By virtue of these statutes a bankrupt may lose all his real estates; which may at once be transferred by his com toms, and services. The 70th section enacts, that any estates conveyed or pledged upon condition, or with power of redemption, by a man who afterwards becomes bankrupt, may be redeemed by his assignees, according to such condition, as fully as the bankrupt might have done. The 71st section enacts, that if any real estate of any bankrupt be extended after he shall have become bankrupt, upon a false pretence of his being indebted to an accountant of, or debtor to, the king, by contract originally made between the bankrupt and the said debtor or accountant to the king, a sale of such estate by the commissioners shall be valid against such extent and all persons claiming under it. The 73rd section enacts, that if any bankrupt, being at the time insolvent, shall (except upon the marriage of any of his children, or for some valuable consideration) have conveyed, assigned, or transferred any hereditaments, the commissioners shall have power to sell and dispose of the same, and such sale shall be valid against the bankrupt and all persons claiming under him. The 76th section enacts, that if any bankrupt shall have entered into any agreement for the purchase of any estate or interest in land, the vendor may compel the assignees to elect whether they will abide by and execute such agreement, or deliver up the same, and the possession of the premises. The 77th section enacts, that all powers vested in a bankrupt which he might legally execute for his own benefit (except the right of nomination to any vacant ecclesiastical benefice, see ante, p. 21, note (3) to chapter 3,) may be executed by the assignees. The 78th section enacts, that the Lord Chancellor may order bankrupts to join in conveyances of their real estates, and if they shall not execute such conveyances within the time directed, they, and all persons claiming under them, shall be stopped from objecting to the validity of the conveyances; and all estate, right, and title, which the bankrupts had in such tenements, shall be as effectually. barred by such order, as if the conveyances had been executed by the bankrupts. The 79th section enacts, that if any bankrupt shall, as trustee, either alone or jointly, be seised of, or entitled to, any real estate, or any interest secured upon or arising out of the same, the Lord Chancellor may order the assignees, and all persons whose act or consent thereto is necessary, to convey, assign, or transfer the said estate to such persons as the Lord Chancellor shall think fit, upon the same trusts as the said estate was subject to before the bankruptcy, or such of them as shall be then subsisting and capable of taking effect. The 81st section enacts, that all conveyances by, and all contracts by and with any bankrupt, bona fide made and entered into more than two calendar months before the issuing of the commission against him, and all executions and attachments against the lands and tenements of such bankrupt, executed or levied more than two calendar months before the issuing of such commission, shall be valid, notwithstanding any prior act of bankruptcy by him committed; provided the person so dealing with such bankrupt had not, at the time of such conveyance, contract, dealing, or transaction, notice of any prior act of bankruptcy by the said bankrupt committed. The 83rd section enacts, that the issuing of a commission shall be deemed notice of a prior act of bankruptcy, (if an act of bankruptcy had been actually committed before the missioners to their assignees, without his participation or consent. issuing of the commission,) if the adjudication has been notified in the London Gazette, and the persons affected by such notice may reasonably be presumed to have seen it. But, the 86th section enacts, that no purchase from any bankrupt bona fide and for valuable consideration, though the purchaser had notice at the time of such purchase of an act of bankruptcy by such bankrupt committed, shall be impeached by reason thereof, unless the commission shall have been sued out within twelve calendar months after such act of bankruptcy. And the 87th section enacts, that no title to any real estate sold under a commission or order in bankruptcy, shall be impeached by the bankrupt, or any person claiming under him, in respect of any defect in the suing out the commission, or in any of the proceedings under the same, unless the bank. rupt shall have commenced proceedings to supersede the said commission, and duly prosecuted the same, within twelve calendar months from the issuing thereof. These are the statutory provisions at present affecting the real estates of bankrupts. By the statute of 1 & 2 Gul. IV. c. 56, a distinct court of bankruptcy was established, to which the jurisdiction in bankruptcy was tranferred; subject to an appeal to the lord chancellor on matters of law and equity, or on refusal of admission of evidence, only. And by virtue of the 26th section of the statute of 3 & 4 Gul. IV. c. 41, the two puisnè judges of the court may act as a court, whenever the chief judge is attending at the judicial committee of the privy council. 