registration of conveyances is required, such certificate of appointment must be registered within two months. (Stats. 6 Geo. IV., c. 16; 1 & 2 Will. IV., c. 56, s. 25, 26, &c.) As the bankrupt's leases for years may be onerous rather than profitable possessions, the accept ance of them is left to the option of the assignees; and if they accept them, or if they renounce them, and the bankrupt delivers up the lease (or, in case of a parol demise, possession, 3 Nev. & P., 390), he is discharged from all future liability under the covenants, &c. (6 Geo. IV., c. 16, s. 75; 5 Taunt., 800; 3 Moo. & P., 715; 2 B. & Ad., 716.) And by the statute 3 & 4 Will. IV., c. 74, s. 55-73, special provisions are made for the disposition of the bankrupt's estates-tail in freeholds or copyholds. Other copyholds belonging to the bankrupt are to be sold by the commissioners for the benefit of the creditors, by enrolled indenture, authorizing some person or persons on their behalf to surrender the same for the purpose of the purchaser being admitted. (6 Geo. IV., c. 16, s. 68, 69.) The statutory transfer operated retrospectively upon the beneficial interest (though not upon the legal estate, 2 M. & Sel., 446) in all property to which the bankrupt was entitled at the time of the commission of the act of bankruptcy; and this is still the general principle, but much controlled for the benefit of parties who, without notice of the act of bankruptcy in the mean time, have bona fide dealt with the bankrupt. The stat. 6 Geo. IV., c. 16, s. 86, protects purchasers for valuable consideration from a bankrupt, with notice of the act of bankruptcy, unless the fiat issues within the year following the act of bankruptcy. By the sect. 81, conveyances by, and contracts and other dealings and transactions by and with any bankrupt, bona fide made and entered into, and all executions and attachments against the lands or goods of the bankrupt, bona fide executed or levied more than two months before the fiat, were declared valid, notwithstanding any prior act of bankruptcy, if the party so dealing had no notice of any act of bankruptcy. Sect. 82 protects payments made by or to a bankrupt before the fiat, without notice, and not being a fraudulent preference; and sect. 84 protects parties delivering goods of the bankrupt without notice. But sect. 108 enacts that no creditor having security for his debt, or having attached the goods of the bankrupt, shall receive more than a rateable part of such debt, except in respect of any execution or extent served and levied by seizure upon, or any mortgage of or lien upon, any part of the property of such bankrupt, before the bankruptcy. Provided that no creditor, though for a valuable consideration, shall avail him self of an execution upon any judgment by default, confession, or nil dicit. It having been held that all executions, except on judgment after verdict, trial by the record, or on demurrer, were within this last proviso (4 Moo. & P., 238), it was enacted by the 1 Will. IV., c. 7, s. 7, that no judgment signed, or execution issued on a cognovit signed, after declaration filed and delivered, or judgment by default, confession, or nil dicit, according to the practice of the court, in any action commenced adversely, and not by collusion for the purpose of fraudulent preference, should be within that proviso. (1 Nev. & M., 668.) The stat. 2 & 3 Vict., c. 11, s. 12, gives validity to all conveyances by any bankrupt, bona fide made and executed before the fiat to persons without notice; but this particular provision has been superseded by the general enact ment in the 2 & 3 Vict., c. 29, which recites the Geo. IV., c. 16, s. 82, and the 2 & 3 Vict., c. 11, s. 12, and enacts that all contracts, dealings, and transactions by and with any bankrupt, bona fide made and entered into before the fiat, and all executions and attachments against his lands and goods, bonâ fide executed and levied before the fiat, not being a fraudulent preference, shall be valid, notwithstanding any prior act of bankruptcy, provided the party so deal. ing, &c., had no notice of any prior act of bankruptcy. The date of the fiat is thus substituted for the two months before the fiat, in the 81st sect. of the Bankrupt Act; and bona fide dealings with a bankrupt, without notice of any act of bankrupt cy, and before the fiat has actually issued, are now placed on the same foot ing as if no prior act of bankruptcy had been committed. But as. under the concluding proviso in the 108th section of the Bankrupt Act, executions under judgments upon warrants of attorney are not protected unless the goods are not only seized, but actually sold before the fiat (being until then mere securi ties), so such executions are still unpro tected; because it is the fiat, not any prior act of bankruptcy, which defeats them. (8 Mee. & W., 463; 10 Id., 22 36.) But executions on judgments ob tained adversely, if levied by seizure before the fiat, are protected. CHAPTER XIX. OF TITLE BY ALIENATION. THE most usual and universal method of acquiring a title to real estates is that of alienation, conveyance, or purchase in its limited sense; under which may be comprised any method wherein estates are voluntarily resigned by one man and accepted by another: whether that be effected by sale, gift, mar-. riage settlement, devise, or other transmission of property by the mutual consent of the parties. alienation in This means of taking estates by alienation is not of equal of title by antiquity in the law of England with that of taking them by general. descent. For we may remember that, by the feodal law,a a pure and genuine feud could not be transferred from one feudatory to another without the consent of the lord; lest thereby a feeble or suspicious tenant might have been substituted and imposed upon him to perform the feodal services, instead of one on whose abilities and