Law of Property Amendment Act, 1860

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LAW OF PROPERTY AMENDMENT ACT 1860

CHAPTER XXXVIII.

An Act to further amend the Law of Property.[¹] [23d July 1860.]

Writs of execution of judgments to be registered, &c.

1. Whereas it is desirable to place freehold, copyhold, and customary estates on the same footing with leasehold estates, in respect of judgments, statutes, and recognizances, as against purchasers and mortgagees, and also to enable purchasers and mortgagees of estates, whether freehold, copyhold, or customary or leasehold, to ascertain when execution has issued on any judgment, statute, or recognizance, and to protect them against delay in the execution of the writ: Be it therefore enacted, that no judgment, statute, or recognizance to be entered up after the passing of this Act shall affect any land (of whatever tenure) as to a bonâ fide purchaser for valuable consideration, or a mortgagee, (whether such purchaser or mortgagee have notice or not of any such judgment, statute, or recognizance,) unless a writ or other due process of execution of such judgment, statute, or recognizance shall have been issued and registered as hereinafter is mentioned before the execution of the conveyance or mortgage to him, and the payment of the purchase or mortgage money by him: Provided always, that no judgment, statute, or recognizance to be entered up after the passing of this Act, nor any writ of execution or other process thereon, shall affect any land of whatever tenure as to a bona fide purchaser or mortgagee, although execution or other process shall have issued thereon, and have been duly registered, unless such execution or other process shall be executed and put in force within three calendar months from the time when it was registered.

Mode of registering.

2. The registry herein-before required of any writ of execution, or other due process on any judgment, statute, or recognizance, in order to bind a purchaser or mortgagee, shall be made by a memorandum or minute referring to the judgment, statute, or recognizance already registered, so as to connect the registry of the writ of execution or other process therewith; such memorandum or minute to be left with the senior master of the Court of Common Pleas at Westminster, who shall forthwith enter the particulars in a book in alphabetical order by the name of the person in whose behalf the judgment, statute, or recognizance upon which the writ of execution or other process issued was registered, and also the year and the day of the month when every such memorandum or minute is left with him; and such officer shall be entitled for any such registry to the sum of five shillings; and all persons shall be at liberty to search the same book, in addition to ail the other books in the same office, on payment of the sum of one shilling only: And all the provisions in this Act in regard to writs of execution or other process and the registry thereof, or otherwise relating thereto, shall extend, mutatis mutandis, to writs of execution or other due process issuing on judgments of the several Courts of Common Pleas of the County Palatine of Lancaster, and of Pleas of the County Palatine of Durham: But none of these provisions are to extend to Ireland.

Protection of heirs and executors, &c. against unregistered judgments.

3. [Recital of 4 & 5 Will. & Mar. c. 20.] No judgment which has not already been or which shall not hereafter be entered or docketed under the several Acts now in force, and which passed subsequently to the said Act of the fourth and fifth years of King William and Queen Mary, so as to bind lands, tenements, or hereditaments as against purchasers, mortgagees, or creditors, shall have any preference against heirs, executors, or administrators in their administration of their ancestors, testators, or intestates estates.

Judgments not to have preference against heirs and executors, &c. unless reregistered.

1 & 2 Vict. c. 110.

2 & 3 Vict. c. 11.

18 & 19 Vict. c. 15.

4. No judgments which since the passing of the Judgments Act, 1838 (being one of the Acts herein-before referred to), have been registered under the provisions therein contained, or contained in the Judgments Act, 1839, as explained and amended by the Judgments Act, 1855 (being two other of the Acts hereinbefore referred to), or which shall hereafter be so registered, shall have any preference against heirs, executors, or administrators in their administration of their executors, testators, or intestates estates, unless at the death of the testator or intestate five years shall not have elapsed from the date of the entry thereof on the docket or from the only or last re-registry thereof, as the case may be; which re-registry from time to time is hereby authorized to be made in manner directed by the Judgments Act, 1839, as explained and amended by the Judgments Act, 1855; but it shall be deemed sufficient to secure such preference as aforesaid, if such a memorandum as was required in the first instance is again left with the senior master of the Common Pleas within five years before the death of the testator or intestate, although more than five years shall have expired by effluxion of time since the last previous registration before such last-mentioned memorandum or minute was left; and so toties quoties upon every re-registry.

