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LAW OF PROPERTY AMENDMENT ACT 1859

LAW OF PROPERTY AMENDMENT ACT 1859 - LONG TITLE

An Act to further amend the Law of Property, and to relieve
Trustees.{1}
[13th August 1859]
Leases

LAW OF PROPERTY AMENDMENT ACT 1859 - SECT 1

1. Where any licence to do any act which without such licence
would create a forfeiture, or give a right to re-enter, under a
condition or power reserved in any lease heretofore granted or to
be hereafter granted, shall at any time after the passing of this
Act be given to any lessee or his assigns, every such licence
shall, unless otherwise expressed, extend only to the permission
actually given, or to any specific breach of any proviso or
covenant made or to be made, or to the actual assignment,
under-lease, or other matter thereby specifically authorized to be
done, but not so as to prevent any proceeding for any subsequent
breach (unless otherwise specified in such licence); and all rights
under covenants and powers of forfeiture and re-entry in the lease
contained shall remain in full force and virtue, and shall be
available as against any subsequent breach of covenant or condition,
assignment, under-lease, or other matter not specifically authorized
or made dispunishable by such licence, in the same manner as if no
such licence had been given; and the condition or right of re-entry
shall be and remain in all respects as if such licence had not
been given, except in respect of the particular matter authorized to
be done.

LAW OF PROPERTY AMENDMENT ACT 1859 - SECT 2
Restricted operation of partial licences.

2. Where in any lease heretofore granted or to be hereafter granted
there is or shall be a power or condition of re-entry on assigning
or underletting or doing any other specified act without licence,
and a licence at any time after the passing of this Act shall be
given to one of several lessees or co-owners to assign or underlet
his share or interest, or to do any other act prohibited to be
done without licence, or shall be given to any lessee or owner, or
any one of several lessees or owners, to assign or underlet part
only of the property, or to do any other such act as aforesaid in
respect of part only of such property, such licence shall not
operate to destroy or extinguish the right of re-entry in case of
any breach of the covenant or condition by the co-lessee or
co-lessees, or owner or owners, of the other shares or interests in
the property, or by the lessee or owner of the rest of the
property (as the case may be) over or in respect of such shares
or interests or remaining property, but such right of re-entry shall
remain in full force over or in respect of the shares or interests
or property not the subject of such licence.

LAW OF PROPERTY AMENDMENT ACT 1859 - SECT 3
Apportionment of conditions of re-entry in certain cases.

3. Where the reversion upon a lease is severed, and the rent or
other reservation is legally apportioned, the assignee of each part
of the reversion shall, in respect of the apportioned rent or other
reservation allotted or belonging to him, have and be entitled to
the benefits of all conditions or powers of re-entry for non-payment
of the original rent or other reservation, in like manner as if
such conditions or powers had been reserved to him as incident to
his part of the reversion in respect of the apportioned rent or
other reservation allotted or belonging to him.

Ss.49 rep. by 1881 c.41 s.14(7) sch.2

Release of part of land charged not to be an extinguishment of the
rentcharge.

LAW OF PROPERTY AMENDMENT ACT 1859 - SECT 10

10. The release from a rentcharge of part of the hereditaments
charged therewith shall not extinguish the whole rentcharge, but
shall operate only to bar the right to recover any part of the
rentcharge out of the hereditaments released, without prejudice
nevertheless to the rights of all persons interested in the
hereditaments remaining unreleased, and not concurring in or
confirming the release.

Release of part of land charged not to affect judgment.

LAW OF PROPERTY AMENDMENT ACT 1859 - SECT 11

11. The release from a judgment of part of any hereditaments
charged therewith shall not affect the validity of the judgment as
to the hereditaments remaining unreleased, or as to any other
property not specifically released, without prejudice nevertheless to
the rights of all persons interested in the hereditaments or
property remaining unreleased, and not concurring in or confirming
the release.

Mode of execution of powers.

