving the Court power to act without notice to the incumbrancer. The Court will, no doubt, in every case where a mortgagee does not appear, require an affidavit as to the amount due to him, and negativing any other claim than what appears on his security. Where that security cannot be produced there may in some cases be difficulty, but the receipt for interest will generally shew what is due. As to mortgages for a time certain. What incumbrances included. General Words. General words Where the mortgage contains an agreement that the money shall remain for a fixed period, the Court will probably think there is special reason for requiring a larger amount beyond the margin of 10 per cent. so as to secure the mortgagee his full interest during the fixed period, or give him the proper amount of damages on payment off. A capital sum or an annuity payable out of rents and profits or a capital sum charged on a reversionary interest are within this section (see s. 2 (vii.)). An annual sum charged on a determinable interest in land is also within this section. If a tenant for life of land charge the land with an annuity it is not the less, while subsisting, a charge on the land, because the charge determines with his estate. If he charge the land with a gross sum it is also a charge on the land, but not in the ordinary sense in which a gross sum is said to be a charge. An annual sum whether terminable or otherwise charged on land, and a capital sum charged on a determinable interest in land, constitute the two cases where a capital sum could not be or might not properly be applied out of the proceeds of sale in discharge of the incumbrance. In the one case the annuitant is entitled to have payment of the annual sum continued to him, in the other case, capital money should not be applied in payment of the charge to the prejudice of the remainderman. Therefore this section provides for the application of dividends only in payment. An annual sum is a charge on land, though rents and profits only, and not the corpus of the land, can be resorted to for payment. A rent-charge recoverable only by distress is clearly a charge on land within the ordinary meaning of that term. General Words. 6.-(1.) A conveyance of land shall be deemed to in conveyances include and shall by virtue of this Act operate to convey, ings, or manor. with the land, all buildings, erections, fixtures, commons, of land, build (3), (4). SALES AND OTHER TRANS hedges, ditches, fences, ways, waters, watercourses, s. 6 (1), (2), liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof. (2.) A conveyance of land, having houses or other buildings thereon, shall be deemed to include and shall by virtue of this Act operate to convey, with the land, houses, or other buildings, all outhouses, erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, houses, or other buildings conveyed, or any of them, or any part thereof, or at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to, the land, houses, or other buildings conveyed, or any of them, or any part thereof. (3.) A conveyance of a manor shall be deemed to include and shall by virtue of this Act operate to convey, with the manor, all pastures, feedings, wastes, warrens, commons, mines, minerals, quarries, furzes, trees, woods, underwoods, coppices, and the ground and soil thereof, fishings, fisheries, fowlings, courts leet, courts baron, and other courts, view of frankpledge and all that to view of frankpledge doth belong, mills, mulctures, customs, tolls, duties, reliefs, heriots, fines, sums of money, amerciaments, waifs, estrays, chief-rents, quit-rents, rentscharge, rents seck, rents of assize, fee-farm rents, services, royalties, jurisdictions, franchises, liberties, privileges, easements, profits, advantages, rights, emoluments, and hereditaments whatsoever, to the manor appertaining or reputed to appertain, or at the time of conveyance demised, occupied, or enjoyed with the same, or reputed or known as part, parcel, or member thereof. (4.) This section applies only if and as far as a contrary intention is not expressed in the conveyance, and ACTIONS. General Words. S. 6 (4), (5), (6). SALES AND OTHER TRANS ACTIONS. General Words. Use of general words as to land or houses Easements used or enjoyed with but not appurtenant to land. General words as to manors. Mines and minerals. shall have effect subject to the terms of the conveyance and to the provisions therein contained. (5.) This section shall not be construed as giving to any person a better title to any property, right, or thing in this section mentioned than the title which the conveyance gives to him to the land or manor expressed to be conveyed, or as conveying to him any property, right, or thing in this section mentioned, further or otherwise than as the same could have been conveyed to him by the conveying parties. (6.) This section applies only to conveyances