Meaning of the word “judgment.”

5. In the construction of the previous provisions the term judgment shall be taken to include registered decrees, orders of courts of equity and bankruptcy, and other orders having the operation of a judgment.

Restriction of effect of waiver.

6. 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 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 be a general waiver of the benefit of any such covenant or condition, unless an intention to that effect shall appear.

Future and contingent uses to take effect by force of the original estate, &c.

7. Where by any instrument any hereditaments have been or shall be limited to uses, all uses thereunder, whether expressed or implied by law, and whether immediate or future, or contingent or executory, or to be declared under any power therein contained, shall take effect when and as they arise by force of and by relation to the estate and seisin originally vested in the person seised to the uses; and the continued existence in him or elsewhere of any seisin to uses or scintilla juris shall not be deemed necessary for the support of or to give effect to future or contingent or executory uses, nor shall any such seisin to uses or scintilla juris be deemed to be suspended, or to remain or to subsist in him or elsewhere.

22 & 23 Vict. c. 35. s. 24. to extend to mortgagees.

8. The section twenty-four in the Law of Property Amendment Act, 1859, shall be read and construed as if the words “or mortgagee” had followed the word “purchaser” in every place where the latter word is introduced in the said section.

[S. 9 rep. 56 & 57 Vict. c. 53. s. 51.]

Lord Chancellors of England and Ireland may make general orders as to investment of cash under the control of the Court.

10. It shall be lawful for the Lord Chancellor, Lord Keeper or Lords Commissioners for the Custody of the Great Seal of England, with the advice and assistance of the Master of the Rolls, the Lords Justices of the Court of Appeal in Chancery, and the Vice-Chancellors of the said Court, or any three of them, and for the Lord Chancellor of Ireland, with the advice and assistance of the Lords Justices of Appeal and the Master of the Bolls in Ireland, to make such general orders from time to time as to the investment of cash under the control of the Court, either in the three per cent, consolidated or reduced or new Bank annuities, or in such other stocks, funds, or securities as lie or they shall, with such advice or assistance, see fit; and it shall be lawful for the Lord Chancellor, Lord Keeper or Lords Commissioners in England, and for the Lord Chancellor in Ireland, to make such orders as he or they shall deem proper for the conversion of any three per cent. Bank annuities now standing or which may hereafter stand in the name of the Accountant-General of the said Court of Chancery, in trust in any cause or matter, into any such other stocks, funds, or securities upon which, by any such general order as aforesaid, cash under the control of the Court may be invested; all orders for such conversion of Bank annuities into other funds or securities to be made upon petition to be presented by any of the parties interested in a summary way; and such parties shall be served with notice thereof as the Court shall direct.

[S. 11 rep. 52 & 53 Vict. c. 32. s. 8. S. 12 rep. 55 & 56 Vict. c. 19. (S.L.R.)]

Limitation of suits to recover personal estate of intestates.

13. [Recital of 3 & 4 Will. 4. c. 27. s. 40.] No suit or other proceeding shall be brought to recover the personal estate, or any share of the personal estate, of any person dying intestate, possessed by the legal personal representative of such intestate, but within twenty years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same, unless in the meantime some part of such estate or share, or some interest in respect thereof, shall have been accounted for or paid, or some acknowledgment of the right thereto shall have been given in writing, signed by the person accountable for the same, or his agent, to the person entitled thereto, or his agent; and in such case no such action or suit shall be brought, but within twenty years after such accounting, payment, or acknowledgment, or the last of such accountings, payments, or acknowledgments, if more than one was made or given.

[S. 14 rep. as to I., 30 & 31 Vict. c. 44. s. 52: as to E., 46 & 47 Vict. c. 49. s. 3.]

Extent of Act.

15. This Act is not to extend to Scotland, nor are any of the clauses, except clause six and the subsequent clauses, to extend to Ireland.

[¹ Short title, “The Law of Property Amendment Act, 1860” See 55 & 56 Vict. c. 10.]