c. 39, s. 3.

(3.) A purchaser shall not by reason of anything in this 45 & 46 Vict. section be affected by notice in any case where he would not have been so affected if this section had not been enacted.

(4.) This section applies to purchases made either before or after the commencement of this act; save that, where an action is pending at the commencement of this act, the rights of the parties shall not be affected by this section.

In a case where this section was much discussed, the same solicitor acted for mortgagor and mortgagee. The court refused to impute to the mortgagee notice either of facts known to the mortgagor, or of facts which had come to the knowledge of the solicitor when acting in previous transactions for other mortgagees of the same property (Re Cousins, 31 Ch. D. 671; see Taylor v. London and County Bank, 1901, 2 Ch. 231). The inquiry which ought reasonably to be made by an intending mortgagee is an investigation of the title; so a mortgagee was held entitled as a purchaser for value without notice, on the ground that such an investigation would have disclosed no flaw (Gainsborough v. Watcombe Co., 53 L. T. 116; see Taylor v. London and County Bank, sup.). Secus where inquiry would have disclosed the flaw. (Re Alms Corn Charity, Charity Commrs. v. Bode, 1901, 2 Ch. 762).

The section does not impose on a mortgagee the obligation of inquiring from a tenant as to the interest of his lessor (Hunt v. Luck, 1902, 1 Ch. 434).

The effect of this section is discussed in Bailey v. Barnes, 1894, 1 Ch. 25, where Lord Cranworth's statement of the doctrine of constructive notice in Ware v. Egmont, 4 D. M. G. 473, was approved; and it was said that the form of the present section shows that a restriction rather than an extension of the old doctrine was intended (1894, 1 Ch. 35). See generally as to constructive notice, Seton, 6th ed. p. 2105 et seq.

Leases.

of title to lease.

4.-(1.) Where a lease is made under a power contained in a Contract for settlement, will, act of parliament, or other instrument, any lease not part preliminary contract for or relating to the lease shall not, for the purpose of the deduction of title to an intended assign, form part of the title, or evidence of the title, to the lease.

(2.) This section applies to leases made either before or after the commencement of this act.

See V. & P. Act, 1874, sect. 2, rule 1, ante, p. 545; Conv. Act, 1881, sect. 13, ante, p. 568; S. L. Act, 1882, s. 31 (4), post, p. 684.

[Sect. 5 was replaced by the Trustee Act, 1893, s. 10 (2) (b), post.]

Powers.

trustees.

6.-(1.) A person to whom any power, whether coupled with Disclaimer of an interest or not, is given, may, by deed, disclaim the power; power by and, after disclaimer, shall not be capable of exercising or joining in the exercise of the power.

(2.) On such disclaimer, the power may be exercised by the other or others, or the survivors or survivor of the others, of the persons to whom the power is given, unless the contrary is expressed in the instrument creating the power.

(3.) This section applies to powers created by instruments

45 & 46 Vict. coming into operation either before or after the commencement of this act.

c. 39, s. 6.

Effect of power of

attorney, for value, made

absolutely irrevocable.

Effect of power of attorney, for

See Conv. Act, 1881, sect. 52, and note, ante, p. 596; and the notes to the Fines and Recoveries Act, 1833, secs. 77, 78, ante, pp. 316, 318. A renunciation of executorship was held to be a disclaimer of a power of sale (Re Fisher and Haslett, 13 L. R. Ir. 546). The power given by the Settled Land Acts cannot be disclaimed (S. L. Act, 1882, s. 50, post).

[Sect. 7, referring to acknowledgments by married women, is inserted ante, p. 329.]

Powers of Attorney.

8.-(1.) If a power of attorney, given for valuable consideration, is in the instrument creating the power expressed to be irrevocable, then, in favour of a purchaser,

(i.) The power shall not be revoked at any time, either by anything done by the donor of the power without the concurrence of the donee of the power, or by the death, marriage, lunacy, unsoundness of mind, or bankruptcy of the donor of the power; and

(ii.) Any act done at any time by the donee of the power, in pursuance of the power, shall be as valid as if anything done by the donor of the power without the concurrence of the donee of the power, or the death, marriage, lunacy, unsoundness of mind, or bankruptcy of the donor of the power, had not been done or happened; and

(iii.) Neither the donee of the power nor the purchaser shall at any time be prejudicially affected by notice of anything done by the donor of the power, without the concurrence of the donee of the power, or of the death, marriage, lunacy, unsoundness of mind, or bankruptcy of the donor of the power.

