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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.

aliene, and to

I. Who may aliene, and to whom: or, in other words, who is ca- I. Who may pable of conveying and who of purchasing. And herein we must whom. 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 pos- Possession, session or property, he cannot convey it to any other, lest pretended not be adtitles might be granted to great men, whereby justice might be trodden down, and the weak oppressed. (4) Yet reversions and vested re

S

s Co. Litt. 214.

estates any such reversions or remainders shall be expectant or depending, as if their attorment had been had and made; provided that no such tenant shall be prejudiced or damaged by payment of any rent to any such grantor or conusor, or by breach of any condition for nonpayment of rent, before notice shall be given to him of such grant by the conusee or grantee." By the latter statute it was enacted, "that the attornments of tenants to strangers claiming title to the estate of their landlords, shall be absolutely null and void, to all intents and purposes whatsoever; and that the possession of their respective landlord or landlords, lessor or lessors, shall not be deemed or construed to be in anywise changed, altered, or affected by any such attornment or attornments: provided that nothing herein contained shall extend to vacate or affect any attornment made pursuant to, and in consequence of, some judgment at law or decree, or order of a court of equity, or made with the privity and consent of the landlord or landlords, lessor or lessors, or to any mortgagee after the mortgage is become forfeited." The first statute having made attornment unnecessary; and the other having made it inoperative; it is now held not to be necessary, either to aver it in a declaration in covenant, or plead it in an avowry or other pleading whatever. Doug. 283, Moss v. Gallimore. See Mr. Serjt. Williams's note, 1 Saund. 234. b.

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is sufficient; and therefore the tenant's knowledge of the title of cestui que trust as purchaser has been held sufficient notice to entitle his trustees to maintain an action of assumpsit for use and occupation as grantees of the reversion against the tenant, who had improperly paid over his rent to a vendor after such knowledge. 16 East, 99. Although the first mentioned act renders an attornment unnecessary, yet it is still useful for a purchaser to obtain it, because after an attornment he would not in any action against the tenant, be compelled to adduce full evidence of his title, Peake's Law of Evid. 266, 7. though the tenant would still be at liberty to shew that he had attorned by mistake. 6 Taunt. 202.

(4) It is a very ancient rule of law that rights not reduced into possession should not be assignable to a stranger, on the ground that such alienation tended to increase maintenance and litigation, and afforded means to powerful men to purchase rights of action, and oppress others. Co. Litt. 214. 265. a. n. 1. 232. b. n. 1. Our ancestors were so anxious to prevent alienation of choses, or rights in action, that we find it enacted by the 32 Hen. VIII. c. 9. (which it is said was in affirmance of the common law, Plowd. 88.) that no person should buy or sell, or by any means obtain any right or title to any manors, lands, tenements, or hereditaments, unless the person contracting to sell or his ancestor, or they by whom he or they claim the same had been in possession of the same, or of the reversion or remainder thereof, for the space of one

when must

verse.

mainders 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.*(5)

Persons attainted of treason, felony, and praemunire, are incapable of conveying, from the time of the offence committed, provided [291] attainder follows:" for such conveyance by them may tend to defeat

the king of his forfeiture, or the 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 immediate 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 cannct 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 t Sheppard's touchstone, 238, 239. 322. 11 Mod. 152. 1 P. Wms. 574. Stra. 132. a Co. Litt. 42. w Ibid. 2. * Co. Litt. 247.

year before the contract; and this statute
was adjudged to extend to the assignment
of a copyhold estate, 4 Co. 26. a., and of
a chattel interest, or a lease for years, of
land whereof the grantor was not in pos-
session. Plowd.88. At what time this doc-
trine, which, it is said, had relation origi-
nally only to landed estates, 2Woodd.388.
was first adjudged to be equally applicable
to the assignment of a mere personal chattel
not in possession, it is not easy to decide:
it seems, however, to have been so settled
at a very early period of our history, as
the works of our oldest text writers, and
the reports, contain numberless observa-
tions and cases on the subject. Lord
Coke says (Co. Litt. 214. a.; see also
2 Bos. and Pul. 541.) that it is one of the
maxims of the common law, that no right
of action can be transferred, "because

under colour thereof, pretended titles might be granted to great men, whereby right might be trodden down, and the weak oppressed, which the common law forbiddeth."

