« EdellinenJatka »
till a debt be paid, upon which payment the grantor's estate will revive. II. In mortuo vadio, in dead, or mort, gage; where an estate is granted, on condition to be void at a day certain, if the grantor then repays the money borrowed; on failure of which, the estate becomes absolutely dead to the grantor
· Page 157 7. Estates by statute merchant, or statute staple, are also estates conveyed to creditors, in pursuance of certain statutes, till their profits shall discharge the debt . 160
8. Estates by elegit are where, in consequence of a judicial writ so called, lands are delivered by the sheriff to a plaintiff, till their profits shall satisfy a debt adjudged to be due by law
OF ESTATES IN POSSESSION, REMAINDER, AND REVERSION. 1. Estates, with respect to their time of enjoyment, are either in immediate possession or in expectancy: which estates in expectancy are created at the same time, and are parcel of the same estates, as those upon which they are expectant. These are, I. Remainders. II. Reversions .
163 2. A remainder is an estate limited to take effect, and be enjoyed, after another par ticular estate is determined
3. Therefore, I. There must be a precedent particular estate, in order to support a remainder. II. The remainder must pass out of the grantor at the creation of the particular estate. III. The remainder must vest in the grantee during the continuance, or at the determination, of the particular estate
. 165-168 4. Remainders are, I. Vested ; where the estate is fixed to remain to a certain person after the particular estate is spent. II. Contingent; where the estate is limited to take effect, either to an uncertain person or upon an uncertain event
168, 169 5. An executory devise is such a disposition of lands, by will, that an estate shall not vest thereby at the death of the devisor, but only upon some future contingency, and without any precedent particular estate to support it
172 6. A reversion is the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted ; to which are incis dent-fealty, and rent
176 7. Where two estates, the one less, the other greater, the one in possession, the other in expectancy, meet together in one and the same person, and in one and the same right, the less is merged in the greater
OF ESTATES IN SEVERALTY, JOINT-TENANCY, COPARCENARY, AND COMMON. 1. Estates, with respect to the number and connections of their tenants, may be held, I. In severalty. II. In joint-tenancy. III. In coparcenary. IV. In com
2. An estate in severalty is where one tenant holds it in his own sole right, without any other person being joined with him
3. An estate in joint-tenancy is where an estate is granted to two or more persons ; in which case the law construes them to be joint-tenants, unless the words of the grant expressly exclude such construction
180 4. Joint-tenants have a unity of interest, of title, of time, and of possession; they are seized per my et per tout; and therefore, upon the decease of one joint-tenant, tho whole interest remains to the survivor
182 5. Joint-tenancy may be dissolved by destroying one of its four constituent unities
6. An estate in coparcenary is where an estate of inheritance descends from the ancestor to two or more persons, who are called parceners, and all together make but one heir
7. Parceners have a unity of interest, title, and possession ; but are only seized per my, and not per tout; wherefore there is no survivorship among parceners 8. Incident to this estate is the law of hotchpot
190 9. Coparcenary may also be dissolved by destroying any of its three constituent Quities
191 10. An estate in common is where two or more persons hold lands, possibly by
distinct titles, and for distinct interests, but by unity of possession, because nono knoweth his own severalty .
Page 191 11. Tenants in common have, therefore, a unity of possession (without survivorship; being seized per my, and not per tout); but no necessary unity of title, time, or interest
12. This estate may be created, I. By dissolving the constituent unities of the two former; II. By express limitation in a grant; and may be destroyed, I. By uniting the several titles in one tenant II. By partition of the land
OF THE TITLE TO THINGS REAL IN GENERAL.
1. A TITLE to things real is the means whereby a man cometh to the just possession of his property
195 2. Herein may be considered, 1. A mere or naked possession. 11. The right of possession; which is, 1st, an apparent, 2dly, an actual right. III. The mere right of property. IV. The conjunction of actual possession with both these rights; which constitutes a perfect title
OF TITLE BY DESCENT.