(2.) This section applies only to powers of attorney created by instruments executed after the commencement of this act.

9.-(1.) If a power of attorney, whether given for valuable consideration or not, is in the instrument creating the power value or not, expressed to be irrevocable for a fixed time therein specified, not exceeding one year from the date of the instrument, then, in favour of a purchaser,

made irre

vocable for fixed time.

(i.) The power shall not be revoked, for and during that fixed time, either by anything done by the donor of the power without the concurrence of the donee of the power, or by the death, marriage, lunacy, unsoundness of mind, or bankruptcy of the donor of the power; and

(ii.) Any act done within that fixed time, by the donee of the power, in pursuance of the power, shall be as valid as if anything done by the donor of the power without the concurrence of the donee of the power, or the death, marriage, lunacy, unsoundness of mind, or bankruptcy of the donor of the power, had not been done or happened; and

c. 39, s. 9.

(iii.) Neither the donee of the power, nor the purchaser, shall 45 & 46 Vict. at any time be prejudicially affected by notice either during or after that fixed time of anything done by the donor of the power during that fixed time, without the concurrence of the donee of the power, or of the death, marriage, lunacy, unsoundness of mind, or bankruptcy of the donor of the power within that fixed time.

(2.) This section applies only to powers of attorney created by instruments executed after the commencement of this act.

Executory Limitations.

limitations.

10.-(1.) Where there is a person entitled to land for an Restriction estate in fee, or for a term of years absolute or determinable on on executory life, or for term of life, with an executory limitation over on default or failure of all or any of his issue, whether within or at any specified period or time or not, that executory limitation shall be or become void and incapable of taking effect, if and as soon as there is living any issue who has attained the age of twenty-one years, of the class on default or failure whereof the limitation over was to take effect.

(2.) This section applies only where the executory limitation is contained in an instrument coming into operation after the commencement of this act.

A declaration was made defining the effect of an executory limitation over in accordance with this section (Re Booth, Pickard v. Booth, 1900, 1 Ch. 768).

Long Terms.

11. Section sixty-five of the Conveyancing Act of 1881 (a) Amendment shall apply to and include, and shall be deemed to have always of enactment applied to and included, every such term as in that section respecting long terms. mentioned, whether having as the immediate reversion thereon the freehold or not; but not

(i.) Any term liable to be determined by re-entry for con

dition broken; or

(ii.) Any term created by sub-demise out of a superior term, itself incapable of being enlarged into a fee simple.

(a) Ante, p. 600.

Mortgages.

mortgage.

12. The right of the mortgagor, under section fifteen of the ReconveyConveyancing Act of 1881 (b), to require a mortgagee, instead of ance on re-conveying, to assign the mortgage debt and convey the mortgaged property to a third person, shall belong to and be capable of being enforced by each incumbrancer, or by the mortgagor, notwithstanding any intermediate incumbrance; but a requisition of an incumbrancer shall prevail over a requisition of the mort

45 & 46 Vict.

gagor, and, as between incumbrancers, a requisition of a prior c. 39, s. 12. incumbrancer shall prevail over a requisition of a subsequent incumbrancer.

(b) Ante, p. 572.

Restriction

on repeals in this act.

Saving.

13. The repeal by this act of any enactment shall not affect any right accrued or obligation incurred thereunder before the commencement of this act; nor shall the same affect the validity or invalidity, or any operation, effect, or consequence, of any instrument executed or made, or of anything done or suffered, before the commencement of this act; nor shall the same affect any action, proceeding, or thing then pending or uncompleted; and every such action, proceeding, and thing may be carried on and completed as if there had been no such repeal in this act.

55 & 58 Vict.

c. 13, s. 1. Short title

and extent.

THE CONVEYANCING AND LAW OF PROPERTY ACT, 1892. 55 & 56 VICT. c. 13.

Preliminary.