(5) A possibility coupled with an interest is devisable. 1 H. B. 30. ST. R. 88. A covenant for a valuable consideration to settle or convey a possibility, when it arises, will be enforced in equity. Fonbl. Tr. of Eq. 202. The fine of a person having but a right of action or of entry, or having but a contingent interest, extinguishes that right or interest. 1 Prest. Conv. 6. 142. 208.; but if levied to a person in possession, it will operate as a release of right or interest. Ibid. 261. As to whether an interesse termini, which is a mere right, can be assigned or released, see Co. Litt. 46. b. 270. a.

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 register for the alienor himself to recover lands aliened by him during his insanity; dum fuit non compos mentis suae, 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 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 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

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of reasoning (that a man shall not be allowed to disable himself, [292] by pleading 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 feoffment 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 hath been handed down as settled lawd though later opinions, feeling the inconvenience of the rule, have in many points endeavoured to restrain it. (6) 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;

fol. 228. See also

book, Edw. II.) fol. 23. c F. N. B. 202.

* Britton, c. 28. fol. 66.

Memorand. Scacch. 22 Edw. I. (prefixed to Maynard's year-
25 Edw. III. 70. a 35 Assis. pl. 10. b 39 Hen. VI. 42.
d Litt. § 405. Cro. Eliz. 398. 4 Rep. 123. Jenk. 40.

* Com. 469. 3 Mod. 310, S11. 1 Equ. cas. abr. 279. f Perkins, $21. Co. Litt. 2.

(6) In Cro.Eliz. 398. the opinion of Fitzherbert is denied to be law, and de non sane memory held to be a bad plea to an action of debt upon an obligation. The defence might clearly be given in evidence under the general issue, non assumpsit, or non est factum. 3 Camp. 128. 2 Atk. 412. 3 Mod. Cases, 310. 2 Stra. 1104. 4 Co. 123. Ld. Raym. $15. See much learning respecting lunatics, collected in Mr. Fon

blanque's edition of the Treatise of Equity,
p. 40. & seq. and Collinson on Lunatics.
In the ecclesiastical courts such a rule
prevails, where lord Stowell annulled a
marriage on the ground of the insanity
of the husband; saying, "It is, I con-
ceive, perfectly clear in law, that a party
may come forward to maintain his own
past incapacity." 1 Hagg. Rep. 414.

or, if 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 them to be imposed upon, through the imbecility of their present condition; so that their acts are only binding, in case they be afterwards agreed to, when such imbecility ceases. Yet the guardians or committees of a lunatic, by the statute of 11 Geo. III. c. 20. are empowered 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. (7)

The case of a feme-covert is somewhat different. She may purchase an estate without the consent of her husband, and the con[293] veyance is good during the coverture, till he avoids 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.

The case of an alien born is also peculiar. For he may purchase any thing; but after purchase he can hold nothing (8) except

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(8) If, says lord Coke, (Co. Litt. 2. a. b. Com. Dig. Aliens, C. 2. see the reasons, Bac. Ab. Aliens, C.) "an alien purchase houses, lands, tenements, or hereditaments, to him and his heirs, albeit he can have no heirs, yet he is of capacity to take a fee-simple, but not to hold: for upon office found, that is, upon the inquest of a proper jury, the king shall have it by his prerogative of whomsoever the land is holden; and so it is if the alien doth purchase land and die, the law doth cast the freehold and inheritance upon the king." And if an alien purchase to him and the heirs of his body, he is tenant in tail; and if he suffer a recovery, and

12 Inst. 483. 5 Rep. 119.

m Perkins, § 154. 1 Sid. 120.

