8 & 9 Vict. c. 106, s. 4. Feoffments not to operate by wrong, nor exchanges or partitions to imply any condition, or give and grant any covenant. Tortious operation of feoffment. Covenant im- "demise." Exception as to acts of Parliament. 4. A feoffment, made after the said first day of October, one thousand eight hundred and forty-five, shall not have any tortious operation (g); and an exchange or a partition of any tenements or hereditaments, made by deed, executed after the said first day of October, one thousand eight hundred and forty-five, shall not imply any condition in law; and the word "give" or the word "grant," in a deed executed after the same day, shall not imply any covenant in law, in respect of any tenements or hereditaments (), except so far as the word give" or the word "grant" may, by force of any act of parliament, imply a covenant (i). 66 (g) A feoffment had the effect of barring or destroying contingent remainders depending upon particular estates (Archer's case, 1 Rep. 66 b). A feoffment also destroyed powers appendant and powers in gross, but not powers collateral. A feoffinent was the only conveyance by which a tenant for years, by elegit, statute merchant or staple, or a copyholder could create an estate of freehold by disseisin (Co. Litt. 49; 2 Sand, on Uses, 14, 15). Since this act a feoffment in fee simple, made by a tenant for life, will merely convey his life interest, and will not be a cause of forfeiture; and a feoffment by a lunatic or idiot will be void and not merely voidable, as formerly (see Shelford's Lunacy, 335, 336, 2nd edit.). (h) As to the conditions implied on exchanges and partitions, see 4 Cruise, Dig. tit. 32, c. 6, 20. The operation of the words "grant” and "give" in creating an implied warranty of title in conveyances of estates in fee simple, in gifts in tail, in leases for life, and in leases for years, is discussed in Butler's note to Co. Litt. 384 a (see 4 Cruise, Dig. tit. 32, c. 24; and see 1 Davidson, Conv. 70, 103, 3rd ed.; Doe v. Prince, 20 L. J. C. P. 223). An action of covenant will lie by the lessee against the lessor upon the word "demise" in a lease, that word importing a covenant in law on the part of the lessor that he has a good title, and that the lessee shall quietly enjoy during the term (Burnett v. Lynch, 5 B. & C. 609; Walker v. Bartlett, 18 C. B. 845; Mathew v. Blackmore, 1 H. & N. 766). But there is no implied covenant if there is an express covenant for quiet enjoyment (Line v. Stephenson, 5 Bing. N. C. 183; Merrill v. Frame, 4 Taunt. 329; Hinde v. Gray, 1 M. & G. 195; Granger v. Collins, 6 M. & W. 458; Lessenbury v. Evans, 3 M. & G. 210; Dennett v. Atherton, L. R. 7 Q. B. 316). In a contract for the demise of land, a promise of quiet enjoyment during the term is implied by law (Hall v. City of London Co., 2 Best & S. 737). Where land is demised by parol without any actual covenant, the law implies a covenant for quiet enjoyment during the term, but not a covenant for good title (Bandy v. Cartwright, 8 Exch. 913; see Robinson v. Kilvert, 41 Ch. Div. 96). Where the defendant executed a written agreement not under seal to let lands to the plaintiff, he had impliedly agreed to grant a valid lease (Stranks v. St. John, L. R. 2 C. P. 376). As to the covenants implied under sect. 7 of the Conveyancing Act, 1881, see that section set out, p. 560, post. (i) In the conveyance of lands to be made by the promoters of the undertaking under the Lands Clauses Consolidation Act, or the special act, the word "grant" implies certain covenants by them for title, except so far as the same shall be limited by express words contained in any such conveyance (Lands Clauses Consolidation Act, 1845, s. 132). The words grant, bargain and sell," operated as covenants for title in deeds of bargain and sale of lands lying in the East and North Ridings of Yorkshire by stat. 6 Ann. c. 62, s. 30; 8 Geo. 2, c. 6, s. 35. Both the last-mentioned acts have been repealed by the Yorkshire Registries Act, 5. Under an indenture, executed after the first day of Oc- 8 & 9 Vict. tober, one thousand eight hundred and forty-five, an immediate c. 106, s. 5. estate or interest in any tenements or hereditaments, and the Strangers benefit of a condition or covenant, respecting any tenements or may take hereditaments, may be taken, although the taker thereof be under an inimmediately not named a party to the same indenture; also, a deed, exe- denture, and a cuted after the said first day