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 beentransmitted to him in a course of descent from his ancestors (h): *a doctrine which is countenanced by the feo- [289] dal constitutions themselves (2): 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 (0). 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 licence, and were relieved from (h) Emptiones vel acquisitiones suas det cui magis velit. Terram autem quam ei parentes dederunt, non mittat extra cognationem suam. LL. Hen. I. c. 70. (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. (1) 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. 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 [ *290] *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 reThe doctrine of moved, 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 to complete the grant or conveyance, by statute 4 & 5 Ann. c. 16, nor shall, 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. attornments. I. Who may aliene, and to whom. 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 con veyance. I. Who may aliene, and to whom: or, in other words, who is capable of conveying and who of purchasing (1). And (s) 13 Edw. I. c. 18. (1) It may be laid down as a general rule, that all those who have attained the age of twenty-one years, are of sound mind and understanding, and not under the power of others, may be parties to, and bind themselves by, deed. herein we must consider rather the incapacity, than capacity, of the several parties; for all persons in possession are prima facie capable of conveying, and all persons whatsoever of purchasing, unless the law has laid them under any particular disabilities (2). 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). 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 (3), or may pass to the heir (s) Co. Litt. 214. Persons, who are blind, deaf, or dumb, may convey by deed, if it appear, that, notwithstanding these infirmities, they are capable of comprehending the nature and consequences of a deed, and can express their meaning by writing or signs. But, a person who has laboured under all the incapacities above specified from the time of his birth, can have had no means of acquiring that information, without which the law will not allow a gift or grant to be valid. (Perkins, chap. 1, sect. 25). A corporation, whether sole or aggregate, may be party to a deed; and, in many cases, is capable of acquiring, or conveying away, real property by deed. But a dean without his chapter, a mayor without his commonalty, or the master of a college without his fellows, cannot, by executing a deed, bind the corporation. (Smith v. Barrett & Clifford, 1 Sid. 162. Mayor and Commonalty of Colchester v. Lowten, 1 Ves. & Bea. 244. Case of Sutton's Hospital, 10 Rep. 30 b; Co. Litt. 94 b). And though lay civil corpora tions may freely alien their lands, ec- (2) By the common law, all persons (3) It is now well established, as a general rule, that possibilities (not Persons attainted of treason, or executor, yet cannot (it hath been said) be assigned to a stranger, unless coupled with some present interest (t) †. Persons attainted of treason, felony, and præmunire, are &c., are incapa- incapable of conveying, from the time of the offence comble of conveying. mitted, provided attainder follows (u): for such conveyance by them may tend to defeat the king of his forfeiture, or [291] the lord of his escheat (4). 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. Conveyances and purchases Idiots and persons of nonsane memory, infants, and per meaning thereby mere hopes of succes- vise the same before he has been ad- sons under duress, are not totally disabled either to convey by idiots, inor purchase, but sub modo only. For their conveyances and purchases are voidable, but not actually void (5). The king (5) Mr. Sugden, in his learned Treatise on Powers, (pp. 395, 396), thus corrects the passage in the text. Although a deed executed by a lunatic may be set aside by the committee of a lunatic, or by his heirs after his death; yet, it is incontrovertibly established, that the party himself cannot, after he has recovered his senses, plead his lunacy in avoidance of the deed. (Beverley's case, 4 Rep. 123 b. Stroud v. Marshall, Cro. Eliz. 398). But, a distinction has been established by the case of Yates v. Boen, (2 Str. 1104), which does not appear to have been attended to by writers on this subject, although they refer to the case. debt upon articles, the defendant pleaded non est factum; and upon the trial, offered to give the lunacy in evidence. The Chief Justice thought it ought not to be admitted, upon the rule in Beverley's case, that a man shall not stultify himself; but, on the authority of Smith v. Carr, (decided the 5th of July, 1728), where Chief Baron Pengelly in the like case admitted it, and on considering the case of Thompson v. Leach, (Comb. 468), the Chief Justice permitted it to be given in evidence, and the plaintiff upon the evidence became nonsuit. To Now, the history of this revolution in this branch of the law is this: when Beverley's case was decided, it was holden, that deeds executed by lunatics were voidable only, but not actually void, and therefore they could only be set aside by special pleading, and by the rule of law the party could not stultify himself. And Mr. Justice Blackstone, following the old rule, has laid it down, that deeds of lunatics are avoidable only, and not actually void. But, in Thompson v. Leach, this distinction was solemnly established, that a feoffment with livery of seisin by a lunatic, because of the solemnity of the livery, was voidable only, but that a bargain and sale, or surrender, &c., was actually void. This, therefore, was the ground of the decision in Yates v. Boen. When the Chief Justice remembered that an innocent conveyance, or a deed, by a lunatic was merely void, he instantly said that non est factum might be pleaded to it, and the special matter given in evidence. But in the case of a feoffment with livery of seisin, the rigorous rule of law still prevails, and the party cannot stultify himself." By the statute de modo levandi fines, (18 Edw. I. c. 4), all those who, from defect of understanding, are by law incapable of contracting, are likewise held incapable of being cognizors in a fine; it has been determined, however, that notwithstanding any legal defects in the cognizor, if the judges once admit him to levy a fine, (even after he has been found a lunatic by inquisition, Mary Portington's case, 10 Rep. 42), such fine will for ever afterwards be in every Court valid, and at law effectual; upon the principle that no averment can be admitted to contradict a record. (Beverley's case, 4 Rep. 124. Mansfield's case, 12 Rep. 124. Lewin's case, cited in 10 Rep. 42). The rule with respect to a common recovery is the same as in the case of a fine. A non compos ought not to be permitted to fants, and perunder duress, sons insane or are voidable. |