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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, &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 Idiots and persons of nonsane memory, infants, and perand purchases
(1) Sheppard's Touchstone, 238, 239. (4) Co. Litt. 42. 322. 11 Mod. 152. 1 P. Wms. 574. (w) Ibid. 2.
meaning thereby mere hopes of succes- vise the same before he has been ad-
+ Mr. Christian observes,
arises, will be enforced in equity. nant for a valuable consideration to set- (Fonbl. Tr. of Eq. 202). tle or convey a possibility, when it
sons under duress, are not totally disabled either to convey by idiots, inor purchase, but sub modo only. For their conveyances and fants, and perpurchases are voidable, but not actually void (5). The king under duress,
(5) Mr. Sugden, in his learned laid it down, that deeds of lunatics are
indeed, on behalf of an idiot, may avoid his grants or other acts (x). But it hath been said, that a non compos himself,
(x) Co. Litt. 247.
suffer a recovery; but the act, if per ed, it must not be inferred that a court mitted, will be legally binding: in this of equity, because it cannot reverse case, the legal maxim is, fieri non debet, such fine or recovery, can give no resed factum valet. And all acts of re- lief. In the case of Addison v. Dawson, cord, as, for instance, recognizances en- Mascal et al. (2 Vern. 678), Dawson tered into, and statutes acknowledged, obtained a conveyance of an estate, by by a non compos, are legally binding fine and recovery, greatly under value, upon himself, his heirs, executors, and by connivance of Mascal, the solicitor administrators: however, as a lunatic of Addison, who was subsequently is incapable of executing a valid deed, found to be a lunatic, by inquisition if he attempt to suffer a recovery by his overreaching the fraudulent transaction, attorney, (to whom he has executed an and the court (as the report states the instrument empowering him so to act), case) set aside the sale. But, in Roor if he affects to make a tenant to the berts's case, (3 Atk. 310), the note in precipe by deed, such instruments, be- Vernon was declared to be imperfect, ing merely matters in pais, may be as had been discovered by examination avoided, and the recovery suffered in of the register's book: (see Reg. Lib. pursuance of such void deed will be 1711, A. fol. 326, which reference the void also. (Roberts's case, 3 Atk. 312. present writer has verified): and Lord Sir Butler Wentworth's case, cited in Hardwicke observed, that “in Addisor 2 Ves. senr. 403). But, if a person v. Mascal, the lunatic was bound, bewhose sanity at the time is attested by cause there was a fine.” In fact, the an inquisition returned under a com- conveyances by fine and recovery were mission de lunatico inquirendo, make a not treated as nullities and set aside ; tenant to the præcipe by fine, in order on the contrary, they were ordered to to suffer a recovery; although he do stand good as securities for actual adnot suffer the recovery in person, but vances; they were so far, only, conacknowledge a warrant of attorney for trolled as they purported to evidence that purpose before a judge, these ju- an absolute pur se: and this was in dicial acts will be held so conclusive, strict conformity with the acknowledge that parol evidence will not be admit- ed jurisdiction of courts of equity, ted to prove the party to have been which (admitting that fines and reconon compos, at the time of the caption veries are binding in equity as well as of the fine and acknowledgment of the at law,) when fraud is apparent on the warrant of attorney. (Hume v. Burton, part of the persons claiming under such 1 Ridgw. P. C. 16, 204, 554). assurances, will declare them to be only
Still, though after the adjudications trustees for the parties defrauded, and on the subject the legal validity of a decree a reconveyance. (Parkes v. fine levied, or of a recovery suffered in White, 11 Ves. 230. Coleby v. Smith, person by a lunatic, cannot be disput- 1 Vern. 205. Wilkinson v. Brayfield,
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 (2) for the alienor himself to recover lands aliened by him during his insanity; dum fuit non compos mentis suæ, 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
(y) Britton, c. 28, fol. 66.
(2) Fol. 228. See also Memorand. Scacch. 22 Edw. I. (prefixed to May
nard's year-book, Edw. II.) fol. 23.
(a) 5 Edw. III. 70.
2 Vern. 307. Pickett v. Loggon, 14 the settlement in that case, which was Ves. 234. Day v. Hungat, 1 Roll. Rep. confirmed by fine and recovery; that 115, 116. Baker v. Pritchard, 2 Atk. appears, by the report itself, (imperfect 389. Pincke v. Thorneycroft, 4 Br. P. as it is), to have been acquiesced in. C. 92, Toml. ed.)
The issue, therefore, could only have This was the very course pursued in directed with reference to the subsethe case of Addison v. Mascal, which, quent settlement, which there is no therefore, is not to be considered as in reason for believing to have been made opposition to the current of authorities, by act of record. There is, in fact, with respect to the force of a fine levic ground for concluding to the contrary; ed, or a recovery suffered, by a lunatic. as, although the registers have been Neither is it by any means clear, that searched in vain, by the present edithe case of Clerk v. Clerk, (2 Vern. 412), tor, for the final decision of the case, which Mr. Raithby refers to in his note still, an interlocutory order, to be found upon the case of Addison v. Mascal, is in Reg. Lib. 1700, A. fol. 139, supanomalous on this point, as that learn- ports the opinion that the second settleed gentleman supposed: the inferencement was not made by any judicial which he drew from the direction of act of record; but was merely an act an issue in Clerk v. Clerk, would doubt- in pais, executed between the parties less be just, if the fact upon which he by deed, dated 16th October, 1688. founded it did not appear to be mis- Great part of this note is extracted conceived. The issue directed does from 2 Hovenden on Frauds, 488-492. not seem to have had any relation to VOL. II.
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 (a). Under
Henry VI. this way of *reasoning (that a man shall not be [ *292 ] 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 (6); 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(c), the maxim that a man shall not stultify himself hath been handed down as settled law (d): though later opinions, feeling the inconvenience of the rule, have in many points endeavoured to restrain it (e). And, clearly, the next heir, or other person interested, may,
after the death of the idiot or non compos, take advantage But such con- of his incapacity and avoid the grant (f). And so too, if veyances may
he purchases under this disability, and does not afterwards be either confirmed or avoid- upon recovering his senses agree to the purchase, his heir ed-by the idiot
may either waive or accept the estate at his option (g). In upon recovering like manner,
waive such purchase or conveyhis senses- by the infant, when ance, when he comes to full age; or, if he does not then acof full age—or, tually agree to it, his heirs may waive it after him (h). Perwhen the duress has ceased. sons also, who purchase or convey under duress, may af
firm or avoid such transaction, whenever the duress is ceased (i) (6). For all these are under the protection of the law; (a) 35 Assis. pl. 10.
1 Eq. Cas. Abr. 279. (6) 39 Hen. VI. 42.
(f) Perkins, s. 21.
(8) Co. Litt. 2.
(i) 2 Inst. 483. 5 Rep. 119.
or non compos,
(6) Where a deed has been prepar- ing to act voluntarily, was in fact not ed in pursuance of personal instructions a free agent, but so subdued by harshof the conveying party; yet, if it be ness and cruelty that the deed spoke proved that such party, though appeare the mind, not of the party executing,