Trustees and Mortgagees Act


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Trustees and Mortgagees (CAP. 447 1

CHAPTER 447

THE TRUSTEES AND MORTGAGEES ACT

Arrangement of Sections
Section

1. Short title.

Powers of Trustees for Sale, &c., and Trustees of Renewable
Leaseholds

2. Trustees, empowered to sell, may sell in lots, and either
by auction or private contract.

3. Sale may be made under special conditions, and
trustees may buy in, kc.

-

4. Trustees, exercising power of sale, kc., may convey.
5 . Money arising from sales, &c., to be laid out in other

lands.
6. Until purchase of lands, &c., money to be invested at

interest.
7. Trustees of renewable leaseholds may renew.
8. Money for equality of exchange, and for renewal of

leases, may be raised by mortgage, kc.
9. No sale, kc., to be made without consent of tenant for

life, &c.

Powers of Mortgagees

10. Powers incident to mortgages.
11. Receipts for purchase money sufficient discharge.
12. Notice to be given before sale but purchaser relieved

from inquiry as to circumstances of sale.
13. Application of purchase money.
14. Conveyance to the purchaser.
15. Owner of charge may call for title deeds and conveyance

of legal estate.

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2 CAP. 447) Trustees and Mortgagees

Appointment of receiver.
Receiver deemed to be the agent of the mortgagor.
Powers of receiver.
Receiv~r may be removed.
Receiver to receive a commission not exceeding five

per cent.
Receiver to insure if required.
Application of moneys received by receiver.
This Part to relate to charges by way of mortgage only.

Investment of Trust Funds, Appointment and Powers of Trustees
and Executors, &c.

24. On what securities trust funds may be invested.
25. Trustees may apply income of property of infants, kc.,

for their maintenance.
26. Provisions for appointment of new trustees on death,

&c .
27. Appointment of new trustees, in cases herein named.
28. Trustees' receipts to be discharges.
29. Executors may compound, &c.

General Provisions

30. Tenants for life &c., may execute powers notwithstand-
ing incumbrances.

31. Powers, &c., hereby given may be negatived by express
declaration.

32. No persons, other than those entitled under the settle-
ment, to be affected.

33. Applications of Act.

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Trustees and Mortgagees (CAP. 447 3

TRUSTEES AND MORTGAGEES

1. This Act may be cited as the Trustees and Shofitide.
Mortgagees Act.

Powers of Trustees for Sale, &c., and Trustees of m e w a b l e
Leaseholds

2. In all cases where, by any will, deed, or other T~~;Y"~;;L
instrument of settlement, it is expressly declared that sell in lots, and
trustees or other persons, therein named or indicated, shall ~ ~ ~ ~ ~ ~ ; ~ ~ d
have a power of sale, either generally or in any particular
event, over any hereditaments named or referred to in, or
from time to time subject to, the uses or trusts of such will,
deed, or other instrument, it shall be lawful for such
trustees or other persons, whether such hereditaments be
vested in them or not, to exercise such power of sale by
selling such hereditaments, either together or in lots, and
either by auction or private contract, and either at one time
or at several times, and (in case the power shall expressly
authorize an exchange) to exchange any hereditaments,
which, for the time being, shall be subject to the uses or
trusts aforesaid, for any other hereditaments in Antigua and
Barbuda (as the case may be), and, upon any such exchange,
to give or receive any money for equality of exchange.

3. It shall be lawful for the persons making any such :;:&&mu*
sale or exchange to insert any such special or other stipula- rnnditiOm, ,d
tions, either as to title, or evidence of title, or otherwise, in YE:~~Y~UY
any conditions of sale, or contract for sale or exchange, as
they shall think fit, and also to buy in the hereditaments, or
any part thereof, at any sale by auction, and to rescind or
vary any contract for sale or exchange, and to re-sell the
hereditaments which shall be bought in, or as to which the
contract shall be so rescinded, without being responsible for
any loss which may be occasioned thereby, and no purchaser

LAWS OF ANTIGUA AND BARBUDA

4 CAP. 447) Trustees and Mortgagees

under any such sale shall be bound to enquire whether the
persons making the same may, or may not, have in contem-
plation any particular re-investment of the purchase money
in the purchase of any other hereditaments or otherwise.

