ite were by the statute I Edw. III. c. 12. permitted to aliene, on paying a fine to the king. 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 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 statute Westm. 2. which 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 23 Hen. [290] 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 custoin, lasted longer; that not being totally removed, till the abolition of the military tenures. 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, by statutes 4 & 5 Ann. c. 16, and 11 Geo. II. c. 19.9 † r 2 Inst. 67. s 13 Edw. I. c. 18. 4 Previously, "11." 9 Ninth edition inserts, "to complete the grant or conveyance." 9 Ninth edition reads, "nor shall, by statute." 9 Ninth edition adds, "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." * Cited, 6 Binn. 148. + Cited, 5 Yerg. 126. 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. I. Who may aliene, and to whom: or, in other words, who is capable of conveying and who of purchasing. And herein we must consider rather 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, flest pretended titles might be granted to great men, whereby justice might be trodden down, and the weak oppressed."† 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, 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 præmunire, are incapable of conveying, from the time of the offence committed, provided attainder follows: for such conveyance by them may tend to defeat the king of his forfeiture, or the [291] 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 immedis Co. Litt. 214. f Sheppard's touchstone. 238, 239. 322. 11 Mod. 152. 1 P Wms. 574. Stra. 132. t Co. Litt. 42. 8 Previously spelt, "enquire." **Quoted, 6 Fla. 447; 63 Am. Dec. 221. t-t Quoted, 114 Mass. 144. + Cited, 13 Conn. 75; 33 Am. Dec. 379; Hayw. (N. C.) 290; 2 Met. 477. ate forfeiture; if before, to escheat as well as forfeiture, according to the nature of the crime." 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. 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: and there is a writ in the registery for the alienor himself to recover lands aliened by him during his insanity; dum fuit non compos mentis suæ, ut dicit, etc. But under Edward III. a scruple began to arise, whether a man should be permitted to blemish himself, by pleading his own insanity: and, afterwards, a defendant in assise having pleaded a release by the plaintiff since the last continuance, to which the plaintiff u Ibid. 2. W Ibid. 247. x Britton. c. 28. fol. 66. y fol. 228. See also Memorand. Scacch. 22 Edw. I. (prefixed to Maynard's year book Edw. II.) fol. 23. Z 5 Edw. III. 70. - Quoted, 47 Mass. 417; 39 Am. Dec. 746; 1 Marsh. J. J. 244; 19 Am. Dec. 78; 19 Ind. 36; 27 Iowa, 544; 80 N. C. 238; 30 Am. Rep. 78. Criticised, 15 Wall. 24; followed, 5 Rawle, 111; as to point that contracts of such persons are only voidable, 86 Mass. 337; 81 Am. Dec. 708. Quoted, 37 N. J. L. 115; court says, this "notion " is exploded. - Quoted, 3 Marsh, J. J. 659. Cited and discussed, 27 Iowa, 540; 59 N. H. 355. 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 bo 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. Under Henry VI. this way of [292] reasoning (that a man shall not be allowed to disable himself, by picading his own incapacity, because he cannot know what he did under such a situation) was seriously adopted by the judges in argument; upon a question, whether the heir was barred of his right of entry by the fcoffinent of his insane ancestor. And from these loose authorities, which Fitzherbert does not scruple to reject as being contrary to reason, the maxim that a man shall not stultify himself [see note 56, page 464] hath been handed down as settled law: though later opinions, feeling the inconvenience of the rule, have in many points endeavoured to restrain it.* And, clearly, the next heir, or other person interested, may, after the death of the idiot or non compos, take advantage of his incapacity and avoid the grant.' And so too, if he purchases under this disability, and does not afterwards upon recovering his senses agree to the purchase, his heir may either waive or accept the estate at his option. In like manner, an infant may waive such purchase or conveyance, when he comes to full age; or, if a 35 Assis. pl. 10. b 39 Hen. VI. 42. c F. N. B. 202. d Litt. 405. Cro. Eliz. 398. 4 Rep. 123. e Comb. 469. 3 Mod. 310, 311. 1 Equ. cas. abr. 279. f Perkins. 21. g Co. Litt. 2. **Quoted, 3 Marsh. J. J. 659; Conf. 505; (Conf. & Taylor, 554;) 49 N. H. 430; 59 N. H. 355. Cited, 3 Day, 101; 2 Aiken, 169; 16 Am. Dec. 692: 2 N. H. 438; 1 Bland, 377; 17 Am. Dec. 316. Ref. 29 Me.299; 5 Whart. 378. t-t Quoted, 1 Marsh. J. J. 251; 19 Am. Dec. 83, 84. he does not then actually agree to it, his heirs may waive it after him. Persons also, who purchase or convey under duress, may affirm or avoid such transaction, whenever the duress is ceased. For all these are under the protection of the law; which will not suffer thein to be imposed upon, through the imbecillity of their present condition; so that their acts are only binding, in case they be afterwards agreed to, when such imbecillity ceases.* Yet the guardians or committees of a lunatic, by the statute of 11 Geo. III. c. 20. are impowered to renew in his right under the directions of the court of chancery, any lease for lives or years, and apply the profits of such renewal for the benefit of such lunatic, his heirs, or executors. She The case of a feme-covert is somewhat different. may purchase an estate without the consent of her husband, and the conveyance is good during the coverture, till he avoids [293] it by some act declaring his dissent. And, though he does nothing to avoid it, or even if he actually consents, the feme-covert herself may, after the death of her husband, waive or disagree to the same: nay, even her heirs may waive it after her, if she dies before her husband, or if in her widowhood she does nothing to express her consent or agreement.' But the conveyance or other contract of a feme-covert (except by some matter of record) is absolutely void, and not merely voidable; and therefore cannot be affirmed or made good by any subsequent agreement.‡ 499. The case of an alien born is also peculiar. For he +Cited, 20 Ind. 56; 13 Mass. 240: 7 Am. Dec, 135; 4 N. Y. 31; 3 Bibb, + Cited, 8 Neb. 526; 40 N. H. 251 4 Mason, 54; 20 Mass. 524; 57 N. H. 31; applied to wills, 25 N. H. 350. |