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have no intention at present of discussing the respective merits of these two courses; it is sufficient to say that the framer of the Act now before us has adopted the latter, and we may congratulate the profession and the public on the result arrived at.
We now proceed to examine successively the various groups of sections of which the Act is composed
1. LEASES, (Secs. 1-3.)-It is probable that every student of English law has, like Sir James Mansfield, “ always wondered at the rule in Dumpor's Case” (4 Taunt. 736); it meets him at almost the first page of his Smith's Leading Cases, and he will not stand alone, if, long after the time of his call to the Bar, or his admission as an attorney, he be obliged to confess that he does not understand it. Such students may be grateful to the Legislature which, after many years' consideration," has at length materially curtailed the operation of this most oppressive and irrational rule; and landlords, tenants, builders, and all others who have dealings with leasehold property, will be glad to find that now their intentions can be carried into effect, without the risk of entailing upon themselves a train of unforeseen and ruinous consequences.
It must be observed, however, that the Act in no way affects the vexatæ quæstiones, whether the rule extends to covenants as well as to conditions (see 12 Ves., 191; & 2 Platt on Leases, 270), and whether it extends to a waiver of a past breach as well as to a licence of one that is contemplated (see 4 Taunt. 735). Whatever the law on these points may formerly have been, it remains unchanged; moreover, the act does not apply, as is pointed out by Mr. Hunter in his edition mentioned at the head of this article (p. 12), to cases where a licence is given for an act, the licensing of which is not contemplated by the lease.
Lord St. Leonards, indeed, did intend to provide for all these cases by a section which followed the first two sections, but which, for some inexplicable reason, was struck out in the House of Commons. This section ran as follows:
1 The alteration in the law which has been effected by these sections, was advocated by the Real Property Commissioners in their Report of 1832, (3rd Rep., p. 49.) The legislature, therefore, has taken sufficient time to consider of the propriety of the alteration,
“Where any actual waiver of the benefit of any covenant or condition in any lease, on the part of any lessor, or his heirs, executors, administrators, or assigns, shall be proved to have taken place after the passing of this Act, in any one particular instance, such actual waiver shall not, unless a contrary intention appear, be assumed or deemed to extend to any instance, or any breach of covenant or condition other than that to which such waiver shall specially relate, nor to a general waiver of the benefit of any such covenant or condition.”
Mr. Hunter has also suggested (p. 14) another case, in which it seems the Act fails to effect the entire abrogation of the obnoxious rule, but it is one which can but rarely occur.
2. INSURANCE OF LEASEHOLDS, (Secs. 4–9.)— The next group of sections which we have to consider, relates to the effect of accidental breaches of covenants to insure leasehold property. Under the old law, the slightest deviation from the prescribed course was followed by liability to a total loss of the whole property; and when we consider the immense value of the interests held under leases in this country, and the certainty that in the course of numerous transactions, every accident and mistake will occur of which the occurrence is possible, it is not surprising that the old state of the law upon this subject should long have been felt to be a grievance. At the same time we cannot but think, that, in the absence of a legislative enactment, a due regard to the rights of landlords justified the rule observed by courts of equity, of not relieving against a forfeiture incurred by breach of a covenant to insure.
In framing a provision to meet this evil, it was necessary, on the one hand, to guard the landlord against even the risk of loss through fraud or negligence; and, on the other hand, to protect the honest purchaser and the honest tenant from incurring ruinous loss through mere accident or mistake. The Legislature, however, seems to have been only partially successful in carrying out these objects by the provisions contained in the present statute; for though Courts of Equity have now the power of relieving from the consequence of any first offence against a a
covenant for fire insurance, whenever the breach has arisen through accident or mistake, and has not occasioned any loss; yet, as was pointed out in our last Number (ante, p. 191), a purchaser cannot, in all cases, safely rely upon sect. 8 as giving him a title not liable to be defeated by reason of any past breach of a covenant of this nature.
3. RENT-CHARGES AND JUDGMENTS, (Secs. 10-11.)—Under this head we meet with a rule of law which often prevented beneficial dealings with property, while it never effected any good purpose, and rested on no tenable basis. This rule was, that certain legal rights over land being considered contrary to the “policy of the law,” every excuse was to be taken hold of for the purpose of destroying them. It was from this rule that the doctrine sprung, which teaches that a right of entry for nonpayment of a rent-charge, and a right to take the lands of a judgment-debtor, under an elegit, are indivisible; and, therefore, if they be given up in part they are given up altogether. This rule is now abolished, and a rent-charger or judgment-creditor releasing part of the land, need no longer fear any unnatural effect being given to his act.