1. The title to things real may be reciprocally acquired or lost, I. By descent. II. By purchase
200 2. Descent is the means whereby a man, on the death of his ancestor, acquires a title to his estate, in right of representation, as his heir-at-law
201 3. To understand the doctrine of descents, we must form a clear notion of consanguinity; which is the connection or relation of persons descended from the same stock or common ancestor; and it is. I. Lineal, where one of the kinsmen is lineally descended from the other. II. Collateral, where they are lineally descended, not one from the other, but both from the same common ancestor
203, 204 4. The rules of descent, or canons of inheritance, observed by the laws of England, are these:
Inheritances shall lineally descend to the issue of the person last actually seized, in infinitum; but shall never lineally ascend
208 The male issue shall be admitted before the female
212 Where there are two or more males in equal degree, the eldest only shall inherit; but the females all together
214 The lineal descendants, in infinitum, of any person deceased, shall represent their ancestor; that is, shall stand in the same place as the person himself would have done had he been living
216 On failure of lineal descendants
, or issue, of the person last seized, the inheritance shall descend to the blood of the first purchaser, subject to the three preceding rules. To evidence which blood, the following two rules are established
220 The collateral heir of the person last seized must be his next collateral kinsman of the whole blood .
224 In collateral inheritances, the male stocks shall be preferred to the female ; that is, kindred derived from the blood of the male ancestors shall be admitted before those from the blood of the female ; unless where the lands have, in fact, descended from a female
CHAPTER XV. OF TITLE BY PURCHASE; AND, FIRST, BY ESCHEAT 1. PURCHASE, or perquisition, is the possession of an estate which a man hath by his own act or agreement; and not by the mere act of law, or descent from any of his ancestors. This includes, I. Escheat. II. Occupancy. III. Prescription. IV. Forfeiture. V. Alienation
241-244 2. Escheat is where, upon deficiency of the tenant's inheritable blood, the estate falls to the lord of the fee
3. Inheritable blood is wanting to, I. Such as are not related to the person last seized. II. His maternal relations in paternal inheritances, and vice versa. III. His kindred of the half-blood. IV. Monsters. V. Bastards. VI. Aliens, and their issue. VII. Persons attainted of treason or felony. VIII. Papists, in respect of themselves only, by the statute law
· Page 246-257
OF TITLE BY OCCUPANCY.
1. Occupancy is the taking possession of those things which before had no own
258 2. Thus, at the common law, where tenant per anter vie died during the life of cestuy que vie, he who could first enter might lawfully retain the possession, unless by the original grant the heir was made a special occupant
259 *3. The law of derelictions and alluvions has narrowed the title by occupancy 261
OF TITLE BY PRESCRIPTION. 1. PRESCRIPTION (as distinguished from custom) is a personal immemorial usage of enjoying a right in some incorporeal hereditament by a man, and either his ancestors or those whose estate of inheritance he hath: of which the first is called prescribing in his ancestors; the latter, in a que estate .
OF TITLE BY FORFEITURE. 1. FORFEITURE is a punishment annexed by law to some illegal act, or negligence, in the owner of things real; whereby the estate is transferred to another, who is usually the party injured
267 2. Forfeitures are occasioned, I. By crimes
. II. By alienation, contrary to law. III. By lapse. IV. By simony: V. By non-performance of conditions. VI. By VII. By breach of copyhold customs. VIII. By bankruptcy
. 267 3. Forfeitures for crimes, or misdemeanors, are for, I. Treason. II. Felony. III. Misprision of treason. IV. Præmunire. V. Assaults on a judge, and batteries, sitting the courts. VI. Popish recusancy, &c.
