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CHAPTER XIX.

V. OF TITLE BY ALIENATION (1).

THE most usual and universal method of acquiring a title to real estates is that of alienation, conveyance, or purchase in its limited sensel; 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.

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 substi

(a) See page 37.

of his children, or for some valuable conside ration) 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 bank rupt 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,) 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 ef fectually barred by such order, as if the convey. ances 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 suid 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 file made and entered into more than two calendar months before the issuing

of the commission against him, and all execu. tions 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 com. mission shall be deemed notice of a prior act of bankruptcy, (if an act of bankruptcy had been actually committed before the 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 considera. tion, though the purchasor had notice at the time of such purchase of an act of bankruptcy by such bankrupt committed, shall be impeach ed by reason thereof, unless the commission shall have been sued out within twelve calen dar 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 sung out the commission, or in any of the proceedings un. der the same, unless the bankrupt shall have commenced proceedings to supersede the said commission and duly prosecuted the same, within twelve calendar inonths from the issuing thereof.

These are the statutory provisions at pre sent affecting the real estates of bankrupts.†

(1) See in general, Com. Dig. Alienation; Cru. Dig. index, Alienations; Vin. Ab. Alien

ations.

↑ See Hov. n. (37) at the end, B. II.

tuted and imposed upon him to perform the feodal services, instead of one on whose abilities and fidelity he could depend. Neither could the feuda tory 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 lifetime, 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 feoffments to express that the alienation was [*288] made by consent of the heirs of the feoffor: or sometimes for the heir apparent himself to join with the feoffor in the grant (d). And, on the other hand, as the feodal obligation was looked upon to be reciprocal, the lord could not aliene or transfer his signiory without the consent of his vassal for it was esteemed unreasonable to subject a feudatory to a new superior, with whom he might have a deadly enmity, without his own approbation; or even to transfer his fealty, without his being thoroughly apprized of it, that he might know with certainty to whom his renders and services were due, and be able to distinguish a lawful distress for rent, from a hostile seising of his cattle by the lord of a neighbouring clan (e). This consent of the vassal was expressed by what was called attorning (ƒ), or professing to become the tenant of the new lord: which doctrine of attornment was afterwards extended to all lessees for life or years. For if one bought an estate with any lease for life or years standing out thereon, and the lessee or tenant refused to attorn to the purchasor, and to become his tenant, the grant or contract was in most cases void, or at least incomplete (g) which was also an additional clog upon alienations.

But by degrees this feodal severity is worn off; and experience hath shown, that property best answers the purposes of civil life, especially in commercial countries, when its transfer and circulation are totally free and unrestrained. 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 coun- [*289] tenanced by the 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 onefourth of the inheritance of his ancestors without the consent of his heir (m).

(by Feud. l. 1. t. 27.

(c) Co. Litt. 91. Wright, 168.

(d) Madox. Formul. Angl. N° 316. 319. 427. (P) Gilb. Ten. 75.

(f) The same doctrine and the same denomination prevailed in Bretagne-possessiones in jurisdictionalibus non aliter apprehendi posse, quam per allournances el arivances, ut loqui solent; cum rasallus, ejurato priors domini obsequio et file, novo Be sacramento novo stem domino acquirenti obstringeLat, idque jussu auctoris. L'Argentre Antiq. Consuet. Brit. apud Dufresne, i. 819, 820.

(8) Litt. 551.

(h) Emptiones vel acquisitiones suas del cui magis velit. Terram autem quam ei parentes dederunt, non mittat extra cognationem suam. L. Hen. I. c. 70.

(i) Fend. 1, 2, 1. 39.

(k) Si questum tantum habuerit is, qui partem terrae suae donare voluerit, tunc quidem hoc ei hiret; se non totum questum, quia non potest filium suum haeredem exhaeredare. Glanvil. 1. 7. c. I.

(7) Mirr. c. 1,03 This is also borrowed from the feodal law. Feud. 1. 2, 1. 48.

(m) Mirr. ibid.

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 cupite were by the statute 1 Edw. Ild. 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 licence, and were relieved from other feodal burdens. And, lastly, these very fines for alienations were, in all cases of freehold te nure, 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 mercatori

bus, made the same year, and in a statute staple by statute 27 [*290] Edw. III. c. 9. and in other similar recognizances by statute *23

Hen. VIII. c. 6. And now, the whole of them is not only subject to be pawned for the debts of the owner, but likewise to be absolutely sold for the benefit of trade and commerce by the several statutes of bankruptcy. The restraint of devising lands by will, except in some places by particular custom, lasted longer; that not being totally removed, till the abolition of the military tenure (2). The doctrine of attornments continued still later than any of the rest, and became extremely troublesome, though many methods were invented to evade them; till at last they were made no longer necessary to complete the grant or conveyance, by statute 4 & 5 Ann. c. 16; nor shali, by statute 11 Geo. II. c. 19. the attornment of any tenant affect the possession of any lands, unless made with consent of the landlord, or to a mortgagee after the mortgage is forfeited, or by direction of a court of justice (3), (4).

