'Sect. 41.

2 Sect. 73.

3 Sect. 74.

"where a rent shall be thereby reserved, which, at the time of

granting such a lease, shall be a rack rent, or not less than five "sixth parts of a rack rent,) shall have any operation under this "act unless it be inrolled in his Majesty's high court of Chancery, within six calendar months after the execution thereof; and, if "the assurance by which any disposition of lands shall be effected "under this act shall be a bargain and sale, such assurance, "although not inrolled within the time prescribed by the act passed in the twenty-seventh year of the reign of his Majesty "King Henry the Eighth, intituled, For Inrolment of Bargains "and Sales,' shall, if inrolled in the said court of Chancery within "the time prescribed by this clause, be as good and valid as the 66 same would have been if the same had been inrolled in the said "court within the time prescribed by the said act of Henry the "Eighth." "Any rule or practice requiring deeds to be acknow"ledged before inrolment," shall not apply to deeds to be inrolled under this act2. Every deed required to be inrolled under this act "shall, when inrolled as required by this act, operate and "take effect in the same manner as it would have done if the in"rolment thereof had not been required, except that every such "deed shall be void against any person claiming the lands or money thereby disposed of, or any part thereof, for valuable consideration, under any subsequent deed duly inrolled under "this act, if such subsequent deed shall be first inrolled 3."

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2. Extent of disposing power given to the tenant in tail.]— For the purpose of defining the rights of the tenant in tail in this respect, it is enacted, "That every actual tenant in tail, "whether in possession, remainder, contingency, or other"wise, shall have full power to dispose of, for an estate in fee "simple absolute, or for any less estate, the lands entailed, as "against all persons claiming the lands entailed by force of any "estate tail which shall be vested in or might be claimed by, or "which, but for some previous act, would have been vested in, or "might have been claimed by, the person making the disposition, "at the time of his making the same, and also as against all

persons, including the King, his heirs and successors, whose "estates are to take effect after the determination, or in defeas"ance of any such estate tail; saving always the rights of all persons in respect of estates prior to the estate tail in respect "of which such disposition shall be made, and the rights of all

"other persons except those against whom such disposition is

"by this act authorized to be made1." It will be observed, that 'Sect. 15. this section extends, in terms, to estates tail, whether in possession or in expectancy; and, unless it had been qualified by the subsequent provisions, requiring the concurrence of the protector of the settlement, a tenant in tail in remainder, expectant upon an estate of freehold, would have been enabled to bar the entail without the consent of the immediate freeholder, which would have entirely altered the existing state of the law as to settlements. With a degree of caution which seems scarcely necessary, it is expressly provided, that the issue shall not, by this act, be enabled to bar the estate tail which they have in expectancy. The words are, "that nothing in this act contained shall enable any person "to dispose of any lands entailed in respect of any expectant "interest, which he may have as issue inheritable to any estate "tail therein 2."

2 Sect. 20.

The Real Property Commissioners, after weighing the objections to, and the countervailing advantages of, the existing state of the law, by which a tenant in tail in remainder was enabled to acquire a base fee by means of a fine, thought it expedient, under all the circumstances 3, to allow the tenant in tail, where there 1 Rep. 33. was a prior beneficial owner, to bar his estate tail, and acquire

a base fee without the consent of that owner. This rendered it necessary to give the tenant in tail, after he had acquired a base fee, the power, by means of the substitute for fines and recoveries, to make a disposition for expanding the base fee into a fee simple, in the same manner as he could under the then existing law, by means of a recovery; and also to make a like provision for expanding base fees, existing at the time. when fines and recoveries were abolished. For this purpose, it was enacted, that in every case in which an estate tail should have been barred and converted into a base fee "either before or on or after that day, the person who, if such estate tail had not "been barred, would have been actual tenant in tail of the same "lands, shall have full power to dispose of such lands as against "all persons, including the King, his heirs and successors, whose "estates are to take effect after the determination or in defeasance of the base fee into which the estate tail shall have been "converted, so as to enlarge the base fee into a fee simple abso"lute; saving always the rights of all persons, in respect of

3

1 Sect. 19.

"estates prior to the estate tail which shall have been converted " into a base fee, and the rights of all other persons, except those "against whom such disposition is by this act authorized to be "made1."

3. Modification of the disposing power of tenant in tail, where he is seised or entitled only in remainder, or subject to certain prior estates specified in the act.]-Had the 15th section not been modified by the subsequent provisions of the act requiring the consent of the protector, it would obviously have had the effect of enabling a tenant in tail, whether in possession or remainder, to bar the entail, and all ulterior estates and limitations. I have already shewn the distinction as to the power of alienation, between a tenant in tail in possession and a tenant in tail in remainder expectant on an estate of freehold. This distinction, of great practical importance, and the foundation of modern settlements, would have been abrogated by this section, had the act not provided the means for qualifying its operation. This object is obtained by introducing a species of machinery new to the law of England.