287 CHAPTER XIX. OF TITLE BY ALIENATION. ation or con veyance. Of title by alien- THE most usual and universal method of acquiring a title to real estates is that of alienation, conveyance, or purchase in its limited sense; under which may be comprised any method wherein estates are voluntarily resigned by one man, and accepted by another: whether that be effected by sale, gift, marriage, settlement, devise, or other transmission of property by the mutual consent of the parties. Alienation by the feodal law. This means of taking estates by alienation is not of equal antiquity in the law of England with that of taking them by descent. For we may remember that, by the feodal law (a), a pure and genuine feud could not be transferred from one feudatory to another without the consent of the lord; lest thereby a feeble or suspicious tenant might have been substituted and imposed upon him to perform the feodal services, instead of one on whose abilities and fidelity he could depend. Neither could the feudatory then subject the land to his debts; for, if he might, the feodal restraint of alienation would have been easily frustrated and evaded (b). And, as he could not aliene it in his life-time, so neither could he by will defeat the succession, by devising his feud to another family; nor even alter the course of it, by imposing particular limitations, or prescribing an unusual path of descent. Nor, in short, could he aliene the estate, even with the consent of the lord, unless he had also obtained the consent of his own next apparent or presumptive heir(c). And therefore it was very usual in ancient (a) See pag. 57, [and 47, n.] (b) Feud. 1. 1, t. 27. (c) Co. Litt. 94; Wright, 168. feoffments to express that *the alienation was made by con- man was only pose of those himself had But by degrees this feodal severity is worn off; and expe- Formerly, a rience hath shewn, that property best answers the purposes allowed to disof civil life, especially in commercial countries, when its lands which he transfer and circulation are totally free and unrestrained. purchased. The road was cleared in the first place by a law of king Henry the first, which allowed a man to sell and dispose of lands which he himself had purchased; for over these he was thought to have a more extensive power than over what had been transmitted to him in a course of descent from his ancestors (h): *a doctrine which is countenanced by the [*289 ] feodal constitutions themselves (i): but he was not allowed to sell the whole of his own acquirements, so as totally to disinherit his children, any more than he was at liberty to aliene his paternal estate (k). Afterwards, a man seems to have been at liberty to part with all his own acquisitions, if he had previously purchased to him and his assigns, by name: but, if his assigns were not specified in the purchase deed, he was not empowered to aliene (1): and also he might part with one-fourth of the inheritance of his ancestors without the consent of his heir (m). By the great charter of Henry III.(n), no subinfeudation was permitted of part of the land, unless sufficient was left to answer the services due to the superior lord, which sufficiency was probably interpreted to be one half or moiety of the land (o). But these restrictions were in general removed by the statute of quia emptores (p), whereby all persons, except the king's tenants in capite, were left at liberty to aliene all or any part of their lands at their own discretion (q). And even these tenants in capite, were by the statute 1 Edw. III. c. 12, permitted to aliene, on paying a fine to the king (r). By the temporary statutes 7 Hen. VII. c. 3, and 3 Hen. VIII. c. 4, all persons attending the king in his wars were allowed to aliene their lands without license, and were relieved from other feodal burdens. And lastly, these very fines for alienations were, in all cases of freehold tenure, entirely abolished by the statute 12 Car. II. c. 24. As to the power of charging lands with the debts of the owner, this was introduced so early as stat. Westm. 2, which (s) subjected a moiety of the tenant's lands to executions, for debts recovered by law as the whole of them was likewise subjected to be pawned in a statute merchant by the statute de mercatoribus, made the same year, and in a statute staple by statute 27 Edw. III. c. 9, and in other similar recognizances by statute (i) Feud. 1. 2, t. 39. (k) Si questum tantum habuerit is, qui partem terrae suae donare voluerit, tunc quidem hoc ei licet; sed non totum questum, quia non potest filium suum hæredem exhæredare. Glanvil. 1.7, c. 1. (7) Mirr. c. 1, s. 3. This is also borrowed from the feodal law. Feud, 1. 2, t. 48. (m) Mirr. ibid. (n) 9 Hen. III. c. 32. (s) 13 Edw. I. c. 18. |