In Re Gaskell and Walters' Contract

[1906] 2 Ch. 1

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(Judgment by: Collins MR, Romer LJ, Cozens-Hardy LJ) Court:

Judges:
Collins MR
Romer LJ
Cozens-Hardy LJ

Subject References:
FELONY
CONVICT
ADMINISTRATOR
Estate Tail
Power to disentail
Alienation
Disposition of Lands entailed
Actual Tenant in Tail

Legislative References:
Forfeiture Act, 1870 (33 & 34 Vict. c. 23) - ss. 8, 10, 12
Fines and Recoveries Act, 1833 (3 & 4 Will. 4, c. 74) - ss. 1, 15, 38, 40

Hearing date: 4-5 April 1906
Judgment date: 11 April 1906

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Judgment by:
Collins MR
Romer LJ
Cozens-Hardy LJ

The question in this apeal turns upon the operation and effect of the Fines and Recoveries Act and the Forfeiture Act, 1870. A tenant in tail in possession was found guilty of felony, and Mr. Gaskell was, in pursuance of s. 9 of the Act of 1870, appointed administrator. He executed a deed dated July 5, 1905, by which he purported to grant the property "of which the said F. H. Gaskell is now by any means tenant in tail freed and discharged from all estates in tail of the said F. H. Gaskell to the use of the said F. H. Gaskell, his heirs and assigns for ever." This deed was duly enrolled. Gaskell has contracted to sell the property to Walters, and objection was taken that a good title was not shewn. We may observe that in any view the form of the disentailing assurance was wrong, for Gaskell was not tenant in tail. But as Walters is a willing purchaser, the matter has been argued before us on the broad question, first, whether the administrator can bar the entail and sell the fee, and secondly, if he cannot, whether the felon himself can bar the entail, and thus enable the administrator to sell the fee.

On the first point Kekewich J. has decided against the title, and we agree with his judgment. Sect. 10 provides that all the real and personal property to which the felon was at the time of his conviction or shall afterwards, while he shall continue subject to the operation of the Act, become or be entitled shall vest in such administrator for all the estate and interest of such convict therein, and by s. 12 the administrator has absolute power to let, mortgage, sell, convey, and transfer any part of such property as to him shall seem fit. What then is the effect of the vesting clause upon an estate tail? In our opinion it can only vest in the administrator a conditional fee determinable by entry of issue or remaindermen. An estate tail is incapable of being transferred. It is important to observe that in the somewhat similar provisions in the Bankruptcy Acts there is to be found, in addition to a wide vesting clause, an express power to bar the bankrupt's estate tail by a deed operating under the Fines and Recoveries Act.

No such express power is found in the Act of 1870, and the administrator does not bring himself within the definition clause in the Fines and Recoveries Act as a tenant in tail able to dispose of the fee simple. It was urged that such a power ought to be implied from s. 12, which empowers the administrator to sell such property; but that section only authorizes him to sell such property of the felon as is vested in him, the nature of which has been indicated above. It does not enable him to execute a deed which shall have the effect of barring both issue and remaindermen with a view to a subsequent sale. The analogy of the jurisdiction in lunacy to bar the estate tail of a lunatic does not really assist the appellant. The language of the Lunacy Acts is very different. The committee executes every deed in the name and on behalf of the lunatic. No property is vested in the committee. Moreover, jurisdiction over the property of a lunatic under the Statute de Prerogativa Regis is larger and wider than that which is expressed within the four corners of the modern Lunacy Acts: see In re Earl of Sefton. ([1898] 2 CH. 378.)

Assuming this to be so, it remains to consider what is the position of the felon himself. Although a determinable fee is vested in the administrator by virtue of s. 10 of the Forfeiture Act, 1870, the felon, unless s. 8 prevents, is still the person who is competent to execute a disentailing assurance under the Fines and Recoveries Act. Sect. 38 shews that this is so, and the judgment of Cotton L.J. in Bankes v. Small (36 Ch. D. 716.) is an authority in support of this view. It is, however, urged that under s. 8 of the Forfeiture Act, 1870, a felon is incapable of "alienating or charging any property," and that, therefore, his deed is void.

This is a point of some difficulty, but upon the whole we think that a deed by which the felon simply grants the property to a grantee and his heirs to hold to the grantee and his heirs, to the use of himself, his heirs and assigns, is not an "alienation." Alienation implies a transaction by which property is given to another person, but here there is no other person, unless a grantee to uses can be so regarded. The case of Lord Lilford v. Attorney-General (L. R. 2 H. L. 63.) supports the view that such a disentailing assurance is not an alienation, and that it operates rather by way of enlargement of the estate tail. Assuming that a deed of the nature above indicated is executed by the felon and enrolled, the fee simple thus acquired will vest in the administrator under s. 10, and by this means a good title can be made.

It is right to add that this point does not seem to have been taken before Kekewich J. Probably the better course will be that the appeal should stand over until after such a disentailing assurance has been executed by the felon and enrolled, and that an order should then be made discharging the order under appeal and declaring that a good title has been made. We have not been asked to make any order as to costs.