The Inheritance Act 1833 changed and codified heirship. It removed anomalous ancient common law rules tracing entitlement from the last purchaser instead of last person seized. Lineal ancestors, as well as descendants, were admitted as heirs. Heirs of the half-blood were admitted.
At the start of the 19th century, when a man died, with real estate held in fee simple, his widow was entitled to one third for life. This right could not be removed or deprived by will or deed or even a sale or mortgage. The only method by which it could be done was by levying an artificial fine procedure involving significant delay and cost.
The Dower Act 1833 provided that a widow could claim dower only on lands belonging to her husband at the time of his death and then only regarding lands which he had not disposed of by his will. An Act of 1890 gave widows, where husbands died intestate, a charge of £500 pounds out of real and personal estate in addition to dower.
After the Land Transfer Act 1897, freehold land devolved onto the personal representative in the same manner as leasehold estates in England and Wales. This did not apply until 1959 in the Republic of Ireland and 1955 in Northern Ireland.
At the start of the 19th century, only the general personal estate was liable for simple contract debts of the deceased. Otherwise the heir or devisee of freehold estates took it free from all debts except mortgages and deeds in which the heir was expressly mentioned. Even in relation to mortgage debt, the heir or devisee was entitled to be indemnified out of the general personal estate of the deceased.
By various statutes, especially 3 & 4 William IV in 32 and 33 Vic c 46, real estate was made available for payment of all debts. By Locke King’s Act, an heir or devisee took the real estate burdened with mortgage debt and was no longer entitled to be indemnified or exonerated by the personal estate holder.
The law of Property Amendment Act 1859 empowered a devisee entrusted with real estate charged with debts to raise the sum required by sale or mortgage. This applied whether there was a charge in the will and removed an anomaly where there were no directions and particulars as to how to realize the charge.
In England and Wales, the Land Transfer Act 1897 removed this anomaly by giving the personal representative power to sell or mortgage to pay for debts whether expressly charged or not.
In Ireland, land purchased out under the Land (Purchase) Acts devolved in the same way as personal property. After the end of the 20th century, only the freehold unregistered estate passed to the heir at law.
No death duties were levied on real estate until 1854. The Finance Act 1894 provided for Estate Duty on real estate.
By statute 32, Henry VIII, a person who has undisturbed possession of land for 60 years could bar real actions and writs of right. This legislation remained in force until 1833 when the Statute of Limitations Act of that year significantly reformed the law and gave birth to the modern law on squatters and acquisition of title by exclusive possession.
The period for which exclusive possession was reduced from 60 to 20 years. Where the true owner was out of possession without acknowledgment of title for 20 years, the Acts takes away his legal right to recovery and his rights to the property. He will be a trespasser even if he recovered possession.
Exceptions were maintained in favor of persons under disability or persons overseas. They had ten years to assert their right. Rights did not begin to run against future interest holders until they became enjoyable in possession.
A new Limitation Act was passed in 1874 reducing the period of 20 years to 12. Persons with disabilities were given six years. The exception in favor of persons overseas was removed.
The reversioner was allowed 12 years from the time the previous owner was dispossessed or six from the time he became entitled in possession whichever is longer. Barring if one reversioner became barred all later reversioners.
In the case of easements, rights or prescription could arise at common law. They could not be obtained by long use of itself would in practice could be so required through the mechanism of a number of fictions. Use from so-called living memory created a report of a presumption that there was a lawful origin by grant. Notionally, proof was required to 1189 but the presumption was created on evidence tracing back to living memory.
The Doctrine of Modern Lost Grant was invented by the courts and juries were entitled to presume a lost grant once 20 years use was claimed. This could be rebutted by proof that it arose after 1189 or on some other negating ground.
The Prescription Act 1832 sought to put the law on a more rational basis. 20 years period was specified as a general period for acquisition of easements and 30 yersin other cases. The legislation provides that some of the basis on which the lost modern grant could be rebutted are no longer applicable.
In the early 19th century, a will had to be witnessed by three competent credible witnesses. General devises spoke from the date of the will and not the death. Freehold land after acquired did not pass unless the will was amended. A device of real estate without words of limitation presumptively caused a life estate to pass even in the case of will.
