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8 & 9 VICT. c. 106. “ An Act to amend the Law of real Property.” “Be it enacted by the queen's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, as follows, (that is to say,)
Sect. 1. “ That so much of an act passed in the last session of parliament, intituled' An Act to simplify the Transfer of Property,' as enacted that, after the time at which that act should come into operation, no estate in land should be created by way of contingent remainder, but that every estate which, before that time, would have taken effect as a contingent remainder should take effect (if in a will or codicil) as an executory devise, and (if in a deed) as an executory estate of the same nature, and having the same properties as an executory devise, and that contingent remainders existing under deeds, wills or instruments, executed or made before the time when that act should come into operation, should not fail, or be destroyed or barred, merely by reason of the destruction or merger of any preceding estate, or its determination by any other means than the natural effluxion of the time of such preceding estate, or some event on which it was in its creation limited to determine, shall be and is hereby repealed as from the time of the commencement and taking effect thereof; and that the residue of the said act shall be and is hereby repealed as from the 1st of October 1845 (a)."
Sect. 2. “ That, after the said Ist day of October 1845, all corporeal tenements and hereditaments shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery; and that every deed which, by force only of this enactment, shall be effectual as a grant, shall be chargeable with the stamp duty with which the same deed would have been chargeable in case the same had been a release, founded on a lease or bargain and sale for a year, and also with the same stamp duty (exclusive of progressive duty) with which such lease or bargain and sale for a year would have been chargeable.”
Sect. 3. “ That a feoffment made after the said 1st day of October 1845, other than a feoffment made under a custom by an infant, shall be void at law unless evidenced by deed ; and that a partition, and an exchange, of any tenements or hereditaments, not being copyhold, and a lease, required by law to be in writing, of any tenements or hereditaments, and an assignment of a chattel interest, not being copyhold, in any tenements or hereditaments, and a surrender in writing of an interest in any tenements or hereditaments, not being a copyhold interest, and not being an interest which might by law have been created without writing, made after the said 1st day of October 1845, shall also be void at law, unless made by deed :
(a) Vide allusion to the now repealed to that and the present act, ante, pt. 1, act, ante, pt. 1, p. 138, n.; and reference pp. 401, 402, n.
Provided always, that the said enactment so far as the same relates to a release or a surrender shall not extend to Ireland.
Sect 4. “That a feoffment made after the said first day of October 1845, shall not have any tortious operation; and that an exchange, or a partition, of any tenements or hereditaments, made by deed, executed after the said 1st day of October 1845, shall not imply any condition in law; and that 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."
Sect. 5. “That under an indenture, executed after the lst day of October 1845, an immediate estate or interest in any tenements or hereditaments, and the benefit of a condition or covenant respecting any tenements or hereditaments, may be taken, although the taker thereof be not named a party to the same indenture; also that a deed, executed after the said Ist day of October 1845, purporting to be an indenture, shall have the effect of an indenture although not actually indented.”
Sect. 6. “ That, after the 1st day of October 1845, a contingent, an executory, and a future interest (b), and a possibility coupled with an interest, in any tenements or hereditaments of any tenure, whether the object of the gift or limitation of such interest or possibility be or be not ascertained, also a right of entry, whether immediate or future, and whether vested or contingent, into or upon any tenements or hereditaments in England of any tenure, may be disposed of by deed; but that no such disposition shall, by force only of this act, defeat or enlarge an estate tail; and that every such disposition by a married woman shall be made conformably to the 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,' 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 Recoveries, and for the Substitution of more simple Modes of Assurance, in Ireland.'”
Sect. 7. “ That, after the 1st day of October 1845, an estate or interest in any tenements or hereditaments in England of any tenure, may be disclaimed by a married woman by deed ; and that 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."
Sect. 8. “That a contingent remainder, existing at any time after the 31st day of December 1844, 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."
(6) As to contingent and reversionary see precedent of deed of disposition of a interests, vide pt. 1, p. 137 et. seq.; and contingent interest in copyholds, ante, 905.
Sect. 9. “ That when the reversion expectant on a lease, made either before or after the passing of this act, of any tenements or hereditaments of any tenure, shall, after the said 1st day of October 1845, be surrendered or merge, the estate which shall for the time being confer as against the tenant under the same lease the next vested right to the same tenements or hereditaments shall, to the extent and for the purpose of preserving such incidents to and obligations on the same reversion, as, but for the surrender or merger thereof, would have subsisted, be deemed the reversion expectant on the same lease.”