Trustees,
exercising power

4. For the purpose of completing any such sale or
of sale, kc., may exchange as aforesaid, the person empowered to sell or
convey. exchange as aforesaid shall have full power to convey, or

otherwise dispose of, the hereditaments in question, either
by way of revocation and appointment of the use, or other-
wise, as may be necessary.

Money arisiig
from sales, &c., to

5. The money so received upon any such sale, or for
be laid out in equality of exchange, as aforesaid, shall be laid out in the
other lands. manner indicated in that behalf in the will, deed, or

instrument containing the power of sale or exchange, or, if
no such indication be therein contained as to all or any part
of such monev. then the same shall. with all convenient , ,
speed, be laid out in the purchase of other hereditaments in
fee simple in possession to be situate in Antigua and
Barbuda, or of lands of a leasehold tenure which. in the
opinion of the persons making the purchase, are conve-
nient to be held therewith, or with any other hereditaments
for the time being subject to the subsisting uses or trusts of
'the same will, deed, or other instrument of settlement, in
which the power of sale or exchange was contained; and all
such hereditaments, so to be purchased or taken in
exchange as aforesaid, as shall be-freeholds of inheritance
shall b; settled and assured to the uses, upon and for the

, L

trusts, intents and purposes, and with, under, and subject to
the powers, provisos, and declarations, to which the heredi-
taments sold, or given in exchange, were or would have
been subject, or as near thereto as the deaths of parties and
other intervening accidents will admit of, but not so as to
increase or multiply charges; and all such hereditaments, so
to be purchased or taken in exchange as aforesaid, as shall
be of leasehold tenure shall be settled and assured upon
and for such trusts, intents, and purposes, and with, under,
and subject to such powers, provisos, and declarations, as
shall, as nearly as may be, correspond with, and be similar
to, the aforesaid uses, trusts, intents, and purposes, powers,
~rovisos and declarations, but not so as to increase or
multiply charges, and so that, if any of the hereditaments so

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Trustees and Mortgagees (CAP. 447 5

to be purchased shall be held by lease for years, the same
shall not vest absolutely in any tenant in tail by purchase
who shall not attain the age of twenty-one years; and any
such purchase as aforesaid may be made subject to any
special conditions as to title or otherwise:

Provided that no leasehold tenement shall be purchased,
under the powers hereinbefore contained, which is held for
a less period than sixty years:

Provided, nevertheless, that it shall be lawful for the ~,","LT$;~~
persons exercising any such power as aforesaid, if they shall ~~d i,
think fit, to apply any money to be received upon any sale, payment of

mcumbrances. or for equality of exchange as aforesaid, or any part thereof,
in lieu of purchasing lands therewith, in or towards paying
off, or discharging, any mortgage or other charge or
incumbrance which shall or may affect all or any of the
hereditaments which shall then be subject to the same uses
or trusts as those to which the hereditaments sold, or given
in exchange, were or was subject.

6. Until the money to be received upon any sale, or Untilpurchaseof
lands, &c., money for equality of exchange, shall be disposed of in the manner to be invested at

herein mentioned, the same shall be invested at interest for interest-
the benefit of the same parties who would be entitled to the
hereditaments to be purchased therewith, as aforesaid, and
the rents and profits thereof, in case such purchase and
settlement as aforesaid were then actually made.

