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by, the person making the disposition ly to the object of the new disposition, at the time of his making the same; and if he is a purchaser for valuable consid. also as against all persons (including the eration, without notice of the prior es king's most excellent majesty, his heirs tate. and successors) whose estates are to take Sect. 39 enacts, that if a base fee and effect after the determination, or in de- the remainder or reversion in fee in the feasance of any such estate-tail; saving same lands shall

, at any time before or always the rights of all persons in re- after the passing of the act, be united in spect of estates prior to the estate-tail in the same person, and at any time after respect of which such disposition shall the passing of the act there shall be no be made, and the rights of all other per- intermediate state between them, the sons, except those against whom such base fee shall not merge, but be ipso disposition is by this act authorized to facto enlarged into as large an estate as be made."

the tenant in tail (with the consent of By sect. 19, after the 31st of Dec., 1833, the protector, if any) might have created “in every case in which an estate-tail under the act, if such remainder or rein any lands shall have been barred and version had been vested in any other converted into a base fee (either before person. The difference between en

after that day), the person who, largement and merger is, that when the if such estate-tail had not been barred, base fee is enlarged, the enlarged estate would have been actual tenant in tail of is subject to any prior charges on the the same lands, shall have full power to base fee, and not to any on the reverdispose of such lands as against all per. sion; but if the base fee had merged, sons (including the king's most excellent the charges on it would have failed, and majesty, his heirs and successors) whose those on the reversion would have come estates are to take effect after the de- into force. termination or in defeasance of the base By sect. 21, a disposition under the fee into which the estate-tail shall have act by way of mortgage, or for any othbeen converted, so as to enlarge the base er limited purpose, shall, to the extent fee into a fee-simple absolute; saving of the estate created, be an absolute bar always the rights of all persons in re- in equity as well as at law against all spect of estates prior to the estate-tail persons against whom such disposition which shall have been converted into a may be made under the act, notwithbase fee, and the rights of all other per- standing a contrary intention expressed sons, except those against whom such in the deed. Provided that if the esdisposition is by this act authorized to tate created be only pour autre vie, or be made.”

for years absolute or determinable, or These enabling clauses appear to go only an interest, charge, lien, or encumbeyond what could have been done un- brance, without any term or greater esder the old law; for formerly, if A., ten- tate by way of security, then such disant in tail, with remainders over, had position shall be a bar only so far as may levied a fine to the use of B. in tail, with be necessary to give full effect to such remainders over, thereby creating estates charge, &c., notwithstanding any exdefeasible by the failure of issue under pression of a contrary intention. the original entail, a recovery, suffered We now come to the restraining and by B., would have barred the estates qualifying clauses. No disposition uncreated by A.'s fine, but would not have der the act by a woman tenant in tail, barred the remainders expectant on the ex provisione viri, within the 11 Hen. failure of issue of A.; and generally a VII., c. 20, under a settlement made berecovery, suffered by a tenant in tail, fore August 28, 1833, is to be made did not necessarily confer any greater without the same assent as is required or less defeasible estate than that which by that statute to her fine and recovery the donor of the entail had. His recov- (but, except as to such settlements, that ery barred executory limitations annex- statute is repealed); (s. 16, 17); and the ed to his own estate, but not those an- power given by the act is not to extend nexed to the estate of his donor. (1 to expectant heirs in tail, or to tenants in Prest. Conv., 2.) But under this act the tail after possibility of issue extinct, or tenant in tail's disposition is effectual to tenants in tail who, by the 34 & 35 against all persons whose estates are to Hen. VIII., c. 20, “An Act to embar take effect either after the determination, feigned Recovery of Lands wherein the or in defeasance of the estate-tail. King is Reversioner," or by any other

Sect. 38 gives to the disposition of a act, are restrained from barring their estenant in tail under the act the effect of tates-tail. (Sects. 18, 20.) confirming any prior voidable estate cre- A tenant in tail could not have sufferated by him in favor of a purchaser for ed a recovery if the legal freehold was valuable consideration; but not adverse- outstanding in a third person as tenant

