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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.

Stra. 132.

meaning thereby mere hopes of succes- vise the same before he has been ad-
sion, Carleton v. Leighton, 3 Meriv. mitted. (Wainwright v. Elwell, 1 Mad.
671. Jones v. Roe, 3 T. R. 93. 96) 627). So, under a devise to two per-
are devisable: for a disposition of equi- sons, or to the survivor of them, and
table interests in land, though not good the estate to be disposed of by the sur-
at law, may be sustained in equity. vivor, by will, as he should think fit; it
(Perry v. Phelips, 1 Ves. jun. 254. was held, that the devisees took as
Scawen v. Blunt, 7 Ves. 300. Moor tenants in common for life, with a con-
v. Hawkins, 2 Eden, 343). But, the tingent remainder in fee to the sur-
generality of the doctrine that every vivor; but that such contingent re-
equitable interest is devisable, requires mainder was not devisable by a will
at least one exception;—the devisee of made by one of the tenants in common
a copyhold must be considered as hav- in the life-time of both. (Doe v. T'om-
ing an equitable interest therein; but kinson, 2 Mau. & Sel. 170).
it has been decided, that he cannot de- (4) See ante, pp. 72. 244.

à cove

+ 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

a

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,

are voidable.

(5) Mr. Sugden, in his learned laid it down, that deeds of lunatics are
Treatise on Powers, (pp. 395, 396), avoidable only, and not actually void.
thus corrects the passage in the text. But, in Thompson v. Leach, this distinc-
“ Although a deed executed by a lunatic tion was solemnly established, that a
may be set aside by the committee of a feoffment with livery of seisin by a
lunatic, or by his heirs after his death; lunatic, because of the solemnity of the
yet, it is incontrovertibly established, livery, was voidable only, but that a
that the party himself cannot, after he bargain and sale, or surrender, &c.,
has recovered his senses, plead his was actually void. This, therefore,
lunacy in avoidance of the deed. was the ground of the decision in Yates
(Beverley's case, 4 Rep. 123 b. Stroud v. Boen. When the Chief Justice re-
v. Marshall, Cro. Eliz. 398). But, a membered that an innocent convey-
distinction has been established by the ance, or a deed, by a lunatic was
case of Yates v. Boen, (2 Str. 1104), merely void, he instantly said that non
which does not appear to have been at- est factum might be pleaded to it, and
tended to by writers on this subject, the special matter given in evidence.
although they refer to the case. To But in the case of a feoffment with
debt upon articles, the defendant plead- livery of seisin, the rigorous rule of law
ed non est factum; and upon the trial, still prevails, and the party cannot
offered to give the lunacy in evidence. stultify himself.”
The Chief Justice thought it ought not By the statute de modo levandi fines,
to be admitted, upon the rule in Bever- (18 Edw. I. c. 4), all those who, from
ley's that a man shall not stultify defect of understanding, are by law in-
himself; but, on the authority of Smith capable of contracting, are likewise
v. Carr, (decided the 5th of July, held incapable of being cognizors in a
1728), where Chief Baron Pengelly in fine; it has been determined, however,
the like case admitted it, and on con- that notwithstanding any legal defects
sidering the case of Thompson v. Leach, in the cognizor, if the judges once ad-
(Comb. 468), the Chief Justice permit- mit him to levy a fine, (even after he
ted it to be given in evidence, and the has been found a lunatic by inquisition,
plaintiff upon the evidence became non- Mary Portington's case, 10 Rep. 42),
suit. Now, the history of this revolu- such fine will for ever afterwards be in
tion in this branch of the law is this: every Court valid, and at law effectual;
when Beverley's case was decided, it upon the principle that no averment
was holden, that deeds executed by can be admitted to contradict a record.
lunatics were voidable only, but not (Beverley's case, 4 Rep. 124. Mans.
actually void, and therefore they could field's case, 12 Rep. 124. Lewin's case,
only be set aside by special pleading, cited in 10 Rep. 42). The rule with
and by the rule of law the party could respect to a common recovery is the
not stultify himself. And Mr. Justice same as in the case of a fine. A non
Blackstone, following the old rule, has compos ought not to be permitted to

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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.

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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,

a

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.

Κ Κ

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,

an infant

may

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.
(c) F. N. B. 202.

(8) Co. Litt. 2.
(d) Litt. s. 405. Cro. Eliz. 398. 4 (h) Ibid.
Rep. 123. Jenk. 40.

(i) 2 Inst. 483. 5 Rep. 119.
(e) Comb. 469. 3 Mod. 310, 311.

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,

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