The nature of this machinery, and the views which influenced the Real Property Commissioners in introducing it, will be made sufficiently plain by the following passage from their first 1 R. P. R. 31. report 2:— "It would be too broad a principle to establish, that a tenant in tail, whether in possession or in remainder, should be enabled to bar the entail and the remainders over, without any restriction; and the giving him such an unrestricted power in all cases might be productive of serious evils, by rendering family settlements abortive. Although the rule requiring the concurrence of the person who has the freehold to make the tenant to the præcipe in a recovery, is purely technical, and is liable to many objections, as we have already stated, yet great benefits, which could not originally have been contemplated, when recoveries were first applied to the barring of entails, have resulted from it. It has given parents who, in family settlements, usually have the first estate of freehold, the means of checking any improvident dealings with the property by their children; it has given rise to family arrangements, which are usually entered into as soon as the first tenant in tail comes of age, and which generally terminate in a re-settlement of the property, and in continuing it in the family for another genera

tion, and in an immediate provision for the first tenant in tail, and in giving him powers to provide for a wife and children, in the lifetime of his father; and it has prevented the intention of the original settlor from being defeated, at the will and caprice of the tenant in tail, who may possibly never come into possession. To avoid the evils which have resulted from this rule, and at the same time to preserve the benefits, we recommend that the concurrence of the person having the immediate estate of freehold, should, as seised of that estate, be no longer necessary to enable a tenant in tail to bar the entail and the remainders over; and that, instead of such concurrence, where, by the deed or will creating the entail intended to be barred, or by any appointment made in exercise of a power contained therein, a beneficial estate, either for life, or years determinable on life, or of any greater extent, not being a lease on which a rent shall be reserved, shall be limited prior to the estate tail intended to be barred, and shall be subsisting, or where the first beneficial estate shall have devolved upon some person as tenant by the courtesy, either at law or in equity, in respect of the estate tail intended to be barred, or of any other estate tail created by the same deed or will, any disposition by the tenant in tail shall be made with the concurrence of the person to whom such prior estate, or the first of such prior estates, if more than one, shall have been limited, or of the person upon whom such prior estate shall have devolved; and that any disposition made without such concurrence shall only bar the estate tail; and that the concurrence of such beneficial owner shall be equally good and available, notwithstanding he may have encumbered or aliened his estate, or may have become bankrupt or insolvent; and that the concurrence of the first beneficial owner may be signified either by his being a party to the substitute or by a separate deed, and without obtaining from him an actual conveyance of his estate. If the concurrence should be signified by a separate deed, we think it advisable that it should not be allowed to the concurring party to impose any terms on the tenant in tail, as the necessity of seeing whether he had complied with those terms would then be avoided. This will not prevent the parent or other beneficial owner from requiring the estate to be settled in a reasonable manner, for the benefit of the family, as he will always have it in his power to do this by keeping back the deed of concurrence until he is satisfied that

'Sect. 34.

2 Sect. 35.

the estate has been settled in such manner as he has required. If the first beneficial owner should be a married woman, we recommend that her husband should also be a concurring party; and that, as she will part with no estate, her concurrence should be given without a separate examination, and as if she were a female sole. The deviation from the present rule will not be so great as may at first sight appear; for, in the majority of cases, the tenant of the immediate estate of freehold, and the first beneficial owner, will be the same person. We have not thought it advisable to require the concurrence of the tenant in dower, for it seldom, if ever, happens that dower is set out by metes and bounds; and if such an estate does occur, her concurrence would have only a partial operation, as the estate is confined to a part of the lands entailed."

For the purpose, therefore, of carrying out the main point here enforced, it is enacted, "That if, at the time when any

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person, actual tenant in tail of lands under a settlement, but "not entitled to the remainder or reversion in fee immediately

expectant on the determination of his estate tail, shall be "desirous of making under this act a disposition of the lands "entailed, there shall be a protector of such settlement, then, "and in every such case, the consent of such protector shall "be requisite to enable such actual tenant in tail to dispose of "the lands entailed to the full extent to which he is herein before "authorized to dispose of the same; but such actual tenant in "tail may, without such consent, make a disposition under this "act of the lands entailed, which shall be good against all per"sons who, by force of any estate tail which shall be vested in "or might be claimed by, or which but for some previous act or "default would have been vested in or might have been claimed "by, the person making the disposition at the time of his making "the same, shall claim the lands entailed1."

And also, "That, where an estate tail shall have been con"verted into a base fee, in such case, so long as there shall be a protector of the settlement by which the estate tail was created, "the consent of such protector shall be requisite to enable the person who would have been tenant of the estate tail, if the same had not been barred, to exercise, as to the lands in respect of which there shall be such protector, the power of disposition hereinbefore contained 2."

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