SEC. VI.—Of Dispositions under the Act for the 1. Of Dispositions by Husband and Wife, entitled When the objects to be effected by the 77th section of the above statute are not capable of being effected by the wife in concurrence with her husband by surrender, and she is not tenant in tail, then by a deed of disposition of the husband and wife, acknowledged by her as directed by the 79th and 80th sections of the act, the following objects may, by the 77th section, be accomplished as effectually as if the wife were a feme sole. 1. Lands of any tenure may be disposed of. 2. Money, subject to be invested in the purchase of lands, may be disposed of. 3. Any estate of the wife, or of the husband and wife in her right, in such lands of any tenure, or in such money, may be disposed of, released, surrendered, or extinguished. 4. Any power vested in, or limited or reserved to the wife in regard to such lands or money, or to any estate in such lands or money, may be released or extinguished. Objects attainable under 3 & 4 W. 4, c. 74, s. 77. Disposition by tenant in tail of legal or equitable estate. Office of pro tector. When consent of protector 2. Of the Modes by which an Estate Tail in Copyhold Property may be Barred. (1.) When the Copyholder is entitled in his own right: herein as to Legal and Equitable Estates Tail, and the Clauses applicable to the Office of Protector. The 50th section of 3 & 4 W. 4, c. 74, enacts, that the previous clauses of the act, so far as circumstances and the different tenures would admit, shall apply to lands held by copy of court roll, except that a disposition by a tenant in tail of the legal estate shall be made by surrender, and that a disposition by a tenant in tail of the equitable estate may be made either by surrender or by deed, and except as such clauses were afterwards varied. The previous clauses of the act, more peculiarly applicable to copyhold property, are those concerning the office of protector. The 51st section enacts, that if the protector's consent given by deed. to the disposition of copyhold lands shall be given by deed, the same, either at or before the time of the surrender, effecting the disposition, being made, shall be executed by the protector, and produced to the lord, his steward or deputy, otherwise the consent shall be void: that on the production of the deed, the lord, &c. shall, by indorsement thereon, acknowledge the production of the same within the time limited, and cause the deed so Deed to be en- indorsed to be entered on the court rolls: that the tered on court indorsement so signed shall be prima facie evidence that the deed was produced within the limited time, and that the person who signed the indorsement was the lord, &c.; and that after the deed is entered, the lord, &c. shall indorse thereon a memorandum signed by him, testifying such entry. rolls. given to person taking sur render. The 52nd section enacts, that if the protector's consent When consent is not given by deed, it shall be given to the person taking of protector the surrender effecting the disposition; and that if the surrender shall be made out of court, it shall be stated in the memorandum of surrender that such consent had been given, and such memorandum shall be signed by the protector, and that the lord, &c. shall cause the memorandum to be entered on the court rolls, and that such memorandum shall be evidence of the consent, and of the surrender therein stated to be made; and that the entry of the memorandum, or a copy thereof, shall be as available as evidence as any other entry on the court rolls, or a copy thereof; but that if the surrender should be made in court, the lord, &c. shall cause an entry of such surrender, containing a statement that such consent had been given, to be made on the court rolls; and that the entry of such surrender, or copy thereof, shall be as available for the purposes of evidence as any other entry, or a copy thereof. tenant in tail of equitable estate. The 53rd section enacts, that a tenant in tail of the Disposition by equitable estate in copyhold lands shall have power by deed to dispose of such lands as if they had been freehold; that the deed effecting the disposition shall be entered on the court rolls; that the previous clauses shall be applicable so far as circumstances will admit; that if there shall be a protector to consent to the disposition, and such consent shall be given by a distinct deed, the consent shall be void, unless the deed of consent be executed by the protector on or before the day on which the deed of disposition is executed; that such deed of consent shall be entered on the court rolls; that it shall be imperative on the lord, &c., when required, to enter such deed, and that he shall indorse thereon a memorandum signed by him, testifying such entry on the court rolls and that every deed of disposition shall be void against persons claiming for valuable consideration, under a subsequent I Equitable estate tail barrable either by surrender or by deed. Tenant in tail a married wo man. Estate tail legal or equitable. Equitable estate tail of married wo man. assurance entered on the court rolls, unless the deed of disposition be entered before the subsequent assurance. The 50th section, we have seen, leaves it open to the copyhold tenant in tail of an equitable estate to make the disposition either by surrender or by deed. The deed mentioned in that and the 53rd sections, must be considered to be such a deed as is mentioned in the 40th section, being some one of the assurances (excluding a will) by which a tenant in tail could have disposed of his estate, if it had been a fee-simple; so that in practice the deed of disposition, as to the equitable estate, will be effected either by surrender, lease and release, bargain and sale under the statute of uses, or grant, such instruments severally requiring entry on the court rolls, but no inrolment otherwise than by such entry. Vide section 54. (1) (2.) When the Copyholder and his Wife are entitled to an Estate Tail in her right: herein as to Legal and Equitable Estates Tail, and the separate Examination of the Wife. When a copyholder tenant in tail, making a disposition under the act, is a married woman, it will be seen by the 40th and 50th sections that the concurrence of her husband is necessary to give effect to the disposition. When the tenancy is of the legal estate, the disposition must be made by surrender; and when of the equitable estate, it may be effected either by surrender or deed, in accordance with the 50th, and three following sections of the act. The 90th section of the statute enacts, that when a husband and wife shall, either in or out of court, surrender any lands held by copy of court roll, in which she alone, (1) See forms, Nos. 3, 4, 6, in Appendix. or she and her husband in her right, may have an equitable estate, the wife shall, upon such surrender being made, be separately examined by the person taking the surrender, as if the estate were an estate at law; and that every such surrender, when such examination shall be taken, shall be binding on the married woman, and all claiming under her. (1) 3. Of the mode of acquiring an absolute Interest Lands to be sold, the money settled in tail, and money to be so invested. The 71st section of 3 & 4 W. 4, c. 74, enacts, that lands to be sold of any tenure, where the money to arise from to be invested the sale thereof is subject to be invested in the purchase in lands to be of lands to be settled on any person in tail, and also money subject to be invested in the purchase of lands to be settled on any person in tail, shall for the purposes of the act be treated as the lands to be purchased, and be considered subject to the same estates as the lands to be purchased would, if purchased, have been subject to; and that the previous clauses of the act, so far as circumstances would admit, shall, in case of the lands to be sold being held by copy of court roll, apply to such lands as if the lands to be purchased with the money to arise from the sale thereof were directed to be copyhold, and were actually purchased and settled; and shall, in the case of money subject to be invested in the purchase of lands to be so settled as aforesaid, apply to such money as if the same were directed to be laid out in the purchase of freehold lands, and such lands were actually purchased and settled. (1) See Form of Surrender, No. 3, in Appendix. |