· 267 4. Alienations, or conveyances, which induce a forfeiture, are, I. Those in mortmain, made to corporations contrary to the statute law. II. Those made to aliens. III. Those made by particular tenants, when larger than their estates will warrant
268-274 5. Lapse is a forfeiture of the right of presentation to a vacant church, by neglect of the patron to present within six calendar months
276 6. Simony is the corrupt presentation of any one to an ecclesiastical benefice, where by that turn becomes forfeited to the crown
278 7. For forfeiture by non-performance of conditions, see Ch. x. 8. Waste is a spoil, or destruction, in any corporeal hereditaments, to the prejudice of him that hath the inheritance
281 9. Copyhold estates may have, also, other peculiar causes of forfeiture, according to the custom of the manor
284 10. Bankruptcy is the act of becoming a bankrupt; that is, a trader who secretes himself, or does certain other acts tending to defraud his creditors. (See Ch. XXII.)
. 285 11. By bankruptcy, all the estates of the bankrupt are transferred to the assignees of his commissioners, to be sold for the benefit of his creditors
OF TITLE BY ALIENATION.
1. ALIENATION, conveyance, or purchase in its more limited sense, is a means of ransferring real estates, wherein they are voluntarily resigned by one man and accepted by another
2. This formerly could not be done by a tenant, without license from his lord; nos by a lord, without attornment of his tenant .
3. All persons are capable of purchasing, and all that are in possession of any estates are capable of conveying them; unless under peculiar disabilities by law, as being attainted, non compotes, infants, under duress, feme-coverts, aliens, or papists
288-293 4. Alienations are made by common assurances; which are, I. By deed, or matter in pais. II. By matter of record. III. By special custom. IV. By devise 293, 294
OP ALIENATION BY DEED.
1. In assurances by deed may be considered, I. Its general nature. II. Its several species 2. A deed, in general
, is the solemn act of the parties; being usually a writing sealed and delivered; and it may be, I. A deed indented, or indenture. 'II. A deed poll
295, 296 3. The requisites of a deed are, I. Sufficient parties, and proper subject-matter. II. A good and sufficient consideration. III. Writing on paper, or parchment, duly stamped. IV. Legal and orderly parts, which are usually, 1st, the premises; 2dly, the habendum; 3dly, the tenendum; 4thly, the reddendum; 5thly, the conditions; Gthly, the warranty (which is either lineal or collateral); 7thly, the covenants; 8thly, the conclusion (which includes the date). V. Reading it, if desired. VI. Sealing, and, in many cases, signing it also. VII. Delivery. VIII. Attestation 296-307
4. A deed may be avoided, I. By the want of any of the requisites before mentioned. II By subsequent matter; as, 1st, rasure, or alteration; 2dly, defacing its seal; 3dly, canceling it; 4thly, disagreement of those whose consent is necessary; 5thly,
5. Of the several species of deeds, some serve to convey real property, some only to charge and discharge it .
309 6. Deeds which serve to convey real property, or conveyances, are either by common law or by statute. And, of conveyances by common law, some are original or primary, others derivative or secondary
7. Original conveyances are, I. Fcoffments. ii. Gifts. "III. Grants. iv. Leases. V. Exchanges. VI. Partitions. Derivative are, VII. Releases. VIII. Confirmations. IX. Surrenders. X. Assignments. XI. Defeasances
310 8. A feoffment is the transfer of any corporeal hereditament to another, perfected by livery of seizin, or delivery of bodily possession from the feoffor to the feoffee; without which no freehold estate therein can be created at common law
310 9. A gist is properly the conveyance of lands in tail
316 10. A grant is the regular method, by common law, of conveying incorporeal here. ditaments 11. A lease is the demise, granting, or letting to farm of any tenement
, usually for a less term than the lessor hath therein; yet sometimes possibly for a greater, according to the regulations of the restraining and enabling statutes
317 12. An exchange is the mutual conveyance of equal interests, the one in consideration of the other
323 13. A partition is the division of an estate held in joint-tenancy, in coparecuary, or in common, between the respective tenants; so that each may hold his distinct part in severalty
323 14. A release is the discharge or conveyance of a man's right, in lands and tenements, to another that hath some former estate in possession therein .