The Wills Act 1837 reformed the law of wills substantially. A will is valid if signed in the presence of two witnesses. The credibility of witnesses is not a factor unless the witness is a husband or wife of the testator. Wills speak from death for both real and personal estate. A gift to a predeceasedchild takes effect as if the child had died immediately after the testator.
Real estate is coudl be devised without words of limitations. A will is to be interpreted without technical language and it is presumed that the entire estate of the testator is to pass until the contrary is shown.
Transfer of Land
A transfer of real property during life was executed at the start of the 19th century by a lease and release. A number of other even more anomalous methods existed.
Under the lease and release a vendor may agree for the sale of a property for a year in consideration of a nominal amount. This then vested the legal right of possession in the purchaser. In this case the reversion in the vendor could be released by another deed for which the true consideration was set out. In 1841, an Act provided that a release if made in pursuance of the Act should be as effectual as a lease and release.
Finally, the Real Property Act 1845 provided that all real estate, corporeal hereditament should be deemed to lie in grant as well as in delivery. The common law principle that the actual delivery of possession or the later principle that a notional delivery by aid of the statute of uses became unnecessary. The deed of grant then supplanted the lease and release as the common method of conveyancing.
The Conveyancing and Law of Property Act of 1881 modified the principle that the rate of remuneration of the solicitors was dependent on the number of words. Short formulations were provided for covenants and title by the use of certain key words most commonly “as beneficial owner” for full covenants. A simple form of statutory acknowledgment was provided for.
Registration of Title
Registration of title developed in the United Kingdom in the mid to late 19th century. The earlier systems of registering title and recording title in Ireland were supplemented by the Local Registration of Title Act 1891. All land purchased out through the Land Commissions was mandatorily registerable in the Land Registry. I
The registration of title legislation was designed to avoid the need for repeated investigation of title. The registrar maintains all titles on its books up-to-date and a guarantee of state title is given.
The first registration of title in England took place in 1862. It only provided for the registration of the fee simple titles after examination. The Act was not a success.
The Land Transfer Act 1875 proceeded in the principle that the land owners could register a possessory title without having to investigate title. Some person not necessarily, the fee simple owner could be be registered as proprietor subject to cautions and inhibitions to prevent the proprietor dealing without respecting rights under trust.
The Act was not compulsory and was largely a dead letter until the Land Transfer Act 1897.n England and Wales, the Land Transfer Act 1897 created the modern Land Registry.
The Land Transfer Act reflects the modern Land Registry and is equivalent to the 1891 Act in Ireland. Freehold estates and land could be registered with absolute, qualified or possessory title. The three registers were kept, the property register, proprietary-ship register and charges register.
The first part contains description of the property referring to a plan. The second contains details of the owner and class of title. The charges register specifies which mortgages, easements, registered encumbrances, restrictive covenants with which the land is burdened.
No investigation of title is necessary with apossessory title application. Over time, possessory title gained strength and could be converted into absolute title.
A fee simple owner may be registered as proprietor and also as trustees for sale. Mortgagees with power of sale tenants for life could become entitled to sell.
In the case of possessory title with which most properties were initially registered, proprietorship was made subject to all estate’s rights and encumbrances existing at the date of registration. Holders of minor interests could protect themselves by registration of the caution, inhibition or restriction.
Restrictions provide that land might not be sold unless monies are paid to certain parties e.g. the trustees of the settlement or into court. Inhibitions provide that no transfer should happen until certain circumstances applied.
The register was made subordinate to the rights, interest of the persons in possession. A person must investigate who is in possession and the rights and interests arising from such possession. The registered owner must be the person with a current interest and possession. Future interests were not registered.
The 1897 protected the true owner in possession. It created a right of compensation by persons damaged by mistakes in the Registry. Ownership of title was transferred by a simple statutory form of transfer. Leasehold estates may be registered under the legislation provided there was at least 40 years to run. This period was later reduced to 21 year.
The 1875 and 1897 Act provided for the creation of a registered charge. The registered charge holder was given the powers of the mortgagee by deed. He had statutory power of sale, foreclosure, or even power to appoint a receiver. The charges ranked in order of registration.
The 1897 Act allowed creation of a land mortgage by deposit of the land certificate. The land certificate issued in respect of each title as an instrument to prevent fraud.