2. This formerly could not be done by a tenant, without license from his lord; nor 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 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 OF ALIENATION BY DEED. 1. In assurances by deed may be considered, I.. Its general nature. II. Its several 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 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; 6thly, 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, judg- ment of a court of justice 5. Of the several species of deeds, some serve to convey real property, some only to charge and discharge it.. 6. Deeds which serve to convey real property, or conveyances, are either by com- mon law or by statute. And, of conveyances by common law, some are original or primary, others derivatory or secondary 7. Original conveyances are, I. Feoffments. II. Gifts. III. Grants. IV. Leases. V. Exchanges. VI. Partitions. Derivative are, VII. Releases. VIII. Confirmations. 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 gift is properly the conveyance of lands in tail.. 10. A grant is the regular method, by common law, of conveying incorporeal he- 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, accord- ing to the regulations of the restraining and enabling statutes. 12. An exchange is the mutual conveyance of equal interests, the one in consid- 13. A partition is the division of an estate held in joint-tenancy, in coparcenary, or in common, between the respective tenants; so that each may hold his distinct part 14. A release is the discharge or conveyance of a man's right, in lands and tene- ments, 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 void- 325 16. A surrender is the yielding up of an estate for life, or years, to him that hath 18. A defeasance is a collateral deed, made at the same time with the original con- 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 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, 1. Obligations. II. Recognizances. III. Defeasances upon both.... 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 re- 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 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 ac- knowledged to be the right of one of the parties 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. 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, 353 8. A common recovery is by an actual or fictitious suit or action for land, brought 357-359 9. The force and effect of a recovery are to assure lands to the recoveror, by barring 361 10. The uses of a fine or recovery may be directed by, I. Deeds to lead such uses; 363 2. This is effected by, I. Surrender by the tenant into the hands of the lord to the 1. DEVISE is a disposition of lands and tenements contained in the last will and 2. This was not permitted by the common law, as it stood since the conquest; but was introduced by the statute law under Hen. VIII., since made more universal by the statute of tenures under Charles II., with the introduction of additional solemnities by the statute of frauds and perjuries in the same reign.. Page 375-376 3. The construction of all common assurances should be, I. Agreeable to the intention, II. To the words, of the parties. III. Made upon the entire deed. IV. Bearing strongest against the contractor. V. Conformable to law. VI. Rejecting the latter of two totally repugnant clauses in a deed, and the former in a will. VII. Most favorable in case of a devise.. 379-381 CHAPTER XXIV. OF THINGS PERSONAL. 1. THINGS personal are comprehended under the general name of chattels; which include whatever wants either the duration or the immobility attending things real 384 2. In these are to be considered, I. Their distribution. II. The property of them. III. The title to that property. 384-387 3. As to the distribution of chattels; they are, I. Chattels real. II. Chattels personal 386 4. Chattels real are such quantities of interest in things immovable as are short of the duration of freeholds; being limited to a time certain, beyond which they can not subsist. (See Ch. IX.) ... 386 5. Chattels personal are things movable, which may be transferred from place to place, together with the person of the owner. 387 CHAPTER XXV. OF PROPERTY IN THINGS PERSONAL. 1. PROPERTY in chattels personal is either in possession or in action. 2. Property in possession, where a man has the actual enjoyment of the thing, is, I. Absolute. II. Qualified 389 389 3. Absolute property is where a man has such an exclusive right in the thing that it can not cease to be his without his own act or default. 389 4. Qualified property is such as is not, in its nature, permanent; but may sometimes subsist, and at other times not subsist.. 391 5. This may arise, I. Where the subject is incapable of absolute ownership. II. From the peculiar circumstances of the owners... 391-396 6. Property in action is where a man hath not the actual occupation of the thing, but only a right to it, arising upon some contract, and recoverable by an action at law... 396 7. The property of chattels personal is liable to remainders, expectant on estates for life; to joint-tenancy; and to tenancy in common 398 CHAPTER XXVI. OF TITLE TO THINGS PERSONAL BY OCCUPANCY. 1. THE title to things personal may be acquired or lost by, I. Occupancy. II. Prerogative. III. Forfeiture. IV. Custom. V. Succession. VI. Marriage. VII. JudgVIII. Gift, or grant. IX. Contract. X. Bankruptcy. XI. Testament. XII. Administration... ment. 400 2. Occupancy still gives the first occupant a right to those few things which have no legal owner, or which are incapable of permanent ownership. Such are, I. Goods of alien enemies. II. Things found. III. The benefit of the elements. IV. Animals feræ naturæ. V. Emblements. VI. Things gained by accession; or, VII. By confusion. VIII. Literary property CHAPTER XXVII. OF TITLE BY PREROGATIVE AND FORFEITURE. 400-407 1. By prerogative is vested in the crown, or its grantees, the property of the royal revenue (see Book I., Ch. VIII.); and also the property of all game in the kingdom, with the right of pursuing and taking it 408-419 2. By forfeiture, for crimes and misdemeanors, the right of goods and chattels may be transferred from one man to another; either in part or totally.. .Page 420 3. Total forfeitures of goods arise from conviction of, I. Treason, and misprision thereof. II. Felony. III. Excusable homicide. IV. Outlawry for treason or felony. V. Flight. VI. Standing mute. VII. Assaults on a judge; and batteries, sitting the courts. VIII. Pramunire. IX. Pretended prophecies. X. Owling. XI. Residing abroad of artificers. XII. Challenges to fight for debts at play.. 421 CHAPTER XXVIII. OF TITLE BY CUSTOM. 