LAW OF PROPERTY AMENDMENT ACT 1859 - SECT 12

12. A deed hereafter executed in the presence of and attested by
two or more witnesses in the manner in which deeds are ordinarily
executed and attested shall, so far as respects the execution and
attestation thereof, be a valid execution of a power of appointment
by deed or by any instrument in writing not testamentary,
notwithstanding it shall have been expressly required that a deed or
instrument in writing made in exercise of such power shall be
executed or attested with some additional or other form of execution
or attestation or solemnity: Provided always, that this provision
shall not operate to defeat any direction in the instrument creating
the power that the consent of any particular person shall be
necessary to a valid execution, or that any act shall be performed
in order to give validity to any appointment, having no relation to
the mode of executing and attesting the instrument; and nothing
herein contained shall prevent the donee of a power from executing
it conformably to the power by writing or otherwise than by an
instrument executed and attested as an ordinary deed, and to any
such execution of a power this provision shall not extend.

LAW OF PROPERTY AMENDMENT ACT 1859 - SECT 13
Sale under power not to be avoided by reason of mistaken payment
to tenant for life, &c.

13. Where under a power of sale a bona fide sale shall be made
of an estate with the timber thereon, or any other articles
attached thereto, and the tenant for life or any other party to
the transaction shall by mistake be allowed to receive for his own
benefit a portion of the purchase money as the value of the timber
or other articles, it shall be lawful for the [High Court of
Justice in Northern Ireland], upon any bill or claim or application
in a summary way, as the case may require or permit, to declare
that, upon payment by the purchaser or the claimant under him of
the full value of the timber and articles at the time of sale,
with such interest thereon as the Court shall direct, and the
settlement of the said principal moneys and interest under the
direction of the Court upon such parties as in the opinion of the
Court shall be entitled thereto, the said sale ought to be
established; and upon such payment and settlement being made
accordingly the Court may declare that the said sale is valid; and
thereupon the legal estate shall vest and go in like manner as if
the power had been duly executed; and the costs of the said
application as between solicitor and client shall be paid by the
purchaser or the claimant under him.

LAW OF PROPERTY AMENDMENT ACT 1859 - SECT 14
Devisee in trust may raise money charged on land by sale or
mortgage, notwithstanding want of express power in the will.

14. Where by any will which shall come into operation after the
passing of this Act the testator shall have charged his real estate
or any specific portion thereof with the payment of his debts, or
with the payment of any legacy or other specific sum of money, and
shall have devised the estate so charged to any trustee or trustees
for the whole of his estate or interest therein, and shall not
have made any express provision for the raising of such debt,
legacy, or sum of money out of such estate, it shall be lawful
for the said devisee or devisees in trust, notwithstanding any
trusts actually declared by the testator, to raise such debts,
legacy, or money as aforesaid by a sale and absolute disposition by
public auction or private contract of the said hereditaments or any
part thereof, or by a mortgage of the same, or partly in one mode
and partly in the other; and any deed or deeds of mortgage so
executed may reserve such rate of interest and fix such period or
periods of repayment as the person or persons executing the same
shall think proper.

LAW OF PROPERTY AMENDMENT ACT 1859 - SECT 15
Powers given by last section shall extend to survivors, &c.

15. The powers conferred by the last section shall extend to all
and every person or persons in whom the estate devised shall for
the time being be vested by survivorship, descent, or devise, or to
any person or persons who may be appointed under any power in the
will, or by the [High Court of Justice in Northern Ireland] to
succeed to the trusteeship vested in such devisee or devisees in
trust as aforesaid.

LAW OF PROPERTY AMENDMENT ACT 1859 - SECT 16
Executors to have power of raising money charged on land, where
there is no sufficient devise.

16. If any testator who shall have created such a charge as is
described in the fourteenth section shall not have devised the
hereditaments charged as aforesaid in such terms as that his whole
estate and interest therein shall become vested in any trustee or
trustees, the executor or executors for the time being named in
such will (if any) shall have the same or the like power of
raising the said moneys as is herein-before vested in the devisee
or devisees in trust of the said hereditaments; and such power
shall from time to time devolve to and become vested in the person
or persons (if any) in whom the executorship shall for the time
being be vested; but any sale or mortgage under this Act shall
operate only on the estate and interest, whether legal or equitable,
of the testator, and shall not render it unnecessary to get in any
outstanding subsisting legal estate.

LAW OF PROPERTY AMENDMENT ACT 1859 - SECT 17
Purchasers, &c. not bound to inquire as to due execution of powers.

