291 lord of his efcheat. But they may purchafe for the benefit of the crown, or the lord of the fee, though they are difabled to hold: the lands fo purchased, if after attainder, being fubject to immediate forfeiture; if before, to escheat as well as forfeiture, according to the nature of the crime". So alfo corporations, religious or others, may purchase lands; yet, unless they have a licence to hold in mortmain, they cannot retain fuch purchase; but it shall be forfeited to the lord of the fee.

IDIOT's and perfons of nonfane memory, infants, and perfons under duress, are not totally difabled either to convey or purchase, but fub 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 faid, that a non compos himself, though he be afterwards brought to a right mind, shall not be permitted to allege his own infanity in order to avoid fuch grant for that no man shall be allowed to ftultify himself, or plead his own difability. The progrefs of this notion is fomewhat curious. In the time of Edward I, non compos was a fufficient 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 infanity; dum fuit non compos mentis fuae, ut dicit, &c. But under Edward III a fcruple began to arife, whether a man fhould be permitted to blemish himself, by pleading his own infanity: and, afterwards, a defendant in affife having pleaded a releafe by the plaintiff fince the laft 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 affife; doubting, whether as the plaintiff was fane both then and at the commencement of the fuit, he fhould be permitted to plead an intermediate deprivation of reafon; and the question was afked, how he came to remember the release, if out of his fenfes when he gave it, Under Henry VI this way of

reasoning (that a man shall not be allowed to disable himself, by pleading his own incapacity, because he cannot know what he did under fuch a fituation) 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 infane ancestor. And from thefe loofe authorities, which Fitzherbert, does not fcruple to reject as being contrary to reafon, the maxim that a man fhall not ftultify himself hath been handed down as fettled lawd: though later opinions, feeling the inconvenience of the rule, have in many points endeavoured to reftrain it. 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 fo too, if he purchases under this disability, and does not afterwards upon recovering his fenfes agree to the purchase, his heir may either waive or accept the estate at his option. In like manner, an infant may waive fuch purchase or conveyance, when he comes to full age; or, if he does not then actually agree to it, his heirs may waive it after him. Perfons alfo, who purchase or convey under durefs, may affirm or avoid fuch tranfaction, whenever the durefs is ceafed . For all these are under the protection of the law; which will not fuffer them to be impofed upon, through the imbecillity of their prefent condition; so that their acts are only binding, in case they be afterwards agreed to, when fuch imbecillity ceases. Yet the guardians or committees of a lunatic, by the ftatute 11 Geo. III. c. 20. are impowered to renew in his right, under the directions of the court of chancery, any leafe for lives or years, and apply the profits of fuch renewal for the benefit of fuch lunatic, his heirs, or executors.

THE cafe of a feme-covert is fomewhat different. She may purchase an eftate without the confent of her husband, and the conveyance is good during the coverture, till he avoids

it by fome act declaring his diffent. And, though he does nothing to avoid it, or even if he actually confents, the femecovert herself may, after the death of her husband, waive or disagree to the fame: nay, even her heirs may waive it after her, if the dies before her husband, or if in her widowhood The does nothing to express her confent or agreement'. But the conveyance or other contract of a feme-covert (except by fome matter of record) is abfolutely void, and not merely voidable; and therefore cannot be affirmed or made good by any fubfequent agreement.

THE cafe of an alien born is alfo peculiar. For he may purchase any thing; but after purchase he can hold nothing, except a leafe for years of a house for convenience of merchandize, in cafe he be an alien-friend: all other purchases (when found by an inqueft of office) being immediately forfeited to the king ".

PAPISTS, lastly, and perfons profeffing the popish religion, are by ftatute 11 & 12 W. III. c. 4. disabled to purchase any lands, rents, or hereditaments; and all eftates made to their use, or in truft for them, are void. But this ftatute is conftrued to extend only to papifts above the age of eighteen; fuch only being absolutely disabled to purchase: yet the next proteftant heir of a papist under eighteen shall have the profits, during his life: unless he renounces his errors within the time limited by law °.

II. We are next, but principally, to enquire, how a man may aliene or convey; which will lead us to confider the feveral modes of conveyance.

IN confequence of the admiffion of property, or the giving a separate right by the law of fociety to thofe things which by the law of nature were in common, there was neceffarily fome means to be devised, whereby that separate right or exclusive property should be originally acquired;

which, we have more than once obferved, was that of occupancy or first poffeffion. But this poffeffion, when once gained, was alfo neceffarily to be continued; or else, upon one man's dereliction of the thing he had seised, it would again become common, and all those mischiefs and contentions would enfue, which property was introduced to prevent. For this purpose therefore, of continuing the poffeffion, the municipal law has established descents and alienations: the former to continue the poffeffion in the heirs of the proprietor, after his involuntary dereliction of it by his death; the latter to continue it in those perfons, to whom the proprietor, by his own voluntary act, shall choose to relinquish it in his life-time. A tranflation, or transfer, of property being thus admitted by law, it became neceffary that this transfer fhould be properly evidenced in order to prevent disputes, either about the fact, as whether there was any transfer at all; or concerning the perfons, by whom and to whom it was transferred; or with regard to the fubject matter, as what the thing transferred confifted of; or, laftly, with relation to the mode and quality of the transfer, as for what period of time (or, in other words, for what efțate and intereft) the conveyance was made. The legal evidences of this tranflation of property are called the common assurances of the kingdom; whereby every man's eftate is affured to him, and all controverfies, doubts, and difficulties are either prevented or removed.

THESE Common affurances are of four kinds: 1. By matter in pais, or deed; which is an affurance tranfacted between two or more private perfons in pais, in the country; that is (according to the old common law) upon the very fpot to be transferred. 2. By matter of record, or an afsurance tranfacted only in the king's public courts of record. 3. By fpecial custom, obtaining in fome particular places, and relating only to fome particular fpecies of property. Which three are fuch as take effect during the life of the party conveying or affuring. 4. The fourth takes no effect, till after his death; and that is by devife, contained in his last will and teftament. We shall treat of each in it's order.

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N treating of deeds I fhall confider, firft, their general nature; and, next, the several forts or kinds of deeds, with their respective incidents. And in explaining the former, I fhall examine, firit, what a deed is; fecondly, it's requifites; and, thirdly, how it may be avoided.

I. FIRST then, a deed is a writing fealed and delivered by the parties". It is fometimes called a charter, carta, from it's materials; but most usually, when applied to the transactions of private fubjects, it is called a deed, in Latin factum, nar' toy, because it is the most folemn and authentic act that a man can poffibly perform, with relation to the disposal of his property; and therefore a man fhall always be estopped by his own deed, or not permitted to aver or prove any thing in contradiction to what he has once fo folemnly and deliberately avowed. If a deed be made by more parties than one, there ought to be regularly as many copies of it as there are y parties, and each should be cut or indented (formerly in acute angles inftar dentium, but at present in a waving line) bon the top or fide, to tally or correspond with the other which deed, fo made, is called an indenture, Formerly, when deeds were more concise than at present, it was usual to write both parts on the fame piece of parchment, with fome word or letters of the alphabet written between them; *` through which the parchment was cut, either in a strait or b Plowd. 434.

a Co. Litt. 171.

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indented