7. It shall be lawful for any trustees of any leaseholds Trustees of
renewable for lives or years which are renewable from time to time, leaseholdsmay

either under any covenant or contract, or by custom or renew.
usual practice, if they shall, in their discretion, think fit, and
it shall be the duty of such trustees, if thereunto required by
any person having any beneficial interest, present or future
or contingent, in such leaseholds, to use their best
endeavours to obtain, from time to time, a renewed lease of
the same hereditaments on the accustomed and reasonable
terms, and, for that purpose, it shall be lawful for any such
trustees, from time to time, to make, or concur in making,
such surrender of the lease for the time being subsisting,
and to do all such other acts, as shall be requisite in that
behalf; but this section is not to apply to any case, where, by
the terms of the settlement or will, the person in possession
for his life, or other limited interest, is entitled to enjoy the

LAWS OF ANTIGUA AND BARBUDA

6 CAP. 447) Trustees and Mortgagees

same without any obligation to renew the lease, or to
contribute to the expense of renewing the same.

Moneyforequality 8.' In case any money shall be required for the
of exchange, and
for purpose of paying for equality of exchange as aforesaid, or
leases, for the renewal of any lease as aforesaid, it shall be lawful for
raised by

the person effecting such exchange or renewal to pay the
same out of any money which may then be in their hands in
trust for the persons beneficially interested in the lands to
be taken in exchange, or comprised in the renewed lease,
whether arising by any of the ways and means hereinbefore
mentioned, or otherwise, and notwithstanding the provi-
sions for the application of money arising from sales and
exchanges hereinbefore contained; and, if they shall not
have in their hands, as aforesaid, sufficient money for the
purposes aforesaid, it shall be lawful for such persons to
raise the money required by mortgage of the hereditaments
to be received in exchange, or contained in the renewed
lease (as the case may be), or of any other hereditaments for
the time being subject to the subsisting uses or trusts to
which the hereditaments taken in exchange, or comprised
in the renewed lease (as the case may be), shall be subject,
and, for the purpose of effecting such mortgage, such per-
sons shall have the same powers of conveying or otherwise
assuring as are herein contained with reference to a con-
veyance on sale; and no mortgagee advancing money upon
such mortgage purporting to be made under this power
shall be bound to see that such money is wanted, or that no
more is raised than is wanted, for the purpose aforesaid.

Nosale, h., tobe 9. No such sale or exchange as aforesaid, and no
made without
consentoftenant purchase of hereditaments out of money received on any
for life, kc . such sale or exchanges as aforesaid, shall be made without

the consent of the person appointed to consent by the will,
deed, or other instrument, or if no such person be appointed,
then of the person entitled in possession to the receipt of
the rents and profits of such hereditaments, if there be such
a person under no disability; but this clause shall not be
taken to require the consent of any person, where it appears
from the will, deed, or other instrument to have been
intended that such sale, exchange, or purchase should be
made by the person or persons making the same without
the consent of any other person.

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Trustees and Mortgagees (CAP. 447 7

Powus of Mortgagees

10. Where any principal money is secured or Poweaincidentto
mortgages. charged by deed on any hereditaments of any tenure, or on

any interest therein, the person to whom such money shall,
for the time being, be payable, his executors, administra-
tors, and assigns, shall, at any time after the expiration of
one year from the time when such principal money shall
have become payable according to the terms of the deed, or
after any interest on such principal money shall have been
in arrear for six months, or after any omission to pay any
premium on any insurance, which, by the terms of the deed,
ought to be paid by the person entitled to the property
subject to the charge, have the following powers, to the
same extent (but no more) as if they had been in terms
conferred by the person creating the charge, namely-

(a) A power to sell, or concur with any other
person in selling, the whole, or any part, of the property
by public auction or private contract, subject to any
reasonable conditions he may think fit to make, and to
rescind or vary contracts for sale, or buy in and re-sell
the property, from time to time, in like manner.

( b ) A power to insure and keep insured from loss
or damage by fire, the whole or any part of the property
(whether affixed to the freehold or not), which is in its
nature insurable, and to add the premiums paid for
any such insurance to the principal money secured, at
the same rate of interest.

(c) A power to appoint, or obtain the appointment
of, a receiver of the rents or profits of the whole, or any
part, of the property in manner hereinafter mentioned.

1 1. Receipts for purchase money, given by the person Receipts for
purchase money

or persons exercising the power of sale hereby conferred, sufficient
shall be sufficient discharges to the purchasers, who shall not d i s c b e .
be bound to see to the application of such purchase money.

