Right to the possession of title deeds. before a jury it would be the duty of a judge to give a clear direction in favour of the fact of conveyance, then it is to be considered as without reasonable doubt; but if it would be the duty of a judge to leave it to the jury to pronounce upon the effect of the evidence, then it is too doubtful to conclude a purchaser (k). In Cotterell v. Hughes (1), a term was assigned to attend the inheritance in 1773. In 1778 the estate was limited in strict settlement, and in 1813 the estate was again limited in strict settlement, but in neither of these settlements was any notice taken of the outstanding term. In 1840 the estate was sold, and on this occasion the term was assigned to attend the inheritance for the purchaser, and it was held that the circumstances of the omission of all mention of this term in the two settlements would not justify the Court in presuming a surrender. The right to the possession of the title deeds depends on the situation of the legal estate, and follows the legal ownership; and this rule is equally applicable to personal and real estate. If, therefore, the legal interest in an estate under a settlement is vested in trustees in trust to pay the rents and profits to a tenant for life, and after his death in trust for other persons, the trustees are, as a general rule, entitled to retain the custody of the deeds (m). The cestui que trust, however, has a right to inspect and take copies of the deeds at any time (n), and this extends to a cestui que trust of the proceeds of sale, in the absence of special circumstances (o). Of course a bare trustee cannot retain the deeds as against his cestui que trust. A tenant for life has a right to the custody of tenant for life the deeds, if the legal as well as the equitable estate As between trustee and cestui que trust. As between and re mainderman. is vested in him (p), unless he has been guilty of misconduct so that the safety of the deeds is endangered, or there is a pending suit relating to the property, and it is more convenient for the purposes of the suit that they shall be in Court (q). Any person entitled to a vested remainder may require the tenant for life to produce the title deeds for the remainderman's inspection, in order to enable him to dispose of, or otherwise deal with, the property (r). But it seems that this right does not extend to a person entitled to a contingent remainder (s). Where deeds relate to two estates, or to one estate As between held by tenants in common, if any one of the interested co-owners. parties gets possession of them, he is entitled to retain them, for no one can show a better right to have them. And where the deeds are in the possession of a third party who has no interest, he cannot be compelled to deliver them up except by the direction of all the parties interested, and if they cannot agree, or one of them cannot be found, the deeds must be deposited in Court for the benefit of all (7). lease by enures for the trust. If a trustee, and for this purpose the tenant for life of Renewal of a settled leasehold property is considered a trustee (u), trustee, or renews a lease, the renewed lease will enure for the tenant for life benefit of the trust (a), and it makes no difference that benefit of the the lease has not usually been renewed (y), or that the old lease has expired (2), or that the renewal was for a different term or at a different rate; and the rule has been held to apply where the tenant for life of an underlease purchased the leasehold reversion and then took a renewal from the superior lessor (a). (p) See Doe v. Passingham, 6 B. & C. 305; Barclay v. Collett, 4 Bing. N. C. 669; 7 L. J. (N. S.) C. P. 235; Bowles v. Stewart, 1 Sch. & Lef. 223; Garner v. Hannyngton, ubi suprà. (2) Ivie v. Ivie, 1 Atk. 429; Warren v. Rudall, 1 J. & H. 1; Leathes v. Leathes, 5 Ch. D. 221; Stamford v. Roberts, L. R. 6 Ch. 307. (r) Davis v. Earl of Dysart, 20 Beav. 405; Pennell v. Earl of Dysart, 27 Beay. 542. (8) Noel v. Ward, 1 Mad. 322; Ivie v. Ivie, 1 Atk. 429. (t) Wright v. Robotham, 33 C. D. 106. (u) Taster v. Marriott, Amb. 668; Rawe v. Chichester, ib. 715. (x) Edwards v. Lewis, 3 Atk. 538. (y) Killick v. Flexney, 4 B. C. C. 161. (z) Edwards v. Lewis, ubi suprà ; James v. Dean, 11 Ves. 383. (a) Giddings v. Giddings, 3 Russ. 241; Leigh v. Burnett, 29 C. D. 231. Doctrine applies to purchase of reversion. Duty of trustees of leaseholds as to repairs. Trustee cannot charge for professional services. The doctrine that a renewal of leaseholds by a tenant for life enures to the benefit of the remainderman applies equally to a purchase of the freehold reversion (b). Where leasehold property is vested in trustees in trust for A. for life, with remainders over, and there is no express direction as to repairs, the tenant for life is not bound to keep the property in repair out of the rents. But as the trustees are liable to the covenants in the lease, they are entitled for their own protection, and ought, it is apprehended, in order to prevent a forfeiture, to do the necessary repairs out of corpus (c). It is an established rule that a trustee, executor, or