of October, one thousand eight deed purporthundred and forty-five, purporting to be an indenture, shall ing to be an have the effect of an indenture, although not actually indented. It was necessary to name as parties to an indenture all persons who are intended to take an immediate estate or benefit by it (Co. Litt. 231 a). This rule did not extend to remainders (Co. Litt. 231 a, 259 b), nor, it was said, to uses or the benefit of a trust (2 Prest. Conv. 394). This section does not enable the benefit of a covenant to be taken by a party not existing at the date of the deed (Kelsey v. Dodd, 52 L. J. Ch. 34, 39). Before this act a practical distinction between an indenture and a deed poll was, that no person could take an immediate estate or benefit under an indenture, unless he was named as a party to it; but any person could take an immediate estate or benefit under a deed poll, inasmuch as it is addressed to all the world (Co. Litt. 26 a, 231; Burton's Real Prop. 2, n.; 2 Prest. Conv. 394 et seq.; 1 Martin's Conv. 324). Another practical distinction between a deed poll and an indenture was, that a Covenant entered into by a deed poll with any covenantee named in the deed as valid; but a covenant in an indenture entered into with a not a party could not be sued on by that person (Greene v. Hoare, Salk. 197; Berkley v. Hardy, 5 B. & C. 353; Southampton v. Browne, 6 B. &.718; see, in the case of a composition deed, Isaacs v. Green, L. R. Ex. 352, and cases there quoted). But a person not a party to a deed might covenant with one who was, and would be bound by executing the deed (Salter v. Kidgly, Carth. 76; 2 Prest. Conv. 415). person indenture shall take effect as such. After the first day of October, one thousand eight hundred Contingent and forty-five, and a interests, also hereditaments (k) of any tenure, whether the object of the gift or entry, made limitation of such interest or possibility be or be not ascertained, alienable by a deed, saving right of entry (1), whether immediate or future, and estates in tail; married whether vested or contingent, into or upon any tenements or and as regards hereditaments in England, of any tenure, may be disposed women enof by deed; but no such disposition shall, by force only of joining conthis act, defeat or enlarge an estate tail, and every such dis- formity to c. 74. 4, provisions, relative to dispositions by married women, of an act passed in the third and fourth years of the reign of his late Majesty King William the Fourth, intituled "An Act for the Abolition of Fines and Recoveries, and for the substitution of more simple Modes of Assurance" (m), or, in Ireland, of an act passed in the fourth and fifth years of the reign of his said late Majesty, intituled "An Act for the Abolition of Fines and 4 & 5 Will. 4, Recoveries, and for the Substitution of more simple Modes of c. 92. Assurance, in Ireland." The alienation of interests of this description under the law as it existed previously to the abolition of fines and recoveries, has been already 8 & 9 Vict. c. 106, s. 6. Capacity of married women to disclaim estates or interests by deed extended to England. Contingent remainders protected as from 31st December, 1844, against the premature failure of a preceding estate. Destruction of contingent remainders. considered (see ante, p. 278). As to the alienation of the interest of a yearly tenant, see Alcock v. Moorhouse (9 Q. B. Div. 371). As to alienation of supposed rights, see 32 Hen. 8, c. 9; Doe v. Evans (1 C. B. 717, and the cases there cited). As to a spes successionis, see Re Parsons, Stockley v. Parsons, 45 Ch. D. 51, 57. (1) It has been said that this means a right of entry in the nature of an estate or interest-that is, where a person by lapse of time has lost everything except his right of entry-but that the section does not include a right of entry for forfeiture (Hunt v. Remnant, 9 Exch. 640; Hunt v. Bishop, 8 Exch. 680). The reason being that it was at the election of the person entitled to enter whether he would take advantage of the breach Jenkins v. Jones, 9 Q. B. Div. 131). As to the transfer of rights of re-entry for forfeiture, see Conv. Act, 1881, s. 10, sub-s. 1, post. Prior to this act, all dealings with a right of entry, except by release to the person in possession, were dealings with a pretenced right within the meaning of 32 Hen. 8, c. 9, and so void and penal under that statute. Since the present act, if such a right is not fictitious in fact, it is not "pretenced" within that statute, and may be properly dealt with (Jenkins v. Jones, 9 Q. B. Div. 135). In order to recover the penalty under 32 Hen. 8, c. 9, it must be proved, not only that the title is fictitious, but that at the time of the dealing the defendant knew that it was so (Kennedy v. Lyell, 15 Q. B. D. 491). (m) See ante, p. 313. 