It may be doubted whether the rule now repealed had any effect on equitable rights: if not, its importance was considerably diminished by sec. 13 of the statute 1 & 2 Vict. c. 110, whereby the remedies of judgment-creditors were extended, and by the now common practice of securing rent-charges by limiting a long term of years to trustees for the rent-charger; at the same time, the books of precedents sufficiently testify to the trouble caused to conveyancers, by the constantly recurring necessity of carrying out the wishes of their clients in spite of the rule.
Under sec. 10, however, there cannot be a complete release of a rent-charge, unless all the persons interested in the land concur in the release ; for by the Act the rights of persons not concurring are saved, and consequently the released land would remain subject to a suit by them for apportionment; and with regard to
! See Hunter, p. 33.
section 11, we may observe that it is doubted by some whether land can be effectually released at law from a judgment before execution; and although the validity of the doubt seems questionable (Prideaud on Judgments, 4th Ed. p. 55), yet it would have been well had this section set the point at rest.
4. POWERS, (Secs. 12–18.)—The Act, from the 12th to the 18th section, is occupied by a variety of provisions on the subject
The 12th section takes away from settlors the right to fetter free dealing with their property, by requiring various and unusual solemnities to be observed on the execution of deeds of appointment. Under the old law the greatest licence existed with regard to this matter; and in the judgment delivered by Lord Ellenborough, in Hawkins v. Kemp (3 East, 410), the immateriality of these solemnities is forcibly expressed. It is true that relief against the defective execution of a power could be obtained in equity, in cases where some valuable or meritorious consideration in the appointee existed to call the Court into action; but, nevertheless, in many cases the result of the old strictness was that the intentions of persons executing powers were altogether defeated.
The old rule had, it may be thought, the good effect of allowing settlors to guard against any rash or hasty action on the part of those to whom they confided the allotment of their property; but, on the other hand, the great variety of the often meaningless checks devised by different settlors for that purpose, gave rise to the evil we have mentioned above, and which this act is intended to remedy. To have prescribed one uniform mode of execution, which should be necessary and sufficient in all cases, as was done in the case of wills, by Lord Langdale's Act, seems to have been considered likely to give rise to displeasure, as a needless interference with the rights of property ; and the Legislature has not adopted such a course. Appointments will still be valid if made with the prescribed solemnities; and Courts of equity will still give effect to any written document, expressive of an intention to benefit persons having a moral claim on the donee of the power ; but the present statute enacts that a deed executed in the ordinary manner, and in the presence of, and attested by, two or more witnesses, shall in all cases be a sufficient execution of any power of appointment not testamentary.
Our readers, being familiar with “Sugden on Powers,” will see at once that this section sweeps away, for the future, a variety of questions which formerly gave rise to considerable litigation, and of which some are even yet undecided. It seems, however, that questions are not unlikely to arise hereafter, as to what is to be considered the ordinary mode of executing and attesting deeds; for instance there may, at the present time, be a difference of opinion, whether the attestation clause of deeds “ordinarily” expresses them to have been signed, and thus questions analogous to those in Wright v. Wakeford (17 Ves. 454), and Doe v. Burdett (10 Cl. and F. 340), may arise under the new law. Moreover, the propriety of requiring the execution of a power to be witnessed and attested by two witnesses, has been much questioned. A burden is thereby imposed which modern practice has thrown off, and the most experienced conveyancers of the present day merely provide that a power shall be executed by deed, or (in the case of a married woman) by a writing sealed and delivered, without requiring the attestation of even one witness.? Practically, an appointment like any other deed is attested, but there is no ground in common-sense for requiring the attestation of a deed of appointment more than of any other deed.
The 13th section repeals a rule of law which wrought injustice in the case of Cockerell v. Cholmeley (10 B. and C. 564), where a tenant for life, without impeachment of waste, received part of the purchase-money in respect of the timber on a sale under a power, and the power was held not to have been well executed. A similar case is not likely to occur again; but it is perhaps well that the recurrence of such a grievous wrong should be made impossible. It is right that the purchaser should
? The best modern precedents in conveyancing follow this course. See the forms of powers of appointment in Davidson's Conv., vol. 1, and Bythewood and Jarman's Conv., by Sweet, vol, 11. Mr. Prideaux in his Precedents, and Mr. Shelford in his late edition of Crabb's Conveyancing, have, however, adhered to the old practice of requiring two witnesses.