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of the estate in the land as of the mortgage money. Besides, the act just referred to, though useful, is defective; it does not provide for the case of the heir of a mortgagee being unknown.1 The following form, which has already been given in a note to Hayes' Short Introduction to Conveyancing, has been proposed:—
** To have and to hold the said and all and singular
other the premises hereby granted and released or intended so to be, subject nevertheless to the proviso for redemption hereinafter contained, unto the said [mortgagee] and his heirs, to the uses following, that is to say, To such uses and upon and for such trusts, intents, and purposes as he the said [mortgagee'] or his executors or administrators within twenty-one years after his death shall from time to time or at any time by any deed or deeds appoint; and in default of and until such appointment, To the use of the said [mortgagee] his heirs and assigns for ever."
The power of sale should be given "to the said [mortgagee] or other the person or persons who shall for the time being be competent to appoint or convey the said hereby mortgaged premises."
Sometimes a difficulty arises with respect to the legal estate in mortgaged premises, from all the trustees named in the mortgagee's will dying in his lifetime or renouncing. There should be a power of appointing new trustees in the will so framed as to meet such cases. Such a power may be given to one or more of the beneficial devisees, if any of them may be fitly entrusted with it; and it may be given to the trustees named in the will, though they renounce. Again, it should be declared, that immediately upon the appointment being made, the legal estate in the trust premises should vest in the new trustees by virtue of the will.2 This case lately occurred in practice. A testator, seised of considerable real estate, devised it and all his personal estate to two trustees upon various trusts for the benefit of infants; there was a power enabling the trustees, though they renounced, to appoint new trustees, but no declaration that the trust premises should be vested in the new trustees appointed by them. The trustees
1 See la re Goddard, 1 Myl. & K. 25.
did both renounce and appointed new trustees, but the legal estate remains in the heir at law of the testator, an infant. The following form is submitted to the consideration of the learned reader.
"Provided also, and I do hereby declare, that if and when the said [two trustees named in the wilt], or either of them, or any trustee to be hereafter appointed shall die, or decline, or become incapable to act in the trusts of this my will before such trusts shall be fully performed, it shall be lawful for the said [a beneficial devisee, if any Jit,] during his [or her] life, and after his [or her] decease, for the said [two trustees named in the will], or the survivor of them, though they or he should renounce the trusts hereby or intended to be hereby reposed in them or him, or for the surviving or continuing trustees or trustee, or for the executors and administrators of the surviving trustee, as the case may be, by any deed duly executed, to appoint a new trustee or trustees, and the trust-estate and premises for the time being shall thereupon, by virtue of this my will, or of a sufficient conveyance, or other assurance, as the case may require, be vested in such new trustee or trustees solely, or in such new and such surviving or continuing trustee or trustees jointly, as the case may require, upon the same trusts and with the same powers as are hereinbefore mentioned and declared concerning the same, or such of the same trusts and powers as shall be then subsisting and capable of taking effect."
Thus the person appointing a new trustee would in fact have a power, a common law authority, to vest the whole trust estate, whether there were a continuing trustee or not, in the new trustee or trustees solely if there were no continuing trustee, or in the new and the continuing trustee or trustees jointly; and as at present advised, we see no objection to the validity of such a power; it could only be exercised during the continuance of the trusts, and therefore would be within the limits provided against perpetuities.
W. C. W.
ART. VI.—LAW OF VENDORS AND PURCHASERS.
A Practical Treatise of the Law of Vendors and Purchasers of Estates. By Sir Edward Sugden. 2 vols. 9th edition. 1834.
Though there be not much occasion for criticism or observation, we deem it right to notice a new edition of this most useful work, the steady demand for which shows that it is a favourite with the profession. The four last editions have each served four years: their dates are, June 20, 1822, May 17, 1826, Feb. 1, 1830, and May 17, 1834. The author's own "Advertisement" gives a fair account of what his purchasers may expect, we may therefore willingly give it all the publicity in our power.