12. No such sale as aforesaid shall be made until Noticetobegiven
before sale but after six months notice in writing given to the person, Or pwcbaserrelieved

one of the persons, entitled to the property subject to the ?;$:qtaTn es",:
charge, or affixed on some conspicuous part of such d e .

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8 CAP. 447) Trustees and Mortgagees

property; but, when a sale has been effected in professed
exercise of the powers hereby conferred, the title of the
purchaser shall not be liable to be impeached on the
ground,that no case had arisen to authorize the exercise of
such power, or that no such notice as aforesaid had been
given; but any person damnified by any such unauthorized
exercise of such power shall have his remedy in damages
against the person selling.

Application of
purchase money.

13. The money arising by any sale effected as
aforesaid shall be applied by the person receiving the same
as follows--First, in payment of all expenses incident to the
sale, or incurred in any attempted sale; secondly, in dis-
charge of all interest and costs then due in respect of the
charge in consequence whereof the sale was made; and,
thirdly, in discharge of all the principal moneys then due in
respect of such charge; and the residue of such money shall
be paid to the person entitled to the property subject to the
charge, his heirs, executors, administrators, or assigns, as
the case may be.

Conveyancetothe 14. The person exercising the power of sale hereby
purchaser.

conferred shall have power by deed to convey or assign to,
and vest in, the purchaser the property sold, for all the
estate and interest therein which the person who created
the charge had power to dispose of.

Owner of charge
may call for title

15. At any time after the power of sale hereby con-
deeds and ferred shall have become exercisable, the person entitled to
f o n v e ~ c e o f exercise the same shall be entitled to demand and recover,
legal estate.

from the person entitled to the property subject to the
charge, all the deeds and documents in his possession or
power relating to the same property, or to the title thereto,
which he would have been entitled to demand and recover
if the same property had been conveyed, appointed,
surrendered, or assigned to, and were then vested in him
for all the estate and interest which the person creating the
charge had power to dispose of, and, where the legal estate
shall be outstanding in a trustee, the person entitled to a
charge created by a person equitably entitled, or any
purchaser from such person, shall be entitled to call for a
conveyance of the legal estate, to the same extent as the

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Trustees and Mortgagees (CAP. 447 9

person creating the charge could have called for such
conveyance if the charge had not been made.

16. Any person entitled to appoint or obtain the Appointmentof
receiver. appointment of a receiver, as aforesaid, may from time to

time, if any person or persons has or have been named in
the deed of charge for that purpose, appoint such person or
any one of such persons to be receiver, or if no person be so
named, then may, by writing delivered to the person or any
one of the persons entitled to the property subject to the
charge, or affixed on some conspicuous part of the
property, require such last mentioned person or persons to
appoint a fit and proper person as receiver, and, if no such
appointment be made within ten days after such requisition,
then may in writing appoint any person he may think fit.

17. Every receiver appointed as aforesaid shall be Receiverdeemed
to be the agent of

deemed to be the agent of the person entitled to the prop- hemortgagor.
erty subject to the charge, who shall be solely responsible
for his acts or defaults, unless otherwise provided for in the
charge.

18. Every receiver appointed as aforesaid shall have powers of
power to demand and recover, and give effectual receipts reCe"r'
for, all the rents, issues and profits of the property of which
he is appointed receiver, by action, suit, distress, or
otherwise, in the name either of the person entitled to the
property subject to the charge, or of the person entitled to
the money secured by the charge, to the full extent of the
estate or interest which the person who created the charge
had power to dispose of.

19. Every receiver appointed as aforesaid may be Receivermaybe
removed.

removed by the like authority, or on the like requisition, as
before provided with respect to the original appointment of
a receiver, and new receivers may be appointed from time to
time.