afterwards an office is found, the recovery is good to bar the remainder, (9 Co. 141. 2 Roll. 321. 4 Leon. 84. Com. Dig. Aliens, C. 2.); but the estate purchased by an alien does not vest in the king till office found, until which the alien is seised, and may sustain actions for injuries to the property. (5 Co. 52. b. 1 Leonard, 47. 4 Leon. 82. Com. Dig. Aliens, C. 4.) But though an alien may take real property by purchase, yet he cannot take by descent, by dower, or by the curtesy of England, which are the acts of the law, for the act of law, says sir Edward Coke, (7 Co. 25. a. Com. Dig. Aliens, C. 1. Bac Ab. Aliens, c. 2 Bla. Com. 249.) giveth the alien nothing. Therefore, by the com

a lease for years of a house for convenience of merchandise, in case he be an alien friend; (9) all other purchases (when

mon law, (Co. Litt. 8. a.) an alien could not inherit to his father, though the father were a natural born subject, and the statutes have made no alteration in this respect in favour of persons who do not obtain denization or naturalization. So that an alien is at this day excluded not only from holding what he has taken by purchase, after office found, but from even taking by descent at all; and the reasons of this distinction between the act of the alien himself, by which he may take but cannot hold, and the act of the law by which he cannot even take, is marked by lord Hale in his judgment in the case of Collingwood v. Pace, 1 Vent. 417., where he says, though an alien may take by purchase by his own contract that which he cannot retain against the king, yet the law will not enable him by act of his own to transfer by hereditary descent, or to take by an act in law; for the law, quæ nihil frustra (which does nothing in vain) will not give an inheritance or freehold by act in law, for he cannot keep it.

The general rule of the law therefore appears to be, that an alien by purchase, which is his own act, may take real property but cannot hold it; by descent, dower, or curtesy, or any other conceivable act of the law, he cannot even take any lands, tenements, or hereditaments whatsoever, much less hold them. The reason of the law's general exclusion of aliens, we have seen ante, 1 vol. 371, 2.

(9) In former times no alien was permitted even to occupy a house for his habitation, and the alteration in that law was merely in favour of commerce and merchants. (See 1 Rapin Hist. Eng. 361. n. 9. Bac. Ab. Aliens, C.) There is a diversity, says sir Edward Coke, (Co. Litt. 2. b. Com. Dig. Aliens, C. 3.) between a lease for years of a house for the habitation of a merchant stranger, being an alien, whose king is in league with ours, and a lease for years of lands, meadows, pastures, woods, and the like; for if he take a lease for years of lands, meadows, &c. upon office found, the king shall have it; but if a house for habitation, he may take a lease for years as incident to commerce, for without habitation, he cannot merchandise or trade; but if he depart or

relinquish the realm, the king shall have the lease, &c. (Co. Litt. 2. b. Com. Dig. Aliens, C. 3. but in Toller, 12. it is said an alien may bequeath a lease.) But there is a note in the margin of Dyer, 2. b. Com. Dig. Aliens, C. 3. which asserts that the alien does not forfeit his interest in the house to the king by going beyond sea, if there be servants residing in it during the time of his absence. If an alien (continues sir Edward Coke, Co. Litt. 2. b. Com. Dig. Aliens, C. 3.) die possessed of a lease for years of a house, neither his executors nor administrators shall have it, but the king, for he had it only for habitation as necessary to his trade, and not for the benefit of his executors or administrators. So if the alien be no merchant, then the king shall have the lease for years, albeit it were for his habitation. (Co. Litt. 2. b. 1 Rol. 194. 130. Com. Dig. Aliens, 3. C. Bac. Ab. Aliens, C.) So that at this day no alien can hold a lease of any house, even for his habitation, unless he be engaged in mercantile pursuits, a strong proof of the peculiar partiality of the British law to commerce. But the indulgence which is thus shewn to alien merchants, is not extended to alien traders of a lower kind, artificers and handicraftsmen, for the 16 chap. of 32 Hen. VIII. sect. 18. enacts, that all leases of any dwelling-house or shop within this realm, or any the king's dominions, made to any stranger artificer or handicraftsman born out of the king's obeisance, not being denizen, shall be void. Still, however, the British courts, anxious to advance every species of industry to the utmost extent which the letter of the written law will permit, have construed this statute most strictly in favour of aliens, and therefore, though the words of the act forbid them to sanction an actual lease made to an alien artificer or handicraftsman, they have held that an agreement for the occupation of a house not amounting to a lease, or a tenancy at will, may be supported by an artificer or handicraftsman, though he be an alien. In the case of Pilkington against Peach, 2 Shower, 135. 1 Saund. 8. n. 1., the court even took the pains to point out these methods of evasion in the following words; There are ways to evade the

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