"The recent decisions have been introduced into their proper places; and references have been made to all the Reports of the modern Cases, as few have on their shelves all the contemporaneous reporters. The language of the law has been altered by the Real Property Acts, and the text of this work has accordingly throughout required alteration. No apology is necessary for introducing a view of those acts in the chapter upon Title, as it is of deep importance that their contents should be readily accessible. To prevent the too frequent recurrence of new editions, the writer has been induced to add upon this occasion considerably to the usual number of copies; and as that will deprive him of an early opportunity of again correcting the work, he has revised it, with a view to this edition, with all the care and attention which his opportunities have permitted."
Sir Edward thus commences his chapter " Of the title which a purchaser may require." "A purchaser, before the late act of 3 & 4 W. 4, c. 27, had a right to require a title commencing at least sixty years previously to the time of his purchase, because the old Statute of Limitations coidd not in a shorter period confer a title." And then after some observations on the old law, he observes1 that the law is altogether altered by the new act, " which limits the general time to recover to twenty years, with a saving of ten years for persons under disability, but not to exceed in any case forty years, although the ten years are not expired. The act allows no further time for successive disabilities, and makes the bar of the tenant, in fact, extend to all whom he might have barred. This will ultimately tend to shorten abstracts considerably, and in the result, forty years will probably be considered the proper period instead of sixty for an abstract to extend over; but still cases must frequently arise where it will be necessary to call for an earlier title. As fines are abolished, a short bar, as formerly, cannot now be made." In an opinion given by Mr. Brodie, and published with his consent in Mr. Hayes's Introduction to Conveyancing,2 he says, " it is a common notion that the present length of abstracts is with reference to the limitation of sixty years. This is quite a mistake. It is with reference to the duration of human life; and so long as the law will not allow a remainder expectant on an estate for life to be barred by a possession adverse to the tenant for life, a purchaser will be entitled to require a title to be shown for the same period as heretofore under the old law." Why the term of sixty years was adopted as the limit beyond which a purchaser in ordinary cases could not require the title to be carried back, we cannot say, but we may safely affirm that Mr. Brodie's unqualified assertion, that the rule had no reference to the old Statute of Limitations, and had regard only to the duration of human life, cannot be sustained. We should say, indeed, that Sir Edward's opinion is nearest the mark: the rule probably originated in reasoning something like this;—" In ninety-nine cases out of a hundred a person whose title has been separated from the property for sixty years is barred by the Statute of Limitations; we must not, therefore, to prevent extreme cases of hardship arising, put every owner of property to an unnecessary expense." Now the question is whether we shall, when the term of limitation prescribed by the new act comes into full operation, in order to provide
against extraordinary cases, continue to require titles to be deduced for at least sixty years. Suppose an abstract to
commence with a conveyance in 1790 from Temple to Fairfax, made apparently for an adequate money consideration, and taking the facts to be most unfavourable to the title, we will say that Temple was then a young man, twentythree or twenty-four years of age, and that it cannot now be ascertained whether he be living or dead. Now this would be a sufficient foundation for a good title, unless Temple was only tenant for life. But what does this assume? It assumes that Fairfax purchased and paid a full consideration without having any title! If the vendor were a young man, he probably claimed under some settlement or will, and yet we must suppose that his title was never looked into, and that his bare word that he was seised in fee was taken. But in the great majority of cases, especially in the country, it might be immediately ascertained whether a person who sold property forty years ago, were living, and if not, when he died; and then the circumstances and characters of the vendor and purchaser, which might be frequently known, would assist an inquirer in coming to a conclusion whether there were any reasonable ground of suspicion. Whatever, indeed, may be the opinion of London conveyancers, who ought to exercise the most abundant caution, for the titles submitted to them are for the most part doubtful and suspicious, and as it were exceptions out of the general mass; whatever may ultimately be the decision of the courts, we know that in the practice of solicitors the new act has already had a beneficial effect in shortening abstracts. It will be necessary, however, for the courts, which cannot investigate every particular case, to lay down some general rule; and we should say that a title for forty-five or fifty years will be quite sufficient to protect a purchaser acting with ordinary circumspection; whatever be the limit assigned, it will of course be sometimes necessary, as under the old law, to call for the previous title. We cannot justly withhold from our readers Mr. Hayes's intelligent observations on this point.' "If the limitation to a writ of right originally suggested the period of sixty years, yet it did