23 & 24 Vict. c. 145, s. 2.

Sale may be made under special conditions, and trustees may buy in, &c.

Trustees exercising power of sale, &c. empowered

to convey.

Moneys

arising from

sales, &c. to

other lands;

2. It shall be lawful for the persons making any such sale or exchange to insert any such special or other stipulations, either as to title or evidence of title, or otherwise, in any conditions of sale, or contract for sale or exchange, as they shall think fit, and also to buy in the hereditaments or any part thereof at any sale by auction, and to rescind or vary any contract for sale or exchange, and to resell the hereditaments which shall be so bought in, or as to which the contract shall be so rescinded, without being responsible for any loss which may be occasioned thereby, and no purchaser under any such sale shall be bound to inquire whether the person making the same may or may not have in contemplation any particular re-investment of the purchase-money in the purchase of any other hereditaments or otherwise.

3. For the purpose of completing any such sale or exchange as aforesaid, the persons empowered to sell or exchange as aforesaid shall have full power to convey or otherwise dispose of the hereditaments in question, either by way of revocation and appointment of the use, or otherwise, as may be necessary.

4. The money so received upon any such sale or for equality of exchange as aforesaid shall be laid out in the manner indibe laid out in cated in that behalf in the will, deed or instrument containing the power of sale or exchange, or if no such indication be therein contained as to all or any part of such money, then the same shall with all convenient speed be laid out in the purchase of other hereditaments in fee simple in possession to be situate in England or Wales or in Ireland (as the case may be), or of lands of a leasehold or copyhold or customary tenure which, in the opinion of the persons making the purchase, are convenient to be held therewith or with any other hereditaments for the time being, subject to the subsisting uses or trusts of the same will, deed or other instrument of settlement in which the power of sale or exchange was contained; and all such hereditaments so to be purchased or taken in exchange as aforesaid as shall be freeholds of inheritance shall be settled and assured to the uses, upon and for the trusts, intents and purposes, and with, under and subject to the powers, provisoes and declarations, to which the hereditaments sold or given in exchange were or would have been subject, or as near thereto as the deaths of parties and other intervening accidents will admit of, but not so as to increase or multiply charges; and all such hereditaments so to be purchased or taken in exchange as aforesaid as shall be of leasehold or copyhold or customary tenure shall be settled and assured upon and for such trusts, intents and purposes, and with, under and subject to such powers, provisoes and declarations, as shall as nearly as may be correspond with and be similar to the aforesaid uses, trusts, intents and purposes, powers, provisoes, and declarations, but not so as to increase or multiply charges,

and so that if any of the hereditaments so to be purchased shall 23 & 24 Vict. c. 145, s. 4. be held by lease for years the same shall not vest absolutely in any tenant in tail by purchase who shall not attain the age of twenty-one years; and any such purchase as aforesaid may be made subject to any special conditions as to title or otherwise: provided that no leasehold tenement shall be purchased under the powers hereinbefore contained which is held for a less period than sixty years.

cumbrances.

5. Provided nevertheless that it shall be lawful for the per- or in paysons exercising any such power as aforesaid, if they shall think ment of infit, to apply any money to be received upon any sale or for equality of exchange as aforesaid, or any part thereof, in lieu of purchasing lands therewith, in or towards paying off or discharging any mortgage or other charge or incumbrance which shall or may affect all or any of the hereditaments which shall then be subject to the same uses or trusts as those to which the hereditaments sold or given in exchange were or was subject.

