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OF TITLE BY ALIENATION.
The most usual and universal method of acquiring a title to Of title by aliereal estates is that of alienation, conveyance, or purchase in nation or conits 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.
This means of taking estates by alienation is not of equal Alienation by antiquity in the law of England with that of taking them the feodal law. 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 (6). 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 presump
tive heir (c). And therefore it was very usual in antient feoff[ * 288 ] ments to express that *the alienation was 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 apprised 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 seizing of his cattle by the lord of a neighbouring clan (e). This consent of the vassal was expressed by what was called attorning (f), 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 exFormerly, a man was only perience hath shewn, that property best answers the purallowed to dispose of those
poses of civil life, especially in commercial countries, when lands which he its transfer and circulation are totally free and unrestrained. himself had purchased.
The road was cleared in the first place by a law of king
(c) Co. Litt. 94. Wright, 168. tournances et avirances, ut loqui solent;
(d) Madox, Formul. Angl. No. 316. cum vasallus, ejurato prioris domini ob319. 427.
sequio et fide, noro se sacramento novo (e) Gilb. Ten. 75.
item domino acquirenti obstringebat ; (f) The same doctrine and the same idque jussu auctoris. D'Argentre Andenomination prevailed in Bretagne - tiq. Consuet. Brit. apud Dufresne, i. possessiones in jurisdictionalibus non 819, 820. aliter upprehendi posse, quam per at- (3) Litt. s. 551,
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
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 (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 (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 (9). 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 (1) Mirr. c. 1, s. 3. This is also bordet cui magis velit. Terram autem quam rowed from the feodal law. Feud. l. 2, ei parentes dederunt, non mittat extra t. 48. cognationem suam. LL. Hen. I. c. 70. (m) Mirr. ibid. (i) Feud. l. 2, t. 39.
(n) 9 Hen. III. c. 32. (k) Si questum tantum habuerit is, (0) Dalrymple of feuds, 95. qui partem terrae suae donare voluerit, (p) 18 Edw. I. c. 1. tunc quidem hoc ei licet; sed non totum (9) See pag. 72. 91. questum, quia non potest filium suum (r) 2 Inst. 67. hæredem exhæredare. Glanvil. 1. 7, c. 1.
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 docattornments.
trine 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.
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. 1. Who may
I. Who may aliene, and to whom: or, in other words, aliene, and to
who is capable of conveying and who of purchasing(1). And
($) 13 Edw. I. c. 18.
(1) It may be laid down as a general sound mind and understanding, and not rule, that all those who have attained under the power of others,
ay be parthe age of twenty-one years, are of ties to, and bind themselves by, deed. may not be
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 What may or of either possession or property, he cannot convey it to any aliened or asother, lest pretended titles might be granted to great men, signed. 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, tions may freely alien their lands, ecmay convey by deed, if it appear, that, clesiastical and eleemosynary corporanotwithstanding these infirmities, they tions are restrained (as will be seen in are capable of comprehending the na- the next chapter) from almost every ture and consequences of a deed, and mode of alienation, except that of leascan express their meaning by writing ing, and in the exercise of that power or signs. But, a person who has la- are placed under considerable restricboured under all the incapacities above tion by the legislature. However, by specified from the time of his birth, can the statute of 55 Geo. III. c. 147, ahave had no means of acquiring that mended and extended by 56 Geo. III. information, without which the law c. 52; 1 Geo. IV. c. 6; and 6 Geo. will not allow a gift or grant to be va- IV. c. 8, incumbents of ecclesiastical lid. (Perkins, chap. 1, sect. 25). benefices are enabled to exchange par
A corporation, whether sole or ag- sonage houses and glebe lands, with gregate, may be party to a deed; and, the consent of the bishop and patron, in many cases, is capable of acquiring, for other houses and lands; and also or conveying away, real property by to purchase lands to be annexed to deed. But a dean without his chapter, such benefices as glebe land thereof; a mayor without his commonalty, or and by mortgage of their tithes, rents, the master of a college without his and other profits, to raise money for fellows, cannot, by executing a deed, such purchases. bind the corporation. (Smith v. Barrett (2) By the common law, all persons & Clifford, 1 sid. 162. Mayor and whatever may be grantees in a deed, Commonalty of Colchester v. Lowten, because it is supposed to be for their 1 Ves. & Bea. 244. Case of Sutton's benefit. (Co. Litt. 2). Hospital, 10 Rep. 30 b; Co. Litt. (3) It is now well established, as a 94 b).. And though lay civil corpora- general rule, that possibilities (not