1.-(1.) This act may be cited as the Conveyancing and Law of Property Act, 1892, and the Conveyancing and Law of Property Act, 1881, and the Conveyancing Act, 1882, and this act shall be read together and may be cited together as the

44 & 45 Vict. Conveyancing Acts, 1881, 1882, and 1892.
(2.) This Act does not extend to Scotland.

c. 41.

45 & 46 Vict. c. 39.

Costs of waiver, and forfeiture in case of bankruptcy or execution.

Leases, Under-leases, Forfeiture.

2.-(1.) A lessor shall be entitled to recover as a debt due to him from a lessee, and in addition to damages (if any) all reasonable costs and expenses properly incurred by the lessor in the employment of a solicitor and surveyor or valuer, or otherwise, in reference to any breach giving rise to a right of re-entry or forfeiture which, at the request of the lessee, is waived by the lessor by writing under his hand, or from which the lessee is relieved, under the provisions of the Conveyancing and Law of Property Act, 1881, or of this act (c).

(2.) Sub-section six of section fourteen of the Conveyancing and Law of Property Act, 1881, is to apply to a condition for forfeiture on bankruptcy of the lessee, or on taking in execution of the lessee's interest only after the expiration of one year from the date of the bankruptcy, or taking in execution, and provided the lessee's interest be not sold within such one year, but in case the lessee's interest be sold within such one year, sub-section six shall cease to be applicable thereto (d).

(3.) Sub-section two of this section is not to apply to any 55 & 56 Vict. lease of

(a) Agricultural or pastoral land:

(b) Mines or minerals:

(c) A house used or intended to be used as a public-house or beershop:

(d) A house let as a dwelling-house, with the use of any furniture, books, works of art, or other chattels not being in the nature of fixtures:

(e.) Any property with respect to which the personal qualifications of the tenant are of importance for the preservation of the value or character of the property, or on the ground of neighbourhood to the lessor, or to any person holding under him.

(c) This section must be read with sect. 14 of the Conv. Act, 1881 (ante, p. 569), where see note.

Before this act it was held, under sect. 14, sub-sect. 2, of the Conv. Act, 1881, that payment by the lessee of the expenses of a solicitor, &c. might be made by the court a condition of relief (Bridge v. Quick, 61 L. J. Q. B. 375).

An under-lessee is not as between himself and the lessor a "lessee" within this section, and the lessor cannot, therefore, recover costs from him under sub-sect. 1 (Nind v. Nineteenth Century Society, 1894, 2 Q. B. 226). In a case under the present sub-section an opinion was expressed in the C. A. that a lessee who by complying with the lessor's notice avoids a forfeiture, is not "relieved" from forfeiture within the sub-section (Nind v. Nineteenth Century Society, 1894, 2 Q. B. 226). If this be correct, the operation of the sub-section would seem to be much narrowed.

(d) The effect of sub-sect. 2 is to take the case of forfeiture for bankruptcy or liquidation out of sub-sect. (6) of sect. 14 of Conv. Act, 1881; and to make a notice necessary for one year from the bankruptcy or liquidation (Horsey Estate, Ltd. v. Steiger, 1899, 2 Q. B. 79, 91; where see also as to what is sufficient notice). Where, immediately after the bankruptcy, a lessor re-entered peaceably without giving notice, his re-entry was void against the bankruptcy trustee (Re Riggs, 1901, 2 K. B. 16). Sub-sect. 3 prevented sub-sect. 2 from applying to a public-house (Fryer v. Ewart, 1902, A. C. 187).

c. 18, s. 2.

exacted for

licence to assign.

3. In all leases containing a covenant, condition, or agree- No fine to be ment against assigning, underletting, or parting with the possession, or disposing of the land or property leased without licence or consent, such covenant, condition, or agreement shall, unless the lease contains an expressed provision to the contrary, be deemed to be subject to a proviso to the effect that no fine or sum of money in the nature of a fine shall be payable for or in respect of such licence or consent; but this proviso shall not preclude the right to require the payment of a reasonable sum in respect of any legal or other expense incurred in relation to such licence or consent.

Requiring (as a condition of a licence) the deposit of money to secure the fulfilment of the obligations of the lessee in regard to other property is not a fine within this section (Re Cosh, 1897, 1 Ch. 9).