made after the commencement of this Act. The object of inserting general words in a conveyance was to prevent any question as to whether a particular easement or right would or would not pass without those words. In most cases the words might be useless; still in some case they might be required, as for instance, to pass reputed rights and easements. As a general rule in case of land and houses they merely express what is included in the description, or forms part and parcel of the land or houses, and the rights and easements appurtenant thereto, i.e. annexed by express or implied grant, and all these pass with the land or houses (Gale, 47; 88, 5th ed.; Williams on R. P. 328, 12th ed.) But where an easement has become extinct by unity of possession of the dominant and servient tenements, a conveyance of land or a house "with all easements therewith used and enjoyed," will operate as a grant de novo of the easement which, though at one time appurtenant, had been extinguished (Barlow v. Rhodes, 1 Cr. & M. 448; Gale, 48; 90, 5th ed.; Williams on R. P. 329, 12th ed.) Even where no easement existed before the unity of possession, but a right of way was used with one tenement over the other, a grant of the first-mentioned tenement, "together with all ways now used or enjoyed therewith," would pass the right of way (Burkshire v. Grubb, 18 Ch. D. 616; see also Watts v. Kelson, L. R. 6 Ch. Ap. 166; Kay v. Oxley, L. R. 10 Q. B. 360). A conveyance after 1881 will operate in like manner under this Act, without any express general words. The general words used in a conveyance of a manor either (1) express what is included in the description as parcel of the manor (see Shep. Touch. 92), or (2) they are royal franchises, which if they are appurtenant to the manor pass without express words, but not otherwise (see Morris v. Dimes, 1 Ad. & El. 654). Mines and minerals pass under a conveyance of land without being expressly mentioned, except in copyhold or customary assurances and except in conveyances to railway companies, from which latter they are excepted unless expressly mentioned (see 8 & 9 Vict. c. 20, s. 77). They are therefore omitted from the general words which by this section are made applicable to land and houses, but are included in the general words applicable to manors, as they may in some cases have become severed from the manor, and once severed could not be reunited to it as they might be to the surface of land. It may be a question whether an enfranchisement of copyholds by conveyance of the fee simple reserving the minerals would not operate as a severance. Covenants for Title. 7.-(1.) In a conveyance there shall, in the several cases in this section mentioned, be deemed to be included, and there shall in those several cases, by virtue of this Act, be implied, a covenant to the effect in this section stated, by the person or by each person who conveys, as far as regards the subject-matter or share of subjectmatter expressed to be conveyed by him, with the person, if one, to whom the conveyance is made, or with the persons jointly, if more than one, to whom the conveyance is made as joint tenants, or with each of the persons, if more than one, to whom the conveyance is made as tenants in common, that is to say: This clause should be read in connection with s. 64, making singular include plural and plural singular. Sect. 59, subs. 2, and subs. 6 of this section render it unnecessary to provide expressly that the cove nant shall be by the conveying party "for himself, his heirs, executors, or administrators," or that it shall be with the "heirs and assigns" of the party to whom the conveyance is made. As regards acts to be done under the covenant, when made with two or more, this section should be read with s. 60, subs. 2. SS. 6, 7 (1). SALES AND OTHER TRANS ACTIONS. General Words. Covenants for Covenants for title to be Covenant need several cove nants, how implied. Therefore when " A. and B. convey as beneficial owners," it is im- Joint and plied that "A. and B." (plural, s. 64) "hereby for themselves, their heirs, &c." (subs. 6, and s. 59 (2),) "covenant," that is, they give a joint covenant. When "each of them A. and B. as beneficial owner hereby conveys as beneficial owner," it is implied that "each of them hereby for himself, his heirs, &c.," (subs. 6, and s. 59 (2)) "covenants," that is, each gives a several covenant. Where they convey in both modes they give joint and several covenants. Again in the covenant for further assurance the words "at the request and cost of the person," &c., where the conveyance is to several, include "persons" (s. 64) "and" (s. 60) “the survivors or survivor of them, and the heirs of the survivor." The covenant of a conveying party is implied "as regards the subject-matter or share of subject-matter expressed to be conveyed by him." Covenant applies to subject expressed to be conveyed. |