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for life or for a greater estate, without mainder), and, consequently, by the opthe concurrence of such person in be- eration of the 33d section, to be noticed coming or in creating the tenant to the presently, to confer the office of protectpræcipe or writ of entry; and this cir- or on the Court of Chancery. (But see cumstance operated as a material pro- 1 Hayes's Conv., 173, contrà.) tection of family settlements, under By sect. 28, where under any settle. which the father was usually tenant for ment there shall be more than one estate life, with remainder to his son in tail; prior to an estate-tail, and one of them and the concurrence of the two parties shall, by either of the last preceding in a recovery was generally founded on clauses, be excluded from conferring the an agreement to resettle the estates, so protectorship, then the person (if any) as to give the son an estate for life (sub- who, if such estate did not exist, would ject either to a previous life estate or a be protector, shall be protector. It is rent charge in favor of his father), with not easy to see how this clause would remainder to his first and other sons in operate in the case of a limitation to A. tail; and thus estates remained in fam- for the life of B., in trust for B., remainilies for many centuries. This effect, der to C. in tail

. The word estate, by which was formerly an accidental con- the interpretation clause, includes equisequence from the form of real actions, table estates, so that here we have two is now secured in a modified shape by estates prior to the entail; and A., beprovisions of which it is the express ob- ing a bare trustee, can not be protector; ject.

but can it be said that B.'s estate would By the 22d and following sections, if exist if A.'s estate were out of the way? at the time when there shall be a ten- It would, if A. were, in breach of trust, ant in tail of lands under a settlement, to put an end to his estate (2 P. Wms., there shall be subsisting in the same 181); but non constat that it would, if lands or any of them, under the same A.'s estate had never been created. The settlement, any estate for years determin- best opinion, however, is that B. would able on the dropping of a life or lives, or be protector. (See 2 Sugd. Vend. & any greater estate, not being an estate Purch., 295; 1 Hayes's Conv., 174.) for years (including, therefore, an estate- Sect. 32 authorizes any settler entailtail, and including estates merely restor- ing lands by the settlement to appoint ed or confirmed by the settlement), pri- not more than three persons in esse, not or to the estate-tail, the person who shall being aliens, to be protectors of the setbe owner of such prior estate, or the tlement in lieu of the person who would first of such prior estates, if more than otherwise have been protector, either one, then subsisting under the settle- for all or any part of the time during ment, or who would have been such own- which such person might have continer if no absolute disposition thereof had ued protector, and, by means of a powbeen made, shall be protector of the set- er to be inserted in such settlement, to tlement of the lands included in such perpetuate, during the whole or any part prior estate, notwithstanding any charg- of such period, the protectorship in any es upon or alienation of such prior es- person or persons in esse whom the dotate." If there be several owners of such nee of the power shall appoint in the estate under the settlement, each owner place of any protector or protectors dyis to be protector in respect of the undi- ing or by deed relinquishing the protectvided share over which the settlement orship; provided that there be no more gave him power. If a married woman than three protectors at one time, and be protector, she and her husband shall that every deed of appointment of a probe protector, unless the estate was set- tector under a power in a settlement, or tled to her separate use.

of relinquishment of protectorship, be Sect. 26 excludes lessees at a rent void unless enrolled in Chancery within from the protectorship; and sect. 27 en- six months after execution. If there be no acts that no woman, in respect of her protector especially appointed, the perdower, and (except in the case herein- son qualified by estate is to be protector. after provided for of a bare trustee un- In case of the lunacy of a protector, der a settlement made on or before the the lord chancellor, or other person or 31st of December, 1833) no bare trustee, persons having like jurisdiction in lunaheir, executor, administrator, or assign, cy, shall be protector; and in case it is in respect of any estate taken by him as not known whether the protector be such bare trustee, &c., shall be the pro- living or dead, or in case the protector tector of a settlement. This clause ap- is an infant, or convict of treason or fel pears to exclude the heir of a tenant in ony, or the settler shall, in the settletail from the protectorship of a subse- ment, have declared that the person who quent estate-tail in remainder (although would be qualified by estate shall not such heir is capable of barring such re- be protector, or shall not have appoint

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ed a substitute, or from any other cause a distinct deed, is to be considered as there shall be no protector, and xet a absolute and unqualified, unless by the sufficiently qualifying estate be in ex- deed it is confined to a particular assur istence, the Court of Chancery shall be ance. protector.