324 15. A confirmation is the conveyance of an estate or right in esse, whereby a voidable estate is made sure, or a particular estate is increased
325 16. A surrender is the yielding up of an estate for life, or years, to him that hath the immediate remainder or reversion wherein the particular estate may merge 326
17. An assignment is the transfer, or making over to another, of the whole right one has in any estate; but usually in a lease, for life or years
18. A defeasance is a collateral deed, made at the same time with the original con veyance, containing some condition upon which the estate may be defeated 327
19. Conveyances by statute depend much on the doctrine of uses and trusts, which are a confidence reposed in the terre-tenant, or tenant of the land, that he shall permit the profits to be enjoyed, according to the directions of cestuy que use, or cestuy que trust
20. The statute of uses, having transferred all uses into actual possession (or, rather, having drawn the possession to the use), has given birth to divers other species of conveyance: I. A covenant to stand seized to uses. II. A bargain and sale, enrolled. III. A lease and release. IV. A deed to lead or declare the use of other more direct conveyances. V. A revocation of uses ; being the execution of a power, reserved at the creation of the use, of recalling at a future time the use or estate so created. All which owe their present operation principally to the statute of uses · Page 337–339
21. Deeds which do not convey, but only charge real property, and discharge it, are, I. Obligations. II. Recognizances. III. Defeasances upon both 340-342
OF ALIENATION BY MATTER OF RECORD.
1. ASSURANCES by matter of record are, where the sanction of some court of record is called in to substantiate and witness the transfer of real property. These are, I. Private acts of Parliament. II. The king's grants. III. Fines. IV. Common recoveries
344 2. Private acts of Parliament are a species of assurances, calculated to give (by the transcendent authority of Parliament) such reasonable powers or relief as are beyond the reach of the ordinary course of law
344 3. The king's grants, contained in charters or letters patent, are all entered on record, for the dignity of the royal person, and security of ihe royal revenue . 346
4. A fine (sometimes said to be a feoffment of record) is an amicable composition and agreement of an actual or fictitious suit, whereby the estate in question is acknowledged to be the right of one of the parties
348 5. The parts of a fine are, I. The writ of covenant.
II. The license to agree. III. The concord. IV. The note. V. The foot. To which the statute hath added, VI. Proclamations
350-352 6. Fines are of four kinds: I. Sur cognizance de droit, come ceo que il ad de son done. II. Sur cognizance de droit tantum. III. Sur concessit. IV. Sur done, grant, et render; which is a double fine
7. The force and effect of fines (when levied by such as have themselves any interest in the estate) are to assure the lands in question to the cognizee, by barring the respective rights of parties, privies, and strangers
354 8. A common recovery is by an actual or fictitious suit or action for land, bronght against the tenant of the freehold ; who thereupon vouches another, who undertakes to warrant the tenant's title; but, upon such vouchee's making default, the land is recovered by judgment at law against the tenant; who, in return, obtains judgment against the vouchee to recover lands of equal value in recompense
357-359 9. The force and effect of a recovery are to assure lands to the recoveror, by barring estates tail, and all remainders and reversions expectant thereon ; provided the tenant in tail either suffers, or is vouched in, such recovery
10. The uses of a fine or recovery may be directed by, I. Deeds to lead such uses; which are made previous to the levying or suffering them. II. Deeds to declare the uses; which are made subsequent
OF ALIENATION BY SPECIAL CUSTOM. 1. Assurances by special custom are confined to the transfer of copyhold estates
365 2. This is effected by, I. Surrender by the tenant into the hands of the lord to the use of another, according to the custom of the manor. II. Presentment by the tenants, or homage, of such surrender. III. Admittance of the surrenderee by the lord, according to the uses expressed in such surrender
368-370 3. Admittance may also be had upon original grants to the tenant from the lord, and upon descents to the heir from the ancestor
OF ALIENATION BY DEVISE. 1. Devise is a disposition of lands and tenements contained in the last will and testament of the owner