TITLE, WANT OF.

If a purchaser discover that the vendor has not power to convey a material part of the property contracted to be sold, or to compel a conveyance from any other person, he may rescind the contract, though the time allowed for completion. has not expired (8); but the objection must be taken and insisted on promptly on the want of title being discovered (†). It seems doubtful whether in such a case an action for damages would lie if the vendor, on the day fixed for completion, were able and willing to give the purchaser a proper conveyance (u).

Where it turns out that the vendor has no title to part of the premises contracted to be sold, of which fact the purchaser was ignorant when he entered into the contract, and the purchaser is desirous of completing, the Court will as a rule enforce specific performance against the vendor so far as he can carry out the contract, giving compensation for the defect; such an event is, however, usually the subject of a special condition on which the rights of the parties will turn. Upon a contract for the sale and purchase of real estate, if the vendor, without fraud, is incapable of making a good title, the proposed purchaser is not entitled to recover compensation in damages for the loss of his bargain, but only his expenses actually incurred in relation to the contract (x). See POSSESSORY TITLE-RESCISSION.

Requisition.

Having regard to the fact that the vendor shows no title to the piece of land [coloured blue on the plan], the purchaser will insist upon his right to compensation, but wilɩ complete subject and without prejudice thereto.

(s) Brewer v. Broadwood, 22 Ch. D. 105; 52 L. J. Ch. 136; 47 L. T. 508; 31 W. R. 115; Bellamy v. Debenham, (1891) 1_Ch. 412; 60 L. J. Ch. 166; 64 L. T. 478; 39 W. R. 257.

(t) Wylson v. Dunn, 34 Ch. 569; 56 L. J. Ch. 855; 56 L. T. 192; 35

W. R. 405.

(u) Bellamy v. Debenham, (1891) 1 Ch. 412; 60 L. J. Ch. 166; 64 L. T. 478; 39 W. R. 257.

(x) Bain v. Fothergill, L. R. 7 H. L. 158; 43 L. J. Ex. 243: 31 L. T. 389, 23 W. R. 261.

TRAITORS.

See CONVICTS, TRAITORS AND FELONS.

TRUST ESTATES, DEVOLUTION OF, UPON DEATH OF TRUSTEE.

Upon the death of one of two or more trustees, his estate devolves upon the remaining trustee or trustees. The devolution of the estate upon the death of a sole or sole surviving trustee depends upon the nature of the estate and the time of his death.

(1) His freehold trust estates—

(i) If he died before the 7th August, 1874, vested in

the person, if any, to whom he devised them, or, if he died intestate with regard to such estates, they devolved upon his heir-at-law.

[A general devise of real estates includes lands of which a testator was seised as trustee, unless a contrary intention appears (y).]

(ii) If he died on or after the 7th August, 1874, and

before the 1st January, 1876, and was a "bare trustee " seised in fee simple, the trust estate devolved upon his legal personal representative (z) until the 1st January, 1876, when it shifted to his heir-at-law or devisee, unless it had been previously disposed of by his legal personal representative (a).

(iii) If he died on or after the 7th August, 1874, and before the 1st January, 1876, and was not a "bare trustee" seised in fee simple, the trust estate vested in the person (if any) to whom it was

(y) Lord Braybroke v. Inskip, 8 Ves. jun. 417; 7 R. R. 106; Tu. L. C. 322; Bainbridge v. Lord Ashburton, 6 L. J. Ex. Eq. 73; 2 Y. & C. Ex. 347.

(2) Vendor and Purchaser Act, 1874 (37 & 38 Vict. c. 78), s. 5.

(a) The Land Transfer Act, 1875 (38 & 39 Vict. c. 87), s. 48; Christie v. Ovington, 1 Ch. D. 279: 24 W. R. 204.

devised by his will, or if not so devised, then it devolved upon his heir-at-law.

(iv) If he died on or after the 1st January, 1876, and before the 1st January, 1882, intestate as to the trust property and was a "bare trustee" seised in fee simple, and the land was not registered under the Land Transfer Act, 1875, the trust estate devolved upon his legal personal representative (b).

(v) If he died on or after the 1st January, 1876, and before the 1st January, 1882, and was not a "bare trustee" seised in fee simple, or if (whether a bare trustee or not) he left a will disposing of the trust property, or if the land was registered under the Land Transfer Act, 1875, the trust estate vested in the person (if any) to whom it was devised, or if not so devised it devolved upon his heir-at-law.

(vi) If he died on or after the 1st January, 1882, the trust estate devolved upon his legal personal representative, notwithstanding any testamentary disposition (c).

(2) His copyhold and customary trust estates—

(i) If he died before the 1st January, 1882, devolved upon his customary heir until the admittance of the testator's devisee (if any) (d).