1. By custom, obtaining in particular places, a right may be acquired in chattels; the most usual of which customs are those relating to, I. Heriots. II. Mortuaries. III. Heir-looms. 422 2. Heriots are either heriot-service, which differs little from a rent; or heriot-custom, which is a customary tribute of goods and chattels, payable to the lord of the fee on the decease of the owner of lands 422 3. Mortuaries are a customary gift, due to the minister in many parishes on the death of his parishioners. 425 4. Heir-looms are such personal chattels as descend by special custom to the heir, along with the inheritance of his ancestor 427 CHAPTER XXIX. OF TITLE BY SUCCESSION, MARRIAGE, AND JUDGMENT. 1. By succession the right of chattels is vested in corporations aggregate, and likewise in such corporations sole as are the heads and representatives of bodies aggregate... 430 2. By marriage the chattels real and personal of the wife are vested in the husband, in the same degree of property, and with the same powers, as the wife when sole had over them; provided he reduces them to possession.. 433 435 3. The wife also acquires, by marriage, a property in her paraphernalia 4. By judgment, consequent on a suit at law, a man may, in some cases, not only recover, but originally acquire, a right to personal property. As, I. To penalties recoverable by action popular. II. To damages. III. To costs of suit 436-439 CHAPTER XXX. OF TITLE BY GIFT, GRANT, AND CONTRACT. 1. A GIFT, or grant, is a voluntary conveyance of a chattel personal in possession, without any consideration or equivalent 440 2. A contract is an agreement, upon sufficient consideration, to do or not to do a particular thing; and by such contract any personal property (either in possession or in action) may be transferred.. 442 3. Contracts may be either express or implied; either executed or executory 443 • 4. The consideration of contracts is, I. A good consideration. II. A valuable consideration; which is, 1. Do, ut des. 2. Facio, ut facias. 3. Facio, ut des. 4. Do, ut facias 444, 445 5. The most usual species of personal contracts are, I. Sale or exchange. II. Bailment. III. Hiring or borrowing. IV. Debt.. 446 7. Bailment is the delivery of goods in trust, upon a contract, express or implied, that the trust shall be faithfully performed by the bailee.. 6. Sale or exchange is a transmutation of property from one man to another, in consideration of some recompense in value 446 451 8. Hiring or borrowing is a contract, whereby the possession of chattels is transferred for a particular time, on condition that the identical goods (or, sometimes, their value) be restored at the time appointed, together with (in case of hiring) a stipend or price for the use 453 9. This price, being calculated to answer the hazard, as well as inconvenience of lending, gives birth to the doctrine of interest or usury upon loans; and, consequently, to the doctrine of bottomry or respondentia, and insurance. 453-464 10. Debt is any contract whereby a certain sum of money becomes due to the creditor. This is, I. A debt of record. II. A debt upon special contract. III. A debt upon simple contract; which last includes paper credit, or bills of exchange, and promissory notes .... Page 464-470 CHAPTER XXXI. OF TITLE BY BANKRUPTCY. 1. BANKRUPTCY (as defined in Ch. XVIII.) is the act of becoming a bankrupt 471 2. Herein may be considered, I. Who may become a bankrupt. II. The acts whereby he may become a bankrupt. III. The proceedings on a commission of bankrupt. IV. How his property is transferred thereby 471 3. Persons of full age using the trade of merchandise, by buying and selling, and seeking their livelihood thereby, are liable to become bankrupts, for debts of a sufficient amount. 473 4. A trader who endeavors to avoid his creditors, or evade their just demands, by any of the ways specified in the several statutes of bankruptcy, doth thereby commit a bankruptcy.. 478 5. The proceedings on a commission of bankrupt, so far as they affect the bankrupt himself, are principally by, I. Petition. II. Commission. III. Declaration of bankruptcy. IV. Choice of assignees. V. The bankrupt's surrender. VI. His examination. VII. His discovery. VIII. His certificate. IX. His allowance. X. His indemnity... 479-485 6. The property of a bankrupt's personal estate is, immediately upon the act of bankruptcy, vested by construction of law in the assignees; and they, when they have collected, distribute the whole by equal dividends among all the creditors.. 485-488 CHAPTER XXXII. OF TITLE BY TESTAMENT AND ADMINISTRATION. 1. CONCERNING testaments and administrations, considered jointly, are to be observed, I. Their original and antiquity. II. Who may make a testament. III. Its nature and incidents. IV. What are executors and administrators. V. Their office and duty. 489 2. Testaments have subsisted in England immemorially, whereby the deceased was at liberty to dispose of his personal estate, reserving anciently to his wife and children their reasonable part of his effects. 491 3. The goods of intestates belonged anciently to the king, who granted them to the prelates, to be disposed in pious uses; but, on their abuse of this trust, in the times of popery, the legislature compelled them to delegate their power to administrators expressly provided by law.. 493 4. All persons may make a testament unless disabled by, I. Want of discretion. II. Want of free will. III. Criminal conduct. 496, 497 5. Testaments are the legal declaration of a man's intentions, which he wills to be performed after his death. These are, I. Written. II. Nuncupative ... 499, 500 6. An executor is he to whom a man by his will commits the execution thereof 502 7. Administrators are, I. Durante minore ætate of an infant executor or administrator; or durante absentiá; or pendente lite. II. Cum testamento annexo; when no executor is named, or the executor refuses to act. III. General administrators; in pursuance of the statutes of Edward III. and Henry VIII. IV. Administrators de bonis non; when a former executor or administrator dies without completing his trust 503-507 8. The office and duty of executors (and, in many points, of administrators also) are, I. To bury the deceased. II. To prove the will, or take out administration. III. To make an inventory. IV. To collect the goods and chattels. V. To pay debts; observing the rules of priority. VI. To pay legacies, either general or specific; if they be vested, and not lapsed. VII. To distribute the undevised surplus, according to the statute of distributions... 508-520 |