fidelity he could depend. Neither could the feudatory then subject the land to his debts; for, if he might, the feodal restraint of alienation would have been easily frustrated and evaded.b And as he could not aliene it in his lifetime, so neither could he by will defeat the succession, by devising his feud to another family; nor even alter the course of it by imposing particular limitations, or prescribing an unusual path of descent. Nor, in short, could he aliene the estate, even with the consent of the lord, unless he had also obtained the consent of his own next apparent or presumptive heir c And, therefore, it was very usual in ancient feoffments to express that the alienation was made by consent of the heirs of the [288] feoffor; or sometimes for the heir apparent himself to join with the feoffor in the grant. And, on the other hand, as the feodal obligation was looked upon to be reciprocal, the lord could not aliene or transfer his seigniory without the consent of his vassal; for it was esteemed unreasonable to subject a feudatory to a new superior, with whom he might have a deadly enmity, without his own approbation; or even to transfer his fealty, without his being thoroughly apprised of it, that he might know with certainty to whom his renders and services were due, and be able to distinguish a lawful distress for rent from a hostile seizing of his cattle by the lord of a neighboring clan. This con a See page 57. b Feud., 1, t. 27. c Co. Litt., 94. Wright, 168. d Madox, Formul. Angl., No. 316, 319, 427. Gilb., Ten., 75. sent of the vassal was expressed by what was called attorning,f or professing to become the tenant of the new lord; which doctrine of attornment was afterward extended to all lessees for life or years. For if one bought an estate with any lease for life or years standing out thereon, and the lessee or tenant refused to attorn to the purchaser, and to become his tenant, the grant or contract was in most cases void, or, at least, incomplete ; which was also an additional clog upon alienations. But by degrees this feodal severity is worn off;' and experience hath shown that property best answers the purposes of civil life, especially in commercial countries, when its transfer and circulation are totally free and unrestrained. The road was cleared in the first place by a law of King Henry the First, which allowed a man to sell and dispose of lands which he himself had purchased; for over these he was thought to have a more extensive power than over what had been transmitted to him in a course of descent from his ancestors;h a doctrine [289] which is countenanced by the feodal constitutions themselves ;i but he was not allowed to sell the whole of his own acquireinents, so as totally to disinherit his children, any more than he was at liberty to aliene his paternal estate. Afterward, a man seems to have been at liberty to part with all his own acquisitions, if he had previously purchased to him and his assigns by name; but, if his assigns were not specified in the purchase deed, he was not empowered to aliene:1 and, also, he might part with one fourth of the inheritance of his ancestors without the consent of his heir.m By the great charter of Henry III.," no subinfeudation was permitted of part of the land, unless sufficient was left to answer the services due to the superior lord, which sufficiency was probably interpreted to be one half or moiety of the land. But these restrictions were in general removed by the statute of quia emptores, whereby all persons, except the king's tenants in capite, were left at liberty to aliene all or any part of their lands at their own discretion. And even these tenants in capite were by the statute 1 Edw. III., i Feud., 1. 2, t. 39. The same doctrine and the same tra cognationem suam.—LL. Hen. I., c. denomination prevailed in Bretagne: 70. Possessiones in jurisdictionalibus non aliter apprehendi posse, quam per attournances et avirances, ut loqui solent; cum vasallus, ejurato prioris domini obsequio et fide, novo se sacramento novo tem domino acquirenti obstringebat; idque jussu auctoris.-D'Argentre, Antiq. Consuet. Brit., apud Dufresne, i., 819, 820. Litt., § 551. Emptiones vel acquisitiones suas det cui magis velit. Si bocland habeat quam ei parentes dederunt, non mittat eam ex Si questum tantum habuerit is, qui partem terræ suæ donare voluerit, tunc quidem hoc ei licet; sed non totum ques tum, quia non potest filium suum hære dem exhæredare.-Glanvil, 1. 7, c. 1. 1 Mirr., c. 1, § 3. This is also bor. rowed from the feodal law.-Feud., 1 2, t. 48. m Mirr., Ibid. n 9 Hen. III., c. 32. • Dalrymple, of Feuds, 95. 4 See pag. 72, 91. (1) See 1 Eden, 191. . By c. 12, permitted to aliene, on paying a fine to the king. the temporary statutes 7 Hen. VII., c. 3, and 3 Hen. VIII., c. 4, all persons attending the king in his wars were allowed to aliene their lands without license, and were relieved from other feodal burdens. And, lastly, these very fines for alienations were, in all cases of freehold tenure, entirely abolished by the statute 12 Car. II., c. 24. As to the power of charging lands with the debts of the owner, this was introduced so early as statute Westm. 