&c. not to be

elsewhere

6. No money arising from any such sale or exchange of lands Money arising or hereditaments in England or Wales shall be laid out in the from sales, purchase of lands or hereditaments situate elsewhere than in laid out, nor England or Wales, and no land situate in England or Wales lands exshall, under any such power as aforesaid, be exchanged for any changed, lands or hereditaments situate elsewhere than in England or than in the Wales; and no money arising from any such sale or exchange country in of lands in Ireland shall be laid out in the purchase of lands or which lands hereditaments situate elsewhere than in Ireland, and no lands changed is or hereditaments situate in Ireland shall, under any such power situated. as aforesaid, be exchanged for any lands or hereditaments situate elsewhere than in Ireland.

sold or ex

money to be

7. Until the money to be received upon any sale or for Until purequality of exchange as aforesaid shall be disposed of in the chase of lands, &c. manner herein mentioned, the same shall be invested at interest for the benefit of the same parties who would be entitled to the invested at hereditaments to be purchased therewith as aforesaid, and the interest. rents and profits thereof, in case such purchase and settlement as aforesaid were then actually made.

As to sects. 8 and 9, see note, ante, p. 537.

without

consent of

10. No such sale or exchange as aforesaid, and no purchase No sale, &c. of hereditaments out of money received on any such sale or to be made exchange as aforesaid, shall be made without the consent of the person appointed to consent by the will, deed, or other instru- tenant for ment, or if no such person be appointed, then of the person en- life, &c. titled in possession to the receipt of the rents and profits of such hereditaments, if there be such a person under no disability; but this clause shall not be taken to require the consent of any

23 & 24 Vict. person where it appears from the will, deed or other instrument, e. 145, s. 10. to have been intended that such sale, exchange or purchase, should be made by the person or persons making the same without the consent of any other person.

Powers incident to mortgages.

To sell.

To insure.

To appoint receiver.

Receipts for purchasemoney sufficient

discharges.

Notice to be given before sale; but purchaser

relieved from

PART II.

Powers of Mortgagees (p).

11. Where any principal money is secured or charged by deed on any hereditaments of any tenure, or on any interest therein, the person to whom such money shall for the time being be payable, his executors, administrators and assigns, shall, at any time after the expiration of one year from the time when such principal money shall have become payable, according to the terms of the deed, or after any interest on such principal money shall have been in arrear for six months, or after any omission to pay any premium on any insurance which by the terms of the deed ought to be paid by the person entitled to the property subject to the charge, have the following powers, to the same extent (but no more) as if they had been in terms conferred by the person creating the charge; namely, 1st. A power to sell or concur with any other person in selling the whole or any part of the property by public auction or private contract, subject to any reasonable conditions he may think fit to make, and to rescind or vary contracts for sale, or buy in and re-sell the property from time to time, in like manner:

2nd. A power to insure and keep insured from loss or damage by fire the whole or any part of the property (whether affixed to the freehold or not) which is in its nature insurable, and to add the premiums paid for any such insurance to the principal money secured at the same rate of interest:

3rd. A power to appoint or obtain the appointment of a receiver of the rents and profits of the whole or any part of the property in manner hereinafter mentioned.

(p) In the case of a mortgage before 1881, these powers may be exercised since 1881 (Re Solomon and Meagher, 40 Ch. D. 508).

12. Receipts for purchase-money given by the person or persons exercising the power of sale hereby conferred shall be sufficient discharges to the purchasers, who shall not be bound to see to the application of such purchase-money.

13. No such sale as aforesaid shall be made until after six months' notice in writing given to the person or one of the persons entitled to the property subject to the charge, or affixed on some conspicuous part of such property; but when a sale has

been effected in professed exercise of the powers hereby con- 23 & 24 Vict. ferred, the title of the purchaser shall not be liable to be c. 145, s. 13. impeached on the ground that no case had arisen to authorize inquiry as to the exercise of such power, or that no such notice as aforesaid had circumstances been given but any person damnified by any such unauthorized exercise of such power shall have his remedy in damages against the person selling.

of sale.

14. The money arising by any sale effected as aforesaid shall Application be applied by the person receiving the same as follows: first, in of purchasepayment of all the expenses incident to the sale or incurred in money. any attempted sale; secondly, in discharge of all interest and costs then due in respect of the charge in consequence whereof the sale was made; and, thirdly, in discharge of all the principal moneys then due in respect of such charge; and the residue of such money shall be paid to the person entitled to the property subject to the charge, his heirs, executors, administrators, or assigns, as the case may be.

purchaser.

