Contract to sell land for the use of a charity.

(z) Re Wilkinson, 1902, 1 Ch. 841; Re Sidebottom, 1902, 2 Ch. 389; see also Re Ryland, 1903, 1 Ch. 467.

(a) Stat. 51 & 52 Vict. c. 42; above, p. 445.

(b) See above, p. 446, and n. (z).

(c) Above, p. 49; below, Chap. XI. Sec. 1.

(d) The Act originally extended in express terms to assurances of land or any hereditaments, or any estate or interest therein, but was restricted by the Act of 1891 to assurances of land and hereditaments; see above, p. 450.

(e) See Wms. Real Prop. 183, 18b, 187, 21st ed.

(f) See above, pp. 446 - 449.

(g) As to the way in which the Court has dealt with an attempted evasion of the Act, see Wickham v. Bath, L. R. 1 Eq. 17.

(h) A.-G. v. Gardner, 2 De G. & S. 102, 116, 118; cf. A.-G. v. Munro, ib. 122, as to enforcing charitable trusts against persons who have taken and remained in possession of land, as trustees for a charity under a conveyance void for non-compliance with the Mortmain Act.

(i) See stat. 9 Geo. II. c. 86, ss. 1, 3. It should be observed that sect. 1 of this Act contained an absolute prohibition against in any ways conveying to any charitable use any hereditaments for any estate or interest whatever unless with the formalities therein specified, and sect. 3 made void all assurances, made otherwise than as directed by the Act, of any hereditaments or any estate or interest therein to any charitable use. The Act of 1888, though purporting to be a consolidating Act, does not reproduce in express terms the exact prohibition contained in sect. 1 of the old Act; see above, pp. 445, 454, and n. (l). It is thought that the dictum in A.-G. v. Day, 1 Ves. sen. 218, 222, that a sale effected by a written contract and payment (before conveyance) of the purchase money is sufficiently taken out of the Act, is not an authority for anything more than that the transaction is not liable to be avoided by the vendor's death within a year; for it seems indisputable that if in such case the sale were completed by a conveyance attested by one witness open to argument that the amendment made by the Act of 1891 (r) in restricting the Act of 1888 to assurances of any lands, tenements or hereditaments, and expressly repealing the old provisions applying to assurances of " any estate or interest therein," has the effect of confining the operation of the Act of 1888 to assurances of the legal estate in hereditaments (s). If however this argument should prevail, a simple declaration of trust made gratuitously in favour of a charity and evidenced by signed writing (t) would be sufficient to transfer to the charity the whole equitable estate in the lands affected; and the Courts would certainly struggle against this conclusion.

On the other hand, it has been decided that an ordinary contract for the sale of land is neither an assurance within the meaning of the Yorkshire Registries Act, 1884 (k), nor a conveyance within the meaning of the Stamp Acts (l), on the ground, partly, that the contract does not operate as an immediate and unconditional transfer of the equitable estate to the purchaser, because such transfer is conditional on the vendor showing a good title. To this it may be replied that in the Yorkshire Registries Act, 1884 (m), the term assurance is specially interpreted, and has not its ordinary legal meaning apart from statute; that in the Stamp Acts a clear distinction is drawn between the stamps required for a contract and those necessary for a conveyance (n); and that, though the transfer of the equitable estate effected by a contract of sale is conditional on a good title being shown, the condition is in substance subsequent rather than precedent. If the contract be not rescinded or broken, the equitable estate vests in the purchaser as from the date of his entering into the contract (o); and if a good title be shown, he has no option of rejecting it(p). The real effect of the contract appears to be that the equitable ownership of the property sold is at once transferred to the purchaser, subject to the vendor being restored to his former ownership in case (contrary to the parties' main intention in making the sale) the contract be rescinded or broken (q). In this view of the transaction, the contract does appear to be an assurance to the purchaser of the equitable estate in the land sold. But it is certainly only, the conveyance would be void.

(k) Rodger v. Harrison, 1893, 1 Q. B. 161; above, p. 377, n. (s).

(I) Inland Revenue Commrs. v. Angus, 23 Q. B. D. 579.

(m) Stat. 47 & 48 Vict. c. 54, s. 3; above, p. 377, n. (z).

(n) See Inland Revenue Commrs. v. Angus, ubi sup.; above, p. 28 and n. (e); below, Chap. XII. Sec. 3.

(o) Above, p. 49, and n. (h); below, Chap. XI. Sec. 1.

(p) Above, pp. 35, 46; Re Taylor, 1910, 1 K. B. 562, 571, 572, 580; below, Chap. XII.

(q) See below, Chap. XIX. Sec.1,2.

By sect. 29 of the Charitable Trusts Amendment Act, 1855 (u), it shall not be lawful for the trustees or persons acting in the administration of any charity to make or grant, otherwise than with the express authority of Parliament, under any Act already passed or which may hereafter be passed, or of a Court or Judge of competent jurisdiction, or according to a scheme legally established, or with the approval of the Board of Charity Commissioners, any sale, mortgage, or charge of the charity estate, or any lease thereof in reversion after more than three years of any existing term, or for any term of life, or in consideration wholly or in part of any fine, or for any term of years exceeding twenty-one years. It is held that this enactment absolutely prohibits any disposition of charity lands in contravention of the restrictions thereby imposed (x); and any such disposition is altogether void (y). And it has been held that the expressions in the Act authorising alienation under a scheme legally established relate only to schemes for the administration of charities made under the jurisdiction in that behalf inherited by the High Court from the Court of Chancery or conferred by the Charitable Trusts Acts (z); so that the trustees of charities are no longer at liberty to exercise express powers of alienation conferred on them by the author of the trust, except in accordance with the restrictions of the Act of 1855 (a). The word " charity" in this Act includes every institution in England or Wales endowed for charitable purposes, but not any charity or institution expressly exempted from the operation of the Charitable Trusts Act, 1853; and the Act of 1855 does not extend to any case excepted by sect. 62 of the Act of 1853 from the operation thereof (b). These exceptions are stated in the note (c), and regard must of course be had to them in advising on the title to any land sold by charity trustees.