2, whichs subjected a moiety of the tenant's lands to executions for debts recovered by law: as the whole of them was likewise subjected to be pawned in a statute merchant by the statute De Mercatoribus, made the same year, and in a statute staple by statute 27 Edw. III., c. 9, and in other similar recognizances by statute 23 Hen. VIII., c. 6. And now, the whole of [290] them is not only subject to be pawned for the debts of the owner, but likewise to be absolutely sold for the benefit of trade and commerce by the several statutes of bankruptcy. The restraint of devising lands by will, except in some places by particular custom, lasted longer; that not being totally removed till the abolition of the military tenures. The doctrine of attornments continued still later than any of the rest, and became extremely troublesome, though many methods were invented to evade them; till at last they were made no longer necessary to complete the grant or conveyance, by statute 4 & 5 Ann., c. 16, nor shall, by statute 11 Geo. II., c. 19, the attornment of any tenant affect the possession of any lands, unless made with consent of the landlord, or to a mortgagee after the mortgage is forfeited, or by direction of a court of justice." r 2 Inst., 67. (2) An attornment at the common law was an agreement of the tenant to the grant of the seigniory or of a rent, or of the donee in tail or tenant for life or years to a grant of reversion or remainder, made to another. (Co. Litt., 309, a.) And the attornment was necessary to the perfection of the grant. However, the necessity of attornments was, in some measure, avoided by the Statute of Uses (as by that statute the possession was immediately executed to the use, 1 T. R., 384, 386), and by the Statute of Wills (by which the legal estate is immediately vested in the devisee), yet attornment continued after this to be necessary in many cases; but both the necessity and efficacy of attornments have been almost totally taken away by the statute 4 & 5 Anne, c. 16, s. 9, 10, and 11 Geo. II., c. 19, s. 11. By the former of those statutes it was enacted, "that all grants or conveyances of any manors or rents, or of the reversion or remainder of any messuages or lands, shall be good and effectual, without any attorn 13 Ed. I., c. 18. ment of the tenants of any such manors 2 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. to, and in consequence of, some judg- purchase from the donor; others held ment at law or decree or order of a court (which opinion prevailed in Bracton's of equity, or made with the privity and time) that he took by descent. This ac consent of the landlord or landlords, les- counts for what is said in 2 Inst., 336, sor or lessors, or to any mortgagee after that a formedon in descender did not the mortgage is become forfeited.' The lie at common law of an estate-tail, befirst statute having made attornment un- cause the issue took by descent. But necessary, and the other having made it though he lays down the rule, he does inoperative, it is now held not to be not give the reason; therefore, if the an necessary either to aver it in a declara- cestor aliened, the heir was defeated, and tion in covenant, or plead it in an avowry the effect to the lord was only in the or other pleading whatever. (Doug., chance of the escheat from the change of 283; see i Wms. Saund., 234, b, n. 4.) the tenant, viz., from grantee to alienee. Under the proviso in the first act, any notice to the tenant, of his original landlord having parted with his interest, 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, as grantees of the reversion, to maintain an action of assumpsit for use and occupation 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, Evid., 266, 267); though the tenant would still be at liberty to show that he had attorned by mistake. (6 Taunt., 202; see 6 Ad. & El., 675.)-[CHITTY.] Though it may seem a parodox to modern ears, a feoffment to A. and his heirs did not pass a fee-simple originally in the sense we now use it, but only an estate to be enjoyed as a merum beneficium, without the power of alienation in prejudice of the heir or the lord. *** The heir took by purchase, and, independent of the ancestor, he could not aliene; nor could the lord aliene the seigniory without the consent of the tenant; afterward the right of the lord gradually underwent several variations, which tended to diminish the interest of the heir and the lord, and to increase that of the tenant. "The next step in favor of the tenant was to aliene without license, for which purpose a larger grant was necessary, i e., to him, his heirs, and assigns. This gave the standing right of alienations. (Bracton, 1. 2, c. 6, s. I, fol. 17.) So the tenant could aliene and change the escheat, and the lord was obliged to warrant such alienee. The only restriction on the tenant was, that he could not prejudice the lord by lessening the service reserved. (Bract., for., 23, b.) "The next privilege to the tenant was, that he might aliene where the grant was only to him and his heirs. 2 Inst., 66, gives the reason that such tenant was not to be restrained from alienation. It was against the nature and purity of an estate enfeoffed at common law. This was, in effect, only a right of alienation sans notice. "The next step affected the right of escheat, which was, not only to aliene, but to charge and encumber the feud; and the lord was to take it subject to such encumbrances. (Wright, Ten., 117; Spelm., 21, 23; Bract., 382, s. 8.) This power of encumbering was more prejudicial to the right of escheat than the power of alienation was; that only changed the chance, but by the encum brances, more or less, the escheat was in proportion defeated; however, it was still only subject to the acts of the tenant. "The lord's right was still further af fected by acts of Parliament and judicial determinations, which subjected the land not only to the acts of the tenant, but of the law on the tenant's account. Stat. Westm 2 subjected the moiety of the tenant's land to elegit; stats. Merchant and Staple (13 Ed. I., and 27 Ed. III.) affected the whole feud for the tenant's debt, even in the hands of the heir. It became also subject to the dower of the wife." (Per Sir T. Clarke, M. R., "The first variation was when the power of alienation, with leave of the lord, was introduced; then the heir no longer took independent of the ancestor, but what the ancestor pleased to leave him, and by descent from him. In Bracton's time, a doubt arose how the heir took; some thought he was co-enfeoffed with the ancestor, and that he took by 1 Eden, 191.) |