20. Every receiver appointed as aforesaid shall be Receiverto receive a
entitled to retain out of any money received by him, in lieu c o m m ~ i o n not
of all costs, charges, and expenses whatsoever, such a exceeding five per

cent.
commission, not exceeding five per centum on the gross
amount of all money received, as shall be specified in his

LAWS OF ANTIGUA AND BARBUDA

10 CAP. 447) Trustees and Mortgagees

appointment, and if no amount shall be so specified, then
five per centum on such gross amount.

Receiver to inswe 21. Every receiver appointed as aforesaid shall, if so
if required.

directed in writing by the person entitled to the money
secured by the charge, insure and keep insured from loss or
damage by fire, out of the money received by him, the
whole or any part of the property included in the charge
(whether affixed to the freehold or not) which is in its
nature insurable.

Application of
moneys received

22. Every receiver appointed as aforesaid shall pay
by receiver. and apply all the money received by him, in the first place,

in the discharge of all taxes, rates, and assessments whatso-
ever, and in payment of his commission, as aforesaid, and of
the premiums on the insurances, if any, and, in the next
place in payment of all the interest accruing due in respect
of any principal money then charged on the property over
which he is receiver, or on any part thereof, and, subject as
aforesaid, shall pay all the residue of such money to the
person for the time being entitled to the property subject to
the charge, his executors, administrators, or assigns.

This Part to relate
to charges by way

23. The powers and provisions contained in this Part
o f , ~ e o n l y . relate only to mortgages or charges made to secure money

advanced, or to be advanced, by way of loan, or to secure an
existing or future debt.

Investment of Trust Funds, Appointment and Powers of Trustees
and Executars, &c.

Onwbatsedties 24. Trustees having trust money in their hands,
trust funds may be
invested. which it is their duty to invest at interest, shall be at liberty,

at their discretion, to invest the same in any of the public
funds, or in Commonwealth Government securities, and
such trustees shall be also at liberty, at their discretion, to
call in any trust funds invested in any other securities than
as aforesaid, and to invest the same in any such securities as
aforesaid, and also, from time to time, at their discretion, to
vary any such investments, as aforesaid, for others of the
Same nature:

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Trustees and Mmtgagees (CAP. 447 1 1

Provided that no such original investment as aforesaid,
and no such change of investment as aforesaid, shall be
made, where there is a person, under no disability, entitled in
possession to receive the income of the trust fund for his life,
or for a term of years determinable with his life, or for any
greater estate, without the consent in writing of such person.

25. In all cases where any property is held by trustees Trustees may
apply income of in trust for an infant, either absolutely, or contingently on propewof

his attaining the age of eighteen years, or on the occurrence infants, kc., for
their maintenance. of any event previously to his attaining that age, it shall be

lawful for such trustees, at their sole discretion, to pay to the
guardians, if any, of such infant, or otherwise to apply for or
towards the maintenance or eduction of such infant, the
whole, or any part, of the income to which such infant may
be entitled in respect of such property, whether there be
any other fund applicable to the same purpose, or any other
person bound by law to provide for such maintenance or
education, or not; and such trustees shall accumulate all the
residue of such income by way of compound interest, by
investing the same and the resulting income thereof, from
time to time, in proper securities for the benefit of the
person who shall ultimately become entitled to the property
from which such accumulations shall have arisen:

Provided that it shall be lawful for such trustees at any
time, if it shall appear to them expedient, to apply the
whole, or any part, of such accumulations as if the same
were part of the income arising in the then current year.

26. Whenever any trustee, either original or substituted, P r ~ ~ i o ~ appointment for of
and whether appointed by the High Court or otherwise, shall ,trustees on
die, or desire to be discharged from, or refuse or become *eafh,&c.
unfit or incapable to act in, the trusts or powers in him
reposed, before the same shall have been fully discharged
and performed, it shall be lawful for the person or persons
nominated for that purpose by the deed, will, or other instru-
ment creating the trust, if any, or if there be no such person,
or no such person able and willing to act, then for the surviv-
ing or continuing trustees or trustee for the time being, or
the acting executors or executor or administrators or admin-
istrator of the last surviving and continuing trustee, or for the
last retiring trustee, by writing, to appoint any other person
or persons to be a trustee or trustees in the place of the

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Appointment of
new trustees, in
cases herein
named.