administrator shall have no allowance for his care and trouble(d), and consequently a trustee who is a solicitor is only entitled to be repaid costs out of pocket, and cannot charge the trust estate for his professional services (e). The rule equally applies where the trustee is a member of a firm of solicitors, and the business is done by the firm (f). In a case where one of a firm of solicitors acted in the defence of a suit for himself and his co-trustees, it was held that the trustees, as a body, were entitled to their full costs, unless it could be shown that the amount of such costs was increased by the solicitor being joined in the defence with the other trustees (g). But the exception to the general rule allowed in the last-named case will not be extended to the administration of an estate out of Court (h). In accordance with the above rule, it has been held that if a trustee solicitor and his firm make profit costs by preparing leases, which costs are paid by (b) Phillips v. Phillips, 29 C. D. 673. (c) In re Courtier, 34 C. D. 136. In the case of In re Fowler, 16 C. D. 723, Fry, J., held that the trustees ought to do the repairs out of the rents; but the decision, if it can be supported at all, must be considered as depending on the special circumstances. (d) Robinson v. Pett, 3 P. Wms. 248. (e) Moore v. Frowd, 3 M. & C. 45; Pollard v. Doyle, 1 Drew. & Sm. 319. (f) Christophers v. White, 10 Beav. 523; Lincoln v. Windsor, 9 Hare, 158; Broughton v. Broughton, 2 Sm. & Gif. 422; S. C. 5 De G. M. & G. 160. (g) Cradock v. Piper, 1 Mac. & G. 664; In re Corsellis, 34 C. D. 675. (h) Lincoln v. Windsor, ubi suprà. the tenants, the solicitor must account to the trust estate for the costs thus received (i). possession, or trustee. A mortgagee, as such, is not a trustee, but if he Mortgagee in enters into possession (k), or sells under the power of selling under sale (1), he thereby places himself in a fiduciary power, is a position, and if he receives the rents himself or acts professionally in conducting a sale, is not entitled to any commission or profit costs. But if a solicitor mortgagee, in the mere character of mortgagee, is defendant in a redemption suit, it is apprehended that the rule would not apply, but the question is doubtful (m). confined to The rule is not confined to solicitors. Thus, in a Rule not case where a mortgagee with a power of sale was a solicitors. member of a firm of auctioneers, and the firm sold for him under the power, it was held the firm were not entitled to the auctioneer's commission (n). clause autho to charge for If the settlor or testator expressly authorizes the Effect of trustee to retain his professional costs, he will be allowed rizing trustee to charge for everything which, if he had not been a professional trustee, he would have been justified in employing a services. solicitor to do; but he will not be allowed his charges for things which an executor or trustee ought to do without the intervention of a solicitor, such as for attendances to pay premiums on policies, attendances at the bank to make transfers, attendances on proctors, auctioneers, legatees, and creditors (o). Statute of In case of any claim against a trustee, the Trustee When trustee Act,-1888, enables him to plead the Statute of Limita- may plead tions like any other person, except where the claim is Limitations. founded upon any fraud or fraudulent breach of trust, or to recover trust property converted by him to his own use (p). Division of subject. HUSBAND AND WIFE (a). It is proposed in this Dissertation to consider-I. The right of separate property conferred on the wife by the Married Women's Property Acts, and the interest of the husband in his wife's real estate, chattels real, chattels personal, choses in action, and reversionary interests in personalty not being her separate property by virtue of those Acts or otherwise. II. The wife's equity to a settlement out of property accruing to her after the marriage and not subject to the abovementioned Acts. III. Trusts for the separate use of a married woman, either with or without a restraint on anticipation. IV. The liability of the wife's separate property, and of the husband, for the wife's debts and engagements contracted during the coverture and before marriage respectively. V. The effect of separation or desertion as to the wife's property and her capacity to contract. I. The right of separate property conferred on the wife by the Married Women's Property Acts, and the interest of the husband in his wife's real estate, chattels real, chattels personal, choses in action, and reversionary interests in personalty, not being her separate property by virtue of those Acts or otherwise. The law relating to the property of married women has been materially altered (1)by the Married Women's Property Act, 1870 (b), which came into operation on the 9th August, 1870, and (2) by the Married Women's Property Act, 1882 (e), which came into operation on (a) This subject has been to some extent anticipated in the first volume, as to the disabilities of married women in reference to the sale of land and as to dower. (b) 33 & 34 Vict. c. 93. |