15. The person exercising the power of sale hereby conferred Conveyance shall have power by deed to convey or assign to and vest in the to the purchaser the property sold, for all the estate and interest therein, which the person who created the charge had power to dispose of, except that in the case of copyhold hereditaments the beneficial interest only shall be conveyed to and vested in the purchaser by such deed.

An equitable mortgage, by deed, of freeholds can, under this section, convey the legal estate in the fee (Re Solomon and Meagher, 40 Ch. D. 508). And where leaseholds are mortgaged by demise, the mortgageo can, under this section, convey to a purchaser the reversion left in the mortgagor (Hiatt v. Hillman, 19 W. R. 694; compare Re Hodson and Howes, 35 Ch. Div. 668, a case under the Conv. Act, 1881).

As to the effect of this section where the mortgagor has registered with an indefeasible title under the Land Registry Act, 1862, see Re Richardson (12 Eq. 398; 13 Eq. 142).

call for title

16. At any time after the power of sale hereby conferred Owner of shall have become exerciseable, the person entitled to exercise charge may the same shall be entitled to demand and recover, from the deeds and person entitled to the property subject to the charge, all the conveyance of deeds and documents in his possession or power relating to the legal estate. same property, or to the title thereto, which he would have been entitled to demand and recover if the same property had been conveyed, appointed, surrendered or assigned to and were then vested in him for all the estate and interest which the person creating the charge had power to dispose of, and where the legal estate shall be outstanding in a trustee the person entitled to a charge created by a person equitably entitled, or any purchaser from such person, shall be entitled to call for a conveyance of the legal estate to the same extent as the person creating the

23 & 24 Vict. charge could have called for such a conveyance if the charge had not been made.

c. 145, s. 16.

Appointment of receiver.

Receiver

17. Any person entitled to appoint or obtain the appointment of a receiver as aforesaid may from time to time, if any person or persons has or have been named in the deed of charge for that purpose, appoint such person or any one of such persons to be receiver, or if no person be so named, then may, by writing delivered to the person or any one of the persons entitled to the property subject to the charge, or affixed on some conspicuous part of the property, require such last-mentioned person or persons to appoint a fit and proper person as receiver, and if no such appointment is made within ten days after such requisition, they may in writing appoint any person he may think fit.

18. Every receiver appointed as aforesaid shall be deemed to deemed to be be the agent of the person entitled to the property subject to the charge, who shall be solely responsible for his acts or defaults, unless otherwise provided for in the charge.

the agent

of the mortgagor.

Powers of receiver.

Receiver may be removed.

Receiver to receive a commission

not exceeding five per cent.

Receiver to insure, if required.

19. Every receiver appointed as aforesaid shall have power to demand and recover and give effectual receipts for all the rents, issues and profits of the property, of which he is appointed receiver by action, suit, distress or otherwise, in the name either of the person entitled to the property subject to the charge, or of the person entitled to the money secured by the charge, to the full extent of the estate or interest which the person who created the charge had power to dispose of.

20. Every receiver appointed as aforesaid may be removed by the like authority or on the like requisition as before provided with respect to the original appointment of a receiver, and new receivers may be appointed from time to time.

21. Every receiver appointed as aforesaid shall be entitled to retain out of any money received by him, in lieu of all costs, charges and expenses whatsoever, such a commission, not exceeding five per centum on the gross amount of all money received, as shall be specified in his appointment, and if no amount shall be so specified, then five per centum on such gross amount.

22. Every receiver appointed as aforesaid shall, if so directed in writing by the person entitled to the money secured by the charge, insure and keep insured from loss or damage by fire, out of the money received by him, the whole or any part of the property included in the charge (whether affixed to the freehold or not) which is in its nature insurable.