Trustees' receipts
to be discharges.

Executors may
compound, &c.

CAP. 447) Trustees and Mortgagees

trustee or trustees so dying, or desiring to be discharged, or
refusing or becoming unfit or incapable to act as aforesaid;
and, so often as any new trustee or trustees shall be so
appointed a~~aforesaid, all the trust property, if any, which, for
the time being, shall be vested in the surviving or continuing
trustees or trustee, or in the heirs, executors, or administra-
tors of any trustee, shall, with all convenient speed, be
conveyed, assigned, and transferred so that the same may be
legally and effectually vested in such new trustee or trustees,
either solely, or jointly with the surviving or continuing
trustees or trustee, as the case may require; and every new
trustee or trustees to be appointed as aforesaid, as well before
as after such conveyance or assignment as aforesaid, and also
every trustee appointed by the High Court, either before or
after the passing of this Act, shall have the same powers,
authorities, and discretions, and shall in all respects act as if
he had been originally nominated a trustee by the deed, will,
or other instrument creating the trust.

27. The power of appointing new trustees herein-
before contained may be exercised in cases where a trustee
nominated in a will has died in the lifetime of the testator.

28. The receipts in writing of any trustees or trustee,
for any money payable to them or him by reason or in the
exercise of any trusts or powers reposed or vested in them
or him, shall be sufficient discharges for the money therein
expressed to be received, and shall effectually exonerate the
persons paying such money from seeing to the application
thereof, or from being answerable for any loss or misappli-
cation thereof.

29. It shall be lawful for any executors to pay any
debts or claims upon any evidence that they may think
sufficient, and to accept any composition, or any security,
real or personal, for any debts due to the deceased, and to
allow any time for payment of any such debts as they shall
think fit, and also to compromise, compound, or submit to
arbitration all debts, accounts, claims, and things whatsoever
relating to the estate of the deceased, and, for any of the
purposes aforesaid, to enter into, give, and execute such
agreements, instruments of composition, releases, and
other things as they shall think expedient, without being
responsible for any loss to be occasioned thereby.

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Trustees and Mortgagees (CAP. 447 13

General Provisions

30. For the purposes of this Act, a person shall be Tenantsforfife
&c., may execute deemed to be entitled to the possession or to the receipt of powem

the rents and income of land or personal property, notwithstandmg
although his estate may be charged or incumbered, either mcumbrances.

by himself or by any former owner, or otherwise howsoever
to any extent; but the estates or interests of the parties
entitled to any such charge or incumbrance shall not be
affected by the acts of the person entitled to the possession
or to the receipt of the rents and income, as aforesaid,
unless they shall concur therein.

31. None of the powers or incidents hereby conferred Powem, kc.,
hereby given may or annexed to particular offices, estates, or circumstances benegativedby

shall take effect or be exercisable if it is declared in the e v r e s
declaration. deed, will, or other instrument creating such offices, estates,

or circumstances that they shall not take effect; and where
there is no such declaration, then, if any variations or limita-
tions of any of the powers or incidents hereby conferred or
annexed are contained in such deed, will, or other instru-
ment, such powers or incidents shall be exercisable or shall
take effect only subject to such variations or limitations.

32. Nothing in this Act contained shall be deemed to ~ a n ~ ~ ~ ; ; ~ d
empower any trustees, or other persons, to deal with or
affect the estates or rights of anyperson soever, except to 2;:;;;~tobe
the extent to which they might have dealt with or affected
the estates or rights of such persons, if the deed, will, or
other instrument under which such trustees or other persons
are empowered to act had contained express powers for
such trustees, or other persons, so to deal with or affect such
estates or rights.

33. The provisions contained in this Act shall, except 2~f icat ions of
as hereinbefore otherwise provided, extend only to persons
entitled or acting under a deed, will, codicil, or other
instrument executed after the passing of this Act, or under a
will or codicil confirmed and revived by a codicil executed
after that date.