(n) 9 Hen. Ift. c. 32.

(0) Dalrymple of feuds, 96. (p) IS Edw. 1. c. 1.

(2) The general power of devising was giv. en by 32 Hen. VIII. c. 1. See post 375.

(3) An attornment at the common law was an agreement of the tenant to the grant of the signiory or of a rent, or of the donee in tail, or tenant for life or years, to a grant of reversion, or remainder made to another. Co. Litt. 309. a. And the attornment was necessary to the perfection of the grant. However, the necessity of attornments was in some measure avoided by the statute of uses, as by that statute the possession was immediately executed to the use, 1 Term R. 384. 386. and by the statute of wills, by which the legal estate is immediately vested in the devisec. Yet attornment continued after this to be necessary in many cases: but both the necessity and efficacy of attornments have been almost totally taken away by the statute 4 & 5 Anne, c. 16. s. 9, 10. and 11 Geo. I. c. 19. s. 11. The first statute having made attornment unneces sary; and the other having made it inoperative; it is now held not to be necessary, either to aver it in a declaration in covenant, or plead

(q) Sec pag. 72. 91.

(r) 2 inst. 67

(s) 13 Ed. I. c. 18.

it in an avowry or other pleading whatever. Dong. 283. Moss v. Gallimore. See Mr. Serjt. Williams's note, I Saund. 234. b. n. 4. Under the proviso in the first act, any notice to the tenant, of his original landlord having parted with his interest, is sufficient; and therefore the tenant's knowledge of the title of cestui que trust as purchaser has been held sufficient notice to entitle his trustees to maintain an action of assumpsit for use and occupation as grantees of the reversion against the tenant, who had improperly paid over his rent to a vendor after such knowledge. 16 East, 99. Although the first mentioned act renders an attornment unnecessary, yet it is still useful for a purchasor to obtain it, because after an attornment he would not in any action against the tenant, be compelled to adduce full evidence of his title, Peake's Law of Evid. 266, 7. though the tenant would still be at liberty to shew that he had attorned by mistake. 6 Taunt. 202.

(4) 1 R. S. 739, § 146.

In examining the nature of alienation, let us first inquire, briefly, who may aliene, and to whom; and then, more largely, how a man may aliene; or the several modes of conveyance.

1. Who may aliene, and to whom: or, in other words, who is capable of conveying and who of purchasing. And herein we must consider ra ther the incapacity, than capacity, of the several parties: for all persons in possession are prima facie capable both of conveying and purchasing, unless the law has laid them under any particular disabilities. But, if a man has only in him the right of either possession or property, he cannot convey it to any other, lest pretended titles might be granted to great men, whereby justice might be trodden down, and the weak oppressed (s) (5), (6). Yet reversions and vested remainders may be granted; because the possession of the particular tenant is the possession of him in reversion or remainder; but contingencies, and mere possibilities, though they may be released, or devised by will (7), or may pass to the heir or executor, yet cannot (it hath been said) be assigned to a stranger, unless coupled with some present interest (¿).

Persons attainted of treason, felony, and praemunire, are incapable of conveying, from the time of the offence committed, provided attainder fol

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(5) See R. S. 739, 147, as to NewYork: but here, the rightful owner of lands held adversely may mortgage them. (Id. § 148.) See as to persons capable of taking or disposing of lands, 1 R. S. 719. They are the same as mentioned in the text, except that In dians residing in the state cannot sell their lands in this state without the consent of the legislature, except that they may sell, with the approbation of the Surveyor-General, lands granted to them for their services in the revofutionary war. Aliens also, on declaring their intention to become citizens, and filing their declaration in the office of the Secretary of State, may acquire lands. Id. 719, 720.

