The exceptions to the tenant for life's power of conveyance.

Estates, etc. having priority to the settlement.

(z) Above, pp. 307 - 310, 312, 313.

(a) Above, p. 306.

(b) Stat. 57 & 58 Vict. c. 30, s. 9 (1); see the chapter on the Death Duties in the second volume.

(c) Stat. '27 & 28 Vict, c. 114; see ss. 49 sq., 59; and see above, p. 177; below, Chap. X. Sec. 6, Chap. XII. $ 2.

(d) Above, p. 312.

(e) Re Mundy and Roper's Contract, 1899, 1 Ch. 275, 289, 290.

Estates, etc.

Conveyed or created for securing money actually raised.

Re Dickin and Kelsall's Contract.

Mortgages by beneficiaries of their interests under the settlement.

Mortgage by tenant for life or remainderman of his estate.

(f) Stat. 45 & 46 Vict. c. 38; see above, pp. 306, 307.

Purchaser cannot require the concurrence of such mortgagees.

Mortgage by tenant for life and remainderman in fee.

Mortgages by the remainderman alone.

(g) Stat. 45 & 46 Vict. c. 38.

(h) See below, p. 322.

(i) Re Dicki/n and Kelsall's Contract (Swinfen Eady, J.), 1908, 1 Ch. 213, 221. Prior to this decision, the writer's opinion was that, where a remainderman had mortgaged his estate under a settlement, a purchaser from the tenant for life selling under the Settled Laud Acts could not safely accept the title without the concurrence of the mortgagee. The writer based this opinion on the wording of the Act and on the balance of authority prior to the decision above cited. Hi-reasons were stated at large in 43 Sol. J. 274, and in the first edition of this book. vol. i. pp 323

- 327, 330 - 334:: but he expressed the view that the Court would strive to overcome the difficulty raised. These passages are omitted from the present edition, because it is not likely that the above-cited decision (which is a most beneficent ruling for conveyancing practice) will be upset. It is respectfully submitted that the best justification for the decision seems to be found in the learned judge's observations (1908, 1 Ch. 218) that if the second exception above mentioned should extend to mortgages by beneficiaries tor life or in remainder of their estates under the settlement, that would go far to render any sale under the Settled Land Acts impossible, and that mortgages by the remainderman should be governed by the same rule as absolute assurances of the remainderman's estate to which see above, pp. 311, n. (f), 312,n. (g)). On this ground the decision has been approved by the C. A.:Re Davies and Kent's Contract, 1910, 2 Ch. 36, 53 sq.

What mortgages come within the second exception.

Purchaser must require the concurrence of all, whose charges fall within the second exception.

(k) See stats. 45 & 46 Vict, c. 38, ss. 18, 47; 53 & 54 Vict, c. 69, s. 11; see above, p. 285.

(l) Swinfen Eady, J., Re Dickin and Kelsall's Contract, 1908, 1 Ch. 213, 221.

(m) See Re Mundy and Roper"s Contract, 1899, 1 Ch. 275, 289.

The third exception from the estates, which a tenant for life is empowered by the Settled Land Acts to convey (p), appears to be confined to leases and grants made by the tenant for life, or his predecessors or the settlement trustees in exercise of some power or trust for the purpose contained in the settlement or of some statutory power (q).

The third exception from the life-tenant's power of conveyance.

With regard to dispositions made by a tenant for life of his life estate in exercise of the right of alienation incident to his ownership (r), the Settled Land Act, 1882 (s), provides that the powers under this Act of a tenant for life are not capable of assignment or release, and do not pass to a person as being, by operation of law or otherwise, an assignee of a tenant for life, and remain exercisable by the tenant for life after and not withstanding any assignment, by operation of law or otherwise, of his estate or interest under the settlement; also that a contract by a tenant for life not to exercise any of his powers under the Act is void (f). But these provisions are to operate without prejudice to the rights of any person being an assignee for value of the estate or interest of the tenant for life; and in that case the assignee's rights are not to be affected without his consent, except that, unless the assignee is actually in possession of the settled land or part thereof, his consent shall not he necessary for the making of leases thereof by the tenant for life, provided the leases are made at the best rent that can reasonably be obtained, without fine, and in other respects are in conformity with this Act (u). In this enactment "assignment" includes assignment by way of mortgage, and any partial or qualified assignment, and any charge or incumbrance, and "assignee" has a meaning corresponding with that of assignment (x). It is clear from this enactment that, where a tenant for life has mortgaged his life estate, he cannot make a valid title on a sale of the settled land under the Settled Land Acts without the consent of every such mortgagee (y). But as we have seen, it has been held that, if the tenant for life obtain the consent of every mortgagee of his life estate to his sale of the settled land under the Settled Land Acts, he can convey the land discharged from such mortgages and the purchaser cannot require the mortgagees to concur in the conveyance to him (z). It is thought, however, that the purchaser is entitled to require that the consent of every such mortgagee to the sale shall be absolute and not revocable, and shall be manifested as such by some writing signed by him or his authorised agent, and duly stamped as an agreement (a); for the giving of such consent appears to be of the nature of a contract respecting an interest in land and so to be governed by the fourth section of the Statute of Frauds (b). It is a Mortgages by a tenant for life of his life estate.

Dispositions made by the tenant for life in exercise of the right of alienation incident to his ownership.