Sect. 10. “ That this act shall not extend to Scotland.”
RULES OF COURT.
COMMON PLEAS. Rules and Table of Costs, under the Act of 3 & 4 Will. 4, c. 74, for the
Abolition of Fines and Recoveries (s. 76).
Hilary Term, 1834. WHEREAS it has been found expedient to make alterations in the general rules made in Michaelmas Term last by this court, for the purpose of carrying into effect the statute passed in the third and fourth years of the reign of his present majesty, c. 74, intituled “ An Act for the Abolition of Fines and Recoveries, and for the Substitution of more simple Modes of Assurance :"
And whereas it is necessary to make orders touching the amount of the reasonable fees and charges to be taken by the several persons appointed to carry the powers of the said act into execution; and it will be convenient that all the orders and regulations made by the court under the said act should be contained in the same rule :
Now it is hereby ordered, that the said general rules be and the same are hereby revoked: provided that this present rule shall not be construed in any respect to invalidate any proceedings which before the first day of March next ensuing shall have been taken, pursuant to the direction of the said rules of Michaelmas Term last.
And it is hereby further ordered, that where any acknowledgment shall be made by any married woman of any deed under and by virtue of the said act, before commissioners appointed under the said act, one at least of the said commissioners shall be a person who is not in any manner interested in the transaction giving occasion for such acknowledgment, or concerned therein as attorney, solicitor or agent, or as clerk to any attorney, solicitor or agent so interested or concerned.
And it is further ordered, that before the commissioners shall receive such acknowledgment, they, or in case one of them shall be interested or concerned as aforesaid, then such one of them as shall not be so interested or concerned, do inquire of every married woman, separately and apart from her husband and from the attorney or solicitor concerned in the transaction, whether she intends to give up her interest in the estate to be passed by such deed, without having any provision made for her in lieu of, or in return for, or in consequence of her so giving up such interest; and where such married woman in answer to such inquiry shall declare that she intends to give up such her interest without any provision, and the said commissioners shall have no reason to doubt the truth of such declaration and shall verily believe the same to be true, then they shall proceed to receive the said acknowledgment; but if it shall appear to them, or to such one of them as aforesaid, that it is intended that provision is to be made for any such married woman, then the commissioners shall not take her acknowledgment until they are satisfied that such provision has been actually made by some deed or writing produced to them; or if such provision shall not have been actually made before, then the commissioners shall require the terms of such intended provision to be shortly reduced into writing, and shall verify the same by their signatures in the margin at the foot or at the back thereof.
And it is hereby further ordered, that the affidavit verifying the certificate to be made pursuant to the said act, and which certificate shall be in the form contained in the said act, shall (except in such cases where the acknowledgment shall be taken elsewhere than in England, Wales or Berwickupon-Tweed) be made by some practising attorney or solicitor of one of the courts at Westminster, or of one of the counties palatine of Lancaster or Durham; and that in all cases it shall be deposed, in addition to the verification of the said certificate, that the deponent (or if more than one person join in the affidavit, that one or more of the deponents) knew the person or persons making such acknowledgment, and that at the time of making such acknowledgment the person or persons making the same was or were of full age and competent understanding, and that one at least of the commissioners taking such acknowledgment, to the best of his deponent's knowledge and belief, is not in any manner interested in the transaction giving occasion for the taking of such acknowledgment, or concerned therein as attorney, solicitor or agent, or as clerk to any attorney, solicitor or agent so interested or concerned; and that the names and residences of the said commissioners, and also the place or places where such acknowledgment or acknowledgments shall be taken, shall be set forth in such affidavit; and that, previously to such acknowledgment being taken, the deponent had inquired of such married woman, (or if more than one, of each of such married women,) whether she intended to give up her interest in the estate to be passed, and also the answer given thereto; and where any such married woman in answer to such inquiry shall declare that she intends to give up her interest without any provision, the deponent shall state that he has no reason to doubt the truth of such declaration, and he verily believes the same to be true. And where any provision has been agreed to be made, the deponent shall state that the same has been made by deed or writing, or, if not actually made before, that the terms of the intended provision have been reduced into writing, which deed or writing he verily believes has been produced to the said (judge,) (master or commissioners.
And it is hereby further ordered, that the affidavit shall state the parish or several parishes, or place or several places, and the county or counties in which the several premises wherein any such married woman shall appear to be interested shall by deed be described to be situate.
And it is hereby further ordered, that the affidavit shall be in the form