(6) It is a very ancient rule of law that rights not reduced into possession should not be assignable to a stranger, on the ground that such alienation tended to increase maintenance and litigation, and afforded means to powerful men to purchase rights of action, and oppress others. Co. Litt. 214. 265. a. n. 1. 232. b. n. 1. Our ancestors were so anxious to prevent alienation of choses, or rights in action, that we find it enacted by the 32 Hen. VIII. c. 9. (which it is said was in affirmance of the common law, Plowd. 88.) that no person should buy or sell, or by any means obtain any right or title to any manors, lands, tenements, or hereditaments, unless the person contracting to sell or his ancestor, or they by whom he or they claim the same, had been in possession of the same, or of the reversion or remainder thereof, for the space of one year before the contract; and this statute was adjudged to extend to the assignment of a copyhold estate, 4 Co. 26. a. and of a chattel in terest, or a lease for years, of land whereof the grantor was not in possession. Plowd. 88. At what time this doctrine, which, it is said, had relation originally only to landed estates, VOL. I.

Mod. 152. 1 P. Wms. 574. Stra. 132.

2 Woodd. 388. was first adjudged to be equally applicable to the assignment of a mere personal chattel not in possession, it is not easy to decide: it seems, however, to have been so settled at a very early period of our history, as the works of our oldest text writers, and the reports, contain numberless observations and cases on the subject. Lord Coke says (Co. Litt. 214. a; see also 2 Bos. and Pul. 541.) that it is one of the maxims of the common law, that no right of action can be transferred, "because under colour thereof, pretended titles might be granted to great men, whereby right might be trodden down, and the weak oppressed, which the com mon law forbiddeth."

(7) It is now well established, as a general rule, that possibilities (not meaning thereby mere hopes of succession, Carleton v. Leighton, 3 Meriv. 671. Jones v. Roe, 3 T. R. 93. 96.) are devisable for a disposition of equitable interests in land, though not good at law, may be sustained in equity. (Perry v. Phelips, 1 Ves. jun. 254. Scawen v. Blunt, 7 Ves. 300. Moor v. Hawkins, 2 Eden, 343). But, the generality of the doctrine that every equitable interest is devisable, requires at least one exception; the devisee of a copyhold must be considered as having an equitable interest therein; but it has been decided, that he cannot devise the same before he has been admitted. (Wainwright v. Elwell, 1 Mad. 627). So, under a devise to two persons, or to the survivor of them, and the estate to be disposed of by the survivor, by will, as he should think fit; it was held, that the devisees took as tenants in common for life, with a contingent remainder in fee to the survivor; but that such contingent remainder was not devisable by a will made by one of the tenants in common in the lifetime of both. (Doe v. Tomkinson, 2 Mau. & Sel. 170).

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lows (u) (8): for such conveyance by them may tend to defeat [291] the king of his forfeiture, or the lord of his escheat. But they may purchase for the benefit of the crown, or the lord of the fee, though they are disabled to hold; the lands so purchased, if after attainder, being subject to immediate forfeiture; if before, to escheat as well as forfeiture, according to the nature of the crime (w). So also corporations, religious or others, may purchase lands; yet, unless they have a licence to hold in mortmain, they cannot retain such purchase; but it shall be forfeited to the lord of the fee.

Idiots and persons of nonsane memory, infants and persons under duress, are not totally disabled either to convey or purchase, but sub modo only. For their conveyances and purchases are voidable, but not actually void. The king indeed, on behalf of an idiot, may avoid his grants or other acts (x). But it hath been said, that a non compos himself, though he be afterwards brought to a right mind, shall not be permitted to allege his own insanity in order to avoid such grant: for that no man shall be allowed to stultify himself, or plead his own disability. The progress of this notion is somewhat curious. In the time of Edward I., non compos was a sufficient plea to avoid a man's own bond (y): and there is a writ in the register (z) for the alienor himself to recover lands aliened by him during his insanity; dum fuit non compos mentis suae, ut dicit, &c. But under Edward III. a scruple began to arise, whether a man should be permitted to blemish himself, by pleading his own insanity (a): and, afterwards, a defendant in assise having pleaded a release by the plaintiff since the last continuance, to which the plaintiff replied (ore tenus, as the manner then was) that he was out of his mind when he gave it, the court adjourned the assise; doubting, whether as the plaintiff was sane both then and at the commencement of the suit, he should be permitted to plead an intermediate deprivation of reason; and the question was asked, how he came to remember the release, if out of his senses when he gave it (b). Un[*292] der Henry VI. this way of *reasoning (that a man shall not be allowed to disable himself, by pleading his own incapacity, because he cannot know what he did under such a situation) was seriously adopted by the judges in argument (c); upon a question, whether the heir was barred of his right of entry by the feoffment of his insane ancestor. And from these loose authorities, which Fitzherbert does not scruple to reject as being contrary to reason (d), the maxim that a man shall not stultify himseif hath been handed down as settled law (e): though later opinions, feeling the inconvenience of the rule, have in many points endeavoured to restrain it (f) (9). And, clearly, the next heir, or other person interested,

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