Entails of copyholds are to be barred Having instituted the office of protect- in the same manner as those of freeholds, or, the act proceeds to define its func- except that, if the estate is legal, the astions. By sect. 34, the consent of the surance must be by surrender; and, if protector, if there be any, is requisite to it is equitable, may be either by surrenenable an actual tenant in tail to dispose der or by a deed, to be entered on the of the lands to the full extent authorized court rolls. The consent of the protectby the former part of the act Without or may be given either in person to the such consent, a disposition under the act lord or his representative taking the surby the tenant in tail shall be good only render, who is to make a memorandum against all persons who by force of any to that effect, to be signed by the proestate-tail

, which shall be vested in or tector, and entered on the rolls, or by might be claimed by, or which, but for deed of even or anterior date, to be ensome previous act or defect, would have tered on the rolls. If the tenant in tail been vested in or might have been claim- make two conflicting dispositions by ed by the person making the disposition, deed, that which is first entered on the at the time of his making the same, shall rolls (being a conveyance for a valuable claim the lands entailed. And, by sect. consideration) shall have priority; 35, when an estate-tail shall have been After providing for the disposal of es converted into a base fee, the consent of tates-tail belonging to bankrupts, the act the protector, if any, shall be requisite proceeds to the subject of entailed monto enable the person who would have ey. When money is subject to a trust to been tenant of the estate-tail if the same be invested in land, equity, in pursuance had not been barred, to exercise the of its maxim of considering that as done power of disposition under the act. which ought to be done, regards the The 36th and 37th sections exclude the money as being already converted into protector from control or responsibility, land ; and, where the land to be purin equity or otherwise, in the exercise chased was directed to be entailed, treatof his privilege.

ed the money as if it were already enThe 40th section points out the form tailed lands; but with this inconvenient of assurance to be adopted, enacting, result, that, as the lands were merely " that every disposition of lands under imaginary, no recovery could be sufferthis act by a tenant in tail thereof shall ed for barring the entail. Where, inbe affected by some one of the assuran- deed, under the settlement, a person ces (not being a will) by which such was entitled as tenant in tail in posses. tenant in tail could have made the dis- sion, with the immediate remainder or position if his estate were even an estate reversion in fee in himself, he was entiin fee-simple absolute.” But such as- tled to receive the money; but in every surance must be by deed ; and, in the other case the only means of reaching case of a married woman, be made with the money was to get up, with the aid her husband's concurrence, and be ac- of a friend, a fictitious purchase and setknowledged in the manner required in tlement of some estate, followed by a another part of the act. No dispositions recovery to the use of the feigned vend. resting in contract merely are to have or. The statutes 39 & 40 Geo. III., c. any operation under the act.

56, and 7 Geo. IV., c. 45, substituted for By sect. 41, the disentailing assurance this process the often equally expensive (unless it be a lease for twenty-one years, course of a petition to the Court of or less, in possession, or to take effect Chancery. These acts are repealed; within a year, and at a rent of not less and now lands, subject to a trust for than five sixths of a rack-rent), is re- sale and reinvestment of the proceeds quired to be enrolled in Chancery with- in the purchase of other lands to be enin six calendar months; and a bargain tailed, and money directed to be laid and sale enrolled within six calendar out in purchasing lands to be entailed, months is declared to be effectual under are to be treated as being the actual the act, notwithstanding the Statute of lands to be entailed, and the entail is to Enrollments.

be barred in the same manner; freeThe consent of the protector is to be holds, leaseholds, and money, subject to given on or before the making of the as- such trusts, being regarded as freeholds, surance, and either by the disentailing and copyholds as if they were the very deed itself, or by a distinct deed of con- copyholds purchased and settled. But sent, which must be enrolled : such con- leaseholds for years, and money, are to sent is to be irrevocable, and if made by be treated, as to the person in whose

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favor the disposition is made, as person- right, may be seized for an estate at law, al estate ; and the deed of disposition in any case where the same object could thereof, being an assignment, enrolled in have been effected, with the husband's Chancery within six calendar months.

concurrence, by a customary surrender.