[The customary heir may himself be admitted, notwithstanding that the testator has disposed of the property by will; but in this case there should be a release of the devisee's right of admittance, or it should appear that the customary heir was admitted with the consent of the devisee (e).]

(b) The Land Transfer Act, 1875 (38 & 39 Vict. c. 87), s. 48.

(c) Conveyancing Act, 1881 (44 & 45 Vict. c. 41), s. 30.

(d) Garland v. Mead, L. R. 6 Q. B. 441; 40 L. J. Q. B. 179; 24 L. T. 421; 19 W. R. 1156.

(e) Steele v. Waller, 3 L. T. 74; 6 Jur. (N. S.) 1004; 28 Beav. 466.

(ii) If he died on or after the 1st January, 1882,
and before 16th September, 1887, and was tenant
on the court rolls of any manor in respect of any
trust estate, such estate devolved upon his legal
personal representative until the 16th September,
1887, when it shifted to his customary heir or
devisee, unless in the meantime a conveyance had
been made by the personal representative (d).
(iii) If he died on or after the 16th September, 1887,
and was tenant on the court rolls of any manor
in respect of any trust estate, such estate devolved
upon his customary heir or devisee in the same
way as if he had died before the 1st January,
1882.

(iv) If he died on or after the 1st January, 1882, and
was not tenant on the court rolls of any manor,
the trust estate devolved upon his legal personal
representative.

(3) His leasehold trust estates have always devolved upon his legal personal representative.

Requisitions.

1. A. B. having died after 1881, the devise in his will of trust estates to C. D. is of no effect, and the legal personal representative of A. B. must join in the conveyance.

of

2. How did X. Y. cease to be a trustee of the indenture , 189 ? by death or retirement, or how otherwise?

The usual evidence on the point should be supplied.

18

?

3. Why did not A. B. the second trustee of the settlement of 18 , join in the conveyance of If he had died or retired previously to the last-mentioned date, his death should be stated on the abstract and proved

in the usual way.

(d) The Conveyancing Act, 1881 (44 & 45 Vict. c. 41), s. 30; The Copyhold Act, 1887 (50 & 51 Vict. c. 73), s. 45; Re Mills' Trusts, 37

Ch. D. 312; 40 Ch. D. 14; 57 L. J. Ch. 466; 58 L. T. 620: 60 L. T. 442; 37 W. R. 81.

TRUSTEES, SALES AND MORTGAGES BY. Prior to the passing of Lord Cranworth's Act (e), new trustees could only be appointed in pursuance of a power contained in the instrument creating the trust, or by the Court. The provisions of that Act for the appointment of new trustees (f) have been repealed and re-enacted with slight alterations as from the 1st January, 1882 (g)、

The statutory power now arises where a trustee, either original or substituted, and whether appointed by the Court or otherwise, is dead or remains out of the United Kingdom for more than 12 months, or desires to be discharged, or refuses, or is unfit to act, or is incapable of acting; whereupon the person or persons nominated for the purpose of appointing new trustees by the instrument creating the trust, or if there is no such person able and willing to act, then the surviving or continuing trustees or trustee, or the personal representatives of the last surviving or continuing trustee, or of a sole trustee (), may, by writing, appoint a new trustee or new trustees; the provisions relative to a continuing trustee include a refusing or retiring trustee if willing to act (g).

On a statutory appointment, the number of trustees may be increased (i), and where only one trustee was originally appointed, it is not obligatory to appoint more than one trustee; nor is it necessary to fill up the original number of trustees where more than two were originally appointed. A trustee, except where only one trustee was originally appointed, will not be discharged under the section from his trust unless there will be at least two trustees to perform the trust (k); and where there are more than two trustees, one of them may by deed declare that he is desirous of being discharged from the trust, and if his co-trustee and such other

(e) 28th August, 1860.

(f) 23 & 24 Vict. c. 145, s. 27. (g) Conveyancing Act, 1881 (44 & 45 Vict. c. 41), s. 31; Conveyancing Act, 1882 (45 & 46 Vict. c. 39), s. 5; The Settled Land Act, 1890 (53 & 54 Vict. c. 69), s. 17; Conveyancing Act, 1892 (55 & 56 Vict. c. 13), s. 16; he Trustee Act, 1893 (56 & 57 Vict. 53), ss. 10, 47.

(h) Re Shafto's Trusts, 29 Ch. D.

247; 54 L. J. Ch. 885; 53 L. T. 261; 33 W. R. 728.

(i) Conveyancing Act, 1881 (44 & 45 Vict. c. 41), s. 31 (2), (6); Trustee Act, 1893 (56 & 57 Vict. c. 53), s. 10 (2) (a), (4).

(k) Conveyancing Act, 1881 (44 & 45 Vict. c. 41), s. 31 (3); Trustee Act, 1893 (56 & 57 Vict. c. 53), s. 10 (2) (c).