7. After the first day of October, one thousand eight hundred and forty-five, an estate or interest in any tenements or hereditaments in England, of any tenure, may be disclaimed by a married woman by deed; and every such disclaimer shall be made conformably to the said provisions of the said Act for the abolition of Fines and Recoveries, and for the Substitution of more simple Modes of Assurance. See ante, p. 313. 8. A contingent remainder, existing at any time after the thirty-first day of December, one thousand eight hundred and forty-four, shall be, and, if created before the passing of this act, shall be deemed to have been, capable of taking effect, notwithstanding the determination, by forfeiture, surrender or merger, of any preceding estate of freehold, in the same manner, in all respects, as if such determination had not happened. This section of the act does not alter the rules of law as to the creation of contingent remainders (see 2 Bl. Comm. 164, 170; Watk. on Conv. tit. Remainder). In consequence of the rule that a remainder must vest in the grantee during the existence of the particular estate, or the very instant it determines, contingent remainders might be defeated by destroying or determining the particular estate on which they depended, before the contingency happened whereby they became vested (1 Real Prop. Rep. 66, 135). Therefore, when there was tenant for life, with divers remainders in contingency, he might not only by his death, but by alienation, surrender, or other methods, have destroyed and determined his own life estate before any of those remainders vested; the consequence of which was, that he utterly defeated them all. As, if there were tenant for life, with remainder to his eldest son unborn in tail, and the tenant for life, before any son was born, surrendered his life estate, he by that means defeated the remainder in tail to his son: for his son not being in esse when 8 & 9 Vict. c. 103, s. 8. the particular estate determined, the remainder could not then vest; and, as it could not vest then by the rules of law it never could vest at all. In these cases, therefore, it was necessary to have trustees appointed to preserve the contingent remainders; in whom there was vested an estate in remainder for the life of the tenant for life, to commence when his estate determined. If, therefore, his estate for life determined otherwise than by his death, the estate of the trustees, for the residue of his natural life, would then have taken effect, and become a particular estate in possession, sufficient to support the remainders depending in contingency (2 Black. Com. 171). The above clause will supersede the necessity of a limitation Section of estates to trustees during the life of the tenant for life, to support the supersedes contingent remainders expectant upon the determination of the life estate necessity of by forfeiture, surrender or merger. trustees to contingent See Egerton v. Massey (3 C. B. N. S. 338; 27 L. J. C. P. 10), as to the preserve destruction of a contingent remainder by merger. The act only applies to the three cases of forfeiture, surrender or merger. If at the time when the particular estate would naturally have expired, the contingent remainder be not ready to come into immediate possession, it will still fail as before (Williams' Real Prop. 296, 14th ed.). remainders. Contingent remainders of copyholds were never liable to destruction by Contingent the sudden termination of the particular estate on which they depend. remainders in But there is no distinction between freeholds and copyholds in those cases copyholds. where the particular estate expires naturally and regularly before the happening of the contingency (Scriv. Cop. 60, 6th ed.). Quasi-contingent remainders in copyholds were protected from destruction by the estate of the lord of the manor (Pickersgill v. Grey, 30 Beav. 352). tingent By the Contingent Remainders Act, 1877, it is enacted that every con- 40 & 41 Vict. remainder created by any instrument executed after the 2nd of c. 33. August, 1877, or by any will or codicil revived or republished by any will