But a surrender of a married woman's Having thus furnished a substitute for equitable interest in copyholds, taken recoveries, the act next provides for the with the proper examination, as if the passing of estates and interests of mar- estate had been legal, shall be effectual ried women, the principal function in to pass her interest. modern times of fines.

Every deed or disposition made by a Sect. 77 enacts, that it shall be law- married woman under the act (except ful for every married woman, in every a deed of consent as protector) must be case except that of being tenant in tail, produced and acknowledged by her befor which the act has already provided, fore a judge or a master in Chancery, or by deed, to dispose of lands of any ten, two special commissioners, to be apure, and money subject to be invested pointed in manner directed by the act. in the purchase of lands, and also to dis- The mode of taking such acknowledgpose of, release, surrender, or extinguish ments, and the custody of the certifian estate, which she alone, or she and cates of acknowledgment which the act her husband in her right, may have in directs to be filed, &c., are placed under any such lands or money, and also to re- the direction of the chief justice of the lease or extinguish any power over such Common Pleas. lands or money, as effectually as if she In the following session the provisions were a feme-sole, provided that the hus- of this act were extended to Ireland by band (except in certain cases) concur in the stat. 4 & 5 Will. IV., c. 92, which, the deed; provided, also, that the act with some few variations, is a transcript shall not extend to copyholds, of which of its predecessor. a married woman, or her husband in her Vol. II.EE

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CHAPTER XXII.

OF ALIENATION BY SPECIAL CUSTOM.

Alienation We are next to consider assurances by special custom, oband batoma. taining only in particular places, and relative only to a particary estates. ular species of real property. This, therefore, is a very narrow

, title, being confined to copyhold lands, and such customary estates as are holden in ancient demesne, or in manors of a similar nature; which, being of a very peculiar kind, and originally no more than tenancies in pure or privileged villenage, were never alienable by deed;' for, as that might tend to defeat the lord of his seigniory, it is therefore a forfeiture of a copyhold.a Nor are they transferable by matter of record, even in the king's court, but only in the court baron of the lord. The method of doing this is generally by surrender; though in some manors, by special custom, recoveries may be suffered of copyholds ;b* but these differing in nothing material from recoveries of free land, save only that they are not suffered in the king's courts, but in the court baron of the manor, I shall confine myself to conveyances by surrender and their consequences.

Surrender, sursumredditio, is the yielding up of the estate by the tenant into the hands of the lord, for such purposes as in the surrender are expressed. As, it may be, to the use and

behoof of A. and his heirs; to the use of his own will, and the [366] like. The process, in most manors, is that the tenant comes to

the steward, either in court (or, if the custom permits, out of court"), or else to two customary tenants of the same manor, Litt., § 74.

b Moor, 637.

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(1) What is here said must be under- ard or deputy-steward, may now hold a stood of the legal title to copyholds; a customary court, in the absence of any merely equitable interest in a copyhold customary tenants, and though there be will pass by any writing signed by the at the time no customary tenants hold

ing by copy. But proclamations at any

court so holden are declared inoperative (2) This is true, because real actions, against persons absent, unless notified to which alone were conclusive as to the them within a month. (4 & 5 Vict., c. title, could only be brought to recover 35, 6. 86.) copyholds in the lord's court. But ejectment is commonly brought in the supe- (5) The surrender may be taken ei rior courts to recover the possession of ther by the lord or his steward, not only copyholds. (See 1 Jac. & W., 549.) out of court, but out of the manor, for it

may be convenient, and can be prejudi. (3) Vide ante, p. 364, (n.).

cial to no one. (1 Salk., 184.)

tom that the steward shall not take sur(4) The lord of a manor, or the stew. renders out of the manor is void.” (Per

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