17. Purchasers or mortgagees shall not be bound to inquire whether
the powers conferred by sections fourteen, fifteen, and sixteen of
this Act, or either of them, shall have been duly and correctly
exercised by the person or persons acting in virtue thereof.

LAW OF PROPERTY AMENDMENT ACT 1859 - SECT 18
Sections 14, 15, and 16 not to affect certain sales, &c., nor to
extend to devises in fee or in tail, &c.

18. The provisions contained in sections fourteen, fifteen, and
sixteen shall not in any way prejudice or affect any sale or
mortgage already made or hereafter to be made under or in pursuance
of any will coming into operation before the passing of this Act,
but the validity of any such sale or mortgage shall be ascertained
and determined in all respects as if this Act had not passed; and
the said several sections shall not extend to a devise to any
person or persons in fee or in tail, or for the testator's whole
estate and interest charged with debts or legacies, nor shall they
affect the power of any such devisee or devisees to sell or
mortgage as he or they may by law now do.

Ss.19, 20 rep. with saving by 1955 c.24 (NI) ss.46, 48 sch.3. S.21
rep. by 1978 NI4 art.16(2) sch.2 Pt.I

S.23 rep. by 1958 c.23 (NI) s.69 sch.2

LAW OF PROPERTY AMENDMENT ACT 1859 - SECT 24
Punishment of vendor, &c. for fraudulently concealing deeds, &c. or
falsifying pedigree.

24. Any seller or mortgagor of land, or of any chattels, real or
personal, or choses in action conveyed or assigned to a purchaser
[or mortgagee], or the solicitor or agent of any such seller or
mortgagor, who shall after the passing of this Act conceal any
settlement, deed, will, or other instrument material to the title or
any incumbrance from the purchaser [or mortgagee], or falsify any
pedigree upon which the title does or may depend, in order to
induce him to accept the title offered or produced to him, with
intent in any of such cases to defraud, shall be guilty of a
misdemeanor, and being found guilty shall be liable, at the
discretion of the Court, to suffer such punishment, by fine or
imprisonment for any time not exceeding two years..., or by both,
as the Court shall award, and shall also be liable to an action
for damages at the suit of the purchaser or mortgagee, or those
claiming under the purchaser or mortgagee, for any loss sustained by
them or either or any of them in consequence of the settlement,
deed, will, or other instruments or incumbrance so concealed, or of
any claim made by any person under such pedigree, but whose right
was concealed by the falsification of such pedigree; and in
estimating such damages, where the estate shall be recovered from
such purchaser or mortgagee, or from those claiming under the
purchaser or mortgagee, regard shall be had to any expenditure by
them or either or any of them in improvements on the land; but no
prosecution for any offence included in this section against any
seller or mortgagor, or any solicitor or agent, shall be commenced
without the sanction of Her Majesty's Attorney General ... and no
such sanction shall be given without such previous notice of the
application for leave to prosecute to the person intended to be
prosecuted as the Attorney General ... shall direct.

LAW OF PROPERTY AMENDMENT ACT 1859 - SECT 25
Interpretation of terms.

25. In the construction of the previous provisions in this Act the
term "land" shall be taken to include all tenements and
hereditaments, and any part or share of or estate or interest in
any tenements or hereditaments, of what tenure or kind soever; and

The term "mortgage" shall be taken to include every instrument by
virtue whereof land is in any manner conveyed, assigned, pledged, or
charged as security for the repayment of money or money's worth
lent, and to be re-conveyed, re-assigned, or released on satisfaction
of the debt; and

The term "mortgagor" shall be taken to include every person by whom
any such conveyance, assignment, pledge, or charge as aforesaid shall
be made; and

The term "mortgagee" shall be taken to include every person to whom
or in whose favour any such conveyance, assignment, pledge, or
charge as aforesaid is made or transferred:

The term "judgment" shall be taken to include registered decrees,
orders of courts of equity and bankruptcy, and other orders having
the operation of judgments.

S.26 rep. by 1893 c.53 s.51 sch. Ss.2729 rep. by 1958 c.23 (NI)
s.69 sch.2. Ss.30, 31 rep. by 1893 c.53 s.51 sch. S.32 rep. by
1889 c.32 s.8 sch.