or codicil executed after that date, in tenements or hereditaments of any which would have been valid as a springing or shifting use or tenure, executory devise or other limitation had it not had a sufficient estate to support it as a contingent remainder, shall, in the event of the particular estate determining before the contingent remainder vests, be capable of taking effect in all respects as if the contingent remainder had originally been created as a springing or shifting use or executory devise or other executory limitation. Equitable contingent remainders (e.g., arising by a limitation of an Equitable equity of redemption) were not subject to the old rule which made legal remainders. contingent remainders liable to be defeated by the failure of the particular estate (Astley v. Micklethwait, 15 Ch. D. 59). In the case of a will coming taken under a direction to pay debts prevented an equitable contingent remainder from failing (Re Brooke, B. v. B., 1894, 1 Ch. 43). Where, after the act, an equitable contingent remainder became clothed with the legal estate, it was not defeated by the failure of the prior life interest (Re Freme, Freme v. Logan, 1891, 3 Ch. 167). 9. When the reversion expectant on a lease, made either When the before or after the passing of this act, of any tenements or reversion on a hereditaments, of any tenure, shall, after the said first day of lease is gone the next October, one thousand eight hundred and forty-five, be surren- estate to be dered or merge, the estate which shall for the time being confer deemed the as to the same tenements or hereditaments, shall, to the extent and against the tenant under the same lease the next vested right for the purpose of preserving such incidents to, and obligations reversion. 8 & 9 Vict. on, the same reversion, as, but for the surrender or merger c. 106, s. 9. thereof, would have subsisted, be deemed the reversion expectant Landlord and Tenant Act, 1730. Act not to extend to Scotland. on the same lease. This section of the act is retrospective in its operation (Upton v. Townend, 17 C. B. 542). It sometimes happened, where the immediate reversion on a lease was a term, or other particular estate, that it became merged in some other estate in the same land; and, where that was the case, not only the benefit of the covenants, but the rent and all remedies for it, were lost (3 Real Prop. R. 49). The object of this section is to prevent such consequence, and to preserve covenants of, and remedies against, a lessee, and the obligations on the lessor which are incident to the immediate reversion (Webb v. Russell, 3 T. R. 678; Wootley v. Gregory, 2 Yo. & J. 536; Burton v. Barclay, 7 Bing. 745; Thorne v. Woolcombe, 3 B. & Ad. 586; 2 Platt on Leases, 393-399). The disclaimer of a trustee in bankruptcy under the act of 1869 is a surrender within this section (Smalley v. Hardinge, 7 Q. B. Div. 524; sce Re Roberts, Ex p. Brook, 10 Ch. Div. 110). As to the effect of a disclaimer under the act of 1853, see Re Morgan (22 Q. B. Div. 592), and cases there quoted. The above section only applied to the case of surrender or merger of the immediate reversion. As to the severance of the reversion, see now Cony. Act, 1881, s. 10, sub-s. 1, post. Before the present statute the Landlord and Tenant Act, 1730, s. 6 (which is still in operation), enabled a lessee to surrender his lease for the purpose of taking a new lease without a surrender of any sub-leases; and preserved to the lessee the same remedies against the sub-lessee, and to the original lessor the same remedies for rents reserved by the new lease (so far as not exceeding the rents reserved in the original lease) as if such original lease were still on foot. See Ecc. Commrs. v. Treemer, 1893, 1 Ch. 166. 10. This act shall not extend to Scotland. 8 & 9 Vict. c. 112, s. 1. On 31st December, 1845, II. THE SATISFIED TERMS ACT, 1845. 8 & 9 VICT. c. 112. An Act to render the Assignment of Satisfied Terms unnecessary. WHEREAS the assignment of satisfied terms has been found to be attended with great difficulty, delay, and expense, and to operate in many cases to the prejudice of the persons justly entitled to the lands to which they relate: be it therefore enacted, that every satisfied term of years which, either by express declaration or by construction of law, shall upon the thirty-first &c. of land, to day of December, one thousand eight hundred